When we say that everyone is entitled to counsel, what we really mean is that everyone who can afford a lawyer can hire one and everyone who is this poor will be provided one. Everyone else is on their own. So the floor – the income eligibility – is the arbitrary cutoff which determines who gets a public defender and who doesn’t. As I’ve written before, it’s an imperfect system with a ridiculously low threshold for cutoff: 125% of the federal poverty level which amounts to slightly more than absolute poverty. And they’re guidelines, which means that the determination is left to individual offices to make. And offices are staffed by humans and humans make mistakes. Just ask Gene Newland:
For nearly two years, Gene Newland told a judge that he could not afford a private attorney to represent him following a 2007 arrest for sexual assault and risk of injury to a minor. “I’m trying to come up with the money,” he said in one courtroom appearance. “I’m barely making ends meet as it is right now. Believe me, if I could afford a lawyer, I would.”
Newland had been denied access to a public defender in Danielson because, someone decided, he had too many assets. He owned a house and worked two jobs, though he lost one of them after he was charged with the crime.
Just so we know what’s at stake, both sexual assault and risk of injury are Class B felonies, each carrying a maximum of 20 years in jail for a grand total of 40 years’ incarceration.
The problem with making such a simplistic determination that he has a house and a job and is therefore ineligible is that it fails to take into account the reality of hiring private counsel for serious charges. The house isn’t liquid and a job is a job even if it pays nothing:
Newland was earning $350 a week at the time of his criminal trial, had no funds in the bank and that he was unable to make payments on his $168,000 mortgage.
Despite this, Newland was denied a public defender and then no one told him that the decision could be appealed to the trial judge, who, according to our statute, makes the final appointment of counsel. In fact, when faced with an unrepresented individual facing serious jail time, the court made Newland state that he wanted to proceed without counsel, instead of acknowledging that maybe the man couldn’t afford to hire his own attorney.
But don’t be fooled. Newland didn’t do this voluntarily. Who, in their right mind, would?
When [Judge] Robaina asked Newland if he was sure he wanted to waive his right to an attorney before proceeding to trial, Newland replied: “I have no other choice.” He then stated that he had neither the training or skill to represent himself. He acknowledged that he had been arrested 23 months earlier, and he knew that he had to be tried sometime.
It may seem as if that’s a long time to save up money and hire an attorney, but that’s only if you don’t factor in any other expenditure to live. Rent, food, insurance, clothing, gasoline, taxes can all add up and even sizeable incomes can disappear with nothing left over to pay attorneys $5,000-$25,000.
Newland fell through the cracks and remained there. He was tried – representing himself in a case involving allegations that give even the most seasoned defense attorneys nightmares – and convicted. Then he was sentenced to 10 years in jail.
It’s been 4 years since he was sentenced to prison after being tried without an attorney, but a judge just reversed his conviction in a habeas corpus proceeding, holding that the State violated his right to counsel.
Attorney Jim Ruane, who represented Newland in his habeas wondered:
“How many other trials statewide did people go unrepresented, and was that a voluntary issue or forced upon them?” said Ruane. “I was practicing in 2009 and I had no idea this was going on in a courthouse. So it’s possible other people have slipped through the cracks.”
One would hope that this doesn’t happen often or even rarely; that the system is designed to pick up these oddities and that no judge or prosecutor would want a trial to proceed on some of the most serious charges with a man representing himself not because he wants to, but because he claims he can’t afford a lawyer.
The reality, though, is that it happens. I’ve dealt with similar situations and I know others who have too: clients who are appointed lawyers in one court but are deemed ineligible in another, merely because the people making the determination have different opinions on what qualifies as income.
While I don’t think any of this was ill-intentioned or malicious, the fact remains that a man was convicted without a lawyer and remains in jail 4 years later.
I don’t know if Newland is “truly” guilty or not, but I have no faith in a verdict that was obtained without the assistance of competent counsel and neither should you. The system is about fairness and protection of individual rights, not strict adherence to imaginary and arbitrary guidelines that bring about the opposite result.
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.