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Many Denied Right to Counsel, Group Says

The Nation

A defense attorneys' panel is launching a committee to address the lack of legal help promised by the 1963 Gideon ruling.

July 13, 2004|Henry Weinstein | Times Staff Writer

Four decades after the Supreme Court's landmark decision mandating that poor defendants in criminal cases are entitled to legal representation, a group of prominent American lawyers says the promise of that ruling remains unfulfilled.

"There are still defendants who have not been provided competent counsel -- or they have no real representation at all," the Constitution Project and the National Legal Aid and Defender Assn. said late last month in announcing formation of the National Committee on the Right to Counsel to address the issue.

"Even though state and local governments are responsible for ensuring adequate counsel for defendants who cannot afford to hire their own lawyers, many people ... are nonetheless still convicted and imprisoned each year without any legal representation" or with an inadequate one, the Washington-based group said.

In 1963, the U.S. Supreme Court ruled in the case of Clarence Earl Gideon that the right to counsel in criminal cases was necessary to achieve a fair system of justice.

In his initial trial, Gideon represented himself because he could not afford an attorney. After his conviction was overturned, he was retried and his appointed attorney discovered new witnesses and won an acquittal.

Former Vice President Walter F. Mondale is serving as the newly formed committee's honorary chairman. In 1963, Mondale, then Minnesota's attorney general, organized 22 state attorneys general to file a friend of the court brief in favor of Gideon's right to a lawyer.

Gideon's handwritten petition to the Supreme Court is now on display at the National Constitution Center in Philadelphia.

Many around the country argue today that the promise of Gideon remains unfulfilled, even if an attorney has been appointed. The attorney may be handling hundreds of other cases, have no expertise in criminal law or have no funds to investigate facts or get DNA tests.

Four years ago, the Justice Department declared that public defense in the U.S. is in a "chronic state of crisis."

Rhoda Billings, former chief justice of the North Carolina Supreme Court and one of the three co-chairs of the new committee, said examples of problems abound.

"In some instances across the country, courts have upheld convictions even when the defendants were represented by lawyers who slept through portions of the trial or were drunk or under the influence of drugs," she said. "That level of performance is not what the constitutional right to counsel means."

The other committee co-chairs are Robert Johnson, a former president of the National District Attorneys Assn., and Timothy K. Lewis, who served a decade on the federal appeals court in Philadelphia.

"The balance is tipped too heavily in favor of the government when it comes to prosecution of persons without means who can't afford private counsel," said Lewis. "We really need to take a look at that. Who are we as a people if we not giving adequate and equal representation to those who can't afford a lawyer?"

Lewis also said that although there were many fine public defenders, most of them "carry a staggering caseload."

Among other members of the committee are Susan Herman of the National Center for Victims of Crime; Larry D. Thompson, senior fellow at the Brookings Institution; and Hubert Williams of the Police Foundation.

In the precedent-setting case, Gideon was charged with breaking and entering a poolroom with intent to steal, a felony under Florida law. Having no money, Gideon asked that a lawyer be appointed to represent him. His trial judge denied the request. Gideon conducted his own defense and was convicted. The verdict was upheld by the Florida Supreme Court.

Gideon then submitted a handwritten petition to the U.S. Supreme Court, which granted him a hearing and appointed prominent Washington attorney Abe Fortas, who later served on the high court, to represent him.

The Supreme Court ruled unanimously in Gideon's favor. Writing for the court, Justice Hugo Black said that "Gideon conducted his defense about as well as could be expected from a layman." He noted that 31 years earlier, the high court had ruled that there was right to counsel at every stage of a death penalty case, but in 1942 the Supreme Court said there was not a fundamental right to counsel in other criminal cases.

The high court overturned that decision in the Gideon case, saying it was restoring "constitutional principles established to achieve a fair system of justice."

"Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," Black wrote. He noted that "governments, both state and federal, quite properly spend vast sums of money" to prosecute crimes and that defendants who had the means hired the best lawyers they could.

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