A destitute four-time loser sitting in a Florida prison, Clarence
Earl Gideon was about as powerless as a person could be.
Gideon had been arrested for breaking into a Florida pool room and
charged with a felony. Before trial, he demanded a lawyer, saying it was
his constitutional right. The judge denied his request. Gideon then
represented himself, was convicted and sentenced to five years in
prison.
In his prison cell, Gideon scrawled a hand-written appeal and sent it
to the U.S. Supreme Court. On March 18, 1963, in the much heralded case
of Gideon v. Wainwright, the U.S. Supreme Court established the right to
a lawyer for indigent defendants charged with crimes.
"In our adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him," Justice Hugo Black wrote. "This
seems to us to be an obvious truth. . . . The right of one charged with
a crime to counsel may not be deemed fundamental and essential to fair
trials in some countries, but it is in ours."
Across the nation last week, lawyers and judges got together to
observe the 40th anniversary of Gideon's landmark case. But many
lamented on another fundamental truth: Although there have been steady
gains in some areas of legal representation for the poor, the promise of
Gideon remains largely unfulfilled today.
In Georgia, indigent defendants are still herded through the criminal
justice system without the benefit of a lawyer to assist them. In
counties such as Coweta just southwest of Atlanta or Crisp in South
Georgia, judges routinely instruct lawyerless defendants to talk
directly with prosecutors and resolve their cases.
Across the state, thousands of poor defendants are represented by
overwhelmed, underfunded attorneys unable to investigate their cases or
spend any time on them. Many attorneys do little more than process their
clients through court.
"We see criminal defendants languishing in jail for days, weeks and
even months at a time without even knowing who their appointed lawyer
is, much less getting a visit from them," said John Cole Vodicka, whose
Americus-based Prison & Jail Project monitors courts in southwest
Georgia.
In a series of stories over the past year, The Atlanta
Journal-Constitution reported on the failings of the state system. This
past December, after a two-year study, a Georgia Supreme Court
commission concluded that Georgia is failing to meet its constitutional
obligation to protect the rights of poor criminal defendants.
State legislators now must decide whether to reform Georgia's
fragmented system. Two competing proposals -- one that calls for
electing public defenders and another that would establish a statewide
board with the power to enforce new performance guidelines -- are being
debated and considered.
But Georgia is far from being alone in struggling to fulfill Gideon's
mandate.
· In Oregon, there are so few funds for the indigent defense system
that thousands of low-level felony and nonviolent misdemeanor cases are
being dismissed because there are no lawyers available to represent the
indigent defendants.
· In Riverside County, Calif., 12,000 defendants a year have pleaded
guilty without ever talking to a lawyer. This has happened in Wisconsin
in more than 11,000 cases a year.
· In Florida, some public defenders in Orange and Osceola counties
handle an estimated 750 felony cases a year, more than five times the
recommended caseload, said Bob Wesley, an elected public defender in
Orlando.
· In Mississippi, a cash-strapped county has sued the state,
contending it is the state's responsibility to fund indigent defense.
The closely watched case goes to trial in late April.
Lawrence Goldman, president of the National Association of Criminal
Defense Lawyers, said litigation like that in Mississippi should be
brought with greater frequency. Because indigent defense is such an
unpopular cause with no political constituency, elected officials cannot
be counted on to fully fund or improve laggard programs.
"We should do what we do best -- litigate," the New York lawyer said.
"We should challenge constitutionally inadequate funding. . . . We can
speak loudly but, more important, we must carry a big stick and use it
when necessary."
The Atlanta-based Southern Center for Human Rights, joined by a
number of prominent Atlanta lawyers, has filed four lawsuits against
county programs in Georgia. Another lawsuit is expected this week
against the four-county Cordele Judicial Circuit.
Advocates for reforming indigent defense systems urge the courts to
step in and demand constitutionally effective representation of the
poor.
In late November, the Georgia Court of Appeals issued such a
decision, throwing out a guilty plea entered by a Paulding County man
accused of drunken driving and colliding head-on with a car carrying
three passengers.
The lawyer assigned to the case had represented more than 400
indigent clients and had never once taken a case to a jury trial. The
court said the lawyer's work in the drunken driving case "was so
deficient that {it} effectively equaled no assistance at all."
Two years ago, the full 5th U.S. Circuit Court of Appeals in New
Orleans ordered a new trial for Calvin Burdine whose lawyer slept
through prolonged parts of the case, during which Burdine was sentenced
to death.
But Atlanta lawyer Robert McGlasson, who represented Burdine on
appeal, expressed dismay that a three-judge panel had earlier upheld the
sleeping lawyer case and that five of the court's 14 judges dissented in
the final ruling. He noted that the courts and Congress have erected a
labyrinth of barriers to thwart criminal defendants from obtaining
relief for violations of fundamental rights.
"The inexplicable result is where five appellate court judges can
reach the conclusion that the Sixth Amendment's right to counsel doesn't
mean that the lawyer has to be awake," McGlasson said.
At the time of Gideon's case 40 years ago, the U.S. Supreme Court was
looking for an appeal it could use as a vehicle toward establishing a
nationwide right to counsel.
After agreeing to hear the case, the court appointed Abe Fortas, who
would later become a U.S. Supreme Court justice, to represent Gideon.
"It's difficult to recapture the spirit of idealism that infected us
at the time," said Washington attorney Abe Krash, who helped the
now-deceased Fortas prepare Gideon's appeal.
"Unfortunately, some things were not apparent to us at that time,"
Krash told a Gideon symposium last week at Georgetown University Law
Center in Washington. "It's not enough to say you're entitled to a
lawyer. You need to have a competent lawyer, one that has to be provided
adequate funds to retain experts and investigators to conduct an
adequate defense."
Perhaps, Krash added, the goal of having well funded public defender
programs in every jurisdiction will be realized before the 50th
anniversary of the landmark Gideon v. Wainwright ruling.
