Right To Counsel

Of all of the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.            - United States v. Cronic, 466 U.S. 648, 654 (1984)
 
The law is a system that protects everybody who can afford to hire a good lawyer.   - Mark Twain
 
The legal system is so complex and contains so many procedural traps that a layperson accused of a crime can rarely navigate it alone. Those accused of crimes rely upon lawyers to protect all of their legal rights; thoroughly investigate the facts; test the prosecution’s case through cross-examination of witnesses and other means; produce evidence that casts doubt upon guilt; and, for those found guilty, present evidence to be considered in mitigation with regard to punishment.
 
Justice Hugo Black stated for the Supreme Court in Griffin v. Illinois, 351 U.S. 12 (1956), “[T]here can be no equal justice where the kind of trial a [person] gets depends on the amount of money he [or she] has.” However, in the criminal courts in the United States today, the kind of justice people get often depends on how much money they have. Often it seems that it is better to be rich and guilty than to be poor and innocent. Many poor people accused of crimes are not provided with lawyers who have the time, expertise, resources, and support necessary to represent them adequately.
 
The right to an attorney was established by the Supreme Court in Gideon v. Wainwright in 1963, but inadequate legal representation for the poor continues to be the norm rather than the exception in too many jurisdictions throughout the country. Although a person accused of a crime must be provided a lawyer at trial, many states still lack comprehensive and adequate programs for providing representation. People who cannot afford a lawyer are often processed through courts in assembly-line fashion in violation of this fundamental right.
 
In Georgia, for example. For years after Gideon was decided, Georgia left the responsibility and cost for indigent defense to each of its 159 counties. As a result, the method of providing such representation varied greatly from county to county. Many counties conscripted lawyers to handle criminal cases. Every member of the bar was compelled to accept an indigent criminal case – with or without compensation, depending upon the jurisdiction – when his or her turn came. Other counties contracted with attorneys, often selecting lawyers on the basis of the lowest bid for handling the cases of poor people accused of crimes. Other counties appointed willing lawyers and paid them by the case or by the hour at rates far below what lawyers were paid for other work. Only 21 counties employed public defender offices composed of full-time, salaried attorneys specializing in the representation of poor people accused of crimes.
 
A common feature of these haphazard and underfunded approaches was deficient representation. The vice president of the Georgia Trial Lawyers Association described in 1985 the “the mirror test” used to determine whether a defendant was receiving adequate counsel: “You put a mirror under the court-appointed lawyer’s nose, and if the mirror clouds up, that's adequate counsel.”
 
Georgia did not create a state-wide public defender program until 2003; it did not pass legislation funding it until 2004; and the program did not begin operating until 2005. While an improvement over the fragmented non-system that existed before it, the new system has in some cases failed completely to provide representation to some people accused of crimes and has provided inadequate representation to many others. Public defenders carry crushing caseloads, lack the investigative and expert assistance they need to represent their clients effectively, and are pressured to represent defendants with conflicting interests. Some capital cases have gone without funding for counsel, investigation, and experts for years, making a timely investigation and a fair trial impossible.
 
The Georgia Supreme Court has responded to this denial of counsel by acceptance. It sanctioned and encouraged the interruption of ongoing attorney-client relationships in a search for cheaper lawyers when the state was unable to meet its obligation to pay for representation in the capital cases of Phan v. State and Weis v. State. Hundreds of defendants in felony cases have not had any representation – some in pre-trial and others on motions for new trial or appeal. Fixed-fee contracts have increasingly been used to provide only nominal representation to many other defendants.
 
All three branches of Georgia’s government have failed in their constitutional and moral responsibility to insure the poor people accused of crimes are effectively represented by competent lawyers, and have their guilt or innocence – and in some cases, whether they will live or die – determined in a “reliable adversarial testing process.” But other states, such as Alabama, do not even have a public defender system.
 
The states that sentence the most people to death and carry out the most executions – Texas, Alabama, Georgia, Florida, Oklahoma and others (and the jurisdictions within those states which send the most people to death row) – have not historically provided competent counsel to people facing the death penalty. Those accused were often assigned incompetent lawyers who offered little or no resistance as their clients were swiftly dispatched to death row. There have been capital cases in which the lawyers appointed to represent the accused have failed to investigate the facts of the crime or the backgrounds of their clients, but have still been found to be sufficient counsel under the Supreme Court's highly deferential standard for effective counsel adopted in Strickland v. Washington, 466 U.S. 668 (1984).
 
Death sentences have even been imposed and upheld in cases in which the defense lawyers were asleep, intoxicated, or under the influence of drugs. State supreme courts affirmed capital cases after considering briefs that would be rejected in a first-year law school writing course (and, in some cases, in a high school English class).
 
Houston alone is responsible for more executions than any state except Texas. Three people sentenced to death in Houston—George McFarland, Calvin Burdine, and Carl Johnson—were represented by lawyers who slept during their capital trials. The United States Court of Appeals for the Fifth Circuit, sitting en banc, struggled with the question of whether Burdine’s right to counsel was violated when his lawyer, Joe Frank Cannon, whose entire file was less than three pages of notes, slept during parts of the two-day trial in which Burdine was convicted and condemned to death. A panel of the Court denied habeas relief for Burdine. However, the full Court ultimately decided, by a vote of 9-5, that Burdine’s right to counsel was violated and he was entitled to a new trial, but not without a very bitter dissent by Judge Barksdale. Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc).
 
Cannon also slept during the capital trial of Carl Johnson. Johnson was executed by Texas in 1996.
 
George McFarland's case is still pending in the courts. His conviction and death sentence have twice been upheld, even though his lawyer slept through parts of his trial. The presiding judge said that the Constitution guarantees a defendant a lawyer, but it does not guarantee that the lawyer must be awake.
 
The Texas Court of Criminal Appeals upheld the conviction and sentence on direct appeal, McFarland v. State, 928 S.W.2d 482 (Tex. Cr. App. 1996), over a dissent by Judges Charles Baird, joined by Judge Morris Overstreet, which argued “[a] sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense." Id. at 527.
 
The Court upheld the conviction and sentence again on post-conviction review. Ex parte McFarland, 163 S.W.3d 743 (2005). Judges Baird and Overstreet were no longer on the Court and there were no dissents.
 
For an exhaustive report on the poor quality of representation, see Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, the Report of the National Right to Counsel Committee (April 2009). For other articles, essays and lectures on the right to counsel, see publications of Stephen Bright.
 
Through litigation and advocacy, SCHR has helped bring about the establishment of public defender programs that provide quality legal representation to poor people accused of crimes. SCHR’s lawyers filed six lawsuits that helped bring about Georgia's creation of a public defender system. They have filed three since the system was created to protect the rights of those accused when the system failed to provide representation or delayed representation for so long that it became meaningless.Additionally, SCHR helped found Gideon’s Promise (formerly known as the Southern Public Defender Training Center). This organization is dedicated to building a community of committed, zealous, client-centered public defenders throughout the South.