Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer
By Rick Hampton
WILKES-BARRE, PA. — The first face visitors see when they walk into the public defender’s office here is a photo of Clarence Gideon, the drifter, drinker, gambler and thief who became a hero of American jurisprudence.
It was in his case, Gideon v. Wainwright, that the Supreme Court ruled 50 years ago this month that everyone accused of a serious crime has a constitutional right to a lawyer, whether they can afford it or not.
When he was charged with breaking into a pool hall outside Panama City, Fla., Gideon asked for a court-appointed lawyer. After the judge said no, he represented himself, was found guilty and sentenced to five years. From prison, he appealed to the Supreme Court, which took his case and ordered a new trial.
If he came back today, Clarence Gideon might rue the quality of legal representation he’d receive. He might not get any at all.
Such was the fate last year of some indigent criminal defendants who walked in the public defender’s door here and past Gideon’s gaze. They were told that, because of a shortage of staff lawyers, the office was turning down all but the most serious new cases. They were given a letter to show the judge.
Al Flora, Luzerne County chief public defender, says that ethically and legally he had no choice: His overburdened lawyers couldn’t take on new clients and do justice to those they already had. He sued county officials — his bosses — to let him hire more lawyers and to stop them from retaliating against him.
The situation in Luzerne County reflects what experts say is a national crisis in indigent legal defense that has thwarted Gideon‘s promise of legal equality.
Many public defenders are overwhelmed by caseloads, and financially pressed states and counties are levying fees and applying means tests for granting counsel. “We’re not calling the anniversary a celebration,” says Edwin Burnette of the National Legal Aid and Defender Association. “There’s nothing to celebrate.”
Flora is not the only rebel. The Florida Supreme Court is considering a similar attempt by the Miami-Dade County public defender’s office to limit its caseload. Last year, the Missouri Supreme Court authorized public defenders with unmanageable caseloads to decline new cases, and the American Bar Association urged states and counties not to fire public defenders who do.
The problem is money. An explosion in the number of criminal cases has overwhelmed the indigent defense system, which represents about 80% of all accused.
The right to counsel is stronger than ever; it was expanded by the Supreme Court during its last term. Although few in state and county government quarrel with the principle of Gideon, few are eager to cover the ever-growing tab for its realization.
That worries advocates on each side of Gideon, including Bruce Jacob, the former Florida assistant attorney general who argued the state’s case before the Supreme Court, and former vice president Walter Mondale, who as attorney general of Minnesota in 1963 filed a brief supporting Gideon.
“We’re not close to fulfilling the promise of Gideon,” Jacob says. Although more defendants see a lawyer than 50 years ago, he says, many advocates don’t have time to give clients “effective representation.”
Any celebration of the anniversary should be “subdued,” Mondale says, because “we’ve missed the mark, and we may be going backwards.”
Others, while conceding the problem, take a more positive view. “For the most part, public defenders and prosecutors get it right,” says Scott Burns, director of the National District Attorneys Association. “Gideon would celebrate this anniversary.”
‘I AM ENTITLED … TO COUNSEL’
Clarence Gideon was jailed before he was old enough to drive and behind bars for much of his young adulthood. By the time he was 51, he’d been convicted of five felonies, including thefts from a government armory and a country store.
His biographer, Anthony Lewis, described him as a “used-up man” who looked 15 years older than his age. In a letter, Gideon admitted “the utter folly and hopelessness” of much of his life.
On Aug. 4, 1961, facing trial on a charge that would send him back to prison, Gideon told the judge, “The United States Supreme Court says I am entitled to be represented by counsel.”
The only problem: It had not, and he was not.
Beginning with Betts v. Brady (1942), the court had refused to declare a blanket constitutional right to counsel in non-capital state felony trials unless defendants faced “special circumstances,” such as youth, illiteracy or unusually complex issues.
Undeterred, the imprisoned Gideon mailed the court a petition for a new trial. Handwritten in pencil on lined prison paper, it began with anachronistic legalese: “Comes now the petitioner …”
The court received many petitions like it every week from prisons around the country, but Gideon had two things in his favor.
First, he had raised the constitutional issue at trial, which meant he could use it to appeal.
Second, he didn’t claim special circumstances, and — whether Gideon knew it or not — a majority of the justices already were inclined to jettison Betts v. Brady in favor of a flat constitutional right to counsel.
All the court needed was a case on which to rule. And here came Gideon.
On March 18, 1963, the court ruled unanimously that Gideon’s conviction was unconstitutional because he’d been denied his request for counsel.
Justice Hugo Black wrote that in our adversarial justice system, the “noble idea (that) every defendant stands equal before the law … cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer.”
The case was sent back to Florida, which had quickly established a network of public defenders. But Gideon insisted on a private practitioner, Fred Turner. It was a shrewd choice.
Turner interviewed Gideon in jail and spent several days investigating. He checked out the pool hall. He drove to the town where the prosecution witness had been earlier on the night of the crime. He picked pears with the witness’s mother in her yard. He became convinced the witness was the perpetrator.
The jury took just over an hour: Not guilty. Gideon went out and got a hamburger.
The jailbird’s name became synonymous with freedom. In Florida alone, 976 prisoners were released because of Gideon; an additional 500 got a new trial.
After his release, Gideon stayed out of trouble. He died of cancer in 1972 at 61, too soon to see himself played by Henry Fonda in the 1980 TV movie Gideon’s Trumpet.
His gravestone in Hannibal, Mo., bears a message drawn from a letter he wrote in prison. It reflects his belief that he was part of something bigger than himself: “I believe each era finds an improvement in law,” Gideon wrote. “Each year brings out something new for the benefit of mankind.”
‘ALL WE CAN DO IS TRIAGE’
After the inspirational Gideon v. Wainwright poster in the reception area, it’s all downhill in the Luzerne public defender’s office.
The walls are scuffed, the carpets stained. File folders are stacked on the floor. “It’s a mess,” admits Al Flora, leading a tour. “Half the time the secretaries can’t find the right file.” As a result, clients sometimes aren’t notified of their court dates.
Some of the office’s 21 lawyers have no desk or personal phone. The top of a file cabinet serves as a desk for one lawyer. A nightstand in a corner accommodates another.
The office, which handles about 4,000 cases a year in this northeastern Pennsylvania county of 320,000, has only four investigators and four secretaries. Lawyers often have to type their own briefs. They have little time to take depositions or seek discovery of prosecution evidence.
A third of Flora’s lawyers have never tried a case. They’re smart and energetic, he says, but so inexperienced that if given a full caseload, “they’d crack. … All we can do is triage cases.”
He says some public defenders “don’t want to talk about the problem. I decided to go the other way. This has to stop.”
Traditionally, Southern states have had the worst record of giving poor defendants counsel. But Jonathan Rapping, founder of the Southern Public Defender Training Center, says the problem now is more acute in Northeastern jurisdictions with shrunken industrial bases and chronic fiscal woes.
That describes Luzerne County, which gets no state funds for public defenders. Last year, Flora’s $2.7 million budget was cut 7%, and later — until a judge intervened — a hiring freeze blocked him from filling five lawyers’ slots that were budgeted.
In six months, he turned away more than 500 applicants for legal counsel, an approach that antagonized county officials. John Dean, a county attorney, has accused Flora of regarding the county as “nothing more than a checkbook” and suggested he handle more cases himself.
In June, a judge told Flora to resume taking all comers and told the county to let Flora hire more lawyers. Since then, the county has paid for a computerized case management system and promised to find more office space.
AN EROSION OF JUSTICE
In the past 18 months, a third of the office’s lawyers have left. One was Ed Olexa, 38. He’d read Gideon in law school but didn’t bargain for what he found when he became a public defender four years ago.
Although he was a $34,000-a-year part-timer — 19 hours a week — he usually had 150 to 170 cases, far in excess of the maximum recommended by the American Bar Association for full-time defenders. The cases took up 40 to 50 hours a week. Along with his private cases, he worked up to 70 hours a week.
He often was scheduled to appear before two or three different judges at the same time in different places around the county. He’d meet clients for the first time in the courtroom — some straight from jail, still in handcuffs — and go before the judge with only the complaint and a hurried conversation with his client as background.
That, he says, was the worst: No time to establish rapport with clients or get the details that can win an acquittal. No time to do what Turner did for Gideon. Instead, he spent his time asking judges for more time. “It offended my sense of justice,” he says.
And his clients’. He won’t discuss their specific complaints but says, “The best attorney in the world would be incompetent under those circumstances.”
Over time, most experts say, the costs are clear. Poor people arrested for misdemeanors plead guilty and go free rather than wait to see a public defender, even though a conviction on their record might hurt their chances for employment, loans or housing. At worst, the innocent go to jail, and the guilty go free.
The Luzerne chief public defender is a part-time post; the county plans to make it full time. Flora has applied.
“I want to see it done right,” he says. “I believe people who are impoverished and can’t afford a lawyer deserve one. If we can’t provide that, then what kind of society do we really have?”