DEFIANCE OF AND RESISTANCE TO GIDEON V. WAINWRIGHT
STEPHEN B. BRIGHT1
SOUTHERN CENTER FOR HUMAN RIGHTS
83 Poplar Street, N.W. Atlanta, GA 30303-2122
[email protected] • (404) 688-1202
www.schr.org • www.secondclassjustice.com
2013 Summit on Indigent Defense Improvement
ABA Standing Committee on Legal Aid and Indigent Defendants
February 9, 2013 • Dallas, Texas
The plight of a 23-year old African American woman accused of arson and
unable to afford counsel, almost 50 years after Gideon v. Wainwright2:
May 2, 2012
Dear Mr. Bright:
I currently have a first degree arson case in the Carroll County,
Georgia Superior Court. I was indicted March 29, 2010, after my home
burned down on October 15th, 2009. At first, I was given a temporary
hotel by State Farm, my rental insurance company, until the
investigation as to what happened could be completed by State Farm and
my landlord’s insurance company. They wrapped up the investigation
the end of December, and my [insurance representative] explained, “I
don’t know how you burnt this house down, but we know you burnt it
down.” Then he suspended hotel payment, and kicked me out. I was
homeless for a quite a while, and forced to rely on friends from work to
offer a place to sleep from time to time.
I worked really hard at two jobs to gain another place to stay. I got
one in April 2010. I also continued to attend my community college very
part time.
1. Much of this paper relies on Stephen B. Bright and Sia M. Sanneh, Fifty Years of Defiance
and Resistance to Gideon v. Wainwright, 122 Yale Law Journal __ (2013) (forthcoming).
2
372 U.S. 335 (1963).
Apparently I was indicted and never told. When I found out on
September 23, 2010, I applied for a public defender. The lawyer I got
was incompetent, and I did much of my investigation myself. I
complained and, three months later, another lawyer was added to my
case. She constantly encouraged me – a person never charged with a
crime of ANY sort – to take a 15 years in prison offered by the
prosecution. I declined.
A friend provided $3,500 of a $5,000 fee so I could get my own
attorney. This attorney misses court dates for weeks at a time. He has
been fined by the court for not appearing. I have been to court so many
times when he was not there and told to come back the next day, that I
lost both of my jobs.
I have asked over and over to proceed with trial, but when a trial
date comes, he doesn’t show up. I have no way to pay this man, and no
way to hire a new attorney.
I have no place to go. I am a certified nurse’s aide, but I cannot
find employment due to the arson charge hanging over me. I don’t
know how to fix this, and I have asked to be placed in jail until this is
over. I asked this not to sound ungrateful for being out on bond, but
because I fear I may take my own life or die from conditions of being
homeless. That request was denied as well.
The last offer was 10 years on probation and restitution of half a
million. I told my attorney absolutely not, and he told me that if I did not
take this deal, there may not be another. I told him that I don’t care if I
sit in prison for the next 20 years. I will NEVER accept the blame for
something I did not do. A guilty plea even with no jail time will ruin my
life more than this case has already. It means I could never use my
degree effectively or be taken seriously.
I’ve had over 20 continuances, lost jobs, lost my home, and lost
my dogs. I now sleep in my car. I am going to lose my car because I
cannot repay a loan I took out to pay the lawyer’s expenses. I am tired
and beaten and I don’t understand how to fight this. My only question
is what do I do now that I have no way to care for myself, no place to
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Stephen Bright, ABA Summit, Feb. 9, 2013
go, and an uninterested attorney. It has been days now since I have
eaten, and I just constantly feel myself getting sick.
I just don’t want to die without someone knowing what these
people are doing to me, and how I have cried, pleaded, and begged for
help in the last three years. I am only 23, Mr. Bright, and I have fought
to stay afloat for the last three years. I just want to know what there is
that is left for me to do while I’m still here.
Thanks,
Shanna Shackelford
Ms. Shackelford sought assistance from a public defender office that could
facilitate a guilty plea, but lacked the expertise, time and resources to try an arson
case. The pending charges cost her employment and left her homeless. She did what
many people who have court-appointed lawyers do when they discover their lawyers
are not able to help them – she tried to hire a private lawyer, but she had so little
money that she was unable to retain a capable lawyer and ended up with one no more
able to defend her than the public defenders she had. As she recognized, her entire
life hung in the balance with regard to how the case was resolved.
Her story has a happy ending. We accepted her case, obtained pro bono
assistance from a lawyer who specialized in arson litigation, retained experts,
investigated the case and ultimately persuaded the prosecution to dismiss the charges.
Ms. Shackelford is now employed by a state agency providing home health care to
people with mental illnesses. She plans to go to Mercer University next year where
she can enter as a junior based on the credits she has earned in community college.
This is how the right to counsel should work, but most of the time it does not.
More common are cases like the one involving Hills McGee, a 53-year old man
whose sole source of income was a Veterans Administration disability payment of
$243 per month. He was arrested in Augusta, Georgia, and charged with public
drunkenness and obstruction of the law enforcement officer who arrested him. He
was brought to court the next day, where he was told that in order to apply for a
public defender he must pay a $50 application fee. He was not told that the fee could
be waived or that he had a right to a lawyer if he could not afford one. Not having
$50, Mr. McGee did not ask for a lawyer, but entered a guilty plea to the charges.
Without any inquiry into his income or ability to pay, a judge fined him $200 plus
$70 in fees and surcharges. A person of means would have paid the $270 that day
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Stephen Bright, ABA Summit, Feb. 9, 2013
and the case would have been over. But because Mr. McGee did not have $270 that
day, the judge told him he could pay the fine in installments to a private probation
company.
What the judge did not tell him was that the private probation company charged
an “enrollment fee” of $15 and $39 dollars a month for accepting Mr. McGee’s
payments. If paid over a year, the monthly fees would add up to $468 – considerably
more than the fine, fees and surcharges – increasing the total amount to be paid by
Mr. McGee to $738. After struggling to make monthly payments for over a year, Mr.
McGee had paid $552 on his $270 fine. He was jailed because he still owed, but was
unable to pay the last $186. This is the harsh reality for many poor people accused
of crimes.
• • •
The right to counsel is violated every day in thousands of courtrooms across
the nation, from top tier trial courts that handle felony cases to municipal courts that
serve as cash cows for their communities. Judges conduct hearings in which poor
people accused of crimes and poor children charged with acts of delinquency appear
without lawyers. The accused may be unaware of their right to counsel or, like Mr.
McGee, unable to pay an “application fee” for a determination of whether they are
entitled to court-appointed counsel. Some are talked into waiving counsel by judges
or prosecutors. Many plead guilty without lawyers.
Those assigned counsel often receive only token representation. Some plead
guilty and are sentenced a few minutes after learning the plea offer from lawyers they
just met and will never see again. Virtually all cases are resolved with guilty pleas
by defendants who are unrepresented or receive only momentary representation in
many courts, particularly municipal and misdemeanor courts which handle an
enormous volume of cases in assembly-line manner. Many courts are plea mills –
courts of profit, not justice – that accept guilty pleas and impose fines without any
inquiry into the ability of defendants to pay, setting them up for failure and return to
jail, our modern day debtors’ prisons. But it is also how many felony cases are
resolved as well.
Even when representation lasts for more than a few minutes, it is often
provided by lawyers struggling with enormous caseloads who practice triage as they
attempt to represent more people than is humanly – and ethically – possible. The
lawyers usually lack the resources to investigate their clients’ cases, retain expert
Defiance of and Resistance to Gideon
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Stephen Bright, ABA Summit, Feb. 9, 2013
witnesses or pay other necessary expenses. As a result, they are unable to assess
cases and give their clients informed, professional advice during the plea negotiations
that resolve most criminal cases. (Ninety-four percent of the convictions in those
courts are the results of plea bargains.3 Ninety-seven percent of federal convictions
are obtained through plea bargains.4) Nor are they able to seriously contest the
prosecution’s case in the rare cases that go to trial, raise and preserve legal issues for
appeal, or provide information about their clients that is essential for individualized
sentencing. Some cases are simply rigged – the outcome is determined when an
incompetent lawyer is appointed to represent the accused. There is no adversary
system in many state, county and municipal courts that handle over 90 percent of
criminal cases.
There are of course notable exceptions. The federal public defender program,
the District of Columbia Public Defender Service,5 and other programs in some
jurisdictions have provided resources, independence, structure, training and
supervision that enables capable, caring and dedicated lawyers to zealously represent
their clients. Some public defenders and assigned counsel do heroic work despite
overwhelming caseloads and lack of resources. However, they are exceptions to what
passes for defense representation of the poor in most states.
The availability and quality of lawyers for poor people accused of crimes varies
from state to state and even from county to county within states (and from parish to
parish in Louisiana). Most states, counties and municipalities have refused to fund
adequately public defense despite repeated reports of deficient representation and
gross miscarriages of justice. These governments have an interest in obtaining
convictions and poor legal representation of the accused makes it easier to obtain
them.
A United States Supreme Court decision – whether it involves desegregation
of the schools or the right to counsel – has little impact on legislatures, county
commissions and city councils unless it is enforced. The right to counsel is not
enforced. Many trial judges tolerate or welcome inadequate representation and “meet
3. Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012).
4. Id.
5. See Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public
Defenders, 106 HARV . L. REV . 1239, 1285-89 (1993) (describing the Public Defender Service for
the District of Columbia and how it trains and motivates its lawyers).
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’em and plead ’em” processing of human beings through the courts because it allows
them to process many cases in a short time. The United States Supreme Court has
adopted a standard of “effective counsel” that hides and perpetuates deficient
representation.
A. Gideon v. Wainwright – The Holding and the Reality
The representation received by most poor people accused of crimes – if they
receive any representation at all – is a far cry from the constitutional requirement of
the “the guiding hand of counsel at every step in the proceedings” established by
Gideon v. Wainwright6 and its progeny.7 Gideon held that the “noble ideal” of “fair
trials before impartial tribunals in which every defendant stands equal before the law”
“cannot be realized if the poor man charged with crime has to face his accusers
without a lawyer to assist him.”8 The Court also discussed equality before the law in
another case decided on the same day as Gideon, reiterating its previous statement
that there can be no equal justice where the kind of justice a person gets “depends on
the amount of money he has.”9
Fifty years later the kind of justice people receive in the criminal courts
depends very much on the amount of money they have. Their wealth or lack of it
determines whether they have counsel, when have counsel, whether they have access
to investigators and expert witnesses, and whether the representation provided is
zealous or perfunctory. The difference that money makes is apparent from the
moment a person is arrested and jailed. A person who can afford a lawyer usually
retains one at once. The lawyer will attempt to secure the person’s immediate release
from jail, often successfully, so that the client can maintain employment, take care of
family and be engaged in preparing for trial. The lawyer will begin an investigation
6. 372 U.S. 335, 345 (1963) (quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932)).
7. Gideon applied only to felony cases. The Court later held that the right to counsel
extended to children in delinquency proceedings, In re Gault, 387 U.S. 1 (1967), and that “no
imprisonment may be imposed, even though local law permits it, unless the accused is represented
by counsel.” Argersinger v. Hamlin, 407 U.S. 25, 40 (1972). The Court also held that an indigent
defendant is entitled to expert assistance when necessary to a fair trial in Ake v. Oklahoma, 470 U.S.
68, 77 (1985), although its decision was based on due process and not the Sixth Amendment.
8. Gideon, 372 U.S. at 344.
9. Douglas v. California, 372 U.S. 353, 355 (1963) (holding that a poor person had a right
to counsel on appeal and quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)).
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while the evidence is available and the memories of witnesses are fresh. If it appears
that the charges lack merit, the lawyer will attempt to secure dismissal of the case
and, if unsuccessful, prepare for trial. If the client appears to be guilty – either of the
crime charged or some lesser offense – the lawyer will engage in plea bargaining
based upon a detailed knowledge of the facts of the crime, and the background of the
client. If the client is convicted at trial or by entering a guilty plea, the lawyer will
provide individualized, client-specific advocacy with regard to sentencing.
In contrast, poor people accused of crimes, although entitled to counsel
"within a reasonable time" after "the initiation of adversary judicial proceedings,"10
may languish in jail for days, weeks or months after arrest without a lawyer.11 As a
result, they may lose their jobs, homes and means of transportation, even though the
charges may later be dismissed. Jacqueline Winbrone lost her husband. She was
detained after arrest in New York because she could not make $10,000 bail. With no
lawyer to seek a reduction, she remained in jail and was unable to take her husband
to dialysis and, as a result, he died.12 She was later released on her personal promise
to return to court and ultimately the charges were dismissed.13 Diego Moran, facing
the death penalty in Del Rio, Texas, asked for a lawyer the day after his arrest, but he
did not get one for over eight months.14 A woman in Mississippi charged with
shoplifting spent eleven months in jail before a lawyer was appointed to her case and
10. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). The Supreme Court has held
that counsel must be provided at any “critical stage” of a criminal proceeding, such as a preliminary
hearing, Coleman v. Alabama, 399 U.S. 1 (1970), but a defendant without counsel may not receive
a preliminary hearing because there is no counsel to ask for one.
11. See National Right to Counsel Committee, JUSTICE DENIED : AMERICA ’S CONTINUING
NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 85-87 (2009)[hereinafter JUSTICE DENIED ],
available at www.constitutionproject.org/manage/file/139.pdf. This is contrary to the Supreme
Court’s holding that at which the right to counsel "attaches." As a result, the state is required to
appoint counsel "within a reasonable time” after “the initiation of adversary judicial proceedings.”
12. Hurrell-Harring v. State, 883 N.Y.S.2d 349, 360 n.3 (N.Y. App. Div. 2009) (Peters, J.,
dissenting), aff’d as modified, 930 N.E.2d 217 (N.Y. 2010).
13. Id.
14. Brian Chasnoff, Indigent Often are Left in a Legal Limbo, SAN ANTONIO EXPRESS-NEWS,
Oct. 10, 2010.
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three additional months before entering a guilty plea.15 Many poor people spend more
time in jail waiting for the appointment of a lawyer and a hearing than they would
spend if found guilty and sentenced.16 Some jurisdictions have “jail clearing days”
when people who have spent more time in jail than any sentence they might receive
can plead guilty for time served. Innocent people plead guilty to get out of jail.17
An American Bar Association report in 2004 reached “the disturbing
conclusion that thousands of persons are processed through America’s courts every
year either with no lawyer at all or with a lawyer who does not have the time,
resources, or in some cases the inclination to provide effective representation.”18 A
national study in 2009 found that in misdemeanor cases – which far outnumber
felonies and affect millions of people – judges, in order to move their dockets,
encouraged defendants to proceed without counsel and plead guilty, prosecutors
talked directly with defendants and convinced them to waive their right to counsel
and plead guilty, application fees for a public defender as high as $200 discouraged
defendants from asking for counsel, and, in the cases where lawyers were provided,
they usually had caseloads that made it impossible for them to provide competent
representation.19
Other studies confirm that judges and prosecutors are routinely ignoring
Gideon and its progeny. For example, a study found seventy percent of defendants
in misdemeanor cases in twenty-one Florida counties entered pleas of guilty or
15. NAACP Legal Def. and Educ. Fund, Inc., ASSEMBLY LINE JUSTICE : MISSISSIPPI’S
INDIGENT DEFENSE CRISIS 8 (2003).
16. JUSTICE DENIED , supra note 10, at 86-87; Robert C. Boruchowitz, Malia N. Brink &
Maureen Dimino, MINOR CRIMES, MASSIVE WASTE : THE TERRIBLE TOLL OF AMERICA ’S BROKEN
MISDEMEANOR COURTS, 18-19 (2009) [hereinafter MINOR CRIMES, MASSIVE WASTE ], available at
www.nacdl.org/WorkArea/DownloadAsset.aspx?id=20808.
17. See John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent
Defendants Who Plead Guilty 16-17, Cornell Studs. Research Paper (2012) (“[I]nnocent persons
charged with relatively minor offenses often plead guilty in order to get out of jail, to avoid the
hassle of having criminal charges hanging over their heads, or to avoid being punished for exercising
their right to trial.”), available at http://dx.doi.org/10.2139/ssrn.2103787.
18. American Bar Association’s Standing Committee on Legal Aid & Indigent Defense,
GIDEON ’S BROKEN PROMISE : AMERICA ’S CONTINUING QUEST FOR EQUAL JUSTICE (2004).
19. Id. at 14-17.
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Stephen Bright, ABA Summit, Feb. 9, 2013
no-contest at arraignments that lasted an average of 2.93 minutes in 2011.20 One
third were not represented by counsel. Even fewer people accused of misdemeanor
offenses – about 30 percent – were represented by counsel in Kentucky from 2009 to
2011.21 Many trial courts in Michigan do not offer counsel and accept guilty pleas
in misdemeanor cases on “McJustice Days.”22 A Colorado statute requires defendants
in misdemeanor cases to speak to a prosecutor before applying for a public defender.23
Many poor people do not see a lawyer until moments before the court
proceeding in which their cases are resolved. They have a few minutes of
conversation with harried, overworked, underpaid lawyers, who know nothing about
them, have little or no knowledge of the charges and no time or resources for an
investigation and consultation with experts necessary to assess the prosecution’s
cases, let alone defend against them. A public defender in Cordele, Georgia, wrote
a client in jail asking him to “explain to me why you are requesting a preliminary
hearing. I would like to know why you feel like a preliminary hearing is needed in
your case.”24 The public defender also advised the client that she would not file a
motion to reduce bond for 90 days.25
Those in custody may have their only conversation with a lawyer while
handcuffed to other defendants on either side of them. Despite the complete inability
of the lawyers to meet even the most minimal professional responsibilities – such as
having confidential communications and being sufficiently informed to give advice
– these discussions are very often followed a few minutes later by the entry of a guilty
20. Alisa Smith & Sean Maddan, THREE -MINUTE JUSTICE : HASTE AND WASTE IN FLORIDA ’S
MISDEMEANOR COURTS 23 (Table 9) (2011), available at www.nacdl.org/reports/threeminutejustice.
21. David Carroll, Underrepresentation in Kentucky Misdemeanor Courts, Nov. 16, 2011
available at http://nlada.net/jseri/blog/underrepresentation-kentucky-misdemeanor-courts; Dave
Malaska, Trampling Over the Sixth Amendment, CITYBEAT , Cincinnati, Nov. 9, 2011, available at
www.citybeat.com/cincinnati/article-24355-trampling_over_the_sixth_amendment.html; Kentucky
Department of Public Advocacy, DPA Misdemeanor Appointments, available at http://dpa.ky.gov.
22. National Legal Aid and Defender Association, A RACE TO THE BOTTOM : SPEED AND
SAVINGS OVER DUE PROCESS: A CONSTITUTIONAL CRISIS 15, 29, 34, 36, 46 (2008), available at
www.mynlada.org/michigan/michigan_report.pdf.
23. Colo. Rev. Stat. §16-7-301(4).
24. Letter from Rashawn Clark, Assistant Public Defender to client (Dec. 28, 2011).
25. Letter from Rashawn Clark, Assistant Public Defender to client (Jan. 19, 2012).
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plea and sentencing. Defendants plead guilty in groups in some courtrooms to
expedite the process. The court in Cordele, Georgia takes pleas from groups of as
many as ten. Often the only comment by the public defender at sentencing is to ask
the judge to tack on the public defender application fee to the fines, fees and
surcharges imposed if it has not already been collected. The public defender there has
a “policy” of never asking that the application fee be waived.
A California lawyer explained that he was able to handle a high volume of
cases because 70 percent of his clients entered guilty pleas at the first court
appearance after he spent thirty seconds explaining the prosecutor’s plea offer to
them.26 The lawyer processed cases in one of the 24 California counties that contracts
with lawyers to handle the cases of people unable to afford lawyers.27 Contracts for
representation are used in many other states. Contracts are often awarded to the
lowest bidder, creating an incentive for lawyers to handle a high volume of cases and
spend as little time as possible on each case in order maximize profits. One
California contract defender repeatedly fought off low bidders by reducing his
budget, which had been forty-one percent of the prosecutor’s budget in 2000, to only
twenty-seven percent of prosecutor’s budget in 2005. Yet in 2006, he was undercut
by a bid that was almost fifty percent less than his by a firm employing the “Wal-Mart
Business Model” of processing cases, “generating volume and cutting costs in ways
his government-based counterparts can’t and many private-sector competitors
won’t.”28
Contracts to handle individual cases gives lawyers the same incentive to spend
as little as possible on the defense. A contract lawyer was paid an $80,000 flat fee
that included $60,000 for defense expenses by Fresno County, California, to represent
Keith Doolin at his death penalty trial.29 The lawyer was allowed to keep any of the
money not spent. As one member of the California Supreme Court observed, “The
contract thus had a built-in incentive for counsel to spend as little as possible on the
26. Laurence A. Benner, The Presumption of Guilt: Systemic Factors That Contribute to
Ineffective Assistance of Counsel in California, 45 CAL. W. L. REV . 263, 305 (2009).
27. Id. at 300. In California, 24 of 58 counties use contract defenders. One county relies
primarily on an assigned counsel program and the rest have public defender offices as the primary
provider of representation. Id. at 284, 307.
28. California Commission on the Fair Administration Of Justice, REPORT AND
RECOMMENDATIONS ON FUNDING OF DEFENSE SERVICES IN CALIFORNIA 11-12 (April 14, 2008).
29. People v. Doolin, 198 P.3d 11, 60 (Ca. 2009) (Kennard, J., concurring and dissenting).
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defense so he could pocket more money.”30 He did just that. Instead of conducting
necessary investigations and consulting with experts, the lawyer spent less than 20%
of the money allocated for defense expenses, keep the remaining funds for himself.31
After receiving such minimal representation, Doolin was sentenced to death.
This underfunded system of pleas is often not up to the task of providing
lawyers for the few trial that occur. Lawyers supposedly defending poor people
accused of crimes have been asleep,32 intoxicated,33 under the influence of drugs and
mentally, and unaware in death penalty cases of their client’s intellectual disabilities,
brain damage, mental illnesses, childhood abuse and other mitigating factors, and, in
one case, the client’s real name.34
James T. Fisher, Jr. spent 26 ½ years in the custody of Oklahoma – most of it
under sentence of death – without ever having a competent lawyer and, as a result,
without ever having a fair and reliable determination of whether he was guilty of any
crime. Fisher, a black man, was convicted in 1983 of the murder of a white man
30. Id.
31. Id.
32. See Ex parte (George) McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005) (death
sentence upheld even though lead defense counsel slept during parts of trial); Burdine v. Johnson,
262 F.3d 336 (5th Cir. 2001) (en banc) (reversing, over bitter dissent, conviction in a capital case
because defense counsel slept during trial). A judge in Harris County, Texas, responding to
complaints in George McFarland’s case that his lawyer sleeping during the trial at which death was
imposed, stated: “The Constitution does not say that the lawyer has to be awake.” John Makeig,
Asleep on the Job; Slaying Trial Boring, Lawyer Said, HOUSTON CHRON ., Aug. 14, 1992, at A35.
33. See, e.g., Haney v. State, 603 So. 2d 368 377-78 (Ala. Crim. App. 1991) (intoxicated
lawyer held in contempt in jailed during capital trial).
34. See, e.g., Wilson v. Rees, 624 F.3d 737, 738 (6th Cir. 2010) (Martin, J., dissenting from
denial of rehearing en banc) (death penalty upheld even though the “defense was clearly a charade”
because “two wholly unqualified attorneys did a deplorable job representing Wilson”); Slaughter v.
Parker, 467 F.3d 511, 512 (6th Cir. 2006) (Cole, J., dissenting from denial of rehearing en banc)
(death penalty upheld even though counsel was not aware of his client’s name or brain damage);
Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: the Constitutional Right to Effective
Assistance of Counsel and the Strickland Prejudice Requirement, 75 NEB. L. REV . 425, 455-462
(1996); Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but
for the Worst Lawyer, 103 YALE L. J. 1835 (1994); Bruce A. Green, Lethal Fiction: The Meaning
of “Counsel” in the Sixth Amendment, 78 IOWA L. REV . 433 (1993); cases collected at
www.secondclassjustice.com/?page_id=42.
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based on the dubious testimony of the man originally charged with the murder. The
lawyer assigned to represent him tried Fisher’s case and 24 others during September
of 1983, including another capital murder case the week before Fisher’s trial.35 The
lawyer called no witnesses at either the guilt or penalty phases of trial other than
Fisher. He made no opening statement or closing argument at either phase. The
lawyer said only nine words during the entire sentencing phase of the trial.36 Four
of the words were “the equivalent of judicial pleasantries” and the other five “formed
an ill-founded, unsupported and ultimately rejected objection to one portion of the
prosecutor’s closing argument.”37 The nine words contained no advocacy on behalf
of Fisher.
On appeal, the Oklahoma Court of Criminal Appeals pronounced itself “deeply
disturbed by defense counsel’s lack of participation and advocacy during the
sentencing stage,” but it was not disturbed enough to reverse the conviction or
sentence.38 It held that the outcome would not have been different even if Fisher had
competent representation.39 Nineteen years after Fisher’s trial, a federal court of
appeals set aside the conviction, finding that Fisher’s lawyer was “grossly inept,” and
disloyal to his client by “exhibiting actual doubt and hostility toward his client’s
case.”40 It found that the lawyer “destroyed his own client’s credibility and bolstered
the credibility of the star witness for the prosecution,” and “sabotaged his client’s
defense by repeatedly reiterating the state’s version of events and the damaging
evidence he had elicited himself.”41 The Court observed that the prosecution’s case
against Mr. Fisher “was not overwhelming” but “in essence a swearing match
between Mr. Fisher and [the state’s witness], either of whom could have committed
the murder.”42
35. Fisher v. Gibson, 282 F.3d 1283, 1293 (10th Cir. 2002)
36. Id. at 1289.
37. Id. (quoting the district court).
38. Fisher v. State, 739 P.2d 523, 525 (Okla.Crim.App.1987)
39. Id.
40. Fisher v. Gibson, 282 F.3d at 1298.
41. Id. at 1308.
42. Id.
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Oklahoma gave Fisher a second capital trial in 2005. It also gave him a lawyer
who was drinking heavily, abusing cocaine and neglecting his cases.43 The lawyer
physically threatened Fisher at a pre-trial hearing and, as a result, Fisher refused to
attend his own trial.44 He was again convicted and sentenced to death. This time both
the state trial court and the Oklahoma Court of Criminal Appeals recognized that
Fisher had been denied his right to counsel and that it made a difference.45 His
conviction was reversed again.
Prosecutors agreed to Fisher’s release in July, 2010, provided that he be
banished from Oklahoma forever.46 Fisher may not have been guilty of any crime –
he never had a constitutional trial – but he spent 26 ½ years in custody. It can hardly
be said that his story has a happy ending, but it ended better than those who have been
executed or spent the rest of their lives in prison after receiving such bad
representation.
B. Underfunding Public Defense and Securing Convictions
Governments, which spent 75 billion dollars on imprisonment each year,47 have
the ability to comply with Gideon, but no incentive to pay for good legal
representation for people they are trying to fine, imprison and execute. Instead, they
have an interest in minimizing their funding of representation of the poor – giving
them “adequate representation but not zealous representation” as one Georgia
legislator put it – in order to make it easier for prosecutors to obtain convictions.
Funding which was never adequate has failed in tough economic times to keep up
43. Fisher v. State, 206 P.3d 607, 610-11 (Okla. Crim. App. 2009).
44. Id. at 610.
45. Id. at 612-13.
46. See Dan Barry, In the Rearview Mirror, Oklahoma and Death Row, N.Y. TIMES, August
10, 2010. For additional discussion of James T. Fisher’s case, see Man Spends 26 years on
Oklahoma’s Death Row Without Ever Receiving Effective Counsel, available at
http://www.secondclassjustice.com/?p=198.
47. John Schmitt, Kris Warner & Sarika Gupta, Ctr for Econ. & Policy Research, THE HIGH
BUDGETARY COST OF INCARCERATION 2 (2010) www.cepr.net/documents/publications/incarceration
-2010-06.pdf.
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with the dramatic increase in people being sent to prison for long periods of time.48
Some states, including California, Georgia, Louisiana, Michigan and Texas, have
delegated all or part of the responsibility for funding public defense to their counties
or parishes, resulting in varying qualities of representation based on the place where
the case is tried. Others have taken responsibility for public defense, but have not
provided sufficient funding so that counsel can maintain reasonable caseloads and
have the investigative and expert assistance that is essential for representing people
accused of crimes.
The workload of Missouri’s state-wide public defender program increased by
more than 12,000 cases in a six-year period, but the program received no additional
staff during that time.49 At the end of 2011, it was 66 lawyers short of what it needed
to handle its workload.50 The director of the state public defender commission wrote
in the program’s annual report, “triage has replaced justice in Missouri’s courts[,]”
people languish in jail “for weeks or even months with no access to counsel” and
attorneys are forced to take “shortcuts that lead to wrongful convictions.”51 In
Georgia, as a result of financial pressures, the state public defense agency and some
local public defenders joined the Attorney General’s office in arguing that public
defenders should be exempt from the rules of professional conduct that prevent
lawyers from representing clients with conflicting interests.52
48. From the early 1970s until today, the number of people in prisons and jails has grown
from 200,000 to 2.3 million – the highest incarceration rate of any country. An additional five
million people are on probation, parole, or supervised release. Pew Center for the States, ONE IN 31:
THE LONG REACH OF AMERICAN CORRECTIONS 5 (2009); U.S. Department of Justice, Bureau of
Justice Statistics, CORRECTIONAL POPULATION IN THE UNITED STATES 2010 at 2 (2011). See also
Adam Gopnik, The Caging of America: Why do we lock up so many people? NEW YORKER, Jan. 30,
2012, available at www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_
gopnik#ixzz2GMkbeS5N.
49. State ex rel. Missouri Public Defender Commission v. Pratte, 298 S.W.3d 870, 877
(2009).
50. Missouri Public Defender Commission, FISCAL YEAR 2011 ANNUAL REPORT 13 (2011),
available at http://www.publicdefender.mo.gov/about/FY2011AnnualReport.pdf.
51. Id. at 2d unnumbered page (Memorandum of Cathryn R. Kelly to Governor and other
officials (Oct. 1, 2011).
52. See BRIEF OF APPELLANT [GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL] filed in
In re: Forman Advisory Opinion 10-1, Ga. S. Ct. No. S10U1679 (Feb. 28, 2011) by the Georgia
Attorney General and a circuit public defender who was a member of the Defender Council.
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The National Right to Counsel Committee found that inadequate funding
“continues to be the single greatest obstacle to delivering ‘competent’ and ‘diligent’
defense representation.”53 Whether the poor are represented by public defenders,
assigned counsel or contract lawyers, “the most visible sign of inadequate funding is
attorneys attempting to provide defense services while carrying astonishingly large
caseloads.”54 It continued:
As a consequence [of excessive caseloads], defense lawyers are
constantly forced to violate their oaths as attorneys because their
caseloads make it impossible for them to practice law as they are
required to do according to the profession’s rules. They cannot interview
their clients properly, effectively seek their pretrial release, file
appropriate motions, conduct necessary fact investigations, negotiate
responsibly with the prosecutor, adequately prepare for hearings, and
perform countless other tasks that normally would be undertaken by a
lawyer with sufficient time and resources. Yes, the clients have lawyers,
but lawyers with crushing caseloads who, through no fault of their own,
provide second-rate legal services, simply because it is not humanly
possible for them to do otherwise.55
Some public defender offices have conducted studies to determine how much
time different kinds of cases require and sought to limit their caseloads so that
lawyers have adequate time for each case.56 For example, based on time records over
a period of years, the public defender office in Lincoln, Nebraska established a
caseload standard of 127 felonies per year.57 The Missouri Public Defender
Commission has done a similar study to determine the number of cases a public
defender and a public defender office can reasonably handle. The Missouri Supreme
Court held that public defenders may decline taking on new cases when they reach
53. JUSTICE DENIED , supra note 10, at 85-87.
54. Id.
55. Id. at 7.
56. Norman Lefstein, SECURING REASONABLE CASELOADS: ETHICS AND LAW IN PUBLIC
DEFENSE 140-160 (2012) [hereinafter SECURING REASONABLE CASELOADS], available at
www.americanbar.org/content/dam/aba/publications/books/ls_sclaid_def_securing_reasonable_c
aseloads.authcheckdam.pdf.
57. Id. at 157.
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the caseload limits.58 This will require additional funding to provide representation
for those beyond the caseload limits.
However, similar efforts to resist crushing caseloads in other states is unlikely.
Most states have no state-wide public defender system. Lawyers represent the poor
pursuant to appointments by judges or contracts with governments. Many of those
lawyers depend upon the appointments and contracts for their livelihoods. They will
lose their business if they refuse to take more cases than they can competently and
ethically handle. In many of the 20 states that provide representation to the poor
primarily through public defender programs, the public defenders serve at the
pleasure of the governor or some other public official. Those public defenders may
find that to keep their jobs they must every case instead of standing up for their
clients. This is why independence of public defense systems is so important. It is the
first of the American Bar Association’s TEN PRINCIPLES FOR AN OF A PUBLIC
DEFENSE DEFENSE SYSTEM.59
The system is out of balance not only because of underfunding of public
defense programs, but also because of the millions of dollars the federal government
showers on state prosecutors and law enforcement agencies for programs like drug
enforcement, highway safety, and domestic violence. Programs like drug task forces
increase the number of arrests. Those arrested need lawyers when they are prosecuted
58. See State ex rel. Missouri Public Defender Comm’n v. Waters, 370 S.W.3d 592 (Mo.
2012) (discussing caseload standards and holding trial court must consider whether appointing a
public defender to a case will cause him or her to violate the Sixth Amendment and ethical rules);
State ex rel. Missouri Public Defender Comm’n v. Pratte, 298 S.W.3d 870, 875 (Mo. banc 2009);
Stephen F. Hanlon, State Constitutional Challenges to Indigent Defense Systems, 75 MO . L. REV .
751 (2010).
59. The first principle is: “The public defense function, including the selection, funding, and
payment of defense counsel, is independent.” The commentary states: “The public defense function
should be independent from political influence and subject to judicial supervision only in the same
manner and to the same extent as retained counsel. To safeguard independence and to promote
efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel,
or contract systems. Removing oversight from the judiciary ensures judicial independence from
undue political pressures and is an important means of furthering the independence of public
defense. The selection of the chief defender and staff should be made on the basis of merit, and
recruitment of attorneys should involve special efforts aimed at achieving diversity in attorney staff.”
American Bar Association, TEN PRINCIPLES OF A PUBLIC DEFENSE DEFENSE SYSTEM , available at
www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/
ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf
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in the criminal courts. But the federal government seldom provides any funding for
that purpose. For example, in 2010, prosecutors and law enforcement in Dade
County, Florida received $4.3 million in federal Byrne and Justice Assistance grants;
the public defender received $150,000.60 What is unusual about that is that the public
defender received anything.
As will be discussed, disparities between prosecutors and public defenders
often remove any element of an adversary process from the resolution of criminal
cases. Defenders practicing “triage” simply do not have the time to conduct the
investigations, have consultations with experts and do the legal research needed on
every case. This leaves prosecutors with virtually all power to decide how cases are
resolved.
C. Judges Ignoring or Perpetuating Injustice
Many judges and prosecutors are alarmed by the deficiencies in representation
for the poor when they first see them, but become accustomed to them over time.
Poor representation is part of the culture – long accepted; it is “the way we’ve always
done things.” Some rationalize, saying that defense lawyers who file motions, seek
discovery and make objections at trial are wasting time and not helping their clients.
However, that same sentiment does not apply when lawyers retained by wealthy
defendants zealously represent their clients.
Some judges come to appreciate deficient representation. They want to
expedite their dockets. Meet ’em and plead ’em disposes of a large number of cases
in a very short time. Many judges not only tolerate indefensible representation that
results from underfunding of public defense and excessive caseloads, but contribute
to it by appointing lawyers who are not capable of handling the cases assigned to
them and denying them the resources needed to present a defense. Judges cannot be
unaware of the incompetence of many of the lawyers they appoint to defend the poor,
but they continue to appoint the lawyers nevertheless. Judges in Houston repeatedly
appointed over a period of 45 years a lawyer known for hurrying through trials like
60. National Legal & Defender Association, Congressional Summit Offers Federal
Recommendations to Stem Indigent Defense Crisis (June 16, 2010), available at
www.nlada.net/jseri/blog/gideon-alert-congressional-summit-offers-federal-recommendations-ste
m-indigent-defense-cr (quoting Miami-Dade County Public Defender Carlos Martinez).
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“greased lightening” and having a tendency to doze off during trial.61 The lawyer was
even appointed to capital cases. Ten of his clients were sentenced to death. He slept
during two of those trials.
Every day judges force public defenders to take on more cases than they can
possibly manage in violation of ethical standards that prohibit lawyers from taking
on more work than they can competently handle.62 This speaks volumes about the
ethics of those judges, who put expedience and their desire to process cases quickly
ahead of the constitutional rights of those charged to competent legal representation.
State trial judges and appellate judges could deal with a government’s failure
to fund public defense by announcing that prosecutions will be halted or cases
dismissed or the prosecution will not be allowed to seek the death penalty unless
funding is provided for an adequate defense. But judges almost never do this. The
refusal of governments to comply with Gideon and fund counsel for the defense is
more often seen as a problem for defendants, who suffer the consequences of the
goverment’s constitutional violation.
In one of many cases involving lack of funding for the defense of capital cases
in Louisiana, the Louisiana Supreme Court made the preposterous statement that the
legislature’s failure to adequately fund indigent defense and a statute prohibiting
judges from ordering parishes to provide funding in cases where there was no funding
for the defense did not “diminish any of the constitutionally guaranteed rights and
freedoms of . . . defendants or of their attorneys.”63 The case arose in Calcasieu
Parish, which had secured, primarily through ad valorem taxes, “ample funding of its
criminal justice system with substantial monies in reserve.”64 However, this “ample
funding” was in the Parish’s Criminal Court Fund which maintained the court system
and the District Attorney’s Office, but not the Parish’s public defender office. The
public defender office was funded through court fees, mostly on traffic tickets, and
61. See Paul M. Barrett, Lawyer’s Fast Work on Death Cases Raises Doubts About System,
WALL ST . J., Sept. 7, 1994, at A1.
62. Members of the legal profession, including public defenders, are prohibited by ethical
standards from taking on more work than they can competently handle. American Bar Association,
Model Rules of Prof’l Conduct 1.1 (2007). A comment is quite explicit: “A lawyer’s workload must
be controlled so that each matter can be handled competently.” Id. at Rule 1.3, cmt. 2.
63. State v. Citizen, 898 So. 2d 325, 335 (La. 2005).
64. Id. at 335-36.
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some state funds. It was chronically underfunded, its lawyers handled excessive
caseloads and it often lacked funding for the defense of capital cases.
The Court upheld the state statutes prohibiting use of monies from the Fund for
the defense of indigents unless agreed to by “the legal entities responsible for its
administration.”65 In the absence of such an agreement, the defendant is to remain
in jail indefinitely until funds were identified and obtained for the defense.66 The
Court had adopted this approach in an earlier case, holding that counsel was not even
to be appointed until funding for their compensation was identified because “budget
exigencies cannot serve as an excuse for the oppressive and abusive extension of
attorneys’ professional responsibilities.”67 The Court did not express similar concern
for the constitutional rights of the accused, who remain in limbo and without counsel
until some source of funds is identified. The failure to provide funding for defense
representation for five years in another capital case was held to be “‘out of the State’s
control.’”68 Obviously, the delay in promptly providing counsel is prejudicial in any
case, but particularly in a capital case. The United States Supreme Court recognized
that “consultation, thorough-going investigation and preparation” are “vitally
important” from the outset in a capital case.69
The failure of Louisiana and Calcasieu Parish to fund the defense of capital
cases was particularly prejudicial to Jason Manuel Reeves. Reeves was tried twice.
At his first trial, he was represented by lawyers from the Capital Defense Project of
Southeast Louisiana who specialized in the defense of capital cases.70 At that trial,
the jury was unable to agree on the issue of guilt and a mistrial was declared.71 One
would think that the same lawyers, being thoroughly familiar with the case and
65. Id. at 338.
66. Id.
67. State v. Wigley, 624 So.2d 425, 429 (La. 1993).
68. Boyer v. State, 56 So.3d 1119, 1145 (La. App. 2011), cert. granted, 133 S.Ct. 420 (2012).
The Court held the delay in securing funds for the defense was not to be counted against the State
is assessing whether there had been a speedy trial violation.
69. Powell v. Alabama, 287 U.S. 45, 59-60 (1932).
70. State v. Reeves, 11 So.3d 1031, 1047 (La. 2009). The Calcasieu Parish Public Defender
contracted with the Capital Defense Project of Southeast Louisiana to represent Reeves.
71. Id. at 1048.
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specializing in defending death penalty cases, would continue to represent Reeves at
his retrial.
However, the trial judge determined that there were not sufficient funds in the
Parish’s indigent defense budget to maintain the representation.72 The trial judge
could have ordered the state or the parish to either provide funding for a proper
defense or forgo seeking the death penalty. Instead, the judge, stating that he had a
“fiduciary obligation to manage the retrial,”73 replaced the lawyers who represented
Reeves at his first trial and appointed the local public defender, despite his protest
that he could not ethically represent Reeves due to his existing caseload.74 The judge
explained that he would be managing the defense to limit expenses:
The Court finds that there will be significant savings, not only with
the transportation and other living expenses of out of town counsel, but
additional expenses that may be saved in the close monitoring and
regulating of experts [by the judge]. Further the Court has privy of the
expenditures of the first trial and would set up conference with Defense
counsel to go through and discuss those funding needs for the upcoming
October date at Defense counsel’s convenience.
***
It is this Court’s position that if it is going to be called upon to
secure and allocate the funding that’s necessary to proceed and move
this case along then it will also regulate that as the law requires.
The Court makes this decision in order to move the matter for trial.
It is noted that this matter needs to be moved along, that the victims
72. Id. at 1051.
73. Id. at 1049.
74. Id. at 1052-53. Besides his own caseload, the public defender informed the judge that
because “none of the other nine attorneys in his office had experience with defending a person
accused of a crime which carried a mandatory life sentence[,] . . . he felt compelled to be involved
in the trial of every case in which his office defended someone accused of a crime which carried a
mandatory life sentence.” Id. at 1054.
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have requested that the matter be moved along, that the case has already
been upset on one occasion for funding.75
The judge not only terminated Reeves ongoing attorney-client relationship, he made
it clear that the public defender was to reassign other cases in order to represent
Reeves, saying “he has a staff of felony defenders that can take many of the cases that
he has been assigned.”76 As often happens, public defenders were treated as fungible
and their attorney-client relationships were ignored.
Reeves, represented by the public defender and another lawyer was, as
expected, convicted and dispatched to death row. The Louisiana Supreme Court
rejected Reeves’ claim that the substitution of counsel violated his right to counsel,
holding that it was justified to resolve the “seemingly insoluble funding issues” in the
case and “there is nothing in either the federal or state constitutions which would
provide Reeves with the right to maintain a particular attorney-client relationship.”77
The case was all about costs and not about Jason Manuel Reeves’ right to counsel in
a case in which his life was at stake. The state and the parish were rewarded with a
death sentence for withholding funds for the defense.
The Georgia Supreme Court, which once recognized that interruption of an
ongoing attorney-client relationship violated the right to counsel,78 has twice upheld
the removal lawyers for capital defendants despite well established attorney-client
relationships because of lack of funding.79
75. Id. at 1053.
76. Id.
77. Id. at 1064, 1066.
78. See Grant v. State, 607 S.E.2d 586 (2005) (reversing where trial judge removed counsel
who was familiar with the case and had an established attorney-client relationship with the
defendant); Roberts v. State, 438 S.E.2d 905 (1994) (same); Davis v. State, 403 S.E.2d 800 (1991)
(same); Amadeo v. State, 384 S.E.2d 181 (1989) (same). Courts in other states have recognized the
right to continue an ongoing attorney-client relationship. See, e.g., State v. Huskey, 82 S.W.3d 297,
305 (Tenn. 2002); Harling v. United States, 387 A.2d 1101, 1105 (D.C. App. 1978); Smith v.
Superior Court of Los Angeles County, 440 P.2d 65, 74 (Cal. 1968).
79. Phan v. State, 723 S.E.2d 876, 884 (Ga. 2012) (removal of counsel who had represented
Phan for four years upheld because retaining them “would perpetuate the funding problems that have
plagued this case”); Weis v. State, 694 S.E.2d 350 (Ga. 2010) (upholding substitution of counsel
because state agency was unable to fund lawyers who had been represented Weis; as in Reeves, the
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In these cases, sacrifice of the right to counsel to financial considerations is
apparent. More often, judges ignore excessive caseloads which make it impossible
for public defenders to represent their clients competently. Miami prosecutors twice
successfully opposed efforts by the public defenders there to secure relief for
excessive caseloads. In one case, the public defender office asked to be allowed to
decline representation in third-degree felony cases until they got their caseloads under
control so their lawyers could give each client the individual representation required
by the Sixth Amendment and the Rules of Professional Responsibility.80 In the other,
a single public defender sought to withdraw from a single case because his
obligations to 164 clients in pending felony cases prevented him from being able to
represent yet another client, one who faced a first-degree felony charge that carried
a sentence of life imprisonment as a habitual offender. The public defenders
prevailed on both cases before trial courts that were familiar with their situations.
However, they lost both cases before an intermediate appellate court.81
It is hard to imagine the State having any interest in seeking reversal of a
judge’s decision allowing a public defender to decline a single complex case except
to take advantage of the public defender’s excessive workload. Surely, the judges
who required that the public defender take the case realized how discouraging the
reversal would be to the conscientious, ethical public defender with 164 clients, as
well as to his colleagues. They must have also recognized that some of the best and
most diligent public defenders will have no alternative except to resign if they are
forced to take on more cases than they can competently and ethically handle.
Once good lawyers start leaving a public defender office because effective and
ethical representation is no longer possible, it begins a downward spiral, as the office
loses its most dedicated and experienced lawyers, its supervisors and mentors. The
large caseloads must then be given to newly hired, inexperienced lawyers. It becomes
harder to hire and keep good lawyers as the job becomes more and more impossible.
trial judge appointed local public defenders who protested their appointment because of their existing
caseloads).
80. See supra note 60.
81. State v. Public Defender, 12 So.3d 798, 805-06 (Fla. Dist. Ct. App. 2009) (per curiam),
review granted, 34 So.3d 2 (Fla. May 19, 2010); State v. Bowens, 39 So.3d 479, 480-82 (Fla. 3d
DCA 2010).
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The decision, if allowed to stand, will significantly increase violations of the right to
counsel by driving conscientious lawyers out of public defender offices.
One judge on the Florida Court of Appeals, concurring in the denial of
allowing the public defenders to decline third degree felonies until they had
reasonable caseloads, said that the case was “nothing more than a political question
masquerading as a lawsuit.”82 But it is not a political question to be taken to the
legislatures. It is a constitutional question to be resolved by the courts. The right to
counsel is guaranteed by the Sixth Amendment to the Constitution and is not subject
to the whim of legislators. Judges have the responsibility to enforce it.
D. The Power of Prosecutors in the Absence of an Adversary System
Because of the enormous disparities in resources between prosecutors and
lawyers who defend the poor, as well as the complete, unbridled and unreviewable
discretion of prosecutors in charging and plea bargaining, cases in which poor people
are accused of crimes are resolved not through an adversary process, but an
inquisitorial one. Prosecutors, not a neutral judge, are the inquisitors. They often
determine the outcomes of cases with little or no input from defense counsel.
The only investigation of the facts that occurs in most criminal cases is
conducted by law enforcement agencies and prosecutors. The only scientific tests and
other evaluations of evidence is conducted by crime laboratories that are often part
of law enforcement and experts selected by prosecutors. This investigation may be
completed before the accused has even been provided an attorney. And, as previously
discussed, if the defendant is provided an attorney, he or she may not be able to
devote much attention to the case due to an excessive caseload and may lack the
resources to investigate the case or consult with experts.
With this exclusive knowledge of the facts, prosecutors decide whether to
charge, what to charge, whether to allow defendants to enter diversion programs,
whether to offer immunity or reduced charges to a defendant or witness in exchange
for testimony against another defendant, whether to seek enhanced penalties, whether
to make plea offers and what plea bargain to offer. Prosecutors can increase their
bargaining power by overcharging, pursuing the death penalty or other enhanced
penalties or seeking mandatory minimum sentences. They can carry through and
82. State v. Public Defender, 12 So.3d at 806 (Shepherd, J., concurring).
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obtain more severe penalties if a defendant refuses their offer.83 Judges are often left
with little or no sentencing discretion84 and defense counsel are often relegated to the
role of messenger, taking plea offers from prosecutors to clients and reporting back
as to whether they have been accepted.
An inquisitorial system masquerading as an adversary system with all power
concentrated in the prosecution is not fair and just. Prosecutors evaluate cases not as
objective inquisitors, but as adversaries and politicians.85 Moreover, even the most
conscientious prosecutor committed to a just outcome lacks critical information about
the accused necessary to make informed and reliable decisions such as his or her
version of events and personal characteristics relevant to culpability or punishment.
Justice in America supposedly requires a working adversary system, as attorneys
general of 23 states recognized in 1963 in filing an amicus curiae brief in the
Supreme Court in support of Clarence Earl Gideon’s argument that the Sixth
Amendment required counsel for defendants in the state courts. But today, there is
no such support from most prosecutors or the associations of prosecutors and
attorneys general for the right to counsel.
E. Defining Counsel Down – Strickland v. Washington
The Supreme Court has papered over these gross injustices by adopting a
deferential standard of review of representation and applying presumptions that
lawyers were competent and made strategic decisions, in the face of facts to the
83. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). There, after a defendant rejected
a plea offer of a sentence of five years in prison for forging a check for $88.30, the prosecutor filed,
as threatened during plea negotiations, repeat offender papers requiring a mandatory sentence of life
imprisonment which was imposed after the defendant was convicted at trial. The Supreme Court
upheld the prosecutor’s actions, calling them part of the “‘give-and-take’ of plea bargaining.” Id.
at 363. The Court said there was “relatively equal bargaining power” between the prosecution and
the defense, id. at 362-63, but the defendant had no power – only a choice between accepting the plea
offer for a sentence of five years or rejecting the offer and spending the rest of his life in prison.
84. See, e.g., Richard A. Oppel Jr., Sentencing Shift Gives New Leverage to Prosecutors, N.
Y. TIMES, Sept. 25, 2011 (describing how sentencing laws give prosecutors power to determine
sentences).
85. All but four states (Connecticut, Delaware, New Jersey, and Rhode Island) elect their
chief prosecutors. Michael J. Ellis, The Origins of the Elected Prosecutor, 121 YALE L.J. 1528, 1530
(2012). The United States is the only country in the world where citizens elect prosecutors. Id.
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contrary in Strickland v. Washington.86 The Court decreed that “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.”87 This presumption applies even
to the large number of incompetent lawyers who take the cases of indigent defendants
because they cannot get any other legal work, many of whom should have been
disbarred years ago. The Fifth Circuit recently applied it even where there were
allegations that the defense lawyer was sleeping during trial.88 The Supreme Court
also abandoned its previous position that “[t]he right to the assistance of counsel is
too fundamental and absolute to allow courts to indulge in nice calculations as to the
amount of prejudice arising from its denial[,]”89 and allowed judges to make crude
guesses as to whether “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”90 Of
course, judges cannot possibly know whether the outcome might have been different
because they do not see the witnesses who testified at trial and have no idea how the
jury assessed the case. Nevertheless, courts shrug off one travesty after another based
on a guess that no matter how bad the representation was, it did not matter.
James Fisher, whose case was discussed previously,91 was almost executed
because the Oklahoma courts concluded the first time they reviewed his case that the
outcome would not have been different even if he had been represented by competent
counsel. Fortunately, a federal court concluded otherwise and reversed his
conviction. But today, federal courts are required by the Antiterrorism and Effective
Death Penalty Act to defer to the decisions of elected state court judges unless they
86. 466 U.S. 668, 689 (1984).
87. Id. at 690 (emphasis added).
88. Hall v. Thaler, 2012 WL 6643155 at *6-*8 (5th Cir. Dec. 21, 2012) (also holding that
no presumption of prejudice was required if the lawyer was sleeping because Hall was represented
at trial by two attorneys). The Court did not publish its opinion just as it did not publish its opinion
upholding the death sentence of Carl Johnson even though his lawyer slept during his trial. See
David R. Dow, The State, the Death Penalty, and Carl Johnson, 37 B.C. L. REV . 691, 691 (1996)
(stating that “the ineptitude of the lawyer . . . jumps off the printed page” and that later investigation
found that Johnson’s lawyer was sleeping during trial).
89. Glasser v. United States, 315 U.S. 60, 76 (1942).
90. Strickland, 446 U.S. at 694; see also Harrington v. Richter, 131 S. Ct. 770, 792 (2011)
(“The likelihood of a different result must be substantial, not just conceivable.”)
91. See supra, notes 33-44 and accompanying text.
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were “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.”92 This
standard did not apply to the Tenth Circuit’s review of Fisher’s case because federal
review commenced before the effective date of the Act.93 If it had, Fisher probably
would have been denied relief and executed.
Justice Marshall, the sole dissenter in Strickland,94 correctly predicted that the
majority’s standard was “so malleable that, in practice, it will either have no grip at
all or will yield excessive variation in the manner in which the Sixth Amendment is
interpreted and applied by different courts.”95 He also objected to the presumptions
adopted by the Court because they imposed upon defendants “an unusually weighty
burden of persuasion,”96 pointed out that “the guarantee [of the right to counsel] also
functions to ensure that convictions are obtained only through fundamentally fair
procedures”, not just to protect the innocent,97 argued that a defendant who
establishes deficient performance should not be required to show prejudice,98 and
disagreed with the majority’s conclusion that in assessing counsel’s effectiveness a
capital sentencing proceeding “need not be distinguished from an ordinary trial.”99
Unlike the majority, he concluded that the defendant in the case, David Washington,
had been denied the effective assistance of counsel at the penalty phase of his trial.100
92. U.S.C. § 2254 (d) (1). See Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770, 786 (2011)
(“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
“fairminded jurists could disagree” on the correctness of the state court’s decision.”). The Court
added, “If this standard is difficult to meet, that is because it was meant to be.” Id.
93. Fisher v. Gibson, 282 F.3d 1283, 1290 (10th Cir. 2002).
94. Justice Brennan joined the Court’s opinion but dissented from its judgment based on his
view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the
Eighth and Fourteenth Amendments. 446 U.S. at 701-07 (Brennan, J., concurring and dissenting).
95. 466 U.S. at 707 (Marshall, J., dissenting).
96. Id. at 713.
97. Id. at 711.
98. Id. at 712.
99. Id. at 715 (quoting majority opinion at 687).
100. Id. at 719.
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Six years after Strickland v. Washington was decided, Justice Marshall
observed that “capital defendants frequently suffer the consequences of having trial
counsel who are ill equipped to handle capital cases” and pointed out that “[t]he
federal reports are filled with stories of counsel who presented no evidence in
mitigation of their clients’ sentences because they did not know what to offer or how
to offer it, or had not read the state’s sentencing statute,” but were nevertheless held
to be effective.101
Such ineptness continues. One of many examples is the representation
received by Robert Wayne Holsey at a capital trial in Georgia by a court-appointed
lawyer who drank a quart of vodka every night of trial while preparing to be sued,
criminally prosecuted, and disbarred for stealing client funds in another case. The
lawyer failed to present evidence that his intellectually disabled client was “subjected
to abuse so severe, so frequent, and so notorious that his neighbors called his
childhood home ‘the Torture Chamber.’”102 The jury heard only that a report listed
Holsey as “borderline mentally retarded,” but the lawyer did not present any
testimony to explain what that meant and the extent and consequences of Holsey’s
intellectual disability. With such shoddy representation, the prosecution easily
obtained a death sentence. The Georgia Supreme Court held that under Strickland,
Holsey was not denied the effective assistance of counsel.103 The Court of Appeals
for the Eleventh Circuit, applying deference as required by Strickland and the
Antiterrorism and Effective Death Penalty Act, denied habeas corpus relief.104
Holsey’s representation was a big a travesty as Fisher’s, but Holsey’s case was
reviewed by the federal courts under the Antiterrorism and Effective Death Penalty
Act. If, like Fisher, his review had been before the effective date of the Act, the
federal court would have probably vacated his death sentence.
Conclusion
In the absence of a capable lawyer, a person accused of a crime is virtually
defenseless. That so many are left defenseless so often in the criminal courts is
101. Thurgood Marshall, Remarks on the Death Penalty Made at the Judicial Conference
of the Second Circuit, 86 COLUM . L. REV . 1, 1-2 (1986).
102. Holsey v. Warden, 694 F.3d 1230, 1275-76 (11th Cir. 2012) (Barkett, J., dissenting).
103. Schofield v. Holsey, 642 S.E.2d 56 (Ga. 2007).
104. Holsey v. Warden, 694 F.3d 1230 (11th Cir. 2012).
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shameful. In this system, poverty, not justice dictates outcomes. As former federal
judge and FBI director William S. Sessions has observed, the widespread resistance
to Gideon and its progeny “should be a source of great embarrassment” to the
judiciary, the bar and public officials because it has “created one of our legal system’s
most shameful deficiencies, greatly exacerbated by the Court’s unrealistic and
damaging 1984 decision in Strickland v. Washington[.]”105
While governments save money and obtain convictions by providing public
defense on the cheap, other costs are enormous. Innocent people are convicted and
sent to prison while the perpetrators of crime remain at large. The system’s pervasive
racism – from stops by law enforcement officers to disparate sentencing – and other
important issues are ignored and unchallenged. People are sentenced to death, prison,
jail, and probation without consideration of their individual characteristics, allowing
race, politics and other improper factors to influence sentences, and resulting in
excessive and unjust sentences for many. Beyond that, a system in which all of the
key actors routinely ignore one of its most fundamental constitutional requirements
is not a system based on the rule of law, no matter what it claims to be. When those
actors shirk their constitutional obligations and bring the immense power of the state
down disproportionately and most heavily on African Americans and Latinos, people
cease to have confidence in the courts. The system overall lacks legitimacy and
credibility and is undeserving of respect.
The solution to these problems is no secret. It is clearly summarized in the
American Bar Association’s TEN PRINCIPLES, which include sufficient funding,
reasonable workloads, training, supervision and independence. Programs with these
features can ensure that every person arrested has a lawyer at the initial bail hearing
to argue for pretrial release, and at every subsequent hearing. They can also employ
investigators and social workers and retain experts so that cases are thoroughly
investigated and clients receive individual representation at every stage of the
process. That includes sentencing for those found guilty. Advocacy backed up by
information about the client may result in probation instead of prison or some other
sentence that takes into account the individual characteristics of the person. As noted
at the outset, this is already being accomplished by the Public Defender Service in the
District of Columbia, the federal public defender program, and some state-wide
public defender systems and individual offices.
105. William S. Sessions, Foreward in SECURING REASONABLE CASELOADS, supra note 54
at vii.
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These are not just good ideas; they are required by the Constitution if its
guarantees of counsel and equal justice mean anything. But the outlook is bleak.
Defiance and indifference have prevailed for 50 years. Governments have no
incentive to provide those they are prosecuting with capable lawyers. Most courts are
not enforcing the right to counsel, but are helping to perpetuate deficient
representation. Robert Kennedy, the Attorney General of the United States at the
time Gideon was decided, said that the poor person accused of a crime has no
lobby.106 However, lawyers with their monopoly on legal services have a
responsibility to be that lobby. They have a responsibility to insure that the criminal
justice system has some integrity and that the system works for the poorest and most
powerless as well as for the most prosperous and powerful.
Lawyers – no matter what kind of lawyers, corporate lawyers, big firm lawyers,
small firm lawyers, solo practitioners, prosecutors and other government lawyers –
should be talking to legislators, civil groups, people concerned about public policy
about why there must be an effective public defense system if there is going to be
justice in the courts. Many members of the public and many legislators have no idea
why lawyers should be provided for poor people accused of crimes. Lawyers must
explain it to them. Lawyers should urge their local and state bar associations to make
this issue their top priority. Bar associations should be less about networking,
socializing, playing golf and getting rich and more about important issues like the
right to counsel. They should be at the legislature as the primary advocates for full
funding for the public defense. Some lawyers have provided exemplary leadership
in this regard, but they have been the exception, not the rule.
This must change. It is a disgrace to the legal profession that Hills McGee,
James Fisher, Robert Wayne Holsey and countless others receive little or no
representation, that courts are compared with McDonalds and contract lawyers are
compared to Wal-Mart. Even more disgraceful is that McDonalds and Wal-Mart do
far better in what they do than the lawyers who facilitate meet ’em and plead ’em
justice. After 50 years of neglect and indifference, there must be a sense of urgency
to make up for time lost, to go from the pretense of representation to the reality of it.
If that does not happen, the time will come when the words “equal justice under law”
must be sandblasted off the front of the Supreme Court building. Fifty years ago,
equal justice was at least an aspiration of the Supreme Court and the legal system.
It no longer is. Lawyers must change that.
106. Anthony Lewis, GIDEON ’S TRUMPET 222 (1964).
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