THE PAPER TIGER OF GIDEON V. WAINWRIGHT
AND THE EVISCERATION OF THE RIGHT TO
APPOINTMENT OF LEGAL COUNSEL FOR
INDIGENT DEFENDANTS
Amanda Myra Hornung*
"The rhetoric of the Sixth Amendment is grand; the reality is grim."'
-Pamela R. Metzger
"The right of one charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some countries, but it is in
2
ours."
-Justice Hugo Black
"Ensuring fairness and equal treatment in criminal trials is the responsibility of us all. The Gideon decision, with its promise of equal justice, showed the Supreme Court at its best. Forty years later, we must
3
make that promise a reality."
-Edward M. Kennedy
INTRODUCTION
In 1963, a poor white man around fifty-years-old, who had been in
and out of prison for most of his life, struck a massive blow not just for
himself but for all indigent criminal defendants in this country.4
Strangely enough, Clarence Gideon believed that he was simply asking
* J.D. candidate, Benjamin N. Cardozo School of Law, June 2005. B.A. in Political Science, Miami University, Oxford, Ohio, 2002.
1 Pamela R. Metzger, Beyond the Bright Line: A ContemporaryRight-To-Counsel Doctrine, 97
Nw. U. L. Rav. 1635, 1636 (2003).
2 Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (J. Black).
3 Edward M. Kennedy, The Promise of EqualJustice, CHAMPION, Jan.-Feb. 2003. Edward
M. Kennedy, a Democrat, is the senior U.S. senator from Massachusetts and a member of the
Senate Judiciary Comm.ttee. He began his first term in Congress in 1962, the same year that
Clarence Gideon's petition for review was granted by the U.S. Supreme Court. Id.
4 See generally ANTHONY LEWIS, GIDEON'S TRUMPET (1964). The book was made into a
movie of the same title starring Henry Fonda, GIDEON'S TRUMPET (Republic Studios 1980).
Clarence Gideon died destitute in 1972 and the American Civil Liberty Union (ACLU) donated
a tombstone twelve years later. TOM ELDEN, Gideon Remembered, 63 OR. ST. B. BULL 70
(2003).
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the Court to enforce the United States Constitution as already interpreted, not a sea change in Constitutional and criminal law in this
country-Mr. Gideon believed the Supreme Court had already held
that indigent defendants, such as himself, were entitled to appointed
counsel at state expense. 5 Clarence Gideon, while wrong at the time,
was proved right a short time later when the United States Supreme
Court held that indigent criminal defendants in state court were entitled
counsel at the state's expense. 6
Since 1932, the Supreme Court has interpreted the United States
Constitution as conferring the right of appointed legal counsel to indigent defendants in federal criminal proceedings. 7 However, it was not
until 1963 in the landmark case of Gideon v. Wainwright that the Supreme Court recognized the same right in state criminal proceedings. 8
Since that time, various cases have come before the Supreme Court challenging state practices regarding the appointment of legal counsel to
indigent defendants. With each case, the Supreme Court has determined whether the state law or policy fulfilled the commands of the
Constitution's Sixth and Fourteenth Amendments. This has been the
mechanism by which states have learned which procedures and policies
comport with or violate the Sixth Amendment and the right recognized
in Gideon.
Although Gideon's impact was significant, the case left open the
all-important question of how state legislatures might develop a system
of representation for indigent individuals charged with crimes and entirely ignored the question of the costs the decision imposed on the
state. Later decisions have also failed to answer those questions. 9 Ad
5 See Gideon, 372 U.S. at 337 (1963) (dialogue between Clarence Gideon and the trial
court judge evidences this fact).
6 See id. at 344.
7 Powell v. Alabama, 287 U.S. 45 (1932). In Powell, nine young black men were charged
with raping two white girls near Scottsboro, Alabama. The defendants were rushed to trial,
convicted of rape, and sentenced to death. The Supreme Court held that the defendants were
denied effective appointment of counsel. According to the Court in Powell, the right to appointed counsel was derived from the due process right to a fair hearing under the Fourteenth
Amendment Due Process Clause. Id. at 71. See Thomas F. Liotti, Does Gideon Still Make a
Difference?, 2 N.Y. Ciry L. R~v. 105, 118 (1998).
8 Gideon, 372 U.S. 335. This decision overruled Betts v. Brady, 316 U.S. 455 (1942),
decided twenty years before, in which the Court held that the Sixth Amendment did not apply
to the states as it did to the federal government.
9 See, e.g., Argersinger v. Hamlin, 440 U.S. 25 (1972) (extending the right to appointment
of legal counsel to indigent defendants in misdemeanor cases so long as actual imprisonment
will result after conviction); Scott v. Illinois, 449 U.S. 367 (1979) (defining "actual imprison-
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hoc determinations by the Court of what does and does not satisfy the
Sixth Amendment have not been effective in protecting the right to appointment of legal counsel in state criminal proceedings. One commentator recently remarked, "the responsibility to make Gideon a reality fell
on three distinct entities: the bar, the courts, and the legislature." 10
None of these three entities, either by itself or in combination, have in
any way succeeded in making Gideon a reality.
This note argues that the manner in which the Supreme Court has
interpreted the right of indigent defendants to counsel, as well as the
Court's interpretation of the right to effective assistance of counsel, has
given states the discretion within which they have been able to abridge
those Constitutional rights. The Supreme Court is, of course, constrained by concerns of overstepping the bounds of federalism. Although this has had a great influence on these two lines of cases,'"
federalism concerns should be malleable when measured against the allimportant rights to counsel and to effective assistance of counsel.12 The
Sixth Amendment guarantees of counsel to indigent defendants and effective assistance of counsel are essential to the inherent fairness of our
criminal justice system and thus the faith that the common man holds
in that system. Creating higher standards of legal assistance to indigent
defendants should not be left up to bar associations, or legal societies, or
even the defense community. These rights are constitutional rights, not
ment," the imprisonment standard under Argersinger, as "actual imprisonment," as a standard
which did not encompass a mere threat of imprisonment or conditional imprisonment); Alabama v. Shelton, 535 U.S. 654 (2002) (interpreting the Sixth Amendment to bar the activation
of a suspended sentence upon a probation violation if the indigent defendant was not provided
with counsel during that initial prosecution).
10 John A. Lentine, Gideon v. Wainwright At Forty Fulfilling the Promise?, 26 Am. J. TRIAl
ADVOC.
613, 619 (2003).
11 See, e.g., Smith v. Robbins, 528 U.S. 259, 273 (2000). In this effective assistance of
counsel case, the Court recognizes its "established practice, rooted in federalism, of allowing the
States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to
experiment with solutions to difficult problems of policy." Id. at 260-61. See, e.g., Griffin v.
Illinois, 351 U.S. 12 (1956); Anders v. California, 386 U.S. 738 (1967).
12 In the past, the Court has had to temper federalism concerns when confronted with
unacceptable inequalities and the same should be done with regard to the right of indigent
defendants to counsel. The Supreme Court had to temper the concerns of federalism against the
vital goal of racial equality in this country in the 1950s in its decisions in Brown v. Board of
Education of Topeka, 347 U.S. 483 (1954) (known as Brown I, holding that racially segregated
schools deprived minority children of an education and thus were a violation of the Fourteenth
Amendment's Equal Protection Clause), and Brown v. Board of Education of Topeka, 349 U.S.
294 (1955) (known as Brown I, concerning the implementation of Brown I and how state
courts should evaluate such suits regarding the implementation of that decision).
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guidelines created by legal scholars or practicing attorneys. As it is the
role of the judiciary to say what the Constitution means, 13 the Supreme
Court must, at its first opportunity, re-weigh the concerns of federalism
and the Sixth Amendment in order to make the rights to counsel for
indigents and effective assistance meet a satisfactory standard. The
Court must limit the discretion given to the states by setting forth a
more stringent standard for the application of the Sixth Amendment
guarantees of the right to counsel for indigent defendants and the right
to effective assistance of counsel. Such measures are needed in order to
ensure that indigent defendants are treated with the same fairness at trial
and in sentencing that we presume defendants who have the means to
hire attorneys are provided.
A defendant who is not granted a fair trial is more likely to be
convicted and sent to prison. 4 The number of indigent defendants in
prison may have a correlation to the type of assistance such defendants
received at trial. If defendants are unable to get experienced, motivated
attorneys and are unable to call into question the expert testimony and
evidence of the prosecution with testimony from their own experts, then
conviction is more likely than in a trial where the defendant does have
competent representation and competing experts. 15
In a study published in 2000, the Bureau of Justice Statistics reported that nationwide there was no difference in the adjudication of
guilt based on the type of attorney who represented a defendant, but of
those defendants found guilty, higher percentages of defendants with
court-appointed counsel were sentenced to prison.' 6 However, of those
criminal defendants receiving jail or prison time in state courts in large
counties, seventy-one percent of those with public counsel were sen17
tenced compared to fifty-four percent of those with private counsel.
13 In Marbury v. Madison, 5 U.S. 137, 177 (1803), Chief Justice Marshall proclaimed, "It is
emphatically the province and duty of the judicial department to say what the law is."
14 The Court, in Powell v. Alabama, makes this assertion in support of the statement that
appointment of counsel is integral to a fair trial: "He [the defendant] requires the guiding hand
of counsel at every step in the proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know how to establish his innocence." Powell, 287 U.S. at 69.
15 See John F. Decker, Expert Services in the Defense of Criminal Cases: The Constitutionaland
Statutory Rights of Indigents, 51 U. CIN. L. Rv. 574, 577-79 (1982).
16 CAROLINE WOLF HARLow, PH. D., Defense Counsel in Criminal Cases, NCJ 179023, 1
(2000).
17 Id. Seven out of ten defendants using publicly financed attorneys were sentenced to jail or
prison time while only five out of ten defendants with private counsel were incarcerated. Id. at
2005]
PAPER TIGER OF GIDEON V WAINWRIGHT
In many capital cases the defendant is indigent, thus the court appoints
counsel to him. In 1996, fifty-five percent of jail inmates charged with
homicide had public defenders.' 8 Despite the proclamation by the Supreme Court that "death is different," the Court has not demanded that
any different measures be taken in capital cases when the defendant is
indigent.' 9
As a result of the work of innocence projects around the country, it
can no longer be ignored that high numbers of innocent defendants are
convicted and sent to prison, even death row, by our criminal justice
system. 20 While the inadequacy of court-appointed counsel is not the
entire problem (indicated by the fact that many of those exonerated had
private counsel), the inadequate funding of public defender services and
21
the lower standards to which public defenders are held, play a part. If
public defenders were better equipped and held to higher standards of
6. This statistic becomes more significant when considering that ninety-five percent of all criminal defendants are tried in State courts. Id. at 4.
18
Id. at 7.
19 In the judgment of the Court and opinion of Justice Stewart, which Justices Powell and
Stevens joined, Justice Stewart observed in Gregg v. Georgia that the Court in Furman had
recognized that "death is different in kind from any other punishment imposed under our system of criminal justice." 428 U.S. 153, 188 (1976). See also, Furman v. Georgia, 408 U.S. 238
(1972); Michael D. Moore, Tinkering With the Machinery ofDeath: An Examination and Analysis
of State Indigent Defense Systems and Their Application to Death-EligibleDefendants, 37 WM. &
MARY L. REv. 1617 (1996) (arguing that state indigent defense systems do not function to
provide indigent capital defendants with adequate and effective representation); Douglas W.
Vick, PoorhouseJustice: UnderfundedIndigent Defense Services and Arbitrary Death Sentences, 43
BUFF. L. REv. 329 (1995).
20 Since the 1990s, innocence projects have arisen all over the country. Such groups, usually
consisting of both attorneys and law students, use post-conviction DNA testing to exonerate
wrongfully convicted persons currently serving time in prison. One person that had courtappointed counsel that has later been exonerated is Jimmy Ray Bromgard. His court-appointed
counsel did not object to faulty eyewitness and expert testimony. He served over fifteen years in
prison before he was exonerated through the efforts of an innocence project. Innocence Project
Case Profiles: Jimmy Ray Bromgard at http://www.innocenceproject.org/case/display-profile.
php?id= 11/. See also, Kate Jones, Exoneration highlights the need for indigent defense reform in
Montana, in CHAMPION 45, Dec. 2002. A comprehensive study on the percentage of exonerated prisoners who had court-appointed counsel or public defenders does not exist, thus, any
assertions are based on anecdotal evidence.
21 See Bad Lawyering, available at http://www.innocenceproject.org/causes/badlawyering.
php. The Innocence Project at the Benjamin N. Cardozo School of Law was co-created by Barry
Scheck and Peter J. Neufeld in 1992 and handles cases where post-conviction DNA evidence
can be used to establish proof of innocence of those serving prison sentences or sitting on death
row. To date, the Innocence Project has exonerated more than 150 wrongfully convicted persons. See generally http://www.innocenceproject.org./. See also, JIM DWYER, PETER NEUFELD &
BARRY SCHECK, ACTUAL INNOCENCE
(2000).
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assistance, the workload of innocence projects could be reduced, and
many innocent men would never have to serve prison sentences while
waiting for exoneration."
The rights of indigent defendants to appointment and effective assistance of counsel are neither lofty philosophical ideals nor rights that
only function to give us all faith in the criminal justice system.
The
rights to appointment of counsel and to effective assistance ultimately
impact not only whether people are convicted of crimes based on fair
processes but moreover, whether innocent people are convicted of
crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible. This note argues
that the Supreme Court has the wherewithal to do so by making the
right to counsel and the right to effective assistance of counsel more
robust.
Part I of this note recounts the legal history of the right to counsel
for indigent defendants as well as the right to effective assistance of
counsel. Part II examines how states are violating the constitutional
rights of indigent defendants to both appointment of legal counsel and
the effective use of that counsel by discussing laws and policies concerning the determination of indigency, when the right to counsel attaches
and when it ceases, the appointment of legal services to indigents, the
funding of public defender's offices, immunity for public defenders, and
appointment of experts. In Part III, this note proposes a course of action to begin the long process of constructing an adequate system for
the legal representation of indigent defendants as mandated by the
Constitution.2 4
22
"Similarly situated defendants in New York and other state federal courts are receiving
qualitatively better defense services. This unfair treatment of the indigent defendant leads to
wrongful convictions that pack our prisons with wrongfully convicted defendants and robs the
state of money that could be spent elsewhere to reduce crime." Thomas F. Liotti, Does Gideon
Still Make A Difference, 2 N.Y. CriT L. REv. 105, 137 (1998)
23 "It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and
paying him enough to ensure he prepares thoroughly, usually can obtain better representation
than that available to an indigent defendant, who must rely on appointed counsel, who, in turn,
has limited time and resources to devote to a given case." Strickland v. Washington, 466 U.S.
668, 708 (1984) (Marshall, J., dissenting).
24 For an in-depth analysis of Gideon v. Wainwright and the current problems with indigent
defense as well as a comprehensive proposal that the indigent defense community itself seeks to
establish standards of representation that effectuate indigent defendants' Sixth Amendment
rights, see Kim Taylor-Thompson, Tuning Up Gideon's Trumpet, 71 FORDHAM L. REv. 1461
(2003). See also Thomas F. Liotti, Does Gideon Still Make A Difference, 2 N.Y. CITY L. REv.
2005]
PAPER TIGER OF GIDEON V WAINWRIGHT
PART I
A.
Right To Appointment of Counsel
The Sixth Amendment to the United States Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence." 2 5
The Sixth Amendment applies to the states through incorporation in
the due process clause of the Fourteenth Amendment.26
In Powell v. Alabama the United States Supreme Court first interpreted the United States Constitution as requiring the appointment of
counsel to certain indigent defendants in federal criminal proceedings. 27
Decided in 1932, Powell affirmed the belief that "[i]t is vain to give the
accused a day in court, with no opportunity to prepare for it, or to
guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case." 28 Powell involved the
infamous Scottsboro Boys incident in Alabama. Nine African-American
youths were prosecuted for the capital rape of two Caucasian young
105 (1998) (examining the problem of the right to counsel to indigent defendants and recommending various strategies to fight for equal justice for the poor).
25 U.S. CONST. amend. VI. In Argersinger v. Hamlin, Justice Douglas in the opinion of the
Court makes the finding that "[tihe Sixth Amendment thus extended the right to counsel beyond its common-law dimensions." 407 U.S. 25, 30 (1972).
26 See, e.g., Gideon, 372 U.S. 335.
27
The Court in Powell rested their analysis on an interpretation of the due process clause,
holding that the trial court's failure to give the criminal defendant reasonable time and opportunity to secure counsel was a violation of the defendant's right to due process. Powell v. Alabama,
287 U.S. 45, 71 (1932). See also Johnson v. Zerbst, 304 U.S. 458 (1938) (construing the Sixth
Amendment to require that counsel must be provided to indigent defendants unless they waive
that right).
28 Powell, 287 U.S. at 59 (quoting Commonwealth v. O'Keefe, 148 A. 73, 74 (1929)) (deciding that due process of law required sufficient notice to the accused and adequate time to
secure counsel and to prepare for trial). The opinion in Powellcontains an in-depth recitation of
the English and American historical roots of the right to appointment of legal counsel to criminal defendants in both common law and constitutional law.
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women. 29 The defendants were all illiterate, all from out-of-state, all
kept under state militia guard to ensure their safety, and all unable to
afford or elicit legal representation. They were arrested, are-aigned, put
on trial, and found guilty in a matter of days. 30 The Court held that the
trial court's failure to appoint legal counsel to the defendants upon the
defendants' inability to provide counsel for themselves violated the
Fourteenth Amendment Due Process Clause's right of fundamental fairness; thus, the judgments against the defendants were reversed.'
The holding of Powell, if read narrowly, merely stands for the proposition that in capital cases, when the defendants are young, illiterate,
and indigent, as a matter of due process, counsel must be appointed for
them if they so request. 32 It was not until the case of Johnson v. Zerbst
that the Supreme Court read the Sixth Amendment to unequivocally
require the appointment of counsel to indigent defendants in federal
criminal proceedings.3 3 The Court held that "[t]he Sixth Amendment
withholds from federal courts, in all criminal proceedings, the power
and authority to deprive an accused of his life or liberty unless he has or
34
waives the assistance of counsel.
This development in federal criminal law meant little for criminal
defendants in state court. Four years after Johnson, in the case of Betts v.
Brady, the Court refused to extend this mandate to state criminal proceedings, holding that the Sixth Amendment was not incorporated into
the Fourteenth Amendment and thus did not apply to the states.
29 For an examination of events and issues surrounding the Scottsboro boys affair, see, e.g.,
GERALD HORNE, POWELL v. ALtABAA: THE SCOTTSBORO Boys AND AMERICAN JUSTICE
(1997).
30 Powell, 287 U.S. at 49-53.
31
Id. at 71-73.
32 Craig Peyton Gaumer and Paul R. Griffith, Presumed Indigent: The Effect ofBankruptcy on
a Debtor's Sixth Amendment Right to Criminal Defense Counsel, 62 UMKC L. REv. 277, 292
(1993).
33 Johnson v. Zerbst, 304 U.S. 458 (1938).
34 Id. at 463. The Court went on in its opinion:
If the accused, however, is not represented by counsel and has not competently and
intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A
court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court-as the Sixth Amendment requires-by providing counsel for an accused who is unable to obtain counsel, who has not
intelligently waived this constitutional guaranty, and whose life or liberty is at stake.
Id. at 468.
35 Betts, 316 U.S. 455 (1942).
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The Betts case involved a defendant prosecuted for robbery.3 6 The
defendant informed the court that he was unable to afford an attorney
and requested that the court appoint an attorney for him. The court
denied his request because it was the practice of the county in which he
37
was prosecuted to only appoint attorneys in rape and murder cases.
The Supreme Court found no violation of the Fourteenth Amendment
Due Process Clause.3 ' The Court's reasoning was that because "appointment of counsel is not a fundamental right, essential to a fair trial,"
it was "unable to say that the concept of due process incorporated in the
Fourteenth Amendment obligates the states, whatever may be their own
views, to furnish counsel in every such case." 39 The Court held that:
[t]he Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental
ideas of fairness and right, and while want of counsel in a particular
case may result in a conviction lacking in such fundamental fairness,
we cannot say that the amendment embodies an inexorable command
that no trial for any offense, or in any court, can be fairly conducted
and justice accorded a defendant who is not represented by counsel.40
The Betts decision affirmed the double standard that had existed
between state and federal courts since Powell and Johnson: indigent criminal defendants in state court did not have a right to appointment of
legal counsel and were forced to represent themselves. Indigent defendants in federal court fared far better, receiving counsel at government
expense, and were treated more fairly and with more dignity than those
in state court. It was not until two decades later that this double standard was finally abandoned when in Gideon v. Wainwright the Court
overruled Betts v. Brady. 1 The defendant in Gideon v. Wainwright was
charged with breaking and entering into a poolroom with the intent to
commit a misdemeanor-a felony under Florida state law.4 2 Unable to
36
37
38
Id. at 456.
Id. at 456-57.
Id. at 461-72. Compare with Justice Black's analysis in the majority opinion in Gideon v.
Wainwright, 372 U.S. 335 at 339-45 (explaining that the Sixth Amendment right to counsel is
incorporated in the Fourteenth Amendment and why the Court in Betts was wrong in its
analysis).
39 Betts, 316 U.S. at 471-72.
40 Id. at 473.
41 The Court in Gideon makes the observation that the two defendants in Gideon and Betts
have striking similarities. Gideon, 372 U.S. at 338.
42 Id. at 336-37.
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afford an attorney, the defendant, Clarence Gideon, formally requested
that the court appoint counsel. The trial judge replied:
Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent
you in this case. Under the laws of the State of Florida, the only time
the Court can appoint Counsel to represent a Defendant is when that
person is charged with a capital offense. I am sorry, but I will have to
43
deny your request to appoint Counsel to defend you in this case.
Gideon briefly answered, "the United States Supreme Court says I am
entitled to be represented by Counsel.""
Although the Supreme Court observed that Gideon "conducted his
defense about as well as could be expected from a layman," he was still
convicted4 5 and sentenced to five years in prison.46 While serving his
sentence, Gideon filed a handwritten in forma pauperis petition 47 to the
United States Supreme Court asking the Court to issue a writ of certiorari to the Florida Supreme Court ordering his conviction set aside because he was denied a fair trial because of a lack of assistance of
counsel. 48 The Supreme Court granted Clarence Gideon's request and
later found that the Florida procedure of only appointing counsel to
indigent defendants in capital cases is a violation of the Fourteenth
Amendment.4 9
In Gideon, the Supreme Court rejected the primary basis for the
Betts decision-that representation by counsel is not "fundamental and
essential to a fair trial."' 50 The Court in Gideon repudiated Betts not only
as a departure from established precedent recognizing that legal counsel
was essential to the fundamental fairness of a trial, but also as establishing an irrational distinction between federal and state criminal proceedings.51 Indeed, the Court in Gideon found that the Betts Court had
"ample precedent" for recognizing that the Sixth Amendment guarantee
43 This portion of the dialogue between Gideon and the court was recited in the opinion of
the Court in Gideon v. Wainwright, 372 U.S. at 337.
44 Id.
45
Id.
LEwis, supra note 4, at 7.
For a discussion of in forma pauperis petitions and new prohibitions on such petitions,
see Cristina Lane, Pay Up or Shut Up: The Supreme Court's Prospective Denial of In Forma
Pauperis Petitions, 98 Nw. U. L. REv. 335 (2003).
48 Gideon, 372 U.S. at 337-38.
46
47
Id. at 342-44.
50 Id. at 342.
49
51
Gideon at 343-45.
2005]
PAPER TIGER OF GIDEON V WAINWRIGHT
of the right to appointment of legal counsel to indigent defendants applied to the states through incorporation in the Fourteenth Amendment. 52 The Court criticized Betts for ignoring precedent that had
already established that the assistance of counsel was fundamental to a
fair trial.13 The Court in Gideon proclaimed:
In returning to these old precedents, sounder we believe than the new,
we but restore constitutional principles established to achieve a fair
system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided for
him. This seems to us to be an obvious truth. Governments, both
state and federal, quite properly spend vast sums of money to establish
54
machinery to try defendants accused of crime.
Regardless of its legal reasoning, Gideon rested on those principles
upon which this great country was founded. The decision was a declaration of the importance of the ideals of justice, equality, and fairness.
In Gideon, the Supreme Court made it clear that justice and fairness are
52
Id. at 341. The Court's use of incorporation as the basis for extending the Sixth Amend-
ment to the states is a marked difference from the Powell court's Due Process Clause fundamental fairness approach which asks the question of a given right is "implicit in the concept of
ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). A fundamental right is one
deemed fundamental to all citizens of free nations. Fundamental rights are those "implicit in
ordered liberty"-those that "neither liberty nor justice would exist if [they] were sacrificed."
Id. at 325-26. See Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., dissenting); Snyder v.
Massachusetts, 291 U.S. 97 (1934) (Cardozo, J.). See Tracey L. Meares, Whats Wrong with
Gideon, 70 U. CHI. L. REv. 215 (2003) (arguing that by rooting the right to counsel in state
criminal proceedings in the notion that the Sixth Amendment is incorporated into the Fourteenth Amendment Due Process Clause as opposed to basing the right in an outright interpretation of the Due Process Clause using a fundamental fairness approach, the Court has lead to
inflexibility in state criminal law and "risks a jurisprudence that diverges from the goal of determining what is fair in criminal justice."). Id. at 224. In Powell, the Court used a fundamental
fairness approach to interpret the Due Process Clause, finding that the right to counsel was
rooted in due process. See Powell v. Alabama, 287 U.S. 45, 71-73. The Court's use of the
notion of incorporation has continued to be the cornerstone of interpreting the right to counsel
in state criminal proceedings, but legal scholars have argued that basing the right to counsel on
the principle of incorporation has led to jurisprudential inflexibility. See, e.g., Argersinger v.
Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979); Michigan v. Reichenbach,
459 Mich. 109 (1998); Alabama v. Shelton, 535 U.S. 654 (2002). This inflexibility may indeed
be part of the reason why the promise of Gideon has never been fully realized.
53
54
Gideon, 372 U.S. at 343-44.
Id. at 344.
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not just for those people who can afford them. Every person in our
society, whether rich or poor, is entitled to fairness in a court of law.
Representation by counsel is integral to that fairness. The Supreme
Court declared that in our society, a man should be judged in court not
based upon how much money he has but rather on the evidence and
55
law.
A year after Gideon, in the case of Escobedo v. Illinois, the Supreme
Court considered the question of whether "the refusal by the police to
honor petitioner's request to consult with his lawyer during the course
of an interrogation constitutes a denial of 'the Assistance of Counsel,"'
thereby making any incriminating statements made during such interrogation inadmissible. 56 The case did not involve appointment of legal
counsel, but rather the failure of the police to allow the defendant to
have the assistance of his retained counsel. 57 The Court held that statements made during interrogation, after a suspect has requested an attorney, are in violation of the right to counsel recognized in Gideon.58 The
Court reasoned that the admission of such statements would make the
right to counsel useless since counsel may not be able to undo the harm
done to the defendant's case during such a "critical stage" as interrogation. 59 The decision in Escobedo indicates that the Supreme Court at
the time of Gideon was committed to strengthening the right to counsel,
thereby ensuring that the legal system would not benefit from the denial
of that right.6 °
In 1972 the Supreme Court in Argersinger v. Hamlin6 announced
the new rule that the right of indigent defendants to appointment of
55 The Court in Gideon quoted Powell:
If charged with crime, he [the layman] is incapable, generally, of determining for
himself whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue
or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one.
Gideon, 372 U.S. at 345 (quoting Powell, 287 U.S. at 68-69).
Escobedo, 378 U.S. 478, 479 (1964).
Id. at 480-83.
58 Id. at 490-91.
59 Id. See infra Part Jl.B.
60 In Escobedo, the defendant made an incriminating statement to the police during interro56
57
gation. Although made voluntarily, it was made after his request to consult with counsel had
been refused. The Court held that the statement was inadmissible at trial, as it was garnered in
violation of the defendant's right to counsel. Escobedo, 378 U.S. at 490-91.
61 Argersinger v. Hamlin, 407 U.S. 25 (1972).
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counsel was no longer limited to felony prosecutions. The Court in
Argersinger extended the right to appointment of legal counsel to indigent defendants in misdemeanor cases so long as actual imprisonment
will result after conviction.6 2 The Argersinger Court found that although the defendants in Powell and Gideon were charged with felonies,
the rules from those cases were relevant to misdemeanor prosecutions
63
"where an accused is deprived of his liberty."
The Court in Argersinger recognized that "the requirement of
counsel may well be necessary for a fair trial even in a petty-offense
prosecution. '"64 The Court held that "absent a knowing and intelligent
waiver, no person may be imprisoned for any offense, whether classified
as petty, misdemeanor, or felony, unless he was represented by counsel
at his trial."'6 5 By abandoning the distinction between felonies and misdemeanors as the determining factor in whether an indigent defendant
has the right to appointment of counsel and replacing it with a standard
that looks only to whether the defendant will suffer a deprivation of
liberty if found guilty, the Supreme Court again chose to strengthen and
extend the right to counsel.
In Scott v. Illinois, decided in 1979, the Supreme Court, in an
opinion written by Justice Rehnquist, affirmed "the central premise of
Argersinger that actual imprisonment is ...the line defining the constitutional right to appointment of counsel."66 As in Argersinger, the defendant was charged with a petty offense-imprisonment was a
possible, but not necessary, consequence of conviction.6 7 The Court
held that "the Sixth and Fourteenth Amendments to the United States
Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the
right to assistance of appointed counsel in his defense."6 8 The Court in
Scott, however, declined to extend the Sixth Amendment right to counsel to defendants who were not in fact imprisoned.6 9 If there is only the
62
63
64
65
66
67
Id. at
Id. at
Id. at
Id. at
33.
32.
33.
37.
Scott v. Illinois, 440 U.S. 367, 373 (1979).
Id. at 368. The defendant "was convicted of shoplifting merchandise valued at less than
$150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine
or one year in jail, or both." Id.
68 Id. at 373-74.
69 Id at 369.
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"threat of imprisonment," or if imprisonment may occur only if a condition (such as paying a fine) is not met, then the actual imprisonment
standard is not satisfied.70 Under this framework, a defendant could
ultimately be imprisoned after being forced to proceed without counsel,
merely because the realized imprisonment was conditional. 7'
Three recent cases addressing the right to counsel have shown both
positive and negative developments in the plight of indigent defendants
for adequate representation in the criminal justice system. Texas v.
Cobb, decided in 2001, involved a defendant who had been indicted on
burglary charges who subsequently freely confessed to murder committed during the commission of that burglary. 72 The Court held that this
confession had not been taken in violation of the defendant's right to
counsel as the right to counsel had not attached to that uncharged but
factually related offense.73 In Cobb, the Supreme Court limited the
right to counsel, holding "that the Sixth Amendment right [to counsel]
is 'offense specific,"' meaning that the right to counsel only attaches to
the charged offense. 74 The Court held that the right to counsel attaches
to uncharged offenses only if those offenses are essentially the same as
the offense with which the defendant has been charged; 75 thus, the right
70
Id. at 373; see Michigan v. Reichenbach, 459 Mich. 109, 120 (1998). In Reichenbach, the
threat of imprisonment if the defendant failed to pay a fine failed to constitute "actual imprisonment" under Argersinger. Id.
71 See Adam D. Young, An Analysis of the Sixth Amendment Right to Counsel as It Applies to
Suspended Sentences and Probation:Do Argersinger and Scott Blow a Flat Note on Gideon " Trumpet?, 107 DICK. L. REv. 699 (2003) (arguing that "those courts interpreting Argersinger and
Scott as drawing a definite line of Sixth Amendment protection at actual imprisonment undermine the protections afforded a criminal defendant and, further, the 'actual imprisonment' standard has proven difficult to define and apply," and concluding that "the only logical way out of
this judicially created Sixth Amendment quagmire is to raise the constitutional minimum protection and require appointment of counsel in all criminal proceedings where imprisonment is
an authorized penalty.") Id. at 701.
72 Texas v. Cobb, 532 U.S. 162, 165-66 (2001). In Cobb, the defendant, upon further
questioning by the police in regards to the disappearance of the occupants of the house he was
charged with burglarizing, confessed to the murder of the mother and child who lived in the
house. Id.
73 Id. at 174.
74 Idat 164 (citing McNeil v. Wisconsin, 501 U.S. 171 (1991)). See Angela Henson, Now
You Have It, Now You Don't: The Sixth Amendment Right to Counsel After Texas v. Cobb, 51
CATH. U. L. REv. 1359, 1361 (2002) (examining Cobb and arguing that recent Supreme Court
cases indicate "a trend of favoring law enforcement goals, while limiting the protection of the
constitutional right to counsel.").
75 Cobb, 532 U.S. at 171-75. The Court held that the determination of whether an uncharged offense is the same offense as the charged offense to which the right to counsel had
attached is controlled by the test articulated by the court in Blockburger v. United States, 284
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to counsel does not attach to crimes that are merely "factually related"
76
to the charged offense.
77
In 2002 the United States Supreme Court in Alabama v. Shelton
meaningfully expanded the right of indigent defendants to counsel.
The Court held that
where the State provides no counsel to an indigent defendant, does the
Sixth Amendment permit activation of a suspended sentence upon the
defendant's violation of the terms of probation? We conclude that it
does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant
is incarcerated not for the probation violation, but for the underlying
offense. 78
Such activation is barred because the conviction would then satisfy the
Argersinger "actual deprivation" of liberty standard, and being an uncounseled conviction, imprisonment would violate the Sixth Amendment.79 The holding in Shelton closed a pervasive loophole in the
"actual imprisonment" standard by disallowing a probation violation to
result in imprisonment when the accused, for whatever reason, was denied counsel at trial.
In 2003, in Tesmer v. Granholm, the United States Court of Appeals for the Sixth Circuit struck a blow for the right of indigent defendants to counsel. In Tesmer, the Sixth Circuit heard challenges to the
constitutionality of the Michigan practice of denying appellate counsel
following plea-based convictions, and the statute that codified the pracU.S. 299 (1932). "Where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which the other does not." Blockburger,
284 U.S. at 304.
76 Cobb, 532 U.S. at 168.
77 535 U.S. 654 (2002).
Id. at 662.
79 See, e.g., Argersinger v. Hamlin, 407 U.S. 25 (1972). See also Nichols v. United States,
511 U.S. 738 (1994) (holding that a prior uncounseled misdemeanor conviction could be used
to convert a subsequent misdemeanor into a felony leading to incarceration); Ralph Ruebner, et
al., Shaking the Foundation ofGideon: A Critique ofNichols in Overruling Baldasar v. Illinois, 25
HOFSTA L. REV. 507 (1996) (arguing that the Supreme Court incorrectly decided Nichols and
that it was a departure from the flow of Sixth Amendment jurisprudence); Michael J. Stacchini,
Nichols v. United States: Narrowingthe Sixth Amendment Guaranteeto Counsel, 75 B.U. L. Ruv.
1233 (1995) (criticizing the decision in Nichols and offering a proposal that balances concerns
for reliability against the rationales for enhancement statutes).
78
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tice.8 The court in Tesmer held that the Michigan law regulating the
appeals process created "unequal access" even at the first tier of appeals,
and that "the effect [of the system] is to create a different opportunity
for access to the appellate system based upon indigency."' The court
found this law to be a violation of the due process clause of the Four82
teenth Amendment.
Overall, there has been an important shift towards greater effectiveness and meaning in the representation afforded to indigent defendants.
Despite this shift, cases like Cobb8 3 continue to undermine the Sixth
Amendment right. Although Cobb is not confined to indigent defense,
that case exhibits a denial of assistance of counsel to accused persons
who may already have counsel appointed to them. Under Cobb, an accused has no protection against the police eliciting confessions or other
inculpatory evidence from them, even if they have counsel, so long as
84
the offense they are investigating is not essentially the same offense.
Obviously this is a very narrow exception. Yet with Shelton and Tesmer,
we see positive developments towards granting indigent defendants
greater constitutional protections.
Shelton eliminated the threat of backhanded incarceration to indigent defendants.85 Before Shelton, an indigent defendant could have
been denied counsel at trial because there was no actual threat of deprivation of liberty from being judged guilty, only to later have the state
use that very lack of assistance of counsel to imprison the defendant if
80 Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003).
81 333 F.3d at 701.
See infra Part II.C.
The court is Tesmer inferred from prior Supreme Court decisions that
"appellate processes must be fair and may not be implemented in a manner that discriminates
based on indigency." Id. at 700.
82 Id. at 701.
83 Texas v. Cobb, 532 U.S. 162 (2001).
84 The Sixth Amendment right to counsel attaches to both charged and uncharged offenses
that are "the same offense" under the Blockburger test which requires an examination into
whether the two charges require the same evidence to prove their elements. Id.at 172-73. If the
two charges require different evidence, although they may arise from a single transaction or set
of events, the Sixth Amendment right to counsel while attaching to the first charge, does not at
the same time attach to the second charge, making it possible for police to interrogate a suspect
on the second charge without the presence of an attorney. Id. at 173-74.
85 Alabama v. Shelton, 535 U.S. 654 (2002). Alabama maintained the position that a suspended sentence based on an uncounseled conviction could be imposed on a criminal defendant
for punishment for probation violations. Id.at 661. The Supreme Court held that this position
was untenable according to the Sixth Amendment, "[a] suspended sentence is a prison term
imposed for the offense of conviction. Once the prison term is triggered, the defendant is
incarcerated not for the probation violation, but for the underlying offense." Id. at 662.
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any condition of probation were violated. 86 With Tesmer, the Sixth Circuit proclaimed that indigent defendants must have a right to counsel
on appeal, even if they were convicted based on a guilty plea. 87 The
Sixth Circuit has sent a message to state courts that they cannot use
guilty pleas elicited from an indigent accused as an end-run around the
right to appointment of counsel. In the effective assistance line of cases,
we also see new positive developments.
B.
Right To Effective Assistance of Counsel
The Supreme Court's interpretation of the right to effective assistance of counsel has an undeniable impact on the quality of service that
indigent defendants receive from court-appointed counsel. There is little incentive for a public defender to provide services above and beyond
the constitutional mandate. 88 Where both the right to counsel and effective assistance lines of cases impact the services that indigent defendants receive, the two lines of cases in combination provide a
comprehensive framework that obligates the states to provide certain
services in specific instances, and allows them the discretion to provide
services in others, based on state laws and local preferences.
In McMann v. Richardson, the Supreme Court held that the right
to counsel presumes the right to effective counsel.8 9 Over a decade later
in Strickland v. Washington, the Court explained the rationale behind
this conclusion:
The Sixth Amendment recognizes the right to the assistance of counsel
because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is
entitled to be assisted by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the trial is fair.90
86 An indigent defendant without counsel, and thus without the benefit of a greater knowledge of the law and tools of legal argument, would then in a sense later be imprisoned because of
this lack of sophistication.
87 Tesmer, 333 F.3d 683. The court found that the Michigan statute denying appellate
counsel to indigent criminal defendants on appeals on plea-based convictions violated the Due
Process Clause of the Fourteenth Amendment and provided unequal access to the appellate
system for indigent defendants. Id. at 701.
88 This is obviously true in light of the lack of funding the public defenders' offices receive
and the low pay scales of public defenders. See infra Part II.D.
89 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
90 Strickland v. Washington, 466 U.S. 668, 685 (1984). See William S. Geimer, A Decade of
Strickland's Tin Horn: Doctrinaland PracticalUndermining of the Right to Counsel, 4 WM. &
MARY BILL RTs. J. 91 (1995) (arguing that the Stricklanddecision functioned to undermine the
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The Court in Strickland held that "[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result." 9 ' A conviction
will be overturned, if. (1) "that counsel's performance was deficient,"
and (2) "the deficient performance prejudiced the defense." 92 The second component requires a showing that the defendant did not receive a
fair trial due to the deficiency in counsel's performance.
Counsel is
held to the standard of "reasonably effective assistance."9' 4 However,
when scrutinizing counsel's performance, a strong rule of deference
must be followed and the performance is judged based on the facts of
the case and the time in which the contested conduct took place. 9
Prejudice is assumed in situations where assistance of counsel was completely denied, where there was certain state interference with counsel's
assistance, and when counsel has the burden of a conflict of interest. 6
The Court in Mickens v. Taylor recognized that Strickland stood for
the proposition "that assistance which is ineffective in preserving fairness
does not meet the constitutional mandate." 97 The Court in Mickens
also acknowledged that Strickland established that "defects in assistance
that have no probable effect upon the trial's outcome do not establish a
'
constitutional violation." 98
A defendant alleging a Sixth Amendment
violation must demonstrate "'a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
holding of Gideon v. Wainwright, providing a system of assistance of counsel that endorses form
over substance).
91 Strickland, 466 U.S. at 686.
92 Id. at 687. See Donald A. Dripps, CriminalLaw: Ineffective Assistance of Counsel The Case
for An ExAnte Parity Standard, 88 J.
CRiM. L. & CRIMINOLOGY 242 (1997) (critiquing Strickland and proposing an ex ante parity standard as an alternative to the current framework which
would ask before proceedings began whether the defendant's counsel could effectively represent
him).
93 Strickland, 466 U.S. at 687.
94 Id.
95 Id. at 689-690. Justice Marshall's dissent is illuminates the problems with the Court's
approach in Strickland. See id at 706-19.
96 Id at 692. In Smith v. Robbins, the Supreme Court held that Strickland applies to claims
by indigent defendants of ineffective assistance of appellate counsel as well. Smith v. Robbins,
528 U.S. 259, 289 (2000). See also, Christopher Stogel, Smith v. Robbins: Appointed Criminal
Appellate Counsel Should Watch for the Wende in Their Hair, 31 Sw. U. L. REv. 281 (2002)
(examining the Robbins decision and arguing that the problem the procedure adopted in Robbins
was created to solve continues to exist).
97 Mickens v. Taylor, 535 U.S. 164, 166 (2002) (citing Strickland, 466 U.S. at 685-686).
98 Id. at 166 (citing Strickland, 466 U.S. at 694).
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been different,"' however, "where assistance of counsel has been denied
entirely or during a critical stage of the proceeding," there does not need
to be a showing of probable effect upon the outcome of the case. 99 The
evidentiary difficulties of showing a reasonable probability that counsel
errors changed the outcome of the case compounded by the extreme
deference that judges show to counsel's performance, make proving the
first prong of Strickland almost impossible.1"' Thus, a presumption of
prejudice is a vital mechanism for vindicating the rights of defendants.
The Supreme Court in United States v. Cronic described three
broad categories of circumstances within which prejudice is presumed in
ineffective assistance cases.' 1 The first is when the defendant is completely denied counsel.'0 2 The second is when "counsel entirely fails to
subject the prosecution's case to meaningful adversarial testing. "103 The
last is when counsel must render assistance in circumstances under
which any competent counsel most likely could not do so.' 0 4 Thus, if
the ineffective assistance claim alleges conduct by counsel that falls
under one of these three categories, the appellant does not have to prove
prejudice in order to sustain the claim. Cronic makes bringing an effective assistance claim easier for those appellants who are alleging such
conduct; however, in the later case of Bell v. Cone, the Court refuses to
1 5
make the second exception meaningful by interpreting it narrowly.
Claims of ineffective assistance are difficult to bring on direct appeal; thus, collateral review is the primary means by which such claims
are heard. 10 6 Direct appeal is usually conditioned upon an objection
being made at trial or the trial record clearly reflecting the grounds for
99
Mickens, 535 U.S. 164 at 166.
100 "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466
U.S. at 689. "There are countless ways to provide effective assistance in any given case." Id.
101 United States v. Cronic, 466 U.S. 648 (1984). Cronic was decided on the same day as
Strickland.
102 Id. at 659. In such instances it is assumed that complete denial of counsel at a critical
stage is automatically prejudicial to the defendant's case and renders the trial unfair. Id.
103 Id.
104 Id. at 659-62. The Court cited Powell v. Alabama as an example of one such case. See
infra pp. 7-8.
105 See infra discussion of Bell v. Cone pp. 23-24.
106 See, e.g., United States v. Sevick, 234 F.3d 248, 251 (5th Cit. 2000) (denying direct
review because the claim was not addressed by the district court and the record was not developed sufficiently); United States v. Osorio-Pena, 247 F.3d 14, 20 (1st Cit. 2001) (holding that
the record was not sufficiently developed to hear claim so issue must be raised in a habeas
petition); Matheney v. Anderson, 253 F.3d 1025, 1040 (7th Cir. 2001) (refusing to hear ineffective assistance claim as record not adequate to properly evaluate the claim).
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the claim.' °7 In addition, state prisoners alleging ineffective assistance
must exhaust all state processes before federal courts will hear the case
on habeas review. Compounding the difficulty of bringing a claim, a
public defender cannot argue on appeal the ineffectiveness of trial counsel if that counsel is another member of his own public defender office.'o 8 Stricklandand its progeny set a very low minimum as to what is
required for appointed attorneys in order for assistance to be deemed
effective. Had the Supreme Court set a more stringent standard for
effective assistance, state governments would have to set aside substantially larger amounts of resources to fund indigent defense services. 0 9
As with the right to counsel line of cases, the developments in the
effective assistance line of cases have been both positive and negative. In
2002, the Supreme Court, in Bell refused to extend the holding of
United States v. Cronic and interpreted the prejudice standard under
Strickland to apply very broadly. " 0 From the holding in Bell, it is evident that the situations in which prejudice is presumed are extremely
narrow; indeed, the attorney's performance must be an entire and complete failure in order for Strickland not to apply."' The Court in Bell
held that under Cronic, in order for prejudice to be presumed, the attorney must have completely failed to test the prosecutor's case. 1 2 The
respondent in Bell alleged that his attorney failed completely to present
mitigating evidence at sentencing, and the Court held that this did not
107
See, e.g., United States v. Gonzalez-Airmont, 268 F.3d 8, 13 (1st Cir. 2001) (hearing
claim on direct appeal because no critical facts in dispute and record sufficiently developed);
United States v. Gambino, 788 F.2d 938, 951 (3d Cir. 1986) (holding that the claim was
supported by allusions to a potential conflict of interest in memoranda filed in support of a Rule
33 motion); United States v. Finley, 245 F.3d 199, 204 (2d Cir. 2001) (hearing the claim
because defendant was represented by new counsel on appeal and each ground argued was supported by the record); United States v. Gwiazdzinski, 141 F.3d 784, 789 (7th Cir. 1998) (hearing the claim because appellant had new counsel and record was sufficiently developed).
108 See Com. v. Bond, 819 A.2d 33, 39-40 (Pa. 2002) (holding that as a general rule a public
defender could not argue this as in essence he would be asserting a claim of his own
ineffectiveness).
109 See Richard Klein, Symposium, Gideon-A GenerationLater: The Constitutionalizationof
Ineffective Assistance of Counsel, 58 MD. L. REv. 1433 (1999).
11o Bell v. Cone, 535 U.S. 685 (2002) (holding that petitioner's ineffective assistance claim
was governed by Strickland as it challenged specific aspects of counsel's representation at sentencing, not its assistance as a whole).
' ''
112
See id. at 697.
Id. at 696-98.
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515
satisfy the complete failure standard-the failure must be complete dur3
ing the entire proceeding.'
In 2003, the United States Supreme Court, in Glover v. United
States, held that an increase in the length of a prison sentence constitutes
prejudice for the purposes of the Strickland standard." 4 The Court
found that the increase in prison term does not have to be significant in
order to constitute prejudice; any increase in sentence satisfies
prejudice. 1 15 That same year, the Sixth Circuit Court of Appeals in
Frazierv. Huffman held that the failure of petitioner's counsel to investigate and present evidence of the client's brain impairment, did not comport with the behavior of a reasonable competent attorney. 1 6 The
court arrived at this conclusion after learning that counsel was aware of
the impairment but simply failed to investigate the matter or present
evidence regarding it as a mitigating factor during the defendant's penalty phase. The failure to act as a reasonable competent attorney satisfies
the first prong of the Stricklandtest.' 17 Also in 2003, in French v. Jones,
the Sixth Circuit Court of Appeals held that petitioner was entitled to
habeas relief after showing that he was denied counsel during a critical
stage of his trial.' 1 8 Denial at a critical stage is presumptively prejudicial
to the defendant's case. 1' 9 In French, the defendant's counsel was not
present when the trial judge gave the deadlocked jury a supplemental
instruction. 12 ° The United States Supreme Court has since denied certi12 1
orari in the case.
The Supreme Court Clarifies Two
113 Id; see Stuart E. Walker, "What We Meant Was.
Ineffective Assistance Cases in Bell v. Cone, 54 MERCER L. REv. 1271, 1272 (2003) (examining
Bell v. Cone in depth and arguing that the case "solidifies the practical difficulty of obtaining
federal habeas corpus relief for ineffective assistance claims.").
114 Glover v. United States, 531 U.S. 198 (2003). The petitioner argued that the ineffective
assistance resulted in an increase of his prison sentence by at least six months, possibly up to
twenty-one months. Id. at 200.
115 Id. at 203-04.
116 Frazier v. Huffman, 343 F. 3d 780, 794 (6th Cir. 2003). Because the state court failed to
show "any reason to explain or justify such a trial strategy," the behavior was not found to be
that of the reasonably competent attorney. Id. at 797.
117 The petitioner must then show with reasonable probability that but for counsel's failure,
the result of the sentencing phase would have been different. Id.
118 French v. Jones, 332 F.3d 430, 432 (6th Cir. 2003). While counsel was not altogether
denied, because counsel was completely denied at that specific phase of the proceedings, it falls
within one of the exceptions to the Strickland test and prejudice is presumed. Id. at 438-39.
119 Id at 439.
120
Id. at 432.
121 French v. Jones, 332 F.3d 430 (6th Cir. 2003), cert. denied, 124 S. Ct. 581 (2003).
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Despite the disappointing holding of Bell,'22 the overall objective
of effective assistance of counsel is being further realized. While the
Supreme Court, in Bell, refused to expand the circumstances under
which prejudice would be presumed under Strickland,and indeed set an
abysmally low minimum for effective assistance, Glover'2 3 was an important step in the right direction. That any increase in the prison term
resulting from the lack of assistance constitutes prejudice makes it easier
for indigents to obtain a meaningful appeal of their convictions.12 4 Frazier has a significant impact for those indigent defendants whose attorneys shirked their duties during the penalty/sentencing phase of the
defendant's trial by failing to investigate and present mitigating evidence, which may have resulted in shorter lengths of incarceration.12 5
Under Frazier, such indigent appellants (in the Sixth Circuit) will
more easily satisfy the Strickland test and thus have more meaningful
appeals with a greater chance of reversal. With French, the Sixth Circuit
again chose to bolster the protections within the effective assistance jurisprudence. 126 With the aforementioned cases, it is evident that the
Sixth Circuit'has, *overall, made commendable efforts to strengthen the
protections afforded to indigent defendants and appellants.
This recent trend in cases indicates that the tide may be changing
in the United States towards providing greater assistance and protections
to indigent criminal defendants. If this is indeed the case, and values
and sentiments in this country are changing towards providing indigent
122
Bell, 535 U.S. 685 (2002).
123
Glover v. United States, 531 U.S. 198 (2003).
Id. at 202-04. The Supreme Court remarked that "it is clear that prejudice flowed from
124
the asserted error in sentencing." Id. at 204. This "asserted error" was an increase in his prison
sentence ranging from an additional six to twenty-one months. Id. at 202. The Court also
asserted that "authority does not suggest that a minimal amount of additional time in prison
cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount
of actual jail time has Sixth Amendment significance." Id. at 203.
125 Frazier v. Huffman, 343 F.3d 780 (2003). The court found that there was no rational
trial strategy for the petitioner's counsel to fail to present evidence of a brain impairment as
mitigating circumstances during the sentencing phase and instead to rely on residual doubt to
spare his client's life, when residual doubt was not a mitigating factor under Ohio law. Id. at
794-95. This was not a strategic choice allowed under Stricklandbecause no reasonable attorney
would have acted as such. Id.
126 332 F.3d 430 (2003), cert. denied, 24 S.Ct. 581 (2003). The court in French v. Jones
recognized that the Supreme Court has repeatedly held that "absence of counsel during a critical
stage of a trial is per se reversible error." Id. at 438. The court held that because the petitioner
was denied counsel during a supplemental jury instruction by the trial court judge, he was
indeed denied counsel during a critical stage of trial and thus under Strickland, petitioner did
not have to show actual prejudice. Id. at 438-39.
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defendants with more meaningful representation and access, then there
is no better time for the Supreme Court to step in and both strengthen
and raise the Constitutional bar for these rights.
PART II
State governments, through their funding practices for public defender offices, methods of obtaining court-appointed counsel, and interpretation and limitations of Gideon v. Wainwright and its progeny, are
unconstitutionally depriving indigent defendants of their rights both to
court-appointed counsel and effective assistance of counsel. An indepth examination of the policies and laws of a number of states makes
this apparent. While the United States Supreme Court has laid down
certain criteria that must be met in order to satisfy the Sixth Amendment, it has deliberately given the states broad discretion to fashion laws
and policies to effectuate the overall goals of fair trials and effective assistance. State legislatures are free to provide greater protections to indigent defendants than the Supreme Court mandates, but the majority of
states have elected not to do so. 12 7 Because the right to counsel is integral to whether a defendant receives a fair trial and thus to whether we
can say his liberty has been taken from him in a fair manner, we cannot
allow states to limit this right in such a way as to de facto deprive defendants of a fair trial. The States have not answered Gideon 's call-it is
time that they be required to do so.
I.
A.
STATE LAWS AND POLICIES
Determination of Indigency
Courts do not merely take the defendant's word that he is indigent
and therefore require state-appointed counsel. Upon a request for appointment of counsel, it is the court's duty to make further inquiry or to
conduct a hearing to determine whether the defendant is in fact indi127 Federal law establishes a minimum right to counsel with which states must comply, how-
ever, states may establish a broader right to counsel than the one created by federal law. It is a
well-established principle in other areas of law that states may provide greater protection than
federal law mandates. See, e.g., Oregon v. Hass, 420 U.S. 719 (1975) (permitting the state to be
more restrictive of police activity); Cooper v. California, 386 U.S. 58 (1967) (finding the state
may provide greater protection against search and seizure); Sibron v. New York, 392 U.S. 40
(1968) (finding that the state may adopt rules to meet local needs so long as Constitutional
protections are not trenched upon).
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gent and entitled to representation at state expense. 128 Despite the importance of independent inquiry into the defendant's actual inability to
pay for legal services, those defendants claiming indigency are not refused counsel until the court can make an official determination.
Courts have held that an indigency determination cannot be expected to
be made at the time the defendant enters his initial plea, thus the public
defender should provide interim services if the determination of indigency cannot be made before services are first needed. 129 The burden to
prove indigency most often lies with the defendant asserting his right to
appointment of legal counsel.'13
In all states, two conditions must be met in order for a state criminal defendant to qualify for court-appointed counsel. First, the defendant must be found to be indigent-he must be unable to pay private
counsel to represent him. 31 The burden of proof is usually on the defendant to show that he is financially unable to afford to hire private
counsel. 132 Second, the defendant must be facing actual imprisonment
if convicted of the crime. 33 Even if determined to be indigent, some
state statutes require those receiving public defender services to pay a
34
nominal sum for those services.1
Federal courts have not established any "precise constitutional standard of indigence."' 1 35 However, in dicta, the Supreme Court has dis128
See, e.g., State v. Melechinsky, 451 A.2d 585 (Conn. 1982); State v. Dean, 471 N.W.2d
310 (Wis. 1991).
129 See, e.g., Lager v. Pittman, 140 Ohio App. 3d 227 (Ohio Ct. App. 2000).
130 See, e.g., State v. De Joseph, 222 A.2d 752 (Conn. 1966), cert. denied, 220 A.2d 771
(Conn. 1966), cert. denied, 385 US 982 (1966) (finding defendant had the burden to prove
indigency and absent proof, the trial court could constitutionally refuse to appoint him counsel);
Martin v. State, 711 So.2d 117 (Fla. Dist. Ct. App. 1998) (holding defendant bore the burden
of proof in determining indigency); Commonwealth v. Godwin, 804 N.E.2d 940 (Mass. App.
Ct., 2004) (deciding defendant had the burden of substantiating claim of indigency); State v.
Hilgers, 2004 WL 1738638 (Aug. 4, 2004) (discussing defendant's failure to satisfy his burden
of demonstrating indigency).
131 See, e.g., People v. Scott, 68 Ill. 2d 269 (1977); Alaska Public Defender Agency, Juneau
Office v. Superior Court of First Judicial Dist, 584 P.2d 1106 (Ala. 1978).
132 See, e.g., In re Stuart, 646 N.W.2d 520, 526 (Minn. 2002).
133 See, e.g., Scott, 68 Ill. 2d 269; Alaska Public Defender Agency, 584 P.2d 1106.
134 See, e.g., State v. Cunningham, 663 N.W.2d 7 (Minn. Ct. App. 2003) (finding that a
statute requiring those receiving public defender services to make a twenty-eight dollar co-payment did not violate the defendants' Constitutional right to counsel).
135 Gaumer and Griffith, supra note 32, at 288 (citing Hardy v. United States, 375 U.S. 277
(1964))("[arguing] that criminal courts should incorporate the operation of bankruptcy law as
part of their inquiry into whether a debtor accused of a crime should have court-appointed
counsel." Gaumer and Griffith, supra note 32, at 279-80.).
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PAPER TIGER OF GIDEON V WAINWRIGHT
cussed the issue of indigence and has explained that indigence is "a
relative concept. An impoverished accused in not necessarily one totally
devoid of means."' 3 6 In a concurring opinion in Hardy v. United
States, 37 Justice Goldberg reasoned that courts should "look at the totality of the accused's financial circumstances to arrive at an accurate assessment of the accused's ability or disability to fund his own criminal
defense."' 138 This test does not look so much at whether the defendant
is in fact indigent, i.e., poor, but rather, "whether the defendant,
whatever his net worth, lacks the ability to finance a proper defense."139
The Criminal Justice Act of 1964 sets out guidelines for federal courts
in determining a defendant's indigence. 40 Many states have adopted
similar indigence tests."'
Indigence is not synonymous with a financial inability to pay,
which is actually what concerns the courts.' 42 A person can have the
financial inability to retain counsel although he is not indigent. 4 3 "If a
person cannot gain access to his assets, he cannot finance his criminal
defense."1 44 It is this inability to finance one's criminal defense that
entitles a defendant to appointment of counsel. Thus, some states have
adopted standards of indigence that pose the question of not just
whether a defendant is poor, but whether "the defendant has the 'financial ability to pay' for his defense."' 14 5 However, some argue that this
136 Id. at 286-87 (citing Hardy v. United States, 375 U.S. 277, 289 n.7 (1964) (Goldberg, J.,
concurring)).
137 Hardy, 375 U.S. 277.
138 Gaumer and Griffith, supra note 32, at 288.
139 Id.
140 18 U.S.C. 5 3006A (2004).
141 Gaumer and Griffith, supra note 32, at 294. Among these states are Arizona, California,
Delaware, Florida, and Hawaii, Iowa, and Tennessee which have all have adopted a "financial
inability to pay" standard not unlike that in the Federal Criminal Justice Act. Id. at n.91.
142 Id. at 295 (citations omitted).
143 Id.
The definition of indigence is poverty or neediness. THE AMERICAN HERITAGE Dic-
TIONARY OF THE ENGLISH LANGUAGE, (4th ed. 2000).
14, Gaurner and Griffith, supra note 32, at 295.
145 Id. (citing State v. McGonigle, 440 P.2d 100 (Ariz. 1968) ("using the standard of ready
availability" of assets); In re Van Brunt, 242 Cal. App. 2d 96 (Cal.Dist. Ct. App. 1966) (utilizing the standard of financially unable to employ attorney); Potter v. State, 547 A.2d 595 (Del.
1988) (using the standard of unable to obtain legal counsel without impairing economic necessities of life); Sapio v. State, 223 So. 2d 759 (Fla. Dist. Ct. App. 1969) (determining whether the
defendant personally has the means to hire representation); State v. Mickle, 525 P.2d 1108
(Haw. 1974) (utilizing the rule of financially unable to obtain counsel without hardship); Pharris
v.State, 424 P.2d 390 (Idaho 1967) (using the standard of unable to obtain counsel because
of his indigence); People v. Morrison, 449 N.E.2d 859 (Ill. App. Ct. 1983) (inquiring into
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more sophisticated standard does not suffice to ensure that those who
are truly unable to pay for their own defense services are in fact appointed counsel by the court. The argument has been made that to
better effectuate this "financial inability to pay" standard, courts "should
incorporate the operation of bankruptcy law as part of their inquiry into
whether a debtor accused of'a crime should have court-appointed counsel" as the federal bankruptcy law operates to deprive a debtor of the
14 6
ability to access his assets and thus fund his own defense.
Indigence tests often take various factors into account in order to
determine a financial inability to pay. The court weighs such factors as
employment, ownership of a home or an automobile, value of convertible assets, and other such factors that comprise a defendant's financial
situation. 14 7 In 1963, a Florida court held that whether a defendant was
indigent depended not upon whether the defendant's friends, relatives,
or spouse were able or even willing to provide funds, but rather, whether
the defendant himself personally had the means, or the property which
could be converted to means, to employ a private attorney. 148 Some
courts have held that if a defendant faces the prospect of awaiting trial
in jail because he cannot afford to post bond, a public defender should
defendant's lack of financial resources on practical basis); Graves v. State, 503 N.E.2d 1258
(Ind. Ct. App. 1987) (using the standard which asks whether the defendant lacks financial
resources to fund his defense); State v. Woodyard, 414 N.W.2d 654 (Iowa App. 1987); Baldwin
v. State, 444 A.2d 1058 (Md. Ct. Spec. App. 1982), cert. denied, 474 A.2d 218 (Md. 1984)
(inquiring into the defendant's financial ability given nature, extent and liquidity of assets);
People v. Kanouse, 350 N.W.2d 760 (Mich. Ct. App. 1984) (examining the defendant's inability to retain counsel); State v. Eichelberger, 418 N.W.2d 580 (Neb. 1988) (inquiring into the
availability of defendant's resources); State v. Dale, 439 N.W.2d 112 (S.D. 1989) (utilizing the
standard of lack of financial resources); State v. Henry, 733 S.W.2d 127 (Tenn. Crim. App.
1987) (examining the defendant's lack of financial resources).
146 Gaumer and Griffith, supra note 32, at 279-80.
147 See, e.g., In re Smiley, 427 P.2d 179 (Cal. 1967) (finding that indigency determined on
basis of complete financial picture, including consideration of factors such as the number and
age of his dependents, any child support or alimony, the extent and nature of the defendant's
outstanding debts, and encumbrances on his home or car); Di Bartolomeo v. State, 450 So. 2d
925 (Fla. Dist. Ct. App. 1984) (holding that factors such as the accused's weekly income, number of dependents, amount of debts owed, debts that might be incurred due to illness or other
family misfortune, and probable expense of defending case should be considered in determining
indigency); State v. Dale, 439 N.W.2d 112 (S.D. 1989) (finding that in determining indigency,
the trial court should require the accused to furnish information regarding bank accounts,
bonds, income and the ability to borrow money, interest accrued on accounts, employment
benefits, pensions, inheritances and pending claims, real and personal property owned, outstanding debts and encumbrances, number and age of dependents, fines and restitution, living expenses, etc.).
148 Keur v. State, 160 So. 2d 546, 549 (Fla. Dist. Ct. App. 1963).
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PAPER TIGER OF GIDEON V WAINWRIGHT
be appointed, regardless of whether that defendant meets typical indigency standards or faces actual imprisonment.' 4 9 It is also worth mentioning that the right to counsel is not the right to counsel of one's
choice. Thus, while a defendant may be determined indigent and a
public defender is appointed to represent him, the defendant has no
voice in who this attorney will be."5 °
B.
When the Right to Counsel Attaches
The United States Supreme Court has held that the Sixth Amendment right to counsel attaches upon the commencement of criminal
proceedings against the defendant-at the time that the defendant is
formally charged. 15 ' The Supreme Court has repeatedly held that a defendant has the right to counsel once he has reached a "critical stage" of
the proceedings against him. 1 52 What constitutes a critical stage can
vary from jurisdiction to jurisdiction. Hamilton v. Alabama, held that a
critical stage was at the arraignment, during which a defense of insanity,
pleas of abatement, and motions regarding the improper choosing of
jurors must be made.' 53 Arraignment was deemed critical as certain defenses and pleas, if not made at that time, could be forever lost to the
defendant. 54 In White v. Maryland, the Supreme Court held that the
preliminary hearing was as critical a stage in Maryland criminal procedure as arraignment was in Alabama criminal procedure, and thus, the
right to counsel attached at that point in the proceedings against the
defendant. 155 While these two cases interpreted the critical stage differently under Maryland and Alabama criminal procedure, the standard
that emerges is the critical stage, the point at which a defendant, by his
149
See, e.g., Hardy v. State, 776 So. 2d 962 (Fla. Dist. Ct. App. 2000).
150
See, e.g,, People v. Stroble, 226 P.2d 330 (Cal. 1951), aff'd, 343 U.S. 181 (1952), rehg
denied, 343 U.S. 951 (1952); Allsup v. State, 550 S.E.2d 425 (Ga. Ct. App. 2001); People v.
Simeone, 282 P.2d 971 (Cal. Dist. Ct. App. 1955).
151 See, e.g., McNeil v. Wisconsin, 501 U.S. 171 (1991).
152
Hamilton v. Alabama, 368 U.S. 52, 52-55 (1961).
153 Id. at 53-54. Because the Court found that "what happens there [during arraignment]
may affect the whole trial" and that during arraignment "[a]vailable defenses may be as irretrievably lost, if not then and there asserted," the Court held that defendants must have assistance of
counsel during that proceeding. Id. at 54.
154
Id.
155 White v. Maryland, 373 U.S. 59, 59-60 (1963). This stage was critical because during
the preliminary hearing, the defendant enters a plea, and without the assistance of counsel, this
plea cannot be entered intelligently and may harm his case irrevocably once counsel is later
appointed. Id.; see also United States v. Wade, 388 U.S. 218 (1967) (holding that an indigent
defendant is entitled to appointed counsel at a post-indictment, pre-trial lineup).
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[
lack of legal knowledge, could irrevocably damage his case through a
plea entered or defenses not asserted.
Because the Court has interpreted the attachment of the right to
counsel at different stages under the criminal procedure rules of different states, there is room for debate about what constitutes a critical
stage. In addition, there can be delay between the attachment of the
15 6
right to counsel and the rendering of that counsel to defendants.
Some have argued that the critical stage doctrine has altogether failed to
guarantee the constitutional right to counsel and should be abandoned
for a standard that would promote the basic ideals of the Sixth
15 7
Amendment.
C.
When Right to Counsel Ceases
Various states have enacted laws that determine when an indigent
defendant's right to appointed counsel ceases. States are free to give a
broader right to counsel than the Constitution mandates, but many
have not gone beyond the constitutional requirements. If the laws of a
state give a convicted criminal defendant the right to an appeal, then
that appellant has a right to counsel on that appeal. 158 If an appellant is
indigent, and the appeal is not frivolous, then the appellate court must
appoint counsel to the indigent to argue the appeal.1 59 The Court in
156
See Merea L. Beeman, Fulfilling the Promise of the Right to Counsel- How to Ensure that
Counsel is Available to Indigent Defendants 1) Upon QuestioningFollowing Arrest and 2) Following
Probable Cause Determination and Awaiting Indictment, 27 NEW ENG J. ON CraM. & Civ.
CONFINEMENT 27 (2001) (arguing that the Constitutional framework results in substantial delay in the provision of counsel after the right to counsel has attached and during custodial
interrogation).
157 See, e.g., Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-To-Counsel
Doctrine, 97 Nw. U. L. REv. 1635, 1637 (2003) (arguing that the critical stage doctrine does
not promote the values of the Sixth Amendment and proposing a right-to-counsel doctrine that
does promote those basic values).
158 In 1963 the Supreme Court established that the Fourteenth Amendment guarantees the
right of a criminal appellant to counsel on a first appeal as of right. If the State confers a
criminal appeal as of right, then it must provide at its expense the assistance of counsel to
indigent appellants. See Douglas v. California, 372 U.S. 353 (1963). See also In re Barnett, 31
Cal. 4th 466 (2003). States are under no constitutional obligation to confer criminal appeal as
of right.
159 See, e.g., Anders v. California, 386 U.S. 738, 744 (1967) (holding that the right to appeal
does not include the right to make a frivolous appeal, hence the assistance of counsel in making
an appeal is conditioned upon the appeal having merit); McCoy v. Court of Appeals of Wis.,
Dist. 1, 486 U.S. 429 (1988) (holding that states do not have to strictly follow the constitutionally satisfactory procedure described by the Court in Anders and instead have the discretion to
formulate their own procedure to safeguard the indigent's right to appellate counsel); Smith v.
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PAPER TIGER OF GIDEON V WAINWRIGHT
Douglas v. California reasoned that the indigent defendant must be appointed counsel so that he can have a "meaningful appeal" (as a defendant who could afford counsel would have) instead of a mere
"meaningless ritual," which is what an appeal without counsel would
in
effect be. 6o
If a criminal defendant is not granted the right to appeal his conviction but must instead file some sort of petition for appeal, as was
required by a Michigan law,16 1 then based on United States Supreme
Court precedent, the state has no duty to appoint an attorney to assist
the indigent appellant on that appeal. 162 In 1994, Michigan voters
amended their state constitution to eliminate appeals as of right for
criminal defendants who plead guilty, guilty but mentally ill, or nolo
contendere. 16 3 Thus, such defendants have no first appeal as of right
and thus have no right to appointment of legal counsel on any appeal
they may wish to pursue. In the 2003 case Tesmer v. Granholm, the
Court of Appeals for the Sixth Circuit held that this violates the Four64
teenth Amendment. 1
States do not have the constitutional obligation to appoint counsel
to indigent appellants in second-level discretionary appeals. 165 Thus,
even if the incarcerated indigent has a first level appeal as of right (and is
thus appointed counsel), if the outcome of that appeal is not favorable,
he has no right to appointment of counsel on a next appeal if he has no
second level appeal as of right. The Supreme Court has ruled that states
are free to adopt whatever procedure they so choose in regards to effectuating indigent criminal defendants' right to counsel on appeal so long
as that procedure "adequately safeguard[s]" that right. 166 The Court has
held that "a State's procedure provides such [adequate and effective apRobbins, 528 U.S. 259 (2000) (discussing the rationale and the specific holding of the Anders
case as well as the requirements for state compliance).
160 Douglas v. California, 372 U.S. 353, 358 (1963).
161 MICH. COMP. LAws. § 770.3(d)(1), (d)(2), (d)(3) (2004).
162 See supra note 158.
163 MICH. CONST. art I, § 20 (2004). See MICH. COMP. LAws. § 770.3(d)(1), (d)(2), (d)(3)
(2004) for the codification of the procedure for defendants seeking appeal who fall under the
amendment.
164 Tesmer v. Granholm, 333 F.3d 683 (2003). "The effect of the statute is that most indigent defendants who plead guilty will be denied appointed counsel when applying for leave to
appeal. Only very limited circumstances will require appointed counsel to help with a petition
for appeal." Id. at 687.
165 Ross v. Moffitt, 417 U.S. 600, 610 (197 4).
166 Smith, 528 U.S. 259, 265 (2000) (citing Griffin v. Illinois, 351 U.S. 12, 17-18 (1956)).
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[
pellate] review so long as it reasonably ensures that an indigent's appeal
will be resolved in a way that is related to the merit of that appeal. 16 7
Obviously these terms are vague and lead to varied interpretations.
The United States Supreme Court has held that criminal defendants seeking state collateral post-conviction relief possess no constitutional right to counsel. 168 Because the Supreme Court has failed to
recognize a constitutional right to assistance of legal counsel in state
post-conviction proceedings, the existence of any right to counsel in
post-conviction proceedings depends entirely on the state legislatures.
In addition, because no constitutional right to assistance of counsel in
collateral post-conviction proceedings exists, a petitioner cannot make a
claim of ineffective assistance of counsel regarding the post-conviction
proceedings. 9
From the plethora of cases in the majority of states in the Union, a
general rule has emerged, according to which a public defender does not
have the duty to present an appeal for every indigent defendant seeking
one, and has the right to refuse if he finds no meritorious ground for
appeal. 170 This is problematic for several reasons: (1) attorneys may interpret differently what grounds are "meritorious" and which are frivolous; (2) courts afford public defenders wide discretion in determining
whether an indigent has "meritorious" grounds for appeal; and (3)
courts rarely question an attorney's estimation on the merits of an appeal. Thus, an attorney's belief that the grounds for appeal have no
merit will often serve as the death knell to any hope of reversal in an
indigent defendant's case.
Also of concern is that many states do not provide indigent defendants with counsel during prosecution appeals.' 7' In many states, prose167
168
Smith, 528 U.S. at 276-77.
In Pennsylvania v. Finley, 481 U.S. 551 (1987), the Supreme Court held that states were
not constitutionally required to provide assistance of counsel in collateral post-conviction proceedings. The Supreme Court in Murray v. Giarratano,held that the rule of Finley also applied
to state prisoners on death row who were seeking post-conviction relief. 492 U.S. 1 (1989).
169 See e.g., McCarty v. State, 83 P.3d 249 (Kan. 2004).
170 See, e.g., Fredericks v. Reincke, 208 A.2d 756 (Conn. 1965); Lee v. State, 204 So. 2d 245
(Fla. App. 1967); Carr v. State, 180 So. 2d 381 (Fla. Dist. Ct. App. 1965); Lindsey v. State, 204
N.E.2d 357 (Ind. 1965).
171
Some states authorize such prosecution appeals made before the end of trial: Arkansas
(ARK. CODE ANN. §16-91-112 (Michie 1987)); Iowa (IowA CODE ANN. §814.5 (West 1994));
Kansas (KAN. CraM. PROC. CODE ANN. §22-3602 (West 1973)); Ohio (Ohio Rev. Code Ann.
§2945.67 (Anderson 1997)). But see State v. Viers, 469 P.2d 53 (Nev. 1970) (holding state
courts unauthorized to issue advisory opinions).
2005]
PAPER TIGER OF GIDEON V WAINWRIGHT
525
cution appeals are not barred in absolutely every circumstance as a
violation of a defendant's right to be protected against double jeopardy. 17 2 The prosecution can appeal certain judgments mid-trial in order to resolve issues of law that may impact future prosecutions so long
as the appellate court's holding has no retroactive effect upon the defendant in the case at hand. 173 Some state statutes provide for appointment
of counsel or payment of attorney's fees on appeals by the state. However, procedures of such appointment vary among states. 174 While some
states provide that it is the trial court's responsibility to ensure that the
defendant's right to counsel is not violated, others provide that the de175
fendant's attorney has that burden.
D.
The Delivery of Indigent Defense Services
There are three basic ways in which indigent criminal defense services are administered across the nation: public defender programs, assigned attorney programs, and contract attorney programs. In a public
defender program, full or part-time attorneys, in the form of a private or
public organization, or comprised of government employees, provide defense services. 176 In an assigned attorney program, a list of private attorneys is maintained by the court and attorneys are appointed to defend
indigent defendants on a judge-by-judge, case-by-case, or court-by-court
172 "Appeals from final judgments are explicitly authorized by statute in at least thirty-seven
states and the federal government, and appeals form interlocutory orders are explicitly authorized in at least thirty-five states and the federal government." Brian L. Zavin, The Right to
Appointed Counsel on Prosecution Appeals: Hard Realities and Theoretical Perspectives, 25 N.Y.U.
REv. L. & Soc. CHANGE 271, 275-76 (1999). U.S. CONST. amend. V: "nor shall any person
be subject for the same offence to be twice put in jeopardy of life or limb." This relevant
portion of the Fifth Amendment has been deemed to be incorporated into the Fourteenth
Amendment and thus applicable to the states.
173 See Zavin, supra note 172 (arguing that prosecution appeals should constitute a Lritical
stage in the proceedings against a defendant and thus the right to counsel should automatically
attach).
174 For statutes providing for appointment of counsel on prosecution appeals, see, e.g., OHIO
REv. CODE ANN §2945.67 (B) (Anderson 1997); Wvo. STAT. ANN. §7-12-103 (Michie 1999);
N.M. R. App. P. 12-303(C) (Michie 1998); Me. R. Crim. P. 37B(d) (West 1997).
175 See e.g., N.M. R. App. P. 12-303(C) (Michie. 1998-2004) (charging trial counsel with the
burden of ensuring the defendant's right to counsel is not abridged); Ill. Sup. Ct. R. 607 (2004)
(charging the trial court with the burden of ensuring the defendant is represented by counsel on
appeal). See also People v. Jovani Garcia, 710 N.E.2d 247 (N.Y. 1999) (ending a department
split, holding that the state had the responsibility to notify the defendant of his or her rights in
prosecution appeals).
176 CAROL J. DEFRANcus, PH.D., State-Funded Indigent Defense Services, 1999, NCJ
188464, U.S. Dep't of Justice 3 (2001).
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CARDOZO PUB. LAW, POLICY & ETHICS J.
[Vol. 3:495
basis. 177 Finally, in a contract attorney program, non-salaried private
attorneys, bar associations, law firms, consortiums of attorneys or nonprofit organizations contract with a funding source to provide courtappointed representation to indigent defendants in a given
jurisdiction. 178
A Bureau of Justice report published in 2001, examined twentyone states whose indigent defense programs are funded almost entirely
by state monies, and which use one, or a combination, of such programs
to provide indigent criminal defense services. 17 9 Nineteen of those
states provide indigent defense through public defender programs;... ten
of those states maintain a roster of private attorneys that can be appointed to indigent criminal defendants, 8 ' while eleven states provide
indigent defense through contract attorney programs.' 82 Of the
nineteen states with public defender programs, sixteen have statewide
indigent defense programs that are administered through local branch
offices. 18 3 In the remaining three states, the public defender programs,
while state-funded, are locally established.' 8 4 In 1999, the Bureau of
177
Id.
178
Id.
179
Id.
These twenty-one states which at the time accounted for twenty-seven percent of the
U.S. population were: Alaska, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North
Carolina, Oregon, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin. Id. at 1.
180 Id. at 1. These nineteen states were: Alaska, Colorado, Connecticut, Delaware, Hawaii,
Iowa, Maine, Maryland, Massachusetts, Missouri, New Hampshire, New Jersey, North Carolina, OQcgon, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin. Id. at 8.
181 DEFRANCES, supra note 176, at 1. Ohio is one such state. As a college intern at the City
of Mansfield Municipal Court in Richland County, Ohio, one of the tasks I performed was
calling the attorneys on the list upon the arraignment of an indigent defendant in order to
secure them counsel. Often, I had to call multiple attorneys to find one that had the time to
represent the defendant. If several indigents were arraigned in one morning, often it took most
of the workday to find counsel to represent them all.
182 Id. States reported administering contracts awarded to public defenders, individual solo
practitioners, law firms which handled both indigent and private cases, nonprofit organizations,
and law firms or a group of private attorneys joined solely to provide indigent representation
under the contract. None reported awarding contracts to bar associations. Id. at 9. Maine and
Oregon are the only two states that have zero expenditures on a public defender programs. Id. at
3. In some counties, contract awards are the primary way in which indigent criminal defendants
are given services. Id. at 9. The eleven states that utilize contract attorney programs are: Alaska,
Connecticut, Iowa, Maine, Minnesota, New Hampshire, New Mexico, North Carolina, Oregon,
Vermont, and Wisconsin.
183 Id. at 2. Maine and Oregon were the two states that did not have a state-funded public
defender program. Id. at 3.
184 Id. at 4. These three states were North Carolina, Virginia, and West Virginia.
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PAPER TIGER OF GIDEON V WAINWRIGHT
Justice Statistics reported that in the nation's one-hundred most populous counties, public defender programs existed in ninety counties, assigned counsel programs in eighty-nine counties, and contract programs
18 5
in forty-two counties.
In the same survey of the twenty-one states that funded their indigent criminal defense systems almost entirely without the aid of the federal government, it was reported that all of the states provided at least
ninety percent of the funding for their indigent defense services. 186 In
nine of those states, indigent defense services relied entirely on county
funds. 1 87 These twenty-one states that rely almost entirely on state
funding, account for approximately twenty-seven percent of the nation's
population and spend a total of $662 million annually on indigent defense. 188 In addition, this same survey reported that the minimum salary for an entry-level public defender ranged from $29,000 to
$45,000.189 Another survey reported that the median minimum annual
salary for entry-level assistant prosecutors was $40,000 and the median
maximum salary was $51,000.'90 State governments typically spend
three times as much on prosecution as on public defense. 19 1 Two states
that illustrate this disparity are Kentucky, which spent $56 million on
prosecution and $19 million on indigent defense in 1998, and Delaware, which spent $16 million on prosecution and $6.9 million on indi192
gent defense in the same year.
From the foregoing facts and statistics, it seems that public defender offices suffer from an overall lack of funding.193 Because their
185 CAROL DEFRANCES, PH.D. AND MARjKA
F.X.
LITRAS,
PH.D., Indigent Defense Services
in Large Counties, 1999, NCJ 184932 3 (2000).
186 DEFRANCES, supra note 176, at 1.
187 Id. at 2. New Jersey, which has the highest population of the states studied in the report,
spent the most with an indigent defense budget of $73 million. Id. at 2-3. The nine states in
which country governments entirely funded indigent criminal defense services were: Arizona,
California, Idaho, Illinois, Michigan, Pennsylvania, South Dakota, Texas, and Utah. Id. at 2.
188 Id.
189 Id. at 5. While in today's lagging economy such salaries are coveted, they are quite small
considering that a year of law school costs approximately just as much as these attorneys are
being paid.
190 Carol J. DeFrances, Ph.D., State Court Prosecutors in Large Districts, 2001, U.S. Dep't
of Justice 3 NCJ 191206, (2001).
191 Marion Yoder, Gideon at Work and in Wyoming, 26-APR Wyo. LAw. 45 (2003) (discussing public defender programs, specifically that in Wyoming).
192 Id.
193 See Stacey L. Reed, A Look Back at Gideon v. Wainwright After Forty Years: An Examination of the Illusory Sixth Amendment Right to Assistance of Counsel, 52 DRAKE L. REv. 47 (1999)
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funding is so much lower than that of prosecutors' offices, public defenders are at a comparative disadvantage-prosecutors have the resources to put on stronger and more technical cases than the defense.
Because states fund their indigent defense programs with little federal
aid, the amount of the state budget designated for indigent defense services is a product of local politics and regional preferences. Because
there are no federal funding mandates, the state legislature determines
just how important delivery of indigent defense services is to the citizens
of that state and thus how much of the budget will be apportioned to
protect the legal rights of indigent defendants.
Attorney General Robert F. Kennedy once said, "the poor man
charged with crime has no lobby." 194 We cannot assume a priori that
indigents have a strong voice or influence in the local legislative
processes that determine what type of defense services they shall receive.
This under-funding puts indigent defendants at a comparative disadvantage to those defendants capable of retaining private attorneys. 195
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." 196 We see a trend in courts
today of buying a not-guilty verdict where those defendants with lesser
197
funds would most likely have been found guilty.
When properly funded, statewide public defender offices have been
implemented in different states with overwhelming success. One shining example was the California State Public Defender Office, created by
the California Legislature in 1976, which lasted until 1983.198 The Cal(arguing that the costs of maintaining an effective indigent defense system are nearly insurmountable for many localities, making the guarantee to assistance of counsel under the Sixth
Amendment a mere illusion).
194 This statement by then Attorney General Robert F. Kennedy is attributed to him in an
article by his brother Senator Edward M. Kennedy, The Promise ofEqualJustice, in CHAMPION,
Jan.-Feb. 2003.
195 Underfunding does not only impact the indigent population as a whole, but may reinforce societal and judicial inequalities on ethnic minorities. See Rebecca Marcus, Racism in Our
Courts: The Underfundingof PublicDefenders and Its DisproportionateImpact Upon Racial Minor-
ities, 22
HASTINGS CONST.
L.Q. 219 (1994).
Griffin v. Illinois, 351 U.S. 12, 19 (1956).
197 Arguably, one example of this is the O.J. Simpson trial in which the wealthy defendant
was able to hire the most sophisticated legal defense team ever assembled, including Johnny
Cochrane, F. Lee Bailey, and Barry Sheck (co-founder of the Innocence Project). These highly
skilled attorneys were able to call into question certain evidence that could have easily convicted
another defendant with less funds, facing the same charges as O.J. Simpson.
198 Charles M. Sevilla, Gideon and the Short Happy Life of California Public Defender Office,
in CHAMPION 44, Jan.-Feb. 2003. Sevilla is a criminal defense lawyer in San Diego, CA. Id.
196
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PAPER TIGER OF GIDEON V WAINWRIGHT
ifornia State Public Defender Office's main job was to represent the
thousands of indigent felons appealing their convictions at that time. 99
Due to the efforts of the Public Defender Office, the statewide reversal
rate doubled in California. 2°" These defense attorneys "won a series of
significant legal victories including decisions protecting against unfair
lineups, coerced confessions, and discriminatory prosecutorial challenges
to potential jurors, causing the California criminal law to undergo substantial changes."' 20 ' The State Public Defender Office had enormous
success attacking death judgments and obtained relief for all of its clients.2 °2 Despite the overwhelming successes of the California State Public Defender Office (or perhaps due to their successes), in 1983, the new
Republican Governor George Deukmejian (a death penalty proponent)
slashed the Office's funding in half-the first step to its imminent
demise.20 3
In addition to under-funding, the use of low-contract bidding has
contributed significantly to the inadequacy of state-administered indigent defense services. In a 1999 study, out of the eleven states that
utilize contracts to provide indigent defense, only five reported competitively bidding for indigent criminal defense services.20 4 Of the nine
states reporting caseload information, contract attorneys handled approximately 122,000 criminal cases.20 5 The large amount of cases that
these contract attorneys handle makes their contribution to indigent defense both considerable and troublesome.
E.
Caseload of the Typical Public Defender
In a study published by the Department of Justice in 2000, the
Bureau of Justice Statistics reported that eighty-two percent of felony
defendants in large state courts were represented by public defenders or
court-appointed counsel.20 6 Indigent defense programs in the largest
199 Id.
200 Id.
203
Id.
Id.
Id.
204
DEFRANCEs, supra note 176, at 9. These five states were Alaska, Maine, New Hampshire,
201
202
Oregon, and Wisconsin. Id.
205 Id. at 10. These nine states were Connecticut, Maine, Minnesota, New Hampshire, New
Mexico, North Carolina, Oregon, Vermont, and Wisconsin. Id. In the same study, these nine
states reported a total combined caseload of 454,504 indigent criminal cases, making the number of cases handled by contract attorneys significant. Id at 7-8.
206 HI-ARow, supra note 16, at 1.
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one-hundred counties handled an estimated 4.2 million cases in
1999.207 About eighty percent of these were criminal cases.2 °8 Half of
the counties received over 20,000 cases and the average county received
nearly 35,000 indigent criminal cases in addition to other types of
cases. 2 09 Of the 4.2 million cases in these counties, public defenders
handled eighty-two percent, court-appointed private attorneys handled
2 10
fifteen percent, and contract attorneys handled three percent.
In Wyoming, the public defender caseload has more than doubled
in the last ten years, and it is growing, with 805 new cases opened each
month.2 1 ' Surprisingly, these figures are not far above the ratios that the
American Bar Association and other national standards recommend:
200 felonies per year per attorney, or 400 misdemeanors or 200 juvenile
proceedings. 2 12 In 1999, state-funded public defender programs received over 726,000 criminal cases along with 144,000 juvenile cases,
26,000 civil cases, and 33,000 other types of cases. 213 In the thirteen
states in the 1999 study that supplied caseload information, assigned
counsel programs received almost 700,000 cases (302,000 criminal
cases). 2 14 In Wyoming, forty-two "full time equivalent" attorneys
around the state handled 9,662 new clients' cases in 2002, including
seventy-eight appeals to the Wyoming Supreme Court.2 15 Caseloads
over 500 are not uncommon in some places; a New York Times investigation in 2002 found defenders each trying to handle over 1,600 cases
annually.2 16 It is illuminating to compare any of these numbers to the
national median prosecutor caseload of 123, as reported by the Bureau
of Justice Statistics in "Prosecutors in State Courts, 1994 and 1996."2,7
207
DeFrances & Litras, supra note 185, at 4.
208
210
Id.
Id.
Id. at 6-7.
211
Yoder, supra note 191, at 56.
212
Id.
209
DEFRANCFS, supra note 176, at 7. These other types of cases included child abuse cases,
child protection cases, special proceedings, post-conviction parole and probation cases, and withdrawals. Id.
213
214
Id.
215
Yoder, supra note 191, at 56.
216
Id.
Id.
217
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PAPER TIGER OF GIDEON V WAINWRIGHT
F.
Immunity from Suit
The Supreme Court has held that the indigent defendant must
receive representation that is substantially equal, although not necessarily identical, to that provided by privately retained counsel. 218 Because
the assistance that a public defender provides to a defendant is not held
to the same standard as that of privately hired counsel, it stands to reason that the same behavior that could subject private counsel to malpractice suit would not be actionable if committed by a public
defender.2 19
Bringing suit under 42 U.S.C. §1983 is one method by which
people can seek a remedy when the state or a state actor is responsible
for the denial of their constitutional rights. 220 However, the use of
§1983 has been almost entirely rejected as a basis for bringing a claim of
ineffective representation or tortious malpractice, 221 because §1983 can
only be invoked if the plaintiff was injured as a result of state action and
public defenders or court-appointed attorneys are not deemed to act
under color of state law. 222 The exception to this is that public defend218
McCoy v. Ct. App. of Wis., Dist. 1, 486 U.S. 429, 438 (1988).
See, e.g., Douglas v.
California 372 U.S. 353, 357 (1963).
219 It is likely that an indigent defendant would not file a malpractice claim at all, due to lack
of funds and awareness of legal professional standards. When viewed in combination with the
double standard, attorneys representing indigent defendants will almost never have to defend the
quality of their representation.
220 Section 1983 reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was violated or declaratory relief
was unavailable. For the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a statute of the
District of Columbia.
42 U.S.C.S. §1983 (2004).
221 See, e.g., Taylor v. Windsor Locks Police Dep't, 71 Fed. Appx. 877 (2d Cir. 2003) (holding that public defender not subject to §1983 liability); Fletcher v. Hook, 446 F.2d 14 (3d Cir.
1971) (finding that a tort claim against court-appointed attorney for malpractice not cognizable
under § 1983); Smith v. Clapp, 436 F.2d 590 (3d Cir. 1970) (finding that claims of malpractice
against court-appointed attorneys are not cognizable under §1983).
222 See, e.g., Hamilton v. Wold Johnson Law Firm, 34 Fed. Appx. 508 (8th Cir. 2002) (holding that contract public defenders do not act under color of state law for § 1983 purposes when
performing a counsel to criminal defendants); Srivastava v. Newman, 12 Fed. Appx. 369 (7th
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[Vol. 3:495
ers are not immune from suit under §1983 if the plaintiff alleges a conspiracy between the public defender and state officials acting under
color of state law to deprive clients of federal rights.2 23 Absent such an
allegation of conspiracy, the general rule is that a claim cannot be sustained under § 1983 of the Civil Rights Act. Insulating appointed counsel from suit does not bode well for the indigent defendant and the
vindication of his rights.2 24
New York State, in Scott v. City of NiagaraFalls, found that a public defender should have qualified immunity-that he or she should be
immune from suit for all discretionary acts or omissions made in the
course of executing his or her official duties towards the client. 225 The
court's finding was based on the high volume caseload of most public
226
defenders and the limited time and resources they have for each case.
Other states have followed New York's example and provide either qual-
Cir. 2001), reh' and rehg en banc denied, (May 18, 2001) (holding that employees of the public
defender's office not liable under § 1983 as were not acting under color of state law when representing the criminal defendant); Sosa v. Albin, 17 Fed. Appx. 885 (10th Cit. 2001) (holding a
public defender while performing a lawyer's traditional functions as counsel to defendant is not
acting under color of state law); McCloud v. Jackson, 4 Fed. Appx. 7 (2d Cir. 2001) (holding
that court-appointed attorney representing an inmate at a parole revocation hearing and parole
proceedings did not act under color of state law and thus was not subject to a claim under
§1983); Dunker v. Bisonnette, 154 F. Supp. 2d 95 (D. Mass. 2001) (holding a state appointed
attorney does not act under the color of state law under the meaning of §1983 even when his
defective performance violates the defendant's constitutional rights); United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cit. 1976) (finding that court-appointed attorney are not
liable under §1983 for malpractice-type actions and omissions in relation to criminal trial in
state court because his acts were not under color of state law); Page v. Sharpe, 487 F.2d 567 (1st
Cit. 1973) (dismissing claim under §1983 against court-appointed attorney for tortuous malpractice on grounds that the attorney was not acting under color of state law); Pugliano v.
Staziak, 231 F. Supp. 347 (W.D. Pa. 1964), affd, 345 F.2d 797 (3d Cir. 1965) (holding that a
court-appointed attorney's status of an officer of the court did not make him an officer of the
state and for purposes of §1983 he was a private actor not acting under color of state law).
223 See, e.g., Tower v. Glover, 467 U.S. 914 (1984) (finding a public defender is not immune
from suit when alleged conspiracy to violate the client's federal rights occurred); White v.
Bloom, 621 F.2d 276 (8th Cir. 1980) (holding a court-appointed attorney is not immune for
conspiracy with judge and prosecutor to impanel an all-white jury in defendant's trial); Africa v.
Anderson, 510 F. Supp. 28 (E.D. Pa. 1980) (holding that plaintiff could assert §1983 claims for
declaratory relief where court-appointed attorney alleged to have conspired to deny plaintiff her
constitutional rights with a judge exercising state authority).
224 See, e.g., Howard H. Chen, Malpractice Immunity: An Illegitimate and Ineffective Response
to the Indigent-Defense Crisis, 45 DuKe L.J. 783 (1996).
225 407 N.Y.S.2d 103 (1978).
226
Id. at 105.
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PAPER TIGER OF GIDEON V WAINWRIGHT
ified or absolute immunity to public defenders and court-appointed
attorneys.22 7
Some states do not grant public defenders and court-appointed
counsel malpractice immunity. State courts in Connecticut, Pennsylvania, Michigan, Florida, Indiana, and New Jersey have all held that
there should be no immunity afforded to court-appointed counsel and
public defenders.2 28 In refusing to extend immunity to public defenders
and court-appointed counsel where private attorneys are also liable,
these state courts have asserted that attorneys for the indigent have the
same function and purpose and must be held to the same standard as
private attorneys.
G.
Right to Expert Services
The United States Constitution does not give indigent defendants
a right to the appointment of experts or investigators at state expense to
assist in trial preparation or to testify during trial. 22 9 The United States
Supreme Court has only once examined the question of whether an
indigent criminal defendant in state court has the right to the appointment of an expert at state expense.2 3 ° In 1953 in United States ex rel.
Smith v. Baldi, the petitioner challenged his conviction, arguing "that
the assistance of a psychiatrist was necessary to afford him adequate
counsel" and that the lack thereof was constitutionally impermissible.2 3 1
The Court rejected the petitioner's argument, holding that the State did
not have a constitutionally mandated duty to appoint expert assistance
to indigent defendants.23 2 In Smith, the fact that the defendant did
have the assistance of psychiatric experts may have impacted the Court's
227
See, e.g., Morgano v. Smith, 879 P.2d 735, 737 (Nev. 1994); Browne v. Robb, 583 A.2d
949 (Del. 1990), cert. denied, 499 U.S. 952 (1991); Bradshaw v. Joseph, 666 A.2d 1175 (Vt.
1995); Coyazo v. State, 897 P.2d 234 (N.M. Ct. App. 1995); Dziubak v. Mott, 503 N.W.2d
771 (Minn. 1993).
228 This list is not exhaustive. See, e.g., Spring v. Consantino, 362 A.2d 871 (Conn. 1975);
Windsor v. Gibson, 424 So. 2d 88 (Fla. Dist. Ct. App. 1982); White v. Galvin, 524 N.E.2d 802
(Ind. Ct. App. 1988); Donigan v. Finn, 290 N.W.2d 80 (Mich. Ct. App. 1980); Delbridge v.
Office of Public Defender, 569 A.2d 854 (N.J. Super. Ct. Law Div. 1989); Reese v. Danforth,
406 A.2d 735 (Pa. 1979).
229
230
See United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953).
Id. See Ruby B. Weeks, LL.B., Annotation, Right of Indigent Defendant in Criminal
Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R. 3d 1256 (1970).
231 Smith, 344 U.S. at 568.
232 Id. The Court held that the State was not constitutionally required to provide a psychiatrist to the defendant for pretrial examination to assess his mental competence before entering a
plea. Id. It was a capital case.
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holding. This may also be true in the later case of Ake v. Oklahoma, in
which the Court held that where the indigent defendant's sanity is at
issue in both the guilt and penalty phase of the trial and that defendant
is denied access to psychiatric assistance, the United States Constitution
233
requires the state to appoint a psychiatric expert to the defendant.
Despite this, the Court has yet to hold that indigent defendants have an
absolute constitutional right to the appointment of experts for their
defense.
There are many cases from various states holding that indigent
criminal defendants have no constitutional right to the appointment of
experts to assist in their defense.23 4 However, even without a constitutional mandate, a number of states have enacted legislation providing for
the appointment of experts or investigators to assist in the defense of an
indigent criminal defendant.23 5 Furthermore, courts in some states have
themselves recognized a constitutional right to the appointment of expert services at state expense as a requirement of due process.23 6 In most
cases an indigent defendant seeking the appointment of an expert must
show a need for that expert.237 Thus, even if state courts recognize a
right to appointment of experts or investigators to indigent defendants
at state expense (by virtue of statute, or state or federal constitutional
right), the appointment of such experts is often at the discretion of the
trial court. 238 This discretion has the potential to be abused by trial
judges. Also, judges may differ whether in a given case, the defendant
has need of an expert, making such determinations capricious. In addition, prosecutors' offices use expert services both before and during
233 Ake v. Oklahoma, 470 U.S. 68 (1985). Some states have interpreted Ake broadly to apply
to non-psychiatric experts. See, e.g., Pace v. State, 714 So. 2d 320 (Ala. Crim. App. 1996), rev'
in parton other grounds, 714 So. 2d 332 (Ala. 1997), reh'gdenied, (1997), on remand to, 714 So.
2d 340 (Ala. Crim. App. 1998), cert. denied, 523 U.S. 1051 (1998).
234 See, e.g., Thomas v. State, 459 N.E.2d 373 (Ind. 1984); Cardenas v. State, 695 P.2d 876
(Okla. Crim. App. 1985); State v. Allen, 692 S.W.2d 651 (Tenn. Crim. App. 1985).
235 Some of the states that have enacted such legislation are California, New York, Pennsylvania, South Dakota, Vermont and Wisconsin. Weeks, supra note 230.
236 See, e.g., U.S. v. Decoster, 624 F.2d 196 (D.C. Cit. 1976); Harrison v. State, 707 N.E.2d
767 (Ind. 1999).
237 See, e.g., Beauchamp v. State, 788 N.E.2d 881 (Ind. Ct. App. 2003).
238 See, e.g., People v. York, 207 Cal. App. 2d 880 (Cal. Ct. App. 1962); Dolan v. People,
449 P.2d 828 (Colo. 1969); Lance v. State, 560 S.E.2d 663 (Ga. 2002); Booker v. State, 790
N.E.2d 491 (Ind. Ct. App. 2003).
20051
PAPER TIGER OF GIDEON V WAINWRIGHT
trial.23 9 It is troublesome that indigent defendants do not have that
same access.
In a survey conducted in 2001, 100% of prosecutors' offices in
large districts reported that they used DNA evidence during felony trials
and ninety percent reported using DNA evidence during plea negotiations.24 ° In 2001, 73.1 % of prosecutors' offices in small districts reported using DNA evidence during felony trials and plea
negotiations. 2 1 l Indigent defendants are among those defendants prosecuted with DNA evidence. This means that while the prosecution is
able to present expert evidence and have expert testimony, indigent defendants do not have that luxury-putting them on unequal footing.
Recently, there have been alarming reports of not only botched DNA
analysis, but also outright fraud on the part of DNA laboratories across
the country.
With insufficient access to experts, indigent defendants
may be prosecuted and ultimately convicted based on fraudulent or erroneously tested evidence they have no way to challenge.
PART III
A.
What Should Be Done to Protect Indigent Defendants' Sixth
Amendment Rights
The Supreme Court has given the states room to fashion their own
implementations of Gideon v. Wainwright for the last forty years. Each
state has been free to adopt the system it chooses, be it a statewide
public defender system or a decentralized system of county-by-county
lists of private attorneys willing to be appointed to indigent defendants.
This discretion has been consistent with the Court's dedication to feder239
"No mitigation defense can be adequately prepared without the assistance of mental
health experts, among others." Douglas W. Vick, PoorhouseJustice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REv. 329, 392 (1995).
240 Large Districts are those serving populations over 500,000. DEFRANCES, supra note 190.
241 Small districts are those serving populations of less than 250,000. CAROL J. DEFRANCES,
PH.D., State Court Prosecutors in Small Districts, 2001, U.S. Dep't of Justice 1 NCJ 196020,
(2001). There are 2,113 small districts. Id.
242 See Houston Police DNA Lab Woes Result In Reexamination Of 525 Cases, CNN.com,
available at http://www/cnn.com/2003/LAW/03/23/dna.retesting.ap; Mary Alice Robbins, Police Crime Lab Under the Microscope Hearing Held to Examine Possible Problems with DNA
Tests, TEXAS LAWYER, Vol. 19, No.1, at 1, March 10, 2003; Matt Lair & Scott Glover, DUI
Case Botched by Blood Mix-Up: A Collegian Finds LAPD Lab Used Wrong Man's Sample to
Finger Him, L.A. TIMES, Dec. 15, 2002, at BI; Associated Press, FDLE Says No Cases In
Danger After Orlando Analyst Resigned, NAPLES DAILY NEWS, July 21, 2003, available at http:/
/web. naplesnews.com/02/07/florida/d767503a.htm.
536
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alism and the Court-endorsed idea of each state serving as a laboratory
within which different methodologies can be tried and from which
other states can learn.24 3 As noble as these values are, the reality of what
has happened over the last forty years cannot be ignored. States have
used the discretion they have been given to only half-heartedly make
Gideon a reality and have done little to ensure that indigent defendants
are not just appointed counsel, but that indigent defendants are appointed counsel in a meaningful way.244
It has become abundantly clear that if we are truly a nation that
not only espouses, but embodies the ideals of justice, fairness, and equality, we can no longer leave the fate of indigent defense services to state
courts and legislatures. NWhile recent cases indicate that courts (including the Supreme Court) are willing to do more to protect the rights of
indigent defendants,2 4 5 the quickest and most effective way to do this is
for the Supreme Court to unequivocally state what practices and procedures do and do not satisfy the right to counsel in state criminal proceedings. The time has come for the Supreme Court to fulfill its
24 6
rightful role in protecting the rights and liberties of all Americans.
The Supreme Court should not become paralyzed by federalism
concerns. In the past the Court has been willing to let the interests of
federalism be malleable when confronting issues of equality and fairness.24 7 Gideon and its progeny deal with economic equality-with the
243
Justice Louis Brandeis in his dissenting opinion in New State Ice Co. v. Liebmann: "It is
one of the happy incidents of the federal system that a single courageous state may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without risk to the
rest of the country." 285 U.S. 262, 311 (1932). This notion of states acting as laboratories of
democracy, is a supporting principal of federalism. Under this rubric, each state can try a different approach to a problem while the rest of the states watch the experiment to see how it works.
If a given program or institution is successful within a state or locality, then the whole country is
free to adopt it. If the experiment fails, then the harm is minimal as it is localized in that one
state. See generally James A. Gardner, The 'States-as-Laboratories'Metaphor
in State Constitutional
Law, 30 VAL. U. L. REv. 475 (1996).
244 See generally National Legal Aid & Defender Ass'n, Gideon Reviewed- The State of the
Nation 40 Years Later, availableat http://www.nlada.org/Defender/DefenderGideon/Gideon_
Reviewed; PA. SuP. CT. COMM. ON RACIAL & GENDER BIAS IN THE JUST. Sys., Final Report
163-97 (2003).
245
See infra Part I.A.-B.
246 See Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of
Criminal Defense Services, 63 U. PIrr. L. Rpv. 293 (2003).
247 With Brown v. Boardof Education of Topeka, the Court refused to let federalism concerns
stop them from addressing the cancer of racial segregation in this country. Brown v. Board of
Education of Topeka, 347 U.S. 483 (1954) (segregation of public schools on the basis of race
violated the equal protection clause of the Fourteenth Amendment). While the Brown holding
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PAPER TIGER OF GIDEON V WAINWRIGHT
right of indigent defendants to be on equal ground with prosperous
defendants. The cases deal with the rights of indigent defendants and
appellants to appointment and effective assistance of counsel, and meaningful access to the criminal justice apparatuses that ensure fair trials and
fair outcomes. 24 8 These rights are too important for federalism to get in
the way of their effectuation.
What would constitute a stronger, and more effective, system of
appointment of counsel to indigent defendants? First, in regards to the
appointment of legal counsel, because the term critical stage is ambiguous as to what exact point in the proceedings constitutes a critical
stage,2 4 9 the creation of a bright line standard may be more appropriate.
One possible bright line that would more effectively protect the rights of
indigent defendants would be if the right to counsel attached at the
moment that an individual is brought in for police questioning in connection with a criminal investigation. While admittedly cumbersome,
this alternative would leave no doubt that the rights of defendants were
being protected. What constitutes a critical stage in proceedings can be
left up to interpretation, but whether an individual is physically present
rested on the Equal Protection Clause as opposed to the Due Process Clause, with which we are
concerned here, there are valuable lessons to learn from that example. Id. at 495-96.
[W]e hold that the plaintiffs and others similarly situated for whom the actions have
been brought are, by reason of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth Amendment. This disposition
makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment [citations omitted].
While education was considered (and still is) a traditional area of state control, and thus states
considered it an intrusion on their sovereignty for the federal government to mandate how states
were to fashion their public education system, the Supreme Court still proclaimed racial segregation in public schools unconstitutional. In Brown II, it was asserted that "[a]ll provisions of
federal, state, or local law requiring or permitting such [racial] discrimination must yield to [the]
principle" that racial segregation is unconstitutional. Brown v. Board of Education of Topeka,
349 U.S. 294, 298 (1955).
While Brown II arguably backed away from the explicit holding in Brown I, in the former, the
Supreme Court still affirmed the holding in Brown I and charged localities with the duty to
ensure that decision was implemented effectively. "School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider
whether the action of school authorities constitutes good faith implementation of the governing
constitutional principles." Id. at 299.
248 In both Brown I and Brown II, the Supreme Court allowed federalism concerns to fall in
the face of the all-important goal of racial equality. As in Brown, these rights, the right to
counsel and to effective assistance, are too important for federalism to get in the way of their
effectuation.
249 See infra Part IL.B.
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in a police precinct or is being interrogated by police officers is a more
clear-cut determination.
Second, in order to make the right to counsel more robust, the
standards regarding appoint of counsel for appeals must be augmented.
It is incomprehensible that indigent defendants are unable to obtain
counsel for appeals in every state.2 5' The appeals process is vital to our
criminal justice system, providing a needed check on trial proceedings
and ensuring that defendants are judged guilty and incarcerated only
when proceedings were fair and in accordance with the law. The problematic standard of allowing the public defender to decide whether an
indigent's appeal has merit should also be changed to a stricter standard
that removes this enormous discretion.251
Third, indigent defense funding must be increased. Indigent defense is in a funding crisis in this country today.25 2 Public defender
offices are underfunded and court-appointed attorneys are underpaid.2 5 3
Because of the overwhelming disparity in the funding of prosecutor offices compared to indigent defense,25 4 funds must be increased in order
to ensure that indigent defendants are on an equal playing field with the
prosecution and have the same resources to put on a defense as effective
as defendants with private counsel.
Fourth, the typical caseloads of public defenders must be reduced.2 55 Public defenders, even with the funds to put on a proper
defense, will be unable to do so if they are burdened by too many cases.
The most straightforward way to accomplish this is by an increase in
funding that would allow public defender offices to hire more attorneys.
An increase in the hourly wages of court-appointed attorneys would also
induce more attorneys to request being put on the list, thereby reducing
attorney shortages that many counties have suffered.25 6
Fifth, public defenders should be held to a similar standard to that
of private attorneys. Indigent defendants deserve nothing less than absolute equality with non-indigent defendants. A public defender or
court-appointed attorney should be held to the exact same standard
250
251
252
See infra Part II.C.
See infra Part II.C.
See infra Part II.D and note 193.
253 See supra note 244. See also Leonard Post, Citing low pay, lawyers refuse indigent cases; A
long-simmering dispute erupts with threats of discipline, NAT'L L. J., Aug. 23, 2004, at 4.
254 See infra Part II.D.
255 See infra Part 1I.E.
256 See supra note 253.
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when acting as an attorney for an indigent defendant as he is when
defending a paying client. 257 In addition, public defenders and courtappointed attorneys should not be immune from suit. 258 It stands to
reason that the quality of the work of public defenders and court-appointed attorneys would only increase if these attorneys could be held
liable across the board for misfeasance and malfeasance. Even assuming
arguendo, that eliminating the immunity of public defenders and courtappointed attorneys would not impact the quality of services that indigent defendants receive, doing so would, at the very least, increase the
level of trust between defendant and attorney, as well as instill within
people greater faith in the criminal justice system.
Sixth, expert services must be made available to indigent defendants. Because every prosecutors' office uses expert services both before
and during trial, it is unacceptable that indigent defendants do not have
that same access to those services.2 59 Due to the problems of erroneous
testing of evidence and even fraud on the part of experts,2 6 ° indigent
defendants must have access to experts in order to ensure that they are
not prosecuted and convicted based on expert evidence they are unable
to challenge.
This list is not exhaustive; many other changes can, and must, occur in order to improve the overall assistance that indigent defendants
receive from their counsel and to put indigent defendants on an equal
footing with defendants with private counsel. These are, however, good
places to start in taking the first steps to providing greater fairness in our
criminal justice system. Although these changes will be enormously
burdensome both in terms of cost and the manpower needed for their
implementation, this does not mean that they should not, and must not
be done. The right to counsel is the most important Constitutional
right in our criminal justice system-monetary concerns should not be
permitted to interfere with its proper effectuation.
257
See supra note 218. Currently there must only be substantial equality, not absolute equal-
ity. Id.
258 See infra Part I.F.
259
See infra Part II.G.
260
See supra note 240.
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[
CONCLUSION
Commentator Kate Jones, an Indigent Defense Counsel with The
National Association of Criminal Defense Lawyers, remarked upon the
fortieth anniversary of Gideon v. Wainwright.
The Supreme Court's decision in Gideon prioritized the most basic
and fundamental value-indeed the founding value-shared by
Americans: liberty. This country was settled by those seeking liberty
from ideological, religious, governmental, and physical bondage. We
Americans proudly distinguish our government from manifestations of
tyranny around the globe. This is the "sweet land of liberty," and
because of that, Americans will not-should not-tolerate any revocation of an individual's liberty without being assured that at least the
process was fair. If we object to taxation without representation, how
could we permit a citizen to be imprisoned, or even executed, without
the same?2 61
The answer to the question so eloquently posed by Ms. Jones is that we
cannot permit such deprivations of liberty without assurances that the
process to which the accused was subjected was fair. As Americans who
claim to put liberty above all other things, we cannot allow others to be
imprisoned by our criminal justice system without knowing that imprisonment is the culmination of a fair and just process. There can be no
fairness until all accused defendants, regardless of economic status, have
assistance of legal counsel with the resources needed to put on an effective defense.
The states, through their interpretations of Gideon and the Sixth
Amendment, and through their policies and funding practices, have in
effect, made Gideon irrelevant and have made a mockery of the Sixth
Amendment. To interpret the Sixth Amendment as requiring only the
appointment of legal counsel, without any real regard for the competency of that counsel or the resources needed to put on an effective
defense, is to render the mandate of Gideon one of form without substance. If all that is required by the Sixth Amendment is for every criminal defendant to have an attorney on record, then it was not worth
including in the Constitution at all, nor was it worth the time and energy expended by the Supreme Court in its decision in Gideon. We
must assume that the Framers and the Gideon Court meant to provide
261
Kate Jones, Right to Counsel Matters, CHAMPION, Jan.-Feb. 2003.
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more than such a bare minimum-that the right of indigent defendants
to the appointment of legal counsel in criminal proceedings is a right
that is integral to our judicial system, that it is an embodiment of this
country's commitment to justice and equality, and is a right that must
be protected and enforced diligently and vigorously.
The United States Supreme Court has not been specific or explicit
in delineating the comprehensive framework of state actions and policies
that are mandated by the Sixth Amendment in regard to providing legal
assistance to indigent defendants in state criminal proceedings. The Supreme Court has instead chosen to evaluate state procedures as they are
challenged and come before the Court in an attempt to give the states as
much discretion as possible in fashioning laws protecting the right of
indigents to assistance of legal counsel.26 2 As states are shirking their
duty to enforce the Constitution, we cannot depend upon them to unilaterally enforce the Sixth Amendment through laws and policies aimed
at providing indigent criminal defendants with not just counsel but effective counsel with the resources available to defend their clients to the
best of their abilities. Underfunding and arbitrary limitations on when
a defendant is appointed legal counsel cannot be tolerated. There must
be uniformity among the states. The Supreme Court must seriously set
out to provide a comprehensive framework of what states must do to
comply with the Sixth Amendment.
"The quality of defense provided to an indigent defendant should
never be influenced by local politics or the particular ideology of the
jurisdiction." 263 The right to appointment of legal counsel is a right
that is not only vital to fairness and equality in our society, but also an
integral mechanism by which citizens are instilled with faith and trust in
the criminal justice system. It does not promote equality or justice
when the deciding factor in whether an indigent defendant gets courtappointed counsel and gets to use that counsel effectively, as guaranteed
by the Sixth Amendment, turns upon which state he lives in, and how
much importance that state grants those rights guaranteed in the Sixth
Amendment. Mere appointment is not enough-we must make sure
appointed attorneys have the funds available to defend their clients effectively; otherwise, the grant of the right to counsel is meaningless and
becomes an empty threat against states which would not allow indigent
262
Justice Thomas reiterates this policy of the Court in his opinion in Smith v. Robbins, 528
U.S. 259, 275-76 (2000).
263
Jose J. "Joe" Monsivais, Outmanned and Outgunned, CHAMPION, in Apr. 2003.
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defendants the same rights as those defendants with the means to afford
a proper defense.