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February 10, 2013

Indigent Defense Advocate: Fundamental Rights in Criminal Cases Not Protected, Despite Gideon Ruling

Stephen B. Bright, president and senior counsel, Southern Center for Human Rights

Stephen B. Bright, president and senior counsel, Southern Center for Human Rights

Robert Wayne Holsey’s lead defense lawyer drank a quart of vodka every night during his trial, and did not put forth evidence of Holsey’s mental retardation nor childhood abuse that was so severe the neighbors called his home the “torture chamber.”

In Kentucky, Gregory Wilson’s lawyer, William Hagedorn — practicing law out of his home — gave as his phone number the number of “Kelly’s Keg,” a bar across the street from the courthouse. Wilson learned that once the police had removed the floor boards in the lawyer’s house and found eight bags of stolen property.

And James Fisher’s court-appointed lawyer tried his capital case along with 24 others during a one-month span in September 1983. After his conviction and death sentence were set aside by the Court of Appeals for the Tenth Circuit because of ineffective counsel, Fisher was given a new trial and a lawyer who was an alcoholic and drug user. At one point before trial, the lawyer asked the deputy sheriffs to remove Fisher’s handcuffs so the two of them could have a fistfight. Four years after that trial, the Oklahoma courts reversed his conviction and death sentence because of ineffective assistance.

Fifty years after the U.S. Supreme Court ruled a constitutional right to counsel for indigents in criminal cases in Gideon v. Wainwright, Stephen Bright — president and senior counsel for the Southern Center for Human Rights — recounted a few examples of the continuing travesties of justice. Bright’s keynote address, presented during the day-long Eighth Annual Summit on Indigent Defense Improvement Gideon at Fifty: The Way Forward, occurred Saturday at the ABA’s Midyear Meeting. The program was sponsored by the association’s Standing Committee on Legal Aid and Indigent Defendants.

Despite the high court’s ruling, very little has changed, Bright said. Most officials in the criminal courts are happy the way criminal court cases occur now, and governments have no incentive to give people competent lawyers who will make it more difficult for them to obtain convictions, fines, and sentences of imprisonment and death, he continued. 

Indeed, an accepted prosecution strategy is to deprive the accused of adequate representation, Bright said. Minimizing costs rather than ensuring justice is the principle concern of states, which look at Gideon as an unfunded mandate. Some jurisdictions use low-bid contracts to provide representation to the poor; others underfund public defender and assigned counsel programs leading to huge case loads.  Criminal courts in some states have been characterized as “courts of McJustice,” Bright told a hushed room of lawyers. 

In Houston, a lawyer missed the statute of limitations for federal habeas corpus in three separate capital cases, yet is still handling more than 350 felony cases, some of them capital cases. And in another case, a woman was urged to plead guilty to arson charges and accept 15 years behind bars. She lost both of her jobs and would have been unable to work in the health care field in which she was licensed if she had pleaded or been convicted at trial. During the three years the charges were pending, she lost her home and ended up sleeping in her car. The woman asked to be put in jail because of concerns that she would die from being homeless orkill herself out of desperation.  

Bright took the case and — after engaging in discovery and soliciting expert witness and pro bono assistance from an attorney who specialized in arson cases, the first time despite the case being three years old — saw the case dismissed. Most stories, Bright said slowly, don’t have that type of happy ending. 

The costs of a system that fails indigents who either have no lawyer at all or who are not adequately represented, are high — for the accused and also for us a society. The innocent are convicted; people who are detained before trial lose their jobs, homes and suffer even though they may eventually be found not guilty; a lack of consideration is given to extenuating individual factors at sentencing; all of which leaves the criminal courts without credibility or legitimacy. 

The bar has not stepped up the challenge, Bright stated, but must do so because it has a monolopy on legal services and a duty to see that they system work, particularly in cases where liberty and death are at stake. Lawyers have priced themselves above protecting poor people, and — as evidenced by the above stories — many lawyers aren’t providing adequate, let alone zealous, representation. Bright recommended that lawyers advocate for adequately funded independent public defense programs and bring systemic challenges to deficient systems.  He also called for law schools to get more students involved, sending them to courts to learn firsthand about these types of cases and providing clinical programs where law students represent poor people accused of crimes. 

Bright asked, “When all actors routinely ignore the fundamental constitutional requirement, can we say the rule of law” is being upheld? 

In introducing Bright, Professor Stephen Hanlon — member of the Standing Committee on Legal Aid and Indigent Defendants — called Bright the “Clarence Darrow of our generation.”