© 2003 The Daily Journal Corporation.

All rights reserved. March 13, 2003




By David F. Pike

Daily Journal Staff Writer

WASHINGTON - Forty years after the Supreme Court in Gideon v. Wainright ordered the states to provide counsel to indigent defendants, millions of people each year still face criminal charges without legal representation, a coalition of criminal defense organizations said Tuesday.

"It's a dirty little secret that every day in this country, people are convicted of crimes who never even talked to a lawyer," said Jo-Ann Wallace of the National Legal Aid and Defender Association  "And if defendants are fortunate enough to get someone, the lawyer often doesn't have the time, tools or the training to do the job."

Gary Windom, chief public defender of Riverside County, said that,  in his jurisdiction last year, "12,211 people, many of them innocent, pleaded guilty to misdemeanor charges without the advice of counsel."

Many defendants did so because they were told "they could go home today if they pleaded guilty" and because "they could not afford to pay for a lawyer and didn't want to spend a couple days in custody waiting for one," Windom added. "Because of inadequate funding, [the public defender's office] cannot staff the misdemeanor courts."

Most such defendants are "unaware of the results" of their pleas, Windom said, which can include losing their jobs and not being able to serve in the armed forces.

The Riverside public defender's office has 98 lawyers to handle 37,000 cases a year throughout the fast-growing county, Windom said.

And while the office has a budget "just shy of $19 million a year," that is "half of what we  asked," he said.

Lawyers representing the National Legal Aid and Defender Association, the National Association of Criminal Defense Lawyers, the Southern Center for Human Rights and the American Bar Association  provided compelling "horror stories" about innocent defendants who have died in prison or spent many years in custody because they had inadequate legal representation or none at all

In other cases, defendants have been incarcerated for several weeks while waiting for a lawyer to be appointed, the defense attorneys said.

It was March 18, 1963, when the Supreme Court, in an opinion by Justice Hugo Black, held that the Sixth Amendment requires that all felony defendants be represented by counsel, Gideon v. Wainright, 372 U.S.  335 (U.S. March 18, 1963).

In subsequent decisions, the court has extended the right to direct appeals, custodial interrogation, juvenile proceedings resulting in confinement, critical stages of preliminary hearings, misdemeanors involving possible imprisonment and, most recently, misdemeanors involving a suspended sentence, in Shelton v. Alabama, 535 U.S. 654  (U.S. 2002).

While serious problems of quantity and quality in representation have frustrated the promise of Gideon, some solutions are possible, defense lawyers said.

Stephen B. Bright, a death penalty expert who is director of the Southern Center for Human Rights in Atlanta, said that lawsuits have been effective in such states as Georgia and Virginia, "where the [defender] system is broken or never worked at all."

In one Georgia county, a suit attacking delays in appointing counsel for felony defendants led the county to set up a public defender's office, Bright said.

Also cited as a victory in trying to ensure adequate representation was a Feb. 3 decision by the San Francisco-based 9th U.S. Circuit Court of Appeals, Miranda v. Clark County, Nev., 2003 DJDAR 1353 (9th Cir. Feb. 3, 2003). 

The decision allows a Nevada man who was exonerated after serving 14 years on death row to sue the Las Vegas public defender administrator for appointing to represent him an attorney just out of law school who never had handled a murder case.

"You also need legislation and leadership," Bright said.

"An important piece" is getting local jurisdictions to adopt standards for indigent defense, such as the Ten Principles adopted by the ABA House of Delegates in February 2002.

The standards include providing defense counsel who are independent of the court system and ensuring that defense counsel's "ability, training and experience match the complexity of the case."

Inadequate funding of indigent defense programs also must be pursued, the lawyers said.

In 22 states, all indigent defense services are administered and funded at the state level. In the rest - including California - funding comes mainly through local taxes or court costs, which the defense lawyers said results in instability in funding and wide variations in the quality of defense.

"The problem with Gideon is that the system is so badly underfunded that most clients would be better off representing themselves," said Stephen D. Benjamin of Richmond, Va.'s Benjamin & DesPortes. "Unfortunately, the criminally accused are not a popular constituency."

Trying to get enough money to provide representation "is like trying to fix a dangerous intersection - there's no money until someone is killed," Benjamin  added.

But, he said, the exoneration of increasing numbers of prisoners around the country - especially death row inmates - "may help."