50 Years Later: Gideon v. Wainwright and the Right to Counsel, a promise unfulfilled?

[ace99]

"From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
JUSTICE HUGO L. BLACK
U.S. SUPREME COURT

Gideon v. Wainwright for the uninitiated, was the landmark unanimous Supreme Court decision in 1963, which ruled under the 6th Amendment incorporated via 14th Amendment against the states, they must provide counsel to defendants in criminal cases who are unable to pay for their own attorneys.

The COURT: 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 deny your request to appoint Counsel to defend you in this case.

GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel.

Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison.

In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries."

Here is Gideon's handwritten petition for certorari to the Supreme Court that he prepared himself by researching in the prison library:

Spoiler :

On the Monday after St. Patrick's day it will be the 50th anniversary of the ruling. Which is why I'm posting this now, since I will by no means be sober.

It's worth to take a moment to speculate how many tens of thousands may have been wrongly imprisoned prior to this ruling. Following the case Florida had to release 2000 people and Gideon received a new trial where he was acquitted after an hour of deliberation by the jury. It makes you wonder how many tens of thousands continue to be wrongly imprisoned today.

"Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists...it is fundamental that justice should be the same, in substance and availability, without regard to economic status."
- Lewis Powell, Jr.
U.S. Supreme Court Justice (ret.)
During his tenure as President of the American Bar Association

"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."
- U.S. Supreme Court Justice Hugo Black, 1964

"Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion."
- U.S. Supreme Court Justice Wiley Rutledge, sometime in the mid-20th century

How well has the promise of Gideon v. Wainwright, been fulfilled? Is our system of justice now fair for all defendants rich and poor alike? Is the public defender system adequate and suitable? What improvements can be made? Or has the promise of Gideon proved to be a hollow promise and are we faced with a system where the scale of justice continue to be heavily tipped to one side?

Edit: Also what the hell is wrong with Florida? It's always Florida isn't it?

 

[ace99]

Only one of the most important criminal cases of the past century that helped facilitate the creation of nation-wide state public defender systems. Pay it no mind.

 

[sophie]

No I mean...it's cool...but what the hell do you want me to say about it?

 

[ace99]

How well has the promise of Gideon v. Wainwright, been fulfilled? Is our system of justice now fair for all defendants rich and poor alike? Is the public defender system adequate and suitable? What improvements can be made? Or has the promise of Gideon proved to be a hollow promise and are we faced with a system where the scale of justice continue to be heavily tipped to one side?

Edit: Also what the hell is wrong with Florida? It's always Florida isn't it?

Well at the bottom.

 

[Antilogic]

I'd be interested in knowing the rate at which public defenders receive guilty or acquittal verdicts against hired defenders as a measure of efficacy of the system. I suspect there is still a margin there because the hired guns are charging money for something.

I won't derail the thread too soon with a rant about how the justice system has never been nor likely will be fair to the rich and poor alike.

 

[Kaitzilla]

It does always seem to be Florida causing trouble.

Of course it is still unfulfilled. Everyone knows there are two systems of justice. One for the rich and one for the poor.

There is even a 3rd system developing these days. Guilty no matter what.

http://www.forbes.com/sites/harveys...whitey-how-the-feds-disable-criminal-defense/

In both cases, as in countless others, the feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of “due process of law,” particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense.

Some more:
http://www.lewrockwell.com/anderson/anderson255.html

At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity — say, Mother Theresa or John Lennon.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: "prison time."

It's a good formula. Hit someone with dozens of frivolous charges, freeze all their assets so they can't pay for a team of lawyers, and let some public defender who has 10 hours a week for you try to fight them off. You will always end up in prison, guilty or not.


http://windypundit.com/2013/01/abusing-us-attorney-carmen-ortiz/

I’ve been following some of the discussions about the prosecutorial conduct that may have lead to Aaron Swartz’s suicide, but I haven’t posted anything about it because it didn’t seem all that unusual, except for the suicide, which is not really all that unusual either. I didn’t initially understand why so many people are heaping verbal abuse on US Attorney Carmen Ortiz for doing what a lot of prosecutors are doing. It took me a while to realize that many of these people were encountering this kind of thing for the first time.

Aww, someone killed themselves because the feds were going to put him away for decades for illegal downloading. Happens all the time.


Some extra reading:
http://www.cato.org/doc-download/sites/cato.org/files/serials/files/regulation/2009/11/v32n4-2.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203713

 

[Kaitzilla]

I smiled at Gideons handwritten note. Maybe the little guy can make a difference.

And what on earth is a package permit? Are those still around?


Making someone testify as much as possible against bogus charges to try and ensnare them with felony perjury is also a time honored practice.

Don't talk to the police

Link to video.

18:00-19:15 is legendary!

http://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton
http://www.nbcnews.com/id/6205192/ns/business-corporate_scandals/t/stewart-begins-serving-jail-term/
http://www.rawstory.com/rs/2012/06/...calls-scooter-libbys-perjury-charges-nothing/

 

[emzie]

No, it's still not perfectly fair and I'd wager it won't ever be without some radical institutional reforms. I think it's still close to ideal.

Public defenders are paid the same as prosecution in most sane jurisdictions, but I don't think they have access to the same amount of resources -- and especially not compared to what a privately funded defense would be able to bring to bear. JR would be able to say more on that, I bet.

 

[Antilogic]

JR would be able to say more on that, I bet.

Great, not only are we not going to miss out on the insights of a practicing lawyer, but now I remember how much I miss JR.

 

[ace99]

Did he leave? I think illram is a lawyer. Not sure what kind. Also if you wait till 2015 Bvbpble and myself, barring unforeseen things, will be.

 

[Antilogic]

As far as I know, yes. Haven't seen him since the New Year.

 

[Farm Boy]

Welp. Dunno about the last part. I think we're probably better than we were but are rich and poor represented equally? I think the answer to that has to be a thunderous no. We have an adversarial system of justice modeled loosely from trial by combat. If you are stronger, you are more likely to win.

A prosecutor has an array of accused persons before him. He can choose who to focus on. He can nolle prosequi and drop from his workload a case he doesn't care about. He can bully into plea bargains people he doesn't want to nolle pros, but doesn't want to spend as much time on. That leaves some discretion in how time is spent. Want to focus a lot on hammering this specific case? That discretion is there. Want to hammer the dickens out of anyone who has the audacity to not accept your plea bargain? That discretion is there.

If you are accused, and you have the money to pay a competent lawyer, sure - I guess you are about on even ground. If you have enough money to hire a team of the best lawyers ever(or get lucky that your case is in the media and lawyers volunteer) you might even out-swarm the state on the level of effort it can afford to spend. But, if you are poor and you are assigned a public defender that probably isn't the case. We don't really like paying a lot of money on public defenders. They(for lawyers) are poorly compensated and overworked. They have none of the discretion that prosecutors have in their workload either. If they have 20 people to defend at any given moment they can't drop any of that off their plate. They have to try and defend them all. When time is short it's safe to assume that coverage gets spotty.

Then you have the problem of faith in the system. You can't have a functioning criminal justice system without some measure of faith in the best impartial efforts of the judges, the prosecutors, the public defenders, and the police. However, you also have to be realistic about this sort of stuff. They all work together. They wind up knowing each other. Sure, some co-workers wind up hating each others' guts, but sometimes you can wind up with social bonds there as well. Prosecuting is a desirable job for the advancement-minded. It is often the precursor to gunning for the bench or running for office. Is a defendant really best served if he's being arrested by, prosecuted by, represented by, and presided over by people who might all be a little chummy?

 

[ace99]

It is often the precursor to gunning for the bench or running for office. Is a defendant really best served if he's being arrested by, prosecuted by, represented by, and presided over by people who might all be a little chummy?

That's why movies like Lincoln Lawyer always make me laugh when they depict prosecutors as hating defense lawyers as scum of the earth. It's almost certainly not true. Last summer a buddy of mine worked at the local prosecutor's office. The prosecutor's and PD's would go out to drinks together every Thursday (Thursday night bar review is a tradition that continues after law school.)

However I don't think that impacts the quality of the defense they give someone. However no doubt when a Public Defender advises you to plea bargain he's making a judgment call. He's taking into account his resources, his time, the strength of your case and so forth and deciding it would be better for you to plea so he could work on his stronger cases. No doubt.

It's also worth nothing that bail is a problem. A rich guy can pay the hefty bonds and be comfortably at home while the trial proceeds. A poorer man, unable to come up with the money is more inclined to take a plea bargain that is offered to him because then it's over and then with and he can go home, even if he has a criminal records. Rather than spend months or years in jail to clear his name.

 

[Farm Boy]

A poorer man, unable to come up with the money is more inclined to take a plea bargain that is offered to him because then it's over and then with and he can go home, even if he has a criminal records. Rather than spend months or years in jail to clear his name.

And this used to be less of an issue than it is now. People do not understand how far our society has progressed towards punishing people for life for what you used to be able to "pay your time."

Once you plea to something, it doesn't matter why you plead that way - you carry that scarlet letter branded on your background check forever. It's very possible that your plea of convenience will punish you with a lifetime of unemployment and cities/townships that legally bar you from renting or living in their domain. This is a larger problem, one that has me screaming "why let people out of jail in the first place if you are going to punish them forever anyhow such that you render them unable to live a new and cleaner life?!" But this problem is of specific import and impact here.

 

[Cutlass]

This reminds me of the OJ Simpson murder trial. Did OJ do it? I don't know. Neither do you. But he is innocent. Legally. But why is he innocent legally? Because the government failed to make a case which would convince a jury that he is guilty. In fact, they made a complete hash of their case against him.

Now why was he prosecuted so poorly? Why did the police think they could do such a sloppy job building a case and get a conviction? I tend to think that it is because if OJ hadn't had access to a much above average legal team, they would have gotten a conviction despite the crap job they pulled.

We have falsely convicted people in the system all the time who had only public defenders to rely on. I think that that is one of the biggest weaknesses of the criminal justice system. How can we know if someone was properly convicted if we have no confidence in their defense?

 

[MobBoss]

OJ was found innocent in the criminal trial; but he lost the civil trial which ruled against him in the wrongful death lawsuit.

 

[Farm Boy]

OJ was found innocent in the criminal trial; but he lost the civil trial which ruled against him in the wrongful death lawsuit.

Not sure if he had the same resources left to spend, per the general subject of this thread, to put forth into his civil defense. The consensus of what is likely in hindsight has always seemed to me to be the lower burden of proof the plaintiff operates under in civil cases(preponderance of the evidence?) as opposed to the burden of proof required of criminal prosecution(guilty beyond a reasonable doubt).

 

[illram]

Couple thoughts:

1) Public Defender budgets need to be bigger. This is a no brainer. Giving Public Defense bigger budgets is unfortunately politically untenable and has to be done on the sly with no one noticing. This is a problem without any real solution. Governments need to simply buck public opinion when public policy clearly dictates otherwise. Outsourcing PD's to private firms is a common practice in jurisdictions that do not want to pay for public defender offices, and this is proven to be more expensive and leading to worse representation, since there is zero quality control.

2) Too many jurisdictions give defendants PD's too late in the process. You need a PD the moment you step into court for your first arraignment. Many jurisdictions ask for a plea before any attorney is provided, which is ridiculous. This also needs to stop, but this is also a budgetary constraint in many places.

3) For various reasons Public defense is not seen as "prestigious" or as glamorous as prosecuting. No one wants to watch a TV show about a Public Defender. Prosecutors typically become judges and go into public office at much, much higher rates than PD's, (forget about public office if you are a public defender) even though both develop the same training and trial skills and top PD's have the same managerial duties as top prosecutors. Prosecutor prestige in turn ties into Number 1, which is public perception of public defense vs. prosecution, and the lack of any public will to really invest in a strong public defense system. I could go on and on here but I won't.