Chasing Gideon (39 page)

Without the aid of an effective lawyer, almost anyone stands the risk of going to jail when charged with a crime. To the
Gideon
Court, this seemed to be “an obvious truth.” The majority of us would not know, for example, what is and is not admissible in a court of law, let alone how procedurally to convince twelve jurors that we are innocent. If this is true of even the most affluent and educated among us, is it then fair to let someone who has fallen on hard times or has been let down by our country's educational system or is not yet an adult face a loss of liberty at the hands of government, simply because they lack the guiding hand of counsel to navigate the complexities of our legal system?

The potential tyranny of government over the individual is mentioned throughout
Gideon.
For example, recognizing that governments “quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” the
Gideon
Court determined that “lawyers in criminal courts are necessities, not luxuries.” And to those that would oppress individual freedom, the
Gideon
Court announced that 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 ours.”

Over the ensuing fifty years since
Gideon
, the U.S. Supreme Court consistently determined that providing a lawyer to those of limited means is essential to preserve the fairness of the criminal justice system. For example, on the same day that
Gideon
was decided, the Court also mandated, in
Douglas v. California
,
²
that states provide lawyers during the first stage of the appeals process—the court hearing where a defendant may ask a court to set aside a trial verdict or imposed sentence—noting that “there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has.”

Four years later, the Court again picked up the theme of potential government tyranny, this time in relation to children facing juvenile delinquency charges. “Due process of law is the primary
and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise,” the Court asserted in
In re Gault
, determining that children too were entitled to a lawyer.
³
To underscore the point that children needed more protections than adults, not less, the Court famously added “[u]nder our Constitution, the condition of being a boy does not justify a kangaroo court.”

The 1972 decision in
Argersinger v. Hamlin
may have had the greatest impact on criminal justice systems in America.
⁴
The Court's
Gideon
decision had applied only to felony cases, but as of yet there was no similar right to counsel in misdemeanor matters. Because of the utterly massive volume of misdemeanor cases charged every year, the lower trial courts hearing those cases had developed “an obsession for speedy dispositions, regardless of the fairness of the result.” And without publicly available lawyers to assist accused persons in their defense, misdemeanor courts became places of “futility and failure” rather than justice. “We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more,” the Court confessed in
Argersinger
, extending the right to counsel to misdemeanor cases.

Rather than spend public funds on attorneys in misdemeanor cases, too many jurisdictions in America decided that the
Argersinger
mandate could be avoided. If the threat of jail time was not made imminent, perhaps the Sixth Amendment right to counsel no longer applied. A “suspended sentence” is a jail term that a judge delays imposing upon a guilty defendant in lieu of “probation”—or a set of conditions a defendant must fulfill under the supervision of a probation officer. The person only goes to jail if he or she fails to meet the terms of the probation. Some jurisdictions would tell defendants that they were only facing a suspended sentence and thus not provide a lawyer. Of course, without the aid of counsel, the conditions of probation were often so restrictive as to make it almost impossible to comply. Indeed, some states required impoverished defendants to pay a portion of the cost of their own representation, made
repayment a condition of probation, and then sent them to jail when they did not make payments. Keeping up with payments, of course, is difficult to do when you are poor.

So in 2002, the U.S. Supreme Court asked: “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?” The Court concluded that it does not, and instead now requires that states provide access to effective representation even in those misdemeanors where the trial judge does not intend to impose a jail sentence right away.

The vast majority of criminal cases will never make it to trial, and instead will be resolved much earlier through pleas. But in the plea-bargaining process, the judge is not bound to impose the sentence negotiated between the prosecution and defense. For many years, states and counties would not provide lawyers to poor people who pleaded guilty to a crime but then wanted to appeal the judge's sentence resulting from that guilty plea. In
Halbert v. Michigan
, the Court determined that to be improper.
⁵
Recognizing that the majority of people facing criminal charges are indigent and that most people in prison are undereducated, mentally ill, or both, the Court reasoned that “[n]avigating the appellate process without a lawyer's assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like [the defendant] Halbert, who have little education, learning disabilities, and mental impairments.”

Although
Gideon
requires the “guiding hand of counsel at every step in the proceedings (emphasis added),” it took the Court a number of cases to delineate the specific “steps” in a case at which the right to counsel must be provided. Most people familiar with crime dramas know that when you are arrested you have the right to remain silent and to have counsel appointed for police interrogations. These are your so-called Miranda rights, established in the landmark 1966 case
Miranda v. Arizona
.
⁶
A year after
Miranda
, the Court also made attorneys available to those in police lineups in
United States v. Wade
.
⁷

Once charges are filed, there are a series of events that generally occur in a criminal case prior to a trial (though these events often are named differently depending on the region of the country).
Generally speaking, there is a “bail hearing” in which a defendant learns if he can get out of custody while awaiting his case to be heard. An “arraignment” is the court proceeding where the defendant hears the formal charges that he is facing (in some jurisdictions bail hearings and arraignments occur simultaneously). A “preliminary hearing” is the point when the prosecution makes its case that a crime has likely been committed and that the defendant likely did it. Usually “plea negotiations” occur to determine if the case can be settled without a trial.

In 1970, the U.S. Supreme Court made clear that a defendant has the right to public counsel at preliminary hearings (
Coleman v. Alabama
)
⁸
and during plea negotiations (
Brady v. United States
).
⁹
The question of counsel at bail hearings and arraignments is a little more convoluted. Even prior to the
Gideon
decision, the U.S. Supreme Court determined that an arraignment is a critical stage of the proceeding. Reasoning that what happens at arraignments can affect the whole trial and that “[a]vailable defenses may be as irretrievably lost, if not then and there asserted,” the Court in
Hamilton v. Alabama
¹⁰
required counsel be present at arraignments for those facing the death penalty.
¹¹
However, it was not until 2008, in a case called
Rothgery v. Gillespie County
, that the U.S. Supreme Court clarified its position on the need for counsel at initial appearances.
¹²
The
Rothgery
Court concluded that “a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him
¹³
and his liberty is subject to restriction,
¹⁴
marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

The United States Supreme Court has also sought to illuminate that the right to a lawyer means more than just the right to a warm body with a bar card. In
McMann v. Richardson
, the Court declared “the right to counsel is the right to the
effective
assistance of counsel (emphasis added).”
¹⁵
Two cases heard on the same day and announced on the same day in 1984 made clear what the Court meant by “effective” assistance of counsel:
United States v. Cronic
¹⁶
and
Strickland v. Washington
.
¹⁷

In
Cronic
, the Court determined that “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing,
then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” The Court pointed out two ways to determine whether a system could fail to meaningfully test the prosecutor's case. First, if counsel is not present at all, of course, it is impossible to have effective representation. Secondly, they pointed to the systemic factors that led to the wrongful conviction of the Scottsboro Boys.
¹⁸
The so-called Scottsboro Boys were a group of eleven young African American men arrested for the rape of two white women in 1930s Alabama. They were tried and sentenced to death within a week of the alleged offense. Their attorney, who was hand-selected by the judge presiding over their case, was unfamiliar with criminal law, conducted no independent investigation, and had no time to properly prepare the case. When such systemic deficiencies occur in the present day, the attorneys in that indigent defense system should be presumptively determined to be ineffective.

Only when such systemic issues do not come into play can a two-pronged test be applied to determine whether an individual lawyer is ineffective, as set out in
Strickland v. Washington
. Under
Strickland
, a defendant must show on appeal that his attorney's representation fell outside of what object standards of reasonableness require, and that the outcome of the case would have been different had the attorney performed up to standards.

Several recent U.S. Supreme Court decisions have clarified the
Strickland
standard. For example, there are a number of potential collateral consequences of a criminal conviction, including loss of student loans, public housing, or even deportation. In 2010, in
Padilla v. Kentucky
, the Court determined that “[i]t is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the ‘mercies of incompetent counsel.' To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.”
¹⁹
And in 2012, the Court made clear with two more cases—
Missouri v. Frye
and
Lafler v. Cooper
—that the right to effective assistance of counsel applies to the plea-bargaining process and not just to trials.

With this historical context, we can see that the United States Supreme Court has been nothing but consistent on the right to
counsel in America. Yet, as we celebrate the fiftieth anniversary of the
Gideon
decision, violations of the right to counsel abound in America. Karen Houppert's
Chasing Gideon
shows that as a country we too often fail to live up to our own ideals. In far too many parts of the country, a poor defendant can sit in jail for three to four months before seeing a lawyer, while several hundred defendants may be vying for the attention of a single lawyer all at the same time. Attorneys may have a monetary incentive to do as little work as possible while being financially beholden to the presiding judge, in your case, and a defendant may have to reimburse the government the cost of his or her representation or face further jail time, a turn of affairs completely contrary to the spirit of the original
Gideon
decision. Poor people facing misdemeanor charges likely still will not receive a lawyer at all.

The United States Constitution is a living document whose rights must be continually fought for or be lost. As Benjamin Franklin once said, “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

 

T
his book would not have been possible without the many long conversations I had with defendants and their families—those mentioned in the book and many who provided background and insights, generously sharing their stories and their lives with me as we sat in courtrooms and talked on benches in the halls outside, plowed through court records, visited crime scenes, and rehashed events in living rooms and kitchens across the country. These folks gave me a front-line education on the intricacies of legal counsel for the poor and what it is like to experience a criminal trial from the perspective of the accused. Through their eyes, and through exchanges I had with public defenders who were all so generous with their time, frank in their assessments, and tolerant of my reporterly shadowing, I got a glimpse of what McJustice looks like in the nation today. I thank both the public defenders and their clients for their honesty and insights.