After 50 Years, A State Of Crisis For The Right To Counsel

Transcript

LYNN NEARY, HOST:

This is TALK OF THE NATION. I'm Lynn Neary in Washington; Neal Conan is away. Fifty years ago this week, the Supreme Court ruled in Gideon versus Wainwright. It was a landmark decision that guaranteed criminal defendants the right to counsel whether or not they could pay for it. Fifty years later, U.S. Attorney General Eric Holder says public defense systems, quote, "exist in the state of crisis."

And a 2004 American Bar Association study found that thousands of defendants face criminal charges each year without adequate representation, a problem that many observers say undermines the very credibility of the justice system.

We'd like to hear from you today. If you've been part of this process, either as a defendant, an attorney or a judge, tell us your story. What worked for you, and what didn't? Our number is 800-989-8255, the email address talk@npr.org. And of course you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, memorializing a son lost in Iraq through dance. But first public defenders 50 years after Gideon versus Wainwright. Stephen Bright is a lecturer at Yale Law School and president and senior counsel of the Southern Center for Human Rights in Atlanta, and he joins us now in Studio 3A. Welcome to TALK OF THE NATION. Good to have you here.

STEPHEN BRIGHT: Thank you so much for having me.

NEARY: Let's get a little history here. Who were Gideon and Wainwright? Tell us a little bit about that decision.

BRIGHT: Well, Clarence Earl Gideon was a man who went to trial in Panama City, Florida. He was accused of breaking into a pool room and stealing a bottle of wine and some change from the vending machines. And he asked for - it was a felony charge, and he asked for a lawyer, and at that time, 1962, the judge told him you're not entitled to a lawyer, you have to represent yourself.

And so he did and was convicted and sentenced to five years and sent off to the Florida state penitentiary. And there he wrote a, handwritten in pencil on the prison stationary, it's got the rules up at the top of correspondence from the prison, he wrote a five-page petition to the United States Supreme Court saying I have a right to a lawyer.

And remarkably, the court granted - this would never happen today - the court granted the writ that he filed, that is to review the case. They appointed - he went from no lawyer to having probably the best lawyer in the United States, Abe Fortas, who later joined the Supreme Court. But he was assigned to represent Mr. Gideon.

And Fortas did. And the Supreme Court set aside its earlier precedents and held that in any serious case, a poor person who could not afford a lawyer was entitled to one. Gideon went back to Panama City. He was tried again, but this time he had a lawyer, Fred Turner. And at the end of that trial, he was found not guilty.

So right from the outset, we see what a difference a lawyer can make to a poor person accused for a crime.

NEARY: Yeah. And so what are the key parts of that decision, and why is it so important?

BRIGHT: Well, the most important part of it is that it says that any person who is facing any kind of serious crime, and then the court extended it later to say any child who might be committed to a juvenile institution and then any person who's facing any loss of freedom at all, even in a so-called petty case because loss of freedom is serious business, that in all of those a person is entitled to a lawyer to represent them so they don't stand alone at the bar of justice.

NEARY: And now, in reality, 50 years later, most of the time that means if somebody is indigent that they would be defended by a public defender. Is that right?

BRIGHT: Well, they would be assigned a lawyer, not necessarily a public defender. A number of jurisdictions - Florida right after Gideon set up public defender offices in each of its judicial circuits. But a number of other states resisted and basically just ignored Gideon. And maybe lawyers were just appointed.

For a long time if you were a member of the bar in places like Alabama or Georgia, you just got a criminal case every so often, and you did it for free because part of the privilege of practicing law carried with it the obligation to represent poor people.

Even today in this country, there are a lot of states that do not have public defender systems: Alabama, Michigan, Texas, even California. It leaves it up to each county. So you may have a public defender, that is a fulltime lawyer employed by an office that specializes in these cases, but it may also be just a lawyer who's appointed and paid a very small amount, either by the case or by the hour, and even today we still have low-bid contracts.

A number of counties in California bid out the defense of people to whoever submits the lowest bid, which of course means you spend as little time on each case as possible and handle the highest volume possible. So...

NEARY: Yeah. And as you've pointed out, then, the effect of this is that essentially this very important Supreme Court decision is not being enforced.

BRIGHT: Never has been.

NEARY: Never has been.

BRIGHT: When Attorney General Holder said it's in a state of crisis, it's always been in a state of crisis, ever since the Supreme Court decided it. I think the thought was that the Supreme Court says everybody has to have a lawyer, so the states would follow the - they didn't say it was a good idea. They said it's constitutionally required.

So one would hope that the states would follow it, but even today I would say it's violated more often than we see the reality of it.

NEARY: But how is that possible? Why is it impossible to enforce this? I mean...

BRIGHT: Well, it's not impossible. It's easy to do. You...

NEARY: Well, why isn't it being enforced?

BRIGHT: Well, it isn't being because the states have treated Gideon as an unfunded mandate. There's no incentive for, in most - and let me just say that 95 percent of all the criminal cases are in the state courts, not in the federal courts. And most states or counties, many states have left this up to their counties or parishes, have no incentive to provide lawyers to the people that they're trying to convict and fine and imprison and execute.

In fact, a very mediocre or poor system of providing representation for poor people makes it easier to convict them. And so there just has been incredible underfunding, and what that has meant is huge caseloads for either the public defenders or the private lawyers who get assigned these ed thhe private lawywersprivddefense systems, quote, exist to

NEARY: And you've pointed out in your writing the incredible imbalance in that prosecutors' offices tend to be very well-funded.

BRIGHT: Very well-funded, and of course they have all the law enforcement agencies, state and federal. They have the crime labs. The federal government, not only do the states pretty generously fund their prosecutors and their attorneys general, but the federal government, the Department of Justice, gives huge grants to law enforcement and to prosecution.

On the other side of the ledger, the states are very stingy with regard to funding indigent defense. And what it really means is that in a lot of places in this country, there is no adversary system...

NEARY: Which is what our system of justice is based on, correct?

BRIGHT: Theoretically, theoretically, but...

NEARY: Adversarial meaning two different sides.

BRIGHT: Meaning that there are two statements made on each side of the question. And for that to work, of course, those have to be fairly evenly matched. If the prosecution - and this is the case in almost - most cases, the only investigation is done by law enforcement and by the prosecution. There is none done on the defense side because the defense may not have an investigator, or it may have one investigator, like in Missouri, for 1,500 cases.

So the prosecutor has all the information, all the ability to charge, and now really has pretty much the ability to influence the sentence because of the sentencing laws that we have now with mandatory minimums and repeat offenders and sentencing guidelines, make it possible for prosecutors to sort of manipulate the process. So they can relegate the defense lawyer to just being a messenger in some cases, just conveying the plea offer.

NEARY: Give us a sense of how that would play out, you know, in an actual case, I mean, maybe an example of...

BRIGHT: Well, I'll give you an example of what happens every day across this country and is really a disgrace, and it exposes, I think, the corruption of this system better than anything. And that's the so-called meet-them-and-plead-them system. I go to courthouses where it looks like a slave ship has docked outside the courthouses. All these black men are brought in, handcuffed to each other in yellow jumpsuits. They're put in the jury box in the first couple of rows. A lawyer goes down, talks to each one of them for maybe two, three, five minutes. Not long after that, a judge takes the bench, and they all plead guilty. They're sentenced, and that's the total legal representation, that's the total time before a judge that these people have.

Now of course that doesn't happen in every case, and it doesn't happen everywhere, but it happens an awful lot of the time. And by the same token, the people who are released on bond will come into court. They'll meet their lawyer for the first time. They'll have one of these quick conversations, plead guilty, be sentenced, and that's all the legal representation they're ever going to have.

And of course that's not legal representation. The lawyer knows nothing about the client. The lawyer knows absolutely nothing about the charges. So they really can't engage the prosecutor in any kind of negotiations, and they can't give the client professional, informed advice about what to do, whether to go to trial or whether to take the plea.

NEARY: Now what about - can the defendants insist on more legal representation than that, or do they not understand what their rights are at this point, or...

BRIGHT: I think many people in the culture in so many places is to just accept what you get. I was involved in a case of Gregory Wilson, though, who was represented, was assigned a lawyer in Covington, Kentucky. This is a death penalty case. And when he called the lawyer, they answered the phone Kelly's Keg, which was a bar across the street from the courthouse.

Now Wilson already had a lot of misgivings about this lawyer because he practiced out of his home, where there was a Budweiser beer sign on the wall. And so the next time he got to court, he said to the judge, you know, I'm from Detroit. I'm facing the death penalty. I don't have a friend in this town. I need a real lawyer.

And the judge said, well, Mr. Wilson, you can have any lawyer you want, but this is your court-appointed lawyer. This is your court-appointed lawyer. And every time they come to court, Mr. Wilson would try to fire the lawyer and get a better lawyer, and every time the judge would say no. And of course you can imagine the relationship between Mr. Wilson and Mr. Hagedorn, the lawyer, was deteriorating as this went on.

And finally he had a trial where he was very poorly represented and he was sentenced to death. So one of the questions I always ask my students when we take up the right to counsel is: How do you enforce the right to counsel? What else could Gregory Wilson have done? He raised the issue. He told the judge he was not satisfied with this lawyer, that he wanted a real lawyer. But most people sometimes don't realize that they're not being adequately represented.

NEARY: I'm surprised there's not a greater will within the legal profession to address this.

BRIGHT: Well, it's a sad commentary on our profession, I think, that so many people are left so vulnerable. A lot of courts don't have lawyers at all. I mean, a lot - as you pointed out, the ABA reported that in many courts that people don't have lawyers at all, and sometimes people have this very brief association with a lawyer, five, 10 minutes, before they plead guilty.

Again I want to make clear that's not everywhere, but that's too many - one place would be too many places, but this is all over the country.

NEARY: We're going to continue this discussion in a moment. Stay with us. If you've been part of this process, either as a defendant, an attorney or a judge, tell us your story at 800-989-8255. Or send us an email to talk@npr.org. I'm Lynn Neary, and this is TALK OF THE NATION from NPR News.

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NEARY: This is TALK OF THE NATION from NPR News. I'm Lynn Neary. Fifty years after the Supreme Court ruled that everyone facing serious criminal charges has the right to an attorney, we're talking about what's changed and what works and what doesn't in today's public defenders offices.

If you've been part of this process, either as a defendant, an attorney or a judge, tell us your story. What worked for you? What didn't? Our number, 800-989-8255. The email address is talk@npr.org. Or join the conversation on our website. Go to npr.org, and click on TALK OF THE NATION.

Our guest is Stephen Bright, a visiting lecturer at Yale Law School and president and senior counsel of the Southern Center for Human Rights in Atlanta. And we're going to take a call now. We're going to go to Algosemo(ph), I believe it is, in Philadelphia. Hi. Hello.

ALGOSEMO: Hi. Yes, you've got it right. How are you doing?

NEARY: I'm good, thanks. Go ahead.

ALGOSEMO: Thanks for taking my call. Yes, I actually - until I heard this on NPR, I thought that this is something that people are not aware of or that that's not going on. But I actually have my brother right now that's in this particular situation, my brother who is in jail right now. He's waiting - he's awaiting sentencing right now.

And the lawyer, like your guest said, the lawyer actually is only playing the messenger because from the first time they met, that he met my brother, all he's telling him is to take a plea deal, and there is nothing he can do. This is a federal situation. The federal government never loses cases, and if he don't take the plea deal, he's looking for more time than he got.

And as it is right now, he's looking at a punishment that is far more than whatever crime that he has committed. So I was wondering if there is - at this time he has not been sentenced yet, if there is anything that can be done at this stage of his trial, even though he has taken the plea deal. And the lawyer is not even willing to talk to either him or any one of his relatives.

NEARY: Stephen Bright?

BRIGHT: I'm very sorry to hear about this situation. I don't think without knowing more about the case I could really give you any advice about what your brother should do. I would say this: The federal courts are a good example of how the prosecutors have such tremendous power over sentencing.

Ninety-seven percent of federal cases are in - 97 percent of convictions are obtained by plea bargain. And that's because the prosecution can threaten such draconian, such incredibly severe sentences that it really is a tremendous risk to go to trial because you get substantially less than that if you plead guilty. But I'm sorry to hear that - and usually I would say this, that representation in federal courts tends to be much better than the state courts just because the volume is less and there are good federal public defenders and usually pretty good lawyers appointed to those cases.

But I'm sorry to hear that your brother's had this experience.

NEARY: I'm sorry we can't do more for you, but thanks for calling in, Algosemo. OK, thanks so much. We're going to take another call now from Anna(ph), and Anna is calling from Denver. Hi, Anna. See if we can get Anna here. Oh, we're having a little trouble calling up Anna. Hello, Anna, are you there?

ANNA: Yes, I'm here.

NEARY: Go ahead.

ANNA: I'm actually facing this process this week. I have appearance of counsel on Friday, and I'll be meeting my public defender for the first time. I'm a recently single mom of three kids, and the only reason I can't afford a lawyer is because I can't get a job now because of the charges I'm up against. I'm a nurse and I'm completely innocent of the charges that I'm going to be facing, and I'm really, really concerned about meeting a public defender who is, you know, hey, take a plea deal and go because then I'll lose my nursing license also.

And I know that I'm innocent. I'm pretty sure I know exactly who committed the crime that I'm being accused of. And I was wondering if you had any advice on what I should do if I come across a lawyer who has the same kind of (unintelligible) like meet them and plead them kind of attitude about my case.

BRIGHT: Well, you're fairly fortunate to be in Colorado because one of the guests on this program in a few minutes is going to be Doug Wilson, who's the head of the public defender office there. I have pointed to Colorado as sort of a model system. It's been in existence since 1970, and it's a comprehensive, statewide system.

And often in cases people say that you're better represented by the public defender in Colorado than you are by a private lawyer. So let's hope that you get a very capable public defender who can provide the time and resources and investigation into your case.

I mention this just because it reminds me of it. Last May I got a letter from a young nurse in Georgia who had been facing arson charges for three years, and the only thing her lawyers were telling her was to plead guilty and take 15 years. And like you, she said I'm completely innocent, and if I do plead guilty, I'll lose my license, I'll never be taken seriously again.

She lost both her jobs, including her nursing job, because these charges were pending, and she couldn't get any other job. And when she wrote me, she was homeless and living in her car and unable to make the next car payment. And she said I just don't know what I'm going to do. I tried to be admitted to jail, but they won't take me.

And we took the case, and in a few months of investigation were able to show that there really was no basis for the charges against her, and they were dismissed, and she's now working as a home health care nurse for mentally ill people in Georgia. So I hope you have similar success in your case.

ANNA: (Unintelligible) and I love my job as a nurse, and I would do nothing to jeopardize it like I'm being charged with. And I know of evidence to my innocence, but it's stuff that I'm unable to get on my own.

BRIGHT: Well, that's what your lawyer - it's probably not too good to discuss it too much on the radio would be my advice, but talk to your lawyer about it, and your lawyer should have an investigator and should be able to run down. That's why it's so important that people have lawyers that have time and investigative assistance and...

ANNA: And care.

DOUGLAS WILSON: And care. Right, exactly.

NEARY: Anna, I urge you to keep listening. We're going to bring in a guest now who's very relevant to your case. You might want to listen to this. And thanks so much for calling in.

ANNA: Thank you, and this has been very encouraging. I appreciate it.

NEARY: OK, great, bye-bye, thank you. All right, we're going to go now to Colorado state public defender Douglas Wilson, and he's joining us by phone from his office in Denver. Thanks so much for being with us, Doug.

WILSON: Hi Lynn, it's a pleasure to be here. Hey, Steve, how are you?

BRIGHT: Doug, it's good to hear from you.

WILSON: Nice hearing from you too.

NEARY: So I understand that the public defender system in Colorado is different from what goes on in a lot of the rest of the country. Explain that. How so?

WILSON: Well, I certainly hope we are. We've been around since 1970. We were created by the state legislature as a result of the Gideon decision. So we've got 43 years under our belt, and we are a state system. We're a system that is funded by the state legislature, and that's a lot different than most jurisdictions.

So I have 21 offices, trial offices across the state and an appellate division. We're up to about 413 lawyers now statewide. And it sets both a consistent representation standard across the state because I do all the hiring and firing at the state office, and we set standards that we expect people to meet. We set our - we have a great training program. We set our training standards here.

And I just think it's a different creature when you are a state system than the court-appointed system or the low-bid system or the county system because of the consistency and the camaraderie that we have throughout the system. We've got 400 lawyers that rely on each other every day.

NEARY: Yeah, let me ask you about your hiring and your training because I think one of the real stereotypes regarding public defenders in general, you know, maybe perhaps because of the way they sometimes are portrayed in the media or on television, is that they're not always the best lawyers, they don't go into it for idealistic reasons but just because they can't find a job elsewhere. Number one, is that true, those stereotypes?

WILSON: I'm certain it's true in some places. It's not true here. I mean the state - here's what I look for (unintelligible) we hired 50 lawyers last year. We had 800 resumes for those 50 positions. What I care about when I'm hiring someone is, first, what have you done with poor people? What have you done with our client base? Why do you want to work with our folks? Because we try to be a very client-centered system.

They are the people that need our help. That's who we need to focus on. It's not about the lawyer, and it's not about getting a job. It's not about getting pay. The second thing is clinical work in law schools, and have you worked with a public defender system, whether it's ours or somewhere else. So those are the starting points. If you don't meet those minimum qualifications, I don't talk to you about a job.

NEARY: All right, let's take a call now. We're going to go to Martin, who's calling from San Francisco. Hi Martin.

MARTIN: Hi, good day. I was a - I've been an attorney for 25 years practicing criminal law. I started off in Boston, I left in '98, but I was a reserve attorney. I did - I'm a private lawyer who did court-appointed cases. I think you called it a low pay position. Well, it was low pay, but I did happen to like it. And what I want to say is in Boston and surrounding counties, some of the best public defenders - best criminal defense attorneys in the state were public defenders or members of the private bar who took court-appointed cases.

And I know there's a discrepancy, but I just want to say that sometimes it's excellent because it was in Boston. And just by coincidence, I was listening to the story, the shows this morning, you talked about Colorado. I had a roommate for a couple of years in Colorado who got, I think, railroaded by his public defender, and I was astounded at what happened or didn't happen in his case in Colorado. So it may not be consistent. But Boston area was excellent.

NEARY: All right. Stephen?

BRIGHT: Well, I would just say this: I know from firsthand observation that there's no question that in Massachusetts the lawyers provided to represent poor people accused of a crime are quite good. Both lawyers that are appointed from private practice, which most of the cases are, as well as the public defenders in that state. It's one of the states that's really made good on what Gideon requires.

NEARY: All right. Thanks so much for your call, Martin.

MARTIN: You're welcome.

NEARY: I've got an email here I'd like to read. This is from Lance in Orlando, Florida. He writes: What Mr. Bright doesn't mention is the efficiency built into the meet them and plead them policies. I was prosecuted in federal court. My family spent many thousands of dollars on my defense. My co-defendants with court-appointed lawyers received exactly the same treatment with sentences in line with the one I received. The evolved efficiency of the public defender plea system saves the courts and defendants untold amounts of time and money.

My experience has been that nearly 100 percent of the defendants get exactly what they deserve, including me. I wonder if you can respond to that, Douglas Wilson?

WILSON: Sure. I think, you know, Steve talked earlier about the tremendous power that the prosecutors have and certainly in the federal system - in the state system as well. I mean we basically lost our right to have jury trials by our peers because of the minimum mandatory sentences and the charges that get stacked. I've rarely seen a case anymore that isn't overcharged. So while somebody may be guilty of something, they're usually not guilty of everything that's been thrown at them. And we as defense lawyers are pushed into this position oftentimes of entering pleas in order to avoid the more serious consequences.

NEARY: Is it an efficient system? I mean does it work on a certain level, do you think? I mean...

WILSON: No. I mean the system works (unintelligible) and Steve's right. I'm very proud of the people in my system. I'm not proud of the way our society continues to deny access to counsel to the poor. I think we have a good system. But we're still only 89 percent staffed as to where we should be in comparison to the prosecutors across the state. And the pay for my folks is abysmal. We haven't had a pay raise in - going on five years.

NEARY: What about the caseload? I think...

BRIGHT: Yeah.

NEARY: ...Mr. Bright, I - in one of the pieces that I read that you had written, you talked about the fact that the resources are so poor, the caseloads - there's so many caseloads that it's almost ethically impossible for somebody to really defend...

WILSON: And I think Steve is right and I will tell you I was appointed in November of 2006. And at that time we were on the brink of unethical representation. We had county court lawyers, misdemeanor lawyers, that were carrying 350 cases. That's not ethical representation. We have decreased those to where the maximum that people are carrying now is about 150, which is still too much, but we...

NEARY: Douglas Wilson is the Colorado state public defender, and you are listening to TALK OF THE NATION from NPR News. What can your lawyers do then if they feel like they're in a position where it's almost unethical for them to proceed? I mean...

WILSON: Well, I hope I'm addressing that as much as I can with the legislature, but there was an ABA ethical opinion that came out probably four years ago. And it's the first time the ABA has stepped up and said when you get to that level where you feel you are unethical, it is your obligation, individual lawyer, to bring it to your supervisor if you're in a PD system or to your - to the court if you're a court-appointed system and just say: No, I can't do this anymore.

NEARY: I wonder how that would be received. Do you have any idea?

BRIGHT: Well, I know how it was received in Miami, Florida when a lawyer said I can't take another case because ethically I cannot handle it, and the trial judge said, well, of course, and didn't appoint the lawyer. This is a public defender. The prosecution for whatever reason appealed the case, and the court of appeals held that the lawyer had to take the case. Any other lawyer would have an ethical obligation not to take a case which he or she could not handle competently, but public defenders often have cases just piled on them.

And one of the critical things here is the independence of the public defender. In many places, I think, public defenders are afraid to do what Doug just described because they'll lose their jobs if they stand up and say I have too many cases.

NEARY: I have an interesting story here I'd like to read, an email from Pat and - in Tampa, Florida, who writes: I wanted to relate my experience as a defendant in a misdemeanor criminal case in the Seattle municipal court. Unlike the situations your guests have described, I had an amazing, passionate and experienced public defender. Although I was facing a misdemeanor charge, the prosecution first offered a plea agreement which included six months in jail.

After several continuances and my lawyer's badgering, I plead guilty to a reduced charge with only one month in work release. If I hadn't had such excellent representation, I would likely have spent six months or more in jail and would not have gotten back into school and would not have been in my new career today. These penalties are not simply jail time and fines. They can absolutely be life-changing. Doug Wilson, let me just hear what you have to say about that quickly before we have to go.

WILSON: Well, Lynn, I think that's a perfect example of why people are drawn to this practice. I think it truly comes from the heart, and there's a level of commitment and compassion that you will not see from many people. And our folks go in and slug it out every day against the government. And sometimes they win, sometimes they lose. They work their eight to 10 hours, 12 hours a day, and they go back and do it the following day because they care about the clients.

NEARY: Well, thanks so much for joining us, Douglas Wilson.

WILSON: You're welcome.

NEARY: Douglas Wilson is the Colorado state public defender, and he joined us today by phone from his office in Denver. And just very quickly, Stephen Bright, anything that can be done to address some of these problems that you've been talking about?

BRIGHT: Well, two things that I would say quickly. One is that there have to be lawsuits brought as there have been in some states to try to correct these systemic problems. And secondly, these - the criminal justice system, unfortunately, is out of sight and out of mind. It's poor people. It's overwhelmingly racial minorities. And this has to be held up for people to see because this is a disgrace to our society and to the legal profession, and it's got to change. And it's only going to be done when it's examined.

NEARY: Stephen Bright is a lecturer at Yale Law School and president and senior counsel of the Southern Center for Human Rights in Atlanta. Thanks so much for being with us today.

BRIGHT: Thank you for having me. Transcript provided by NPR, Copyright NPR.