COMMENTARY ON LAWYERING, LANGUAGE, AND POLITICS
Saturday, September 15, 2012
Pensylvania: Gideon fail. New Jersey: Gideon Fulfilled
The New Jersey Law Journal Editorial Board, commenting on the travesty that is Pennsylvania’s county-based Public Defender system, observes that the joint state government commission that studied the problem failed to point to the solution next door in New Jersey where the 550 lawyer statewide Office of the Public Defender has maintained independence and competence. That was most dramatically seen in the 25 years of capital defense from 1982 – 2007. The capital defense unit tried over 200 cases. Over 60 death sentences were handed down. Yet no one had been executed when the legislature in 2007 replaced capital punishment with life without parole. - GWC
Gideon v. Wainwright and its progeny are the font of contemporary jurisprudence on the right to a fair trial. But this right too often has been honored in the breach and courts have struggled to implement the constitutional mandate. The National Right to Counsel Committee’s comprehensive 2009 report, “Justice Denied,” shows “there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in the current economic difficulties that confront the nation. Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law”.Unfortunately, one of the most dramatic instances of that failure is in our neighboring state, Pennsylvania. It is the only state in the country which does not provide state funding of criminal defense for the indigent. Indigent defense is left to the counties. A thorough report by a committee of the Pennsylvania Supreme Court concluded in 2003 that “indigent criminal defendants are not assured of receiving adequate, effective representation.” Nothing changed. But the exposure of the dreadful corruption of juvenile justice by two now-jailed judges in Luzerne County prompted the Legislature to commission a new study. Its December 2011 report, “A Constitutional Default,” concluded that the “Kids for Cash scandal showed how failure to maintain professional independence of defense attorneys from political interference by the judiciary can create systemic injustice [and that] Pennsylvania’s overly localized indigent defense system can lead to inadequate supervision and training, which in turn can lead to a shocking deterioration in professional standards….…[In New Jersey the statewide Office of the Public Defender] demonstrated the necessity of, and provided key support for, our Supreme Court’s unparalleled proportionality review of capital cases. The OPD’s participation from beginning to end in nearly every capital case made possible our Supreme Court’s commitment that, as Justice John Wallace Jr. observed, “[w]hen life hangs in the balance, error has no place.