Gideon at 50

Gideon at Fifty  - Stein Center News December 2012
by George Conk

Literature regarding lawyers’ professional responsibility often begins with lilting exhortations to zeal, loyalty, and confidentiality, but we see too little reference to competence. Yet without it, all the good will and loyalty in the world will be of little use to the client and to the social goal of justice for all. Competence, however, requires skill and resources. 

Fifty years ago, the United States Supreme Court appointed a distinguished lawyer and future Associate Justice, Abraham Fortas, to take on the representation of Clarence Gideon, a man of little virtue, who had in a handwritten petition to the Court asserted that the Sixth Amendment of the Constitution required the government to furnish him with a lawyer for his defense in a criminal trial. It didn’t—not yet. But the Court soon declared in Gideon v. Wainwright, 372 U.S. 335 (1963), that Gideon was right.Gideon’s Trumpet—as Anthony Lewis titled his book—called on the state and federal government, as well the courts, to fulfill this mandate.

The Supreme Court added the requirement that Gideon-mandated counsel be competent inMcMann v. Richardson, 397 U.S. 759 (1970). Strickland v. Washington, 466 U.S. 668 (1984), afforded a remedial test:  representation falling short of the Sixth Amendment’s adversarial vision at each stage of a criminal proceeding would lead to reversal if the shortcoming likely affected the outcome.

But principles alone do not do the job. Government responded, but the response fifty years later is often insufficient to assure a competent defense of every criminal defendant. The National Right to Counsel Committee’s comprehensive report, "Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel" [pdf] (April 2009), found on page xi that

despite the fact that funding for indigent defense has increased during the past 45 years since the Gideon decision, 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. Every day, the caseloads that defenders are asked to carry force lawyers to violate their oaths as members of the bar and their duties to clients as set forth in rules of professional conduct.

New Jersey made the decision early to establish a statewide Office of the Public Defender. The Public Defender serves a five-year term, insulating the 450 lawyer statewide organization. The PD’s strength can be seen in its 25-year record in capital defense. The PD participated in every capital case—from legislative restoration in 1982 to repeal in 2007—and not a single person was executed of the sixty sentenced to death.  

Unfortunately the situation in neighboring New York and Pennsylvania is not so good. Those two states have relied on county, not state funding. In Hurrell Harring v. New York, 930 N.E.2nd 217 (2010)—a case that the Stein Center joined as amicus curiae—the Court of Appeals allowed an action by defendants alleging inadequate representation to proceed. The Court majority (on page 227) decried inadequate funding yielded by the county-based system, saying

The severe imbalance in the adversary process that such a state of affairs would produce cannot be doubted. Nor can it be doubted that courts would in consequence of such imbalance become breeding grounds for unreliable judgments. Wrongful conviction, the ultimate sign of a criminal justice system's breakdown and failure, has been documented in too many cases. Wrongful convictions, however, are not the only injustices that command our present concern. As plaintiffs rightly point out, the absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon's guarantee to the assistance of counsel does not turn upon a defendant's guilt or innocence, and neither can the availability of a remedy for its denial.

In Pennsylvania the situation is also deplorable. 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: Services to Indigent Criminal Defendants in Pennsylvania" [pdf], concluded on page 103 that the

Kids for Cash scandal showed how failure to maintain professional independence of defense attorneys from 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.

Despite such authoritative findings of constitutional shortcomings, we have seen no progress toward a remedy from either the New York or the Pennsylvania legislatures. We see much lamentation about the job prospects of law school graduates around the country.  The need for competent legal assistance is plain. The failure of our elected officials to hear the call of Gideon’s trumpet leaves us with much work to do. Enabling competent representation requires a firm commitment by governments, which too often lack a constitutional vision.

George W. Conk is Adjunct Professor of Law and Senior Fellow at the Stein Center for Law & Ethics. He is a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics