2013 saw the fiftieth anniversary of Gideon v. Wainwright - one of two U.S. Supreme Court decisions that year promising transformation of the criminal justice system. Gideon promised lawyers to indigent defendants. Miranda v. Arizona promised that everyone facing accusatory interrogation would be informed of the right to silence and to call a lawyer.
In the anniversary year public defender systems were in crisis. Richard Lasnik, a federal district judge, appointed a monitor for two Washington State counties; Pennsylvania continued as the only state which provided no state assistance for indigent defendants, and even the Federal Pubic Defender services were hobbled by the draconian budget measure known as “sequestration”. Immigrants facing deportation still have no right to counsel to defend them in their efforts to remain in the U.S. A few will benefit from federal District Judge Dolly M. Gee’s decision to recognize a right to representation for a class of persons with mental defect facing deportation.
Gideon’s trumpet is heard faintly now. The prospect grows dimmer that we will realize the promise of the Model Rules of Professional Conduct. The Preamble identifies every lawyer as “a public citizen having special responsibility for the quality of justice” and to use our “influence to ensure access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal representation”. That noble sentiment runs into enormous obstacles.
When the financial crisis struck in 2008 the Federal Reserve reduce effective interest rates to near zero. Interest on lawyers trust accounts plummeted. Legal Services Corporation agencies cuts staffs by as much as half. It is not easy for courts to take firm action today to realize the laudable goals of our profession. They cannot themselves appropriate money, and elected officials faced with mandates may act against judges directly - as in New Jersey where a Governor can without stating a reason refuse to nominate for tenure any judge at the conclusion of the seven year term. In other states judges face retention elections.
In New Jersey the Editorial Board of the Law Journal - the only statewide legal newspaper - has deplored the state Supreme Court’s refusal to review D.N. v. K.M. There Justice Barry Albin - who has tenure - dissented alone from a denial of certification. The Appellate Division had refused to appoint counsel for a respondent in a “civil” Domestic Violence action. A finding of domestic violence has grave consequences. They include reputational harm, a loss of custody of children; loss of possession of the family home; financial penalties; placement on the offender registry; and loss of the right to a weapons permit - devastating for a law enforcement officer for whom that is a job requirement.
Albin argued for appointment of counsel. He pointed out that in New Jersey an indigent defendant must be assigned counsel in a civil case if he is facing termination of parental rights, N.J. Div. Of Youth & Family Services. v. B.R. (2007); tier classification in a Megan’s Law case, Doe v. Poritz (1995); involuntary civil commitment, In re S.L (1983); and contempt for violating a restraining order, State v. Ashford (N.J. App. Div. 2004). But these are relatively narrow swaths of cases. Domestic Violence Act cases, on the contrary, are numerous. To protect women from violence the laws have made exclusionary orders readily available. One result of this laudable goal is that people, especially in poor districts, now rely heavily on the police and the courts to intervene in and resolve domestic disputes. In such a flood of cases unfounded claims are a substantial risk.
The timidity of the Supreme Court is understandable if regrettable. Domestic Violence Act cases are so numerous that it would be a substantial burden on the bar if courts assigned counsel in all such cases. And the appointment of lawyers with little experience or expertise in such matters would likely lead to representation of dubious quality. As the majority pointed out in denying certification, a ruling affording counsel in such cases would be expensive; it would affect thousands of cases annually. But fifty years ago such obstacles did not deter the U.S. Supreme Court. In the current circumstances we recognize that fewer now than then are prepared to answer the call of Gideon’s Trumpet, as Anthony Lewis called the landmark opinion in his classic book. - GWC
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