Levon Brooks was exonerated by the Innocence Project after being convicted of the 1990 rape and murder of a child on the basis of bogus expert "bite mark" evidence. At Brooks's trial in Noxubee County, Mississippi, the prosecutor-the allegorically named Forrest Allgood--gave a short but tremendously powerful opening statement. Allgood began by describing how three-year-old Courtney Smith had been put into bed along with her two sisters at their grandmother's house. He continued:
And some time that night, ladies and gentlemen, while they slept, a silent evil cloaked in the shape of a man came into the house. But the man who did this, ladies and gentlemen, left his mark. The State of Mississippi is simply going to prove to you that that man, and the man who left those teeth marks, is Levon Brooks. (1) What happened next, however, was even more powerful than this hard-hitting opening. What happened next was--nothing. That's right--nothing. Levon Brooks's defense attorneys in this capital trial did not stand. They did not say anything at all.
The moment no doubt passed quickly; defense counsel's decision not to respond takes up just over a line of the trial transcript. But the effect was devastating. The message to the jury could not have been more clear: Brooks' lawyers said nothing because they had nothing to say. It was the functional equivalent of endorsing Allgood's opening statement. If a criminal trial is an exercise in granting a defendant his day in court, Levon Brooks had just watched his come and go in a matter of seconds. (2) Eventually, Brooks's lawyers gave a brief and faltering opening statement after the close of the entire prosecution case and put on a half-hearted defense case. Their failure to meaningfully contest their innocent client's guilt of a heinous crime cost him sixteen years in prison before he was exonerated.
Most crimes are not as awful as the rape and murder of a young child. And of course, most criminal defendants are not completely innocent like Brooks. But dismal failures of representation like that of Brooks's lawyers are all too common. There is the Washington state lawyer who failed to inform his twelve-year-old client or his client's parents that a plea of guilty to child molestation could never be expunged from his record and would lead to his registration as a sex offender, possibly for the rest of his life. (3) And there are the New Orleans public defenders who were unable, in the wake of Hurricane Katrina, to produce a list of the 6,500 to 8,000 prisoners whom they were supposed to be representing. (4) And let us not forget the Texas lawyers who slept through portions of their clients' capital trials--who, Stephen Bright quips, give a new meaning to the phrase "Dream Team." (5)
The recitation of dramatic failures like these, however, can mislead us about the nature of the challenge of ensuring adequate indigent defense services. The failures of individual lawyers, however appalling, are often the product of structural forces that pose systemic barriers to the delivery of adequate criminal defense services to the poor, even by demonstrably capable and dedicated lawyers. Structural constraints prevent many well-intentioned lawyers from meeting regularly with their clients, conducting adequate investigations or legal research, trying (as opposed to pleading) plausible cases, and providing meaningful adversarial testing of the evidence on the rare occasions when they do go to trial. For example, in some Mississippi counties, defendants may wait up to a year to speak to a court-appointed lawyer about their case, and many lawyers meet their clients for the first time on the day of trial. (6) In Miami-Dade County, Florida, the average felony caseload per lawyer has reached five hundred in recent years due to budget cuts. (7) And these conditions are not confined to the South: in New York, indigent defense services are supplied through a patchwork of inadequately funded county-based systems, without any statewide attorney training, supervision, or monitoring. (8)
It is not only indigent defense lawyers (or former public defenders like myself) who note these endemic deficiencies. Just last year, the nation's chief prosecutor, Attorney General Eric Holder, acknowledged grimly that "[a]cross the country, public defender offices and other indigent defense providers are underfunded and understaffed." (9) As a result, Holder concluded, "[t]oo often, when legal representation is available to the poor, it's rendered less effective by insufficient resources, overwhelming caseloads, and inadequate oversight.... [T]he basic rights guaranteed under Gideon have yet to be fully realized." (10)
The widespread recognition of this depressing reality is reflected in the titles of the scholarly articles that I collected to prepare for this occasion, all of which range from concerned to excoriating about the state of indigent criminal defense services. Riffing off of the title of Anthony Lewis' triumphant account of the Gideon litigation in his blockbuster Gideon's Trumpet (also a major motion picture starring Henry Fonda), scholars have declared Gideon's trumpet to be "muted," (11) "silen[t]," (12) or out of "tune" (13) and have worried about the promise of Gideon being "blown away." (14) If Clarence Earl Gideon had had a name of different biblical provenance, I'm sure we would be reading about Noah's leaky ark, Moses' hollow staff, or David's broken slingshot.
These uniformly bleak assessments of the health of Gideon's mandate leave me of two minds. On the one hand, I share the completely justified indignation of the many lawyers and scholars familiar with the current state of indigent defense and agree that this half-century anniversary should be commemorated with nothing less than a call to arms to address the profound shortfalls of representation in our criminal justice system. On the other hand, I recall with great pride my days as a line attorney with the Public Defender Service for the District of Columbia (PDS) and believe that organizations like PDS and the inspired work of some of its alumni--like Stephen Bright, Mary Kennedy, and Jonathan Rapping--can offer some help in forging the difficult path forward.
The constitutional right to counsel itself shares something of a similar oppositional duality. On the one hand, the right to counsel is uniquely powerful, because counsel is the conduit for the assertion of all other rights, whether constitutional or nonconstitutional. On the other hand, the right to counsel is also exceedingly oblique: the right itself does not specify, and courts have had great difficulty elaborating, just what it is that renders a legal representative the "counsel" that the constitution requires, beyond a bar card and a pulse.
The landmark Gideon decision, too, shares this duality. On the one hand, the case is one of the most famous of the Warren Court's criminal procedure revolution, and it has been recognized by the Supreme Court itself in its retroactivity jurisprudence as the epitome of a "watershed" decision of constitutional criminal procedure. (15) On the other hand, as Justice Harlan wrote separately to emphasize, Gideon merely formalized what had been almost entirely accomplished by the preexisting "special circumstances" rule, because the Court had already "come to recognize ... that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial." (16) Thus, one could fairly characterize Gideon as less than revolutionary-as merely the formal interment of an already moribund rule so as to purl in a relatively few recalcitrant outliers. Moreover, while Gideon promised the appointment of counsel for the indigent in ringing terms, it remained crucially silent on the quality and scope of services that constitutionally sufficient counsel must provide or on the appropriate mechanisms for the funding, appointment, training, or supervision of such counsel, thus leaving the right very far from self-executing.
Fast forward to the present, where there has been much excitement, at least in academic circles, about the Supreme Court's recent expansions of the Sixth Amendment right to counsel in cases like Padilla, (17) Lafler, (18) and Frye, (19) among others. Commentators have hailed "a new era" (20) and dubbed last Term the Supreme Court's "right-to-counsel Term," (21) while embracing what they see as powerful "unintended consequences" (22) of the Court's recent decisions. Despite this enthusiasm, the Court's recent Sixth Amendment decisions share many of the same tensions as Gideon itself. On the one hand, like Gideon, the recent decisions represented welcome constitutional recognition of new realities. Padilla recognized that "changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction" (23) and thus held that a defense lawyer fell below the constitutional threshold of effective advocacy in failing to advise a client of the possible deportation consequences of his conviction. Lafler and Frye recognized the "simple reality" that "plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process." (24) These are important, even "landmark" holdings, and commentators are not wrong to hope and predict that these decisions will open up new doctrinal avenues in Sixth Amendment litigation.
But Gideon has demonstrated that even "landmark" or "watershed" doctrinal change cannot, by itself, be the catalyst for the kind of institutional change necessary to create and maintain an adequate system for the provision of indigent defense services across the country. Courts are the enforcers of constitutional remedies, but in the Sixth Amendment right-to-counsel context, their primary enforcement role has involved their power to reverse individual convictions on...