Gideon's amici: why do prosecutors so rarely defend the rights of the accused?

AuthorGreen, Bruce A.
PositionSymposium on Gideon v. Wainwright


Gideon v. Wainwright (1) makes a compelling story. (2) Charged with breaking into a poolroom to steal coins and cigarettes, Clarence Gideon has to defend himself at trial after the judge denies his request for a lawyer. The jury finds Gideon guilty, and while serving his sentence, he handwrites a petition to the Supreme Court. (3) His timing is propitious because the Court is poised to reconsider its earlier ruling in Bats v. Brady, (4) which held that states ordinarily have no obligation to provide lawyers to criminal defendants who cannot afford them. (5) The Court designates prominent Washington, D.C., litigator (and later Justice) Abe Fortas to argue for Gideon, leading to a momentous decision recognizing indigent felony defendants' Sixth Amendment right to counsel at the state's expense. (6) Gideon leads to a right to assigned counsel for misdemeanor defendants facing imprisonment, (7) and eventually to lawsuits challenging the adequacy of state funding for indigent criminal defense. (8) The decision becomes the foundation for the right to competent and conflict-free counsel; (9) protection from state and judicial interference with the lawyer-client relationship and with one's choice of counsel; (10) and limits on police interrogations after formal charges are initiated. (11) At least indirectly, Gideon opens the door to other procedural protections, both within and outside the criminal context, including a right to appointed counsel in some civil cases. (12)

One chapter in this story involves the position taken by state attorneys general. (13) After the Court agrees to hear Gideon's case, the Florida Attorney General writes to his counterparts, soliciting advice and inviting them to submit amicus briefs. (14) Although most states then afford counsel to indigent felony defendants as a matter of state law, that does not mean states will welcome a federal constitutional right to appointed counsel, and several attorneys general respond sympathetically, expressing concern that a constitutional mandate will interfere with states' rights or will later be expanded to encompass misdemeanor defendants. (15)

Minnesota's Attorney General, Walter F. Mondale, answers differently, however, explaining why he would welcome a federal constitutional requirement:

Nobody knows better than an attorney general or prosecuting attorney that in this day and age furnishing an attorney to those felony defendants who can't afford to hire one is "fair and feasible." Nobody knows better than we do that rules of criminal law and procedure which baffle trained professionals can only overwhelm the uninitiated. ... As chief law enforcement officer of one of the thirty-five states which provide for the appointment of counsel for indigent defendants in all felony cases, I am convinced that it is cheap--very cheap--at the price. (16) Mondale shares his letter with Edward McCormack, the progressive Attorney General of Massachusetts, who agrees to help produce an amicus brief on Gideon's side. Later to be lauded for their leadership, (17) Mondale and McCormack enlist others' support, (18) with the result that twenty-three states as amicus curiae endorse Gideon's position. (19) Although amici generally coordinate with counsel for the party they support, (20) the states' brief surprises both Fortas and the Florida Attorney General. (21)

The states make four arguments against Betts v. Brady: that its ad hoc approach is contrary to the historical development of the right to counsel and offends the contemporary notion of due process, (22) as demonstrated by thirty-five states' requirement of appointed counsel in all felony cases; (23) that the decision makes the quality of criminal justice dependent on the accused's ability to pay for it; (24) that its ad hoc test is unworkable and incapable of consistent judicial application; (25) and that the burden of providing counsel in all felony cases can adequately be managed by the bench and bar. (26) Although the states are not uniquely situated to make these arguments, they can speak from experience about both the litigation burdens under the existing constitutional standard and their ability to cope with the financial and administrative costs of a categorical rule. Most significant, however, is not the briefs content, but simply that so many states have filed on the side of the procedural rights of the accused. (27) The Court takes notice. Endorsing the states' observation that Betts v. Brady was "already an anachronism when handed down," (28) the Court concludes that "any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him." (29)


    The intervening half-century has placed in bold relief the extraordinary nature of the states' participation on Gideon's side. Supreme Court amicus practice has increased substantially since Gideon, (30) and government entities participate frequently (31): in the second half of the twentieth century, one or more states filed amicus briefs in more than fourteen percent of all cases, (32) and sometimes virtually every state joined. (33) State amici often oppose the expansion of criminal defendants' rights. (34) But chief law enforcement officials rarely take defendants' side, (35) and never do so en masse as in Gideon. (36)

    Why is Gideon so special? The answer may be that few if any cases call for recognition of such a fundamental right. The arguments are compellingly simple: a criminal accused needs a lawyer to get a fair trial; the poor should not receive lower quality justice; individuals risking their freedom should not have to face the government unaided. Counsel's role is basic to our adversarial process and there is no legitimate law enforcement interest on the other side of the equation. Assigning counsel to represent the accused does not make it harder for law enforcement authorities to gather evidence or to prove their case or place any demands or restrictions on them. Prosecutors benefit too because of the difficulties of dealing with unrepresented defendants and because defense lawyers help prevent wrongful convictions, the prosecutor's bete noire. The countervailing interests are surmountable administrative and financial ones. And yet, as compelling as Gideon's case may have been, fewer than half of the attorneys general joined the amicus brief supporting a federal constitutional right to assigned counsel. Had Mondale and McCormack not taken the lead, the brief might never have been written.

    Still, there are reasons why Gideon, although truly a special case, should not be an anomaly. Publicly expressing honest, balanced views about how the law should develop is a legitimate role for state attorneys general and district attorneys. (37) While government lawyers undoubtedly see their litigating role as paramount, they also have a responsibility to promote the sound development of the law (38)--a responsibility that grows out of their status as public officials, as government lawyers, and as lawyers generally. (39) Legislators and regulators naturally look to state and local prosecutors to contribute based on their expertise and experience in criminal law enforcement, promoting law reform that gives fair weight to procedural fairness to the accused, rather than reflexively taking positions that exaggerate law enforcement interests. Although government lawyers often speak on behalf of their offices against proposed procedural restrictions, they do not always derogate defendants' interests, (40) and they would have little credibility if they did. (41)

    Constitutional litigation in the Supreme Court provides a comparable opportunity for prosecutors to contribute to the sound development of the law. Attorneys general and, less frequently, district attorneys, take advantage of the opportunity by filing or joining amicus briefs when they believe that fairness dictates denying the defendant's claim. Given their role, prosecutors can also contribute to the Supreme Court's deliberations when they think it is fair and just to recognize the procedural right in question, even if there are countervailing law enforcement interests. (42) Government lawyers have a potentially useful role--and can perhaps be even more helpful to the Court as amici--when the defendant's claim is less obviously meritorious than in Gideon.


    Why are there so few government amicus briefs on the defense side? One possibility is that from the states' perspective, the Court has already expanded defendants' protections to the limit. Nowadays, some criminal cases in the Supreme Court are fact-intensive or deal with narrow procedural questions on which, understandably, prosecutors would not bother to weigh in as amici. (43) When criminal cases do raise questions of basic principle, the defendants may assert positions that government lawyers genuinely consider to be extreme. Perhaps there have been no cases in the past fifty years involving basic questions of procedural fairness that defendants deserve to win.

    This seems like an unlikely explanation, however. New criminal procedure questions arise periodically, implicating public concerns about wrongful convictions, overcriminalization, excessive punishment, technological invasions of privacy, and racial disparities. (44) The Court continues to review cases in which progressive attorneys general and district attorneys might usefully support the accused, including when, as in Gideon, their own state laws or practices are consistent with the procedural protection being sought and experience shows that additional burdens on the state will not be unduly onerous. It is not unusual...

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