The Quality of Indigent Defense on the 40th Anniversary of Gideon: The Hamilton County Experience

• Author: Nicole J. de Sario
• Position: J.D. Harvard Law School, 2003; B.A.
• Pages: 43-63

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I Introduction

Four decades ago, in Gideon vs. Wainwright,¹ the United States Supreme Court incorporated the Sixth Amendment right to counsel, conferring upon state and local governments the responsibility to provide defense counsel in criminal prosecutions.² The Court reasoned that counsel was essential to due process and necessary for a fair trial.³ Since then, state and local governments have struggled to comport with the Sixth Amendment. Localities have established public defender offices, utilized court-appointed attorneys, contracted out cases to a public or private entity, or-most often-provided hybrid models of services for indigent defendants.⁴ In a piecemeal fashion, state governments may choose to defer to the services provided by county or city governments, making compliance with the Sixth Amendment a local matter. Thus, on the fortieth anniversary of Gideon, it is appropriate to analyze the legacy of this case through the lens of local government.

From one locality to the next, indigent defense remains in a state of "permanent crisis."⁵ Since Gideon was decided in 1963, "a majorPage 44 independent report has been issued at least every five years documenting the severe deficiencies in indigent defense services."⁶ The quality of indigent defense is subverted in a vicious cycle of politically unpopular subject matter leading to lack of funding and, consequently, exhausting caseloads.⁷ With such systemic problems, even the most talented lawyer would have difficulty zealously representing each client. Harvard Law Professor Charles Ogletree, who once served as a public defender, explained that "the typical public defender is burdened by a dramatic lack of resources, limited training and supervision, an unconscionable caseload, unhealthy working conditions, and unsympathetic police, prosecutors, judges, witnesses, and jurors with whom she must work."⁸ The challenges facing indigent defense counsel undermine the viability of a truly adversarial process for their clients. The quality of indigent defense has deeper implications for the fairness of the criminal justice system when considering that 80% of defendants are represented by indigent defenders.⁹In fact, Governor George Ryan recently found the Illinois system to be so unreliable that-after investigators revealed that thirteen prisoners on death row were innocent-he commuted all death sentences in the state to no more than life imprisonment.¹⁰

Many individuals across the nation are united in their concern for an improved criminal justice system, but the battle for change is taking place on a local level. In addition to lobbying and coalition building, efforts to improve the quality of indigent defense have taken the form of litigation against state or local entities. To date, cases challenging the constitutionality of indigent defense systems have been brought within thirteen states,¹¹ including a suit filed against Hamilton County, Ohio.¹²

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Without change in provisions for indigent defense, attention will soon turn to Hamilton County as this highly traditional region becomes the next stage for national efforts to revive the promise of Gideon. When asked about the quality of indigent defense in Hamilton County, experienced lawyers within the community described it as "a joke" and "a disaster."¹³David Stebbins, a criminal defense attorney in Ohio, noted: "The quality of appointed counsel has been an ongoing problem virtually everywhere in Ohio, including Hamilton County."¹⁴ David Singleton, the executive director of the Prison Reform Advocacy Center in Cincinnati agreed: "I hear a lot of horror stories."¹⁵

This Article will analyze the challenges facing indigent defendants in Hamilton County and will describe contemporary means for improving the quality of indigent defense counsel, starting from the local level. In Part II, I will address the vitality of Gideon on its fortieth anniversary in light of subsequent case law. In Part III, I will focus on Hamilton County as a case study of how localities have struggled to comply with Gideon in the past four decades. Finally, in Part IV, I will address modes of legal reform for Hamilton County and similarly-situated localities across the country.

II Gideon on Its 40th Anniversary

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense."¹⁶ For the first century and a half of its enactment,¹⁷ the Sixth Amendment applied exclusively to the federal government. The Supreme Court, in Betts v. Brady,¹⁸ explicitly rejected the notion that the right toPage 46 counsel is so fundamental and essential to a fair trial that it is made obligatory upon the states through the Due Process Clause.¹⁹ In 1963, Gideon v. Wainwright²⁰ overruled Betts and marked the beginning of a new era in indigent defense. The Gideon Court was deeply concerned with the defendant's right to a fair trial:

From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.²¹

The Gideon Court considered the rights of a defendant charged with a felony in state court.²² Seven years later, in Argersinger v. Hamlin,²³ the Court explicitly expanded the right to counsel in state courts to defendants charged with misdemeanors.²⁴

Dating back before Gideon, the Supreme Court historically has recognized that if one had the right to counsel, it implicitly would include the right to effective counsel.²⁵ Given the fluidity of these two concepts, how the judiciary defines effectiveness has significant implications for the right to counsel. Thus, the legal community took note when, after two decades of ambiguity following Gideon, the Supreme Court declared a two-part test for defining effectiveness. In Strickland v. Washington,²⁶ the Court held that counsel will be found ineffective if the appellant can overcome counter-veiling presumptions to show that (i) counsel's conduct fell bellow objective standards of reasonableness and (ii) there is a reasonable probability that the conduct prejudiced the outcome of the trial.²⁷

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The Strickland decision is often criticized for undermining the significance of the right to counsel espoused in Gideon: "[T]he Supreme Court, instead of enforcing Gideon, has been a major culprit in this denial of equal justice. It adopted such a low standard for counsel in Strickland v. Washington that it makes a mockery of the right to counsel."²⁸ By looking to prejudice as the benchmark, the Strickland standard distances itself from concerns about a fair trial so central in Gideon. Except in extreme circumstances where counsel is so inadequate that prejudice can be presumed,²⁹ the Strickland Court implies that a functioning adversarial process is not necessary for the guilty.³⁰ Even assuming that an accurate outcome is more valuable than a fair process, the Strickland Court does not grapple with the notion that evidence of innocence may be suppressed due to a faulted process. "The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel."³¹

Further, with a strict textualist reading, the Strickland standard is applied individually and retrospectively. With such an application, it becomes difficult to challenge, ex ante, whole systems of indigent defense that are inadequate. Thus, overburdened systems that may seem repulsive under Gideon may not amount to Strickland ineffectiveness. As a result, the promise of Gideon rests precariously on the success of systemic litigation-expanding beyond a narrow application of Strickland.

In successful systemic cases, discussed more thoroughly in Part IV, the courts deal with Strickland in two ways. The judiciary may either broadly interpret Strickland to hold that prejudice can be presumed collectively and prospectively or hold that Strickland is inapplicable to system-wide challenges to indigent defense.³² Systemic cases are promising because "[a] more sensible way to solve ineffective assistance of counsel problems is to address their causes rather than their symptoms."³³ Turning to the case study, unless there is reform within Hamilton County, legal advocatesPage 48 may pursue systemic litigation against this locality. After detailing the indigent defenders model within Hamilton County, I will assess the effectiveness of systemic litigation as a mode of reform in Part IV.

III A Case Study of Hamilton County

With a population of 816,000, Hamilton County is the third largest county in Ohio, nestled in the southeastern corner of the state.³⁴ The region is known for being highly traditional: "This is Hamilton County, the mantra is we've always done it that way."³⁵ The county encompasses Cincinnati, a city where 20% of its residents live in poverty.³⁶ According to the 2001 Census, Cincinnati is comprised of 55% white residents and 43% percent black residents-as compared to the 11% of residents who describe themselves as black statewide.³⁷ The city has been the site for racial riots-most...