The Indigent Defendant and Defense Counsel

• Author: Bernard L. Segal
• DOI: 10.1177/003288556504500103
• Date: 01 April 1965
• Published date: 01 April 1965
• Subject Matter: Articles

THE INDIGENT DEFENDANT AND
DEFENSE COUNSEL
BERNARD L. SEGAL
First Assistant Defender, Defender Association of Philadelphia
THE PAST TWO years have been marked by a historic broad-
ening of the right to counsel for persons accused of crimes. From the
now famous Gideon decision in 1963, which first held that defendants
must be provided with counsel when accused of a criminal offense, until
the very recent decision of the New York State Court of Appeals, hold-
ing that a right to counsel extends to even summary proceedings, there
has been a steady stream of cases holding that counsel must be supplied
to persons who need it. This admirable growth in the rules of law has
not necessarily been marked by an equal growth in the relationship
between indigent defendants and defense counsel and the ease in obtain-
ing counsel. All too frequently the requirement of providing counsel is
being met in name only or in haphazard and unsystematic approaches.
The victims of such shortcomings are inevitably the defendants who are
too poor to pay for counsel-the very ones that the recent decisions
seek to protect. Herein are contained some observations concerning the
difficulties that are faced by indigent defendants in obtaining counsel
and the problems arising in the relationship of such counsel to indigent
defendants.
Private Counsel and the Indigent Defendant
Having stated the problem as being the inability of poor defendants
to afford private counsel, nevertheless the first point to examine is the
relationship of indigent defendants to private attorneys. Even the poor-
est defendants frequently seek to obtain the services of private counsel
to represent them in their cases, although free counsel may be available
through the court. The reason for the desire to be represented by private
counsel can be traced to a number of sources which are set forth in a
later section. Suffice it to say that indigent defendants, in common with
well-to-do ones, often prefer to obtain private attorneys if they can.
The difficulty that faces indigent defendants desiring private coun-
sel is at least three-fold. First, indigent defendants are unable to afford
the services of the best private attorneys. They are left to make their
selection from those members of the Bar who specialize in handling
relatively minor, low-paying cases. The result seems to be self-defeating,
The indigent defendant strains his limited resources to pay for private
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counsel in the hope of getting better protection of his interests than he
would from court appointed or other free counsel. His very status as
an indigent, however, precludes him from obtaining the best represen-
tation and it becomes highly problematical as to whether the representa-
tion he receives from an attorney to whom he has paid a nominal fee
gives him a better quality of representation than that by counsel sup-
plied to the defendant without fee by the court.
Second, the defense lawyers who do a large volume of criminal
work often involving poor persons frequently accept fees that preclude
their doing anything more than actually appearing in court for trial.
There is no money available for investigation of facts or of the defend-
ant’s background. The raising of important pre-trial motions is not done
because the economics of the situation preclude such a service for the
fee paid. Generally there is no follow-up after a case in which there has
been a sentence and in which there is need for further discussions
with the court about possible changes in sentence or about parole.
Thirdly, the fees even of defense lawyers doing a volume of crim-
inal work are frequently beyond the means of the defendant, and thus
any opportunity for representation by private counsel is precluded.
The inevitable conclusion is that representation by private counsel
for indigent defendants may often be unsatisfactory simply because of
the economic status of the defendant, and the hoped for better treat-
ment that the indigent defendant strives for is not to be had by him at
the price he can pay. The relationship is also not satisfactory for de-
fense counsel. Conscientious lawyers are distressed by the necessity of
having to serve clients under circumstances which do not permit them
to do all that should be done for a...