The Paper Tiger of Gideon V. Wainwright and the Evisceration of the Right to Appointment of Legal Counsel for Indigent Defendants

• Author: Amanda Myra Hornung
• Position: J.D. candidate, Benjamin N. Cardozo School of Law, June 2005. B.A. in Political Science, Miami University, Oxford, Ohi
• Pages: 495-542

Page 495

"The rhetoric of the Sixth Amendment is grand; the reality is grim."¹

-Pamela R. Metzger

"The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."²

-Justice Hugo Black

"Ensuring fairness and equal treatment in criminal trials is the responsibility of us all. The Gideon decision, with its promise of equal justice, showed the Supreme Court at its best. Forty years later, we must make that promise a reality."³

-Edward M. Kennedy

Introduction

In 1963, a poor white man around fifty-years-old, who had been in and out of prison for most of his life, struck a massive blow not just for himself but for all indigent criminal defendants in this country.⁴ Strangely enough, Clarence Gideon believed that he was simply askingPage 496 the Court to enforce the United States Constitution as already interpreted, not a sea change in Constitutional and criminal law in this country -Mr. Gideon believed the Supreme Court had already held that indigent defendants, such as himself, were entitled to appointed counsel at state expense.⁵ Clarence Gideon, while wrong at the time, was proved right a short time later when the United States Supreme Court held that indigent criminal defendants in state court were entitled counsel at the state's expense.⁶

Since 1932, the Supreme Court has interpreted the United States Constitution as conferring the right of appointed legal counsel to indigent defendants in federal criminal proceedings.⁷ However, it was not until 1963 in the landmark case of Gideon v. Wainwright that the Supreme Court recognized the same right in state criminal proceedings.⁸ Since that time, various cases have come before the Supreme Court challenging state practices regarding the appointment of legal counsel to indigent defendants. With each case, the Supreme Court has determined whether the state law or policy fulfilled the commands of the Constitution's Sixth and Fourteenth Amendments. This has been the mechanism by which states have learned which procedures and policies comport with or violate the Sixth Amendment and the right recognized in Gideon.

Although Gideons impact was significant, the case left open the all-important question of how state legislatures might develop a system of representation for indigent individuals charged with crimes and entirely ignored the question of the costs the decision imposed on the state. Later decisions have also failed to answer those questions.⁹ AdPage 497 hoc determinations by the Court of what does and does not satisfy the Sixth Amendment have not been effective in protecting the right to appointment of legal counsel in state criminal proceedings. One commentator recently remarked, "the responsibility to make Gideon a reality fell on three distinct entities: the bar, the courts, and the legislature."¹⁰ None of these three entities, either by itself or in combination, have in any way succeeded in making Gideon a reality.

This note argues that the manner in which the Supreme Court has interpreted the right of indigent defendants to counsel, as well as the Court's interpretation of the right to effective assistance of counsel, has given states the discretion within which they have been able to abridge those Constitutional rights. The Supreme Court is, of course, constrained by concerns of overstepping the bounds of federalism. Although this has had a great influence on these two lines of cases,¹¹ federalism concerns should be malleable when measured against the all-important rights to counsel and to effective assistance of counsel.¹² The Sixth Amendment guarantees of counsel to indigent defendants and effective assistance of counsel are essential to the inherent fairness of our criminal justice system and thus the faith that the common man holds in that system. Creating higher standards of legal assistance to indigent defendants should not be left up to bar associations, or legal societies, or even the defense community. These rights are constitutional rights, notPage 498 guidelines created by legal scholars or practicing attorneys. As it is the role of the judiciary to say what the Constitution means,¹³ the Supreme Court must, at its first opportunity, re-weigh the concerns of federalism and the Sixth Amendment in order to make the rights to counsel for indigents and effective assistance meet a satisfactory standard. The Court must limit the discretion given to the states by setting forth a more stringent standard for the application of the Sixth Amendment guarantees of the right to counsel for indigent defendants and the right to effective assistance of counsel. Such measures are needed in order to ensure that indigent defendants are treated with the same fairness at trial and in sentencing that we presume defendants who have the means to hire attorneys are provided.

A defendant who is not granted a fair trial is more likely to be convicted and sent to prison.¹⁴ The number of indigent defendants in prison may have a correlation to the type of assistance such defendants received at trial. If defendants are unable to get experienced, motivated attorneys and are unable to call into question the expert testimony and evidence of the prosecution with testimony from their own experts, then conviction is more likely than in a trial where the defendant does have competent representation and competing experts.¹⁵

In a study published in 2000, the Bureau of Justice Statistics reported that nationwide there was no difference in the adjudication of guilt based on the type of attorney who represented a defendant, but of those defendants found guilty, higher percentages of defendants with court-appointed counsel were sentenced to prison.¹⁶ However, of those criminal defendants receiving jail or prison time in state courts in large counties, seventy-one percent of those with public counsel were sentenced compared to fifty-four percent of those with private counsel.¹⁷Page 499 In many capital cases the defendant is indigent, thus the court appoints counsel to him. In 1996, fifty-five percent of jail inmates charged with homicide had public defenders.¹⁸ Despite the proclamation by the Supreme Court that "death is different," the Court has not demanded that any different measures be taken in capital cases when the defendant is indigent.¹⁹

As a result of the work of innocence projects around the country, it can no longer be ignored that high numbers of innocent defendants are convicted and sent to prison, even death row, by our criminal justice system.²⁰ While the inadequacy of court-appointed counsel is not the entire problem (indicated by the fact that many of those exonerated had private counsel), the inadequate funding of public defender services and the lower standards to which public defenders are held, play a part.²¹ If public defenders were better equipped and held to higher standards ofPage 500 assistance, the workload of innocence projects could be reduced, and many innocent men would never have to serve prison sentences while waiting for exoneration.²²

The rights of indigent defendants to appointment and effective assistance of counsel are neither lofty philosophical ideals nor rights that only function to give us all faith in the criminal justice system.²³ The rights to appointment of counsel and to effective assistance ultimately impact not only whether people are convicted of crimes based on fair processes but moreover, whether innocent people are convicted of crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible. This note argues that the Supreme Court has the wherewithal to do so by making the right to counsel and the right to effective assistance of counsel more robust.

Part I of this note recounts the legal history of the right to counsel for indigent defendants as well as the right to effective assistance of counsel. Part II examines how states are violating the constitutional rights of indigent defendants to both appointment of legal counsel and the effective use of that counsel by discussing laws and policies concerning the determination of indigency, when the right to counsel attaches and when it ceases, the appointment of legal services to indigents, the funding of public defender's offices, immunity for public defenders, and appointment of experts. In Part III, this note proposes a course of action to begin the long process of constructing an adequate system for the legal representation of indigent defendants as mandated by the Constitution.²⁴

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Part I

A Right To Appointment of Counsel The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."²⁵

The Sixth Amendment applies to the states through incorporation in the due process clause of the Fourteenth Amendment.²⁶

In Powell v. Alabama the United States Supreme Court first interpreted the...