Sullivan Courthouse Attle

Attleboro District Court. (Staff photo by Mark Stockwell)

ATTLEBORO - At arraignments in Attleboro District Court and other criminal courts around the state, lawyers are most often appointed to represent the accused who cannot afford to pay for one.

Even when an indigent defendant who clearly needs an appointed lawyer insists on representing himself on a serious felony, judges in the Attleboro court often ask if they attended law school and give an analogy as to why having a lawyer is a good idea.

"Would you perform surgery on yourself?" Judge Daniel O'Shea often tells defendants.

While the right to counsel for the indigent dates back to

Colonial times in Massachusetts, the U.S. Supreme Court did not make it the law of the land until 50 years ago Monday.

In a landmark ruling in Gideon v. Wainwright, the Supreme Court found the right to counsel "fundamental" and an "indispensable safeguard of freedom and justice under law."

The ruling was prompted by Clarence Earl Gideon, a 51-year-old drifter and convicted thief who was in a Florida prison doing a five-year stint for breaking into a pool hall.

Gideon, who had already spent several years of his life behind bars for various crimes, was denied a lawyer in the pool hall case. He represented himself and was convicted by a jury.

He wrote to the Supreme Court in pencil on prison stationary, and his case was heard.

Gideon was represented by future Supreme Court Justice Abe Fortas, who argued Gideon's Sixth Amendment rights - as applied to the due process clause of the Fourteenth Amendment - had been violated by the Florida Court.

The nation's highest court agreed and overturned its own 20-year-old precedent, which had previously only required court-appointed counsel in cases with "special circumstances."

The ruling made Gideon, who didn't even have visitors while in prison, a hero in the annals of American law.

He was represented by a lawyer at a new trial and was acquitted after spending two years in prison. He died of cancer in 1972, but his case changed the legal landscape of the country.

"That obviously changed the criminal courts in all of the 50 states radically," Suffolk University of Law professor Gerard Clark said.

Although the Supreme Court did not specify the means, the ruling required state governments to provide funds for and create a system of counsel services for indigent defendants charged with felonies. Later court decisions extended the right to misdemeanors with a penalty calling for a jail term.

It is estimated that 80 percent of criminal defendants have court-appointed lawyers.

Prior to Gideon, "the criminal courts were just a conveyor belt into the state correctional institutions, especially in the South," Clark said.

"No one ever doubted the word of the police or the charges being lodged against a defendant," the law professor added.

Massachusetts is one of 22 states that have a statewide system providing lawyers for indigent criminal defendants. The state pays for public defenders who work for the Committee for Public Counsel Services, and private lawyers, called bar advocates, who take court-assigned cases.

Lisa Hewwitt, general counsel for the Committee for Public Counsel Services, referred to the state police lab scandal, saying: "Although Massachusetts has a long history of defending the right to counsel, the commonwealth must face the fact that our criminal justice system is not perfect."

"The right Gideon ensured a half-century ago, the rights gained through the cases that followed, and the rights of numerous individuals convicted because of tainted evidence should never be diminished, she said. "They deserve and require our protection. As we celebrate Gideon, lets remember that the system is not perfect, but what we have must be preserved."

South Easton lawyer Joshua Werner, a former Suffolk County assistant prosecutor and a bar advocate, said the justice system is designed to be adversarial, with a series of checks and balances to insure defendants receive their constitutional protections.

"A lot of people look at defense lawyers and say they are just looking for a loophole to let the guilty guy off. But that's not what we do. Our job is to provide an important check on the government's prosecution of people," Werner said.

"Under our system, you are innocent until proven guilty. The defense attorney's job is to insure the evidence put forward by the government to prove whether you are guilty beyond a reasonable doubt is done in a constitutional and appropriate fashion," Werner added.

A defendant who requests a lawyer must show they are financially eligible and must pay a fee per case, usually ranging from $150 or more, depending on financial resources, or perform community service to help defray the costs.

Court-appointed lawyers earn $50 an hour in district court and $60 in superior court.

Someone who has to pay for their own lawyer can pay $150 an hour, or more.

A typical drunken driving case that goes to trial might cost someone paying for their own lawyer about $5,000.

The system in Massachusetts is considered somewhat of a national model, according to legal experts. But they say the struggle for funding for public defenders in tough fiscal times can place even basic rights at risk.

"I can say Massachusetts is one of the few states where the quality of representation is on the positive side," said Edwin Burnette, vice president of the National Legal Aid and Defender Association in Washington, D.C.

But while legal experts say Massachusetts has lived mostly up to the promise of Gideon, they say that is not the case in other parts of the country, where services vary from state to state and the quality of legal representation of the poor differs from county to county.

"In most of the country, the legacy of Gideon has not prevailed," Burnette said.

While 22 states have statewide public defender systems similar to Massachusetts, Burnette said, most states have defender services that are not coordinated with the criminal justice system and do not provide training or lawyer evaluation like Massachusetts and other states.

"More often that not, there is neither the money nor the structure to deliver defender services that Gideon and the constitution called for," Burnette said.

Stephen Hanlon, a member of the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants, said many public defenders are so overburdened with heavy caseloads they literally go from courtroom to courtroom representing indigent clients on murders and other serious crimes.

"It cannot be fairly called the right of counsel. As a matter of fact, it could be called the illusion of counsel," said Hanlon, who is also a law professor at Georgetown University of Law.

In the upcoming issue of Human Rights magazine, Hanlon writes, "a compelling argument could be made that the principal function of all the players in the criminal justice system with respect to the invariably poor and largely black and brown population appearing before them is to serve as a facilitator for mass overincarceration of a nation which now incarcerates a greater proportion of its population than any other nation in the world."

In 1973, the national advisory committee of the American Bar Association adopted guidelines calling for public defenders to have only 150 felony cases a year. But in some cities they are taking on 500, legal experts say.

In many courtrooms across the country, Hanlon said, defendants with little education or understanding of the criminal justice system are waiving their right to counsel and pleading guilty without fully understanding the ramifications of what they are doing, including the potential for deportation.

Hanlon said the standards were never really "fact-based" and are useless today because of the changes in technology, such as DNA analysis and advances in forensic science, which make cases more complex. Hanlon says public defenders need a better accounting system for their time on cases to justify adequate funding.

Hanlon said the ABA's standing committee on legal aid for indigent defendants has adopted guidelines so public defenders with excessive caseloads who believe they cannot represent clients effectively can seek judicial relief from appointment to additional cases.

The situation is so dire, Hanlon said, "We mark Gideon versus Wainwright. We don't say celebrate."

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(1) comment


A $150 "fee" to be paid by an INDIGENT defendant. Hypocrites much?

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