I have no illusions about law and courts or the people who
are involved in them. I have read the complete history of law
ever since the Romans first started writing them down and before
of the laws of religions. I believe that each era finds a
improvement in law, each year brings something new for the
benefit of mankind. Maybe this will be one of those small steps
forward...
— Clarence Earl Gideon, in a letter
to his attorney, newly appointed to argue the case before the
U.S. Supreme Court that would establish an indigent’s right
to appointed counsel in all felony cases.
In 1963, the United States Supreme Court responded to a
handwritten habeas corpus petition from a Florida prisoner in Gideon
v. Wainwright1 and ended 172 years of the denial
of the Sixth Amendment right to counsel to indigent criminal
defendants. After Gideon, no poor person could be tried
for any felony without representation by an attorney. That right
was later expanded to include any charge leading to imprisonment.
But in many cases, the promise of Gideon has become
hollow, or has simply never been fulfilled. That is no less true
in Arizona, where indigent defendants are often led into court by
attorneys who are devastatingly overloaded by cases, who are
compensated too poorly to allow anything but a rudimentary review
of the situation or are completely inexperienced and untrained in
the criminal arena.
Although the indigent defendants suffer most directly from the
strain of Gideon’s unfulfilled promise, the harmful
impact on the judicial system and the attorneys who labor within
it is almost as great. The repercussions are felt throughout the
justice system as prosecutors, other defense attorneys and other
judges, on trial and appellate levels, are often forced to
litigate the competency of the previous inadequately funded and
overworked lawyer. As an overloaded court system must devote its
resources to these criminal matters, the system’s ability to
effectively manage its civil caseload necessarily suffers. I
believe that working to continue Clarence Gideon’s
"small step forward" is the duty of all attorneys.
A criminal defendant’s right to counsel stems nationally
from the Sixth Amendment to the United States Constitution, which
provides that "the accused shall enjoy... the Assistance of
Counsel for his defense." Arizona’s Constitution
further establishes the right, providing that "[i]n criminal
prosecutions, the accused shall have the right to appear and
defend in person, and by counsel... and in no instance shall any
accused person before final judgment be compelled to advance
money or fees to secure the rights herein guaranteed."2
Those guarantees of the right to counsel have been called
"precious rights" which "were fixed in our
Constitution only after centuries of persecution and struggle.
And in the words of Chief Justice Marshall, they were secured
‘for ages to come, and... designed to approach immortality
as nearly as human institutions can approach it.’"3
In interpreting the meaning of the guarantee, courts have looked
at the realities of our court system:
[I]n our adversary system of criminal justice, 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. This
seems to us to be an obvious truth...That right of one charged
with crime to counsel may not be deemed fundamental to fair
trials in some countries, but it is in ours. From the very
beginning, our state and national constitutions 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.4
Indeed the fundamental human rights of life and liberty are
left in peril and the right to be heard in court rings hollow
unless supported by the right to counsel.
The promise involves more than just the company of a person
who also happens to be legally trained.
That a person who happens to be a lawyer is present at trial
alongside the accused... is not enough to satisfy the
constitutional command. The Sixth Amendment recognizes the right
to the assistance of counsel because it envisions counsel’s
playing a role that is critical to the ability of the adversarial
system to produce just results. An accused is entitled to be
assisted by an attorney, whether retained or appointed, who plays
the role necessary to ensure that the trial is fair.5
In essence, the guarantee of both the United States and
Arizona’s Constitutions is not only that counsel will be
provided, but that an indigent accused will receive effective
assistance of counsel.
But a wide range of critics have, implicitly or explicitly,
accused the states of not meeting that burden. Across the
country, courts have reacted to the horror stories that emerge
from indigent defense systems increasingly overworked and
inadequately funded. One Alabama lawyer appeared for a capital
trial so drunk he was sent to jail overnight. He and his client
both emerged from jail the next day, the trial began and his
client was sentenced to death a few days later. A Georgia
attorney missed key testimony from a witness he later
cross-examined because the lawyer was outside the courthouse
parking his car. In other cases, counsel was found to have
provided effective assistance after delivering a closing argument
of only 29 words, or failing to appear for oral argument and
submitting only a one-page briefed argument that cited one case.
In Arizona, the problems are nearly as critical. As one of
only 11 states that pay for indigent defense exclusively from
county funds, the problems are often financial. In 1984, the bid
system used in Mohave County to obtain indigent defense counsel
was found to create a presumption of ineffective assistance of
counsel. The court commented that "an attorney so
overburdened cannot adequately represent all his clients properly
and be reasonably effective. Some defendants must receive
inadequate representation in relation to those who do, in fact,
receive adequate representation."6 The court
pointed to professional ethical obligations to refuse caseloads
that would deny quality representation to all clients. Despite
that ruling, a 1993 survey of indigent defense programs in
Arizona found that attorneys in several counties were still
handling caseloads greater than those allowed by Smith.
Even more recently, In Zarabia v. Bradshaw, the Arizona
Supreme Court held that Yuma County’s appointment system
violated state statutes and court rules because it appointed
attorneys for indigent defendants randomly, regardless of
training or field of experience, and provided compensation
significantly less than an attorney’s overhead costs.7
When an indigent person faces criminal charges, his
constitutional right to effective assistance of counsel is at
stake. For the attorney who stands by his side, there are also
professional obligations that must be upheld, including the duty
to provide competent representation to all clients. The Supreme
Court in Zarabia recognized those duties, and more, when
it wrote "[a]ssigning an attorney incapable, for whatever
reason, of providing effective assistance at theses stages
violates a defendant’s constitutional rights. Our code of
professional conduct echoes these policies. Inadequate
representation at trial and on appeal also violates the
public’s interest in — and right to — establishing
a fair justice system and achieving prompt, final disposition of
charges."8 Protecting that justice system, as
well as all the people whose lives it touches, is a crucial goal
for all attorneys.
Two years ago, the State Bar of Arizona organized the Indigent
Defense Task Force to comprehensively evaluate the problems of
indigent defense and to recommend proposed solutions and
improvements. One option that should be given serious
consideration is the formation of a statewide public
defender’s Office that would not only handle representation
in capital cases, but all indigents accused of a crime. This
centralization would likely be more cost effective by eliminating
the duplication of various defender services in different
counties. It would also be a positive move toward providing
uniformity and standardization of the level of representation
provided throughout the state. Steps should also be taken to
eliminate conflicts by public defenders who have constitutional
and professional obligations to effectively represent their
clients, but must also curry favor and funding from local
politicians. There seem to be certain politicians eager to pass
laws imposing lengthier sentences, mandatory sentences and
spending money for more prisons, who are less eager to ensure
that we have a fair system of putting people in those prisons.
I have great respect for public defenders who are currently
handling very large caseloads involving very serious punishments
and are doing an excellent job under very difficult
circumstances. But overall the system is in peril. A recent study
conducted by the Yuma County Superior Court indicates that some,
if not many, of Arizona’s counties are still exceeding the
appointment numbers judged by the Arizona Supreme Court in Joe
U. Smith to be necessary for adequate representation. Some of
the smaller counties are practically one capital case away from
exhausting their indigent defense resources. I urge all Bar
members to support these public defender organizations and their
efforts to secure adequate funding.
It will be an enormous task to bring to life the dream of Gideon
v. Wainwright — the dream of a vast, diverse country in
which every man charged with a crime will be capably defended, no
matter what his economic circumstances, and in which the lawyer
representing him will do so proudly, without resentment at an
unfair burden, sure of the support needed to make an adequate
defense.9
Members of the State Bar of Arizona have the duty to continue
the struggle to keep the promises of Gideon whole. That
small step by Clarence Gideon must be followed by new strides to
ensure that the "precious right" to counsel is a
meaningful reality for all accused individuals.
ENDNOTES:
1. 372 U.S. 335 (1963).
2. Ariz. Const., Art. II, §24.
3. Miranda v. Arizona, 384 U.S. 435, 442, (1966),
quoting Cohens v. Commonwealth of Virginia, 6 Wheat 264,
387, 5 L.Ed. 257 (1821).
4. Gideon, 372 U.S. at 344.
5. Strickland v. Washington, 466 U.S. 668, 685,
(1984).
6. State v. Joe U. Smith, 140 Ariz. 355, 362, 681 P.2d
1374, 1382 (1984).
7. Zarabia v. Bradshaw, 912 P.2d 5, 7 (Ariz. 1996).
8. Id.
9. Anthony Lewis, Gideon’s Trumpet, (1964).
