Statements on Introduced Bills and Joint Resolutionsby Senator Patrick J. Leahy
Posted on 2013-03-18
S. 597. A bill to ensure the effective administration of criminal
justice; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, 50 years ago today, the Supreme Court issued its landmark decision in Gideon v. Wainwright. That case affirmed a fundamental principle of our democratic society, that no person, regardless of economic status, should face prosecution without the assistance of a lawyer. It is worth pausing today to celebrate Gideon and the extraordinary idea that in a free society the government which seeks to convict someone must also assume the cost of providing an effective defense.
In the last 50 years, we have come a long way in ensuring equal justice for all Americans and there is much about our criminal justice system in which to take pride. But we must also be honest and recognize that in too many courtrooms it is better to be rich and guilty than poor and innocent. The rich will have competent counsel, but those who have little often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, overworked, inept, uninterested, or worse.
The bottom line is that the promise made in Gideon remains unfulfilled. At [[Page S1904]] the core of this problem is the fact that too many States still lack adequate programs for providing effective representation. That failure results in miscarriages of justice, including wrongful convictions, in violation of our constitutional obligation to provide effective assistance of counsel. In his column yesterday in The New York Times, Lincoln Caplan noted, ``by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.'' A recent article on the front page of USA Today correctly calls the problem a ``national crisis,'' highlighting one public defender's office in Pennsylvania that has four investigators to handle its 4,000 cases a year and where some lawyers have no desk or phone. A similar AP article which ran in the Washington Post cites additional examples of this ongoing failure of our criminal justice system, including one public defender in Indianapolis who was asked to represent 300 clients at a time. I know what it takes to work a case effectively from my time as a prosecutor, and no lawyer can provide effective counsel to 300 defendants at once.
We can no longer ignore the disturbing examples discussed in these articles. We are on notice that a constitutional right is consistently being violated and, if we are to call ourselves a country of laws, it is our obligation as a nation, and particularly as the Congress, to take action and make a change. That is why today, I am introducing the Gideon's Promise Act of 2013. This legislation takes important new steps to breathe life into Gideon and ensure the fairness of our criminal justice system for all participants.
I first introduced this legislation last Congress, as part of the reauthorization of the Justice For All Act. That law, passed in 2004, was an unprecedented bipartisan piece of criminal justice legislation. It was the most significant step Congress had taken in many years to improve the quality of justice in this country and to improve public confidence in the integrity of the American justice system. I plan to reintroduce the reauthorization of the Justice for All Act, again, later this spring and it will include this critical provision to ensure that our criminal justice system operates effectively and consistent with our constitutional obligations.
The Gideon's Promise Act takes several important new steps to improve the quality of the criminal justice system. First, it seeks to encourage States to adopt a comprehensive approach in using the Federal funds received through the Edward Byrne Memorial Justice Assistance Grant, JAG, Program. This will help to ensure that their criminal justice systems operate effectively as a whole and that all parts of the system work together and receive the resources they need. Specifically, the bill reinstates a previous requirement of the Byrne JAG Program that States develop, and update annually, a strategic plan detailing how grants received under the program will be used to improve the administration of the criminal justice system. The requirement was removed from the Byrne JAG grant application several years ago, but groups representing States and victims have requested that it be reinstated in order to improve the efficient and effective use of criminal justice resources. The plan must be formulated in consultation with local governments and all segments of the criminal justice system. The Attorney General will also be required to provide technical assistance to help States formulate their strategic plans.
This legislation also takes important new steps to ensure that all criminal defendants, including those who cannot afford a lawyer, receive constitutionally adequate representation. It requires the Department of Justice to assist States that want help developing an effective and efficient system of indigent defense, and it establishes a cause of action for the Federal Government to step in when States are systematically failing to provide the representation called for in the Constitution.
This is a reasonable measure that gives the States assistance and time needed to make necessary changes and seeks to provide an incentive for States to do so. As a former prosecutor, I have great faith in the men and women of law enforcement, and I know that the vast majority of the time our criminal justice system does work fairly and effectively. I also know that the system only works as it should when each side is well represented by competent and well-trained counsel. That realization was reflected in the testimony of District Attorney Patricia Lykos of Houston that competent defense attorneys are critical to a prosecutor's job. Our system requires good lawyers on both sides. Incompetent counsel can result not only in needless and time-consuming appeals but, far more importantly, can lead to wrongful convictions and overall distrust in the criminal process.
In working on this legislation, I have also learned that the most effective systems of indigent defense are not always the most expensive. In some cases, making the necessary changes may also save States money.
I remain committed to ensuring that our criminal justice system operates as effectively and fairly as possible. Unfortunately, we are not there yet. Too often the quality of justice a defendant receives in our system depends on how much he or she can pay for an attorney. The Constitution requires that we do better. Americans need and deserve a criminal justice system that keeps us safe, ensures fairness and accuracy, and fulfills the promise of our Constitution for all people.
This bill will take important steps to bring us closer to that goal and I urge all Senators to support this legislation.
Mr. President, I ask unanimous consent that the text of the bill and three articles be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows: S. 597 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.
This Act may be cited as the ``Gideon's Promise Act''.
SEC. 2. EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE.
(a) Strategic Planning.--Section 502 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3752) is amended-- (1) by inserting ``(a) In General.--'' before ``To request a grant''; and (2) by adding at the end the following: ``(6) A comprehensive State-wide plan detailing how grants received under this section will be used to improve the administration of the criminal justice system, which shall-- ``(A) be designed in consultation with local governments, and all segments of the criminal justice system, including judges, prosecutors, law enforcement personnel, corrections personnel, and providers of indigent defense services, victim services, juvenile justice delinquency prevention programs, community corrections, and reentry services; ``(B) include a description of how the State will allocate funding within and among each of the uses described in subparagraphs (A) through (G) of section 501(a)(1); ``(C) describe the process used by the State for gathering evidence-based data and developing and using evidence-based and evidence-gathering approaches in support of funding decisions; and ``(D) be updated every 5 years, with annual progress reports that-- ``(i) address changing circumstances in the State, if any; ``(ii) describe how the State plans to adjust funding within and among each of the uses described in subparagraphs (A) through (G) of section 501(a)(1); ``(iii) provide an ongoing assessment of need; ``(iv) discuss the accomplishment of goals identified in any plan previously prepared under this paragraph; and ``(v) reflect how the plan influenced funding decisions in the previous year.
``(b) Technical Assistance.-- ``(1) Strategic planning.--Not later than 90 days after the date of enactment of this subsection, the Attorney General shall begin to provide technical assistance to States and local governments requesting support to develop and implement the strategic plan required under subsection (a)(6).
``(2) Protection of constitutional rights.--Not later than 90 days after the date of enactment of this subsection, the Attorney General shall begin to provide technical assistance to States and local governments, including any agent thereof with responsibility for administration of justice, requesting support to meet the obligations established by the Sixth Amendment to the Constitution of the United States, which shall include-- ``(A) public dissemination of practices, structures, or models for the administration of justice consistent with the requirements of the Sixth Amendment; and ``(B) assistance with adopting and implementing a system for the administration of justice consistent with the requirements of the Sixth Amendment.
[[Page S1905]] ``(3) Authorization of appropriations.--There is authorized to be appropriated $5,000,000 for each of fiscal years 2014 through 2018 to carry out this subsection.''.
(b) Protection of Constitutional Rights.-- (1) Unlawful conduct.--It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by officials or employees of any governmental agency with responsibility for the administration of justice, including the administration of programs or services that provide appointed counsel to indigent defendants, that deprives persons of their rights to assistance of counsel as protected under the Sixth Amendment and Fourteenth Amendment to the Constitution of the United States.
(2) Civil action by attorney general.--Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may, in a civil action, obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
(3) Effective date.--Paragraph (2) shall take effect 2 years after the date of enactment of this Act.
____ [From the New York Times, Mar. 9, 2013] The Right to Counsel: Badly Battered at 50 (By Lincoln Caplan) A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution's safeguards of liberty and equality, finding the right to counsel ``fundamental.'' The goal was ``fair trials before impartial tribunals in which every defendant stands equal before the law.'' This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant's first appeal from a conviction and proceedings against a juvenile for delinquency.
While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America's criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.
Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.
Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.
Lack of financing isn't the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest--at arraignments that averaged less than three minutes.
The Supreme Court has said that poor people are entitled to counsel ``within a reasonable time'' after a case is initiated. But defendants, after their arrest, can spend weeks or even months in jail without a lawyer's help. In a Mississippi case, a woman charged with shoplifting sat in jail for 11 months before a lawyer was appointed.
The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades. They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains-- often because of weak defense lawyers who fail to push back.
The competency of lawyers is, of course, most critical in death penalty cases. In dozens of states, capital cases are routinely handled by poorly paid, inexperienced lawyers. And yet, only very rarely are inmates ever granted a new trial because of incompetent counsel.
In a Georgia death penalty case last year, the United States Court of Appeals for the Fifth Circuit ruled that even though the main defense lawyer drank a quart of vodka each night of the trial, there was no need for a retrial. The lawyer was himself preparing to be criminally prosecuted for stealing client funds, and presented very little evidence about the defendant's intellectual disability. But the court said the defendant had a fair trial because proof that he killed a sheriff's deputy outweighed any weakness in his legal representation.
In an infamous 1996 Texas death-penalty case, the Texas Court of Criminal Appeals upheld a defendant's death sentence even though his lead counsel slept during the trial.
The Supreme Court has made it possible for courts to uphold such indefensible lawyering. In 1984, in Strickland v. Washington, the court said that for a defendant to be entitled to a new trial, he must show both that his lawyer's advice was deficient and that the deficiency deprived him of a fair trial--a very high hurdle. And the court's majority defined competency as requiring only that the lawyer's judgment be ``reasonable under prevailing professional norms.'' Justice Thurgood Marshall, writing in dissent, said the result of this empty standard ``is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel.'' That is exactly what has happened in the past three decades. In fact, incompetent counsel for poor defendants is so widespread that under this standard the prevailing professional norm has been reduced to mediocrity.
After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of The Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death- penalty cases.
There is no shortage of lawyers to do this work. What stands in the way is an undemocratic, deep-seated lack of political will.
____ [From the Washington Post, Mar. 17, 2013] 50 Years After Landmark Ruling, Lawyer's Help is Legal Fiction for Many Accused of Crime (By Associated Press) Washington.--It is not the happiest of birthdays for the landmark Supreme Court decision that, a half-century ago, guaranteed a lawyer for criminal defendants who are too poor to afford one.
A unanimous high court issued its decision in Gideon v. Wainwright on March 18, 1963, declaring that states have an obligation to provide defendants with ``the guiding hand of counsel'' to ensure a fair trial for the accused.
But in many states today, taxpayer-funded public defenders face crushing caseloads, the quality of legal representation varies from county to county and people stand before judges having seen a lawyer only briefly, if at all.
``There is no denying that much, much needs to be done,'' Attorney General Eric Holder said Friday at a Justice Department event to commemorate the anniversary.
Clarence Earl Gideon had been in and out of jail in his nearly 51 years when he was arrested on suspicion of stealing wine and some money from vending machines at a Panama City, Fla., pool hall in 1961. Gideon asked the judge for a lawyer before his trial, but was turned down. At the time, Florida only provided lawyers for indigent defendants in capital cases.
A jury soon convicted Gideon and the state Supreme Court upheld the verdict on appeal. Then, from his Florida prison cell, Gideon scratched out his Supreme Court appeal in pencil on prison stationery. It arrived at the court early in 1962, when the justices were looking for a good case to take on the issue of indigent defense. The court appointed Washington lawyer Abe Fortas, a future justice, to represent him.
Just two months after hearing arguments, Justice Hugo Black wrote for the court that ``in our adversary system of criminal justice, any person hauled 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.'' Five months later, Gideon got a lawyer and a new trial, and the attorney poked holes in the prosecution's case. A jury quickly returned its verdict: not guilty.
So that was the promise of Gideon--that a competent lawyer for the defense would stand on an equal footing with prosecutors, and that justice would prevail, at least in theory.
A half-century later, there are parts of the country where ``it is better to be rich and guilty than poor and innocent,'' said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee and a former prosecutor. Leahy said court-appointed lawyers often are underpaid and can be ``inexperienced, inept, uninterested or worse.'' Regardless of guilt or innocence, few of those accused of crimes are rich, while 80 percent say they are too poor to afford a lawyer.
People who work in the criminal justice system have become numb to the problems, creating a culture of low expectations, said Jonathan Rapping, a veteran public defender who has worked in Washington, D.C., Atlanta and New Orleans.
Rapping remembers walking into a courtroom in New Orleans for the first time for a client's initial appearance before a judge. Several defendants in jump suits were shackled together in one part of the courtroom. The judge moved briskly through charges against each of the men, with a lawyer speaking up for each one.
Then he called a name and there was no lawyer present. The defendant piped up. ``The guy said he hadn't seen a lawyer since he was locked up 70 days ago. And no one in the courtroom was shocked. No one was surprised,'' Rapping said.
Complaints about the quality of representation also are difficult to sustain, under a high bar that the Supreme Court set in a 1984 case. The relatively few cases in which a lawyer's work is deemed so bad that it violates [[Page S1906]] his client's rights typically have an outlandish set of facts that would be funny if the consequences weren't tragic. ``You see too many instances of ineffective assistance of counsel, too many instances where you think, `Was this lawyer crazy?' '' Supreme Court Justice Elena Kagan said at the Justice Department event.
She recounted a case from last term in which a lawyer advised his client to reject a plea deal with a seven-year prison term and go to trial The lawyer said prosecutors could not prove a charge of intent to murder because the victim had been shot below the waist. 'The defendant was convicted and sentenced to 30 years in prison.
Kagan was part of the 5-4 decision in the defendant's favor.
In some places, lawyers are overwhelmed by their caseloads. A public defender in Indianapolis lasted less than a year in his job after being asked to represent more than 300 defendants at a time, said Norman Lefstein, former dean of the Indiana University Robert H. McKinney School of Law.
``A lawyer with an S on his chest for Superman couldn't represent these people. He simply couldn't do it. There are only so many hours in a day. But it's not just caseload. It's the other support services that go along with it,'' including investigators, said Lefstein, who has studied problems in indigent defense for decades.
In Luzerne County, in northeastern Pennsylvania, the chief public defender told the local court he would stop accepting certain cases because his office had too many clients, too few lawyers and not enough money. A judge's ruling in June acknowledged the lack of money and manpower, but forbade the defender's office to turn away cases. The judge's ruling was encouraging, Leftein said, but on his last visit to Wilkes- Bane in January he found ``the caseloads are worse than ever.'' Eighteen states, including California, Illinois, New York and Pennsylvania, leave the finding of indigent defense entirely to their counties, said Rhoda Billings, a former chief justice of the North Carolina Supreme Court who has looked at the issue for the American Bar Association. Those states ``have a significant disparity in the appointment of counsel'' from one county to the next, Billings said.
Public defenders in those counties often report to elected officials or their appointees, rather than independent boards that are insulated from politics. But even programs run at the statewide level are not free of political influence, Billings said, citing the case of a New Mexico public defender fired by the governor.
The lack of independence raises questions about whether decisions are being made in the best interests of clients, Rapping said.
The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.
``Arguing for more money to defend criminals is not the easiest way to win a close election,'' said former Vice President Walter Mondale. As Minnesota's attorney general in the early 1960s, Mondale recruited 21 other states to join in a brief urging the court to rule as it did and rejected a plea from Florida to support limits on states' responsibilities to poor defendants.
Heralded for its powerful statement about the right to a lawyer, the Gideon decision also left states on their own to pay for the provision of counsel, Lefstein said. ``It came as an unfunded mandate to 50 state governments and that problem endures,'' he said, noting that in England, Parliament provides money to local governments to pay for legal representation of the poor.
``The federal government does next to nothing to support indigent defense in the United States,'' Lefstein said.
Since becoming attorney general more than four years ago, Holder has shown a commitment to the issue. He established an ``Access to Justice'' program and made Harvard Law School professor Laurence Tribe its initial director. The department also has sent a few million dollars to defense programs across the country. He announced nearly $2 million in new grants on Friday.
The right announced by the Supreme Court 50 years ago only covers criminal cases. It has never been extended to civil matters, although as Mondale pointed out, they can lead to people losing their homes, their families, being confined in a mental institution or being thrown out of the country.
To people in those situations, he said, the distinction between criminal and civil law ``doesn't make much of a difference.'' ____ [From USA Today, Mar. 12, 2013] You Have the Right to Counsel. Or Do You? 50 years after the U.S. Supreme Court enshrined the constitutional right to a lawyer, budget realities are undermining justice in America (By Rick Hampson) Wilkes-Barre, PA.--The first face visitors see when they walk into the public defender's office here is a photo of Clarence Gideon, the drifter, drinker, gambler and thief who became a hero of American jurisprudence.
It was in his case, Gideon v. Wainwright, that the Supreme Court ruled 50 years ago this month that everyone accused of a serious crime has a constitutional right to a lawyer, whether they can afford it or not.
When he was charged with breaking into a pool hall outside Panama City, Fla., Gideon asked for a court-appointed lawyer. After the judge said no, he represented himself, was found guilty and sentenced to five years. From prison, he appealed to the Supreme Court, which took his case and ordered a new trial.
If he came back today, Clarence Gideon might rue the quality of legal representation he'd receive. He might not get any at all.
Such was the fate last year of some indigent criminal defendants who walked in the public defender's door here and past Gideon's gaze. They were told that, because of a shortage of staff lawyers, the office was turning down all but the most serious new cases. They were given a letter to show the judge.
Al Flora, Luzerne County chief public defender, says that ethically and legally he had no choice: His overburdened lawyers couldn't take on new clients and do justice to those they already had. He sued county officials--his bosses--to let him hire more lawyers and to stop them from retaliating against him.
The situation in Luzerne County reflects what experts say is a national crisis in indigent legal defense that has thwarted Gideon's promise of legal equality.
Many public defenders are overwhelmed by caseloads, and financially pressed states and counties are levying fees and applying means tests for granting counsel. ``We're not calling the anniversary a celebration,'' says Edwin Burnette of the National Legal Aid and Defender Association. ``There's nothing to celebrate.'' Flora is not the only rebel. The Florida Supreme Court is considering a similar attempt by the Miami-Dade County public defender's office to limit its caseload. Last year, the Missouri Supreme Court authorized public defenders with unmanageable caseloads to decline new cases, and the American Bar Association urged states and counties not to fire public defenders who do.
The problem is money. An explosion in the number of criminal cases has overwhelmed the indigent defense system, which represents about 80% of all accused.
The right to counsel is stronger than ever; it was expanded by the Supreme Court during its last term. Although few in state and county government quarrel with the principle of Gideon, few are eager to cover the ever-growing tab for its realization.
That worries advocates on each side of Gideon, including Bruce Jacob, the former Florida assistant attorney general who argued the state's case before the Supreme Court, and former vice president Walter Mondale, who as attorney general of Minnesota in 1963 filed a brief supporting Gideon.
``We're not close to fulfilling the promise of Gideon,'' Jacob says. Although more defendants see a lawyer than 50 years ago, he says, many advocates don't have time to give clients ``effective representation.'' Any celebration of the anniversary should be ``subdued,'' Mondale says, because ``we've missed the mark, and we may be going backwards.'' Others, while conceding the problem, take a more positive view. ``For the most part, public defenders and prosecutors get it right,'' says Scott Burns, director of the National District Attorneys Association. ``Gideon would celebrate this anniversary.'' `I AM ENTITLED . . . TO COUNSEL' Clarence Gideon was jailed before he was old enough to drive and behind bars for much of his young adulthood. By the time he was 51, he'd been convicted of five felonies, including thefts from a government armory and a country store.
His biographer, Anthony Lewis, described him as a ``used-up man'' who looked 15 years older than his age. In a letter, Gideon admitted ``the utter folly and hopelessness'' of much of his life.
On Aug. 4, 1961, facing trial on a charge that would send him back to prison, Gideon told the judge, ``The United States Supreme Court says I am entitled to be represented by counsel.'' The only problem: It had not, and he was not.
Beginning with Betts v. Brady (1942), the court had refused to declare a blanket constitutional right to counsel in non- capital state felony trials unless defendants faced ``special circumstances,'' such as youth, illiteracy or unusually complex issues.
Undeterred, the imprisoned Gideon mailed the court a petition for a new trial. Handwritten in pencil on lined prison paper, it began with anachronistic legalese: ``Comes now the petitioner . . .'' The court received many petitions like it every week from prisons around the country, but Gideon had two things in his favor.
First, he had raised the constitutional issue at trial, which meant he could use it to appeal.
Second, he didn't claim special circumstances, and--whether Gideon knew it or not--a majority of the justices already were inclined to jettison Betts v. Brady in favor of a flat constitutional right to counsel.
All the court needed was a case on which to rule. And here came Gideon.
On March 18, 1963, the court ruled unanimously that Gideon's conviction was unconstitutional because he'd been denied his request for counsel.
Justice Hugo Black wrote that in our adversarial justice system, the ``noble idea (that) every defendant stands equal before the law . . . cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer.'' [[Page S1907]] The case was sent back to Florida, which had quickly established a network of public defenders. But Gideon insisted on a private practitioner, Fred Turner. It was a shrewd choice.
Turner interviewed Gideon in jail and spent several days investigating. He checked out the pool hall. He drove to the town where the prosecution witness had been earlier on the night of the crime. He picked pears with the witness's mother in her yard. He became convinced the witness was the perpetrator.
The jury took just over an hour: Not guilty. Gideon went out and got a hamburger.
The jailbird's name became synonymous with freedom. In Florida alone, 976 prisoners were released because of Gideon; an additional 500 got a new trial.
After his release, Gideon stayed out of trouble. He died of cancer in 1972 at 61, too soon to see himself played by Henry Fonda in the 1980 TV movie Gideon's Trumpet.
His gravestone in Hannibal, Mo., bears a message drawn from a letter he wrote in prison. It reflects his belief that he was part of something bigger than himself: ``I believe each era finds an improvement in law,'' Gideon wrote. ``Each year brings out something new for the benefit of mankind.'' ALL WE CAN DO IS TRIAGE After the inspirational Gideon v. Wainwright poster in the reception area, it's all downhill in the Luzerne public defender's office.
The walls are scuffed, the carpets stained. File folders are stacked on the floor. ``It's a mess,'' admits Al Flora, leading a tour. ``Half the time the secretaries can't find the right file.'' As a result, clients sometimes aren't notified of their court dates.
Some of the office's 21 lawyers have no desk or personal phone. The top of a file cabinet serves as a desk for one lawyer. A nightstand in a corner accommodates another.
The office, which handles about 4,000 cases a year in this northeastern Pennsylvania county of 320,000, has only four investigators and four secretaries. Lawyers often have to type their own briefs. They have little time to take depositions or seek discovery of prosecution evidence.
A third of Flora's lawyers have never tried a case. They're smart and energetic, he says, but so inexperienced that if given a full caseload, ``they'd crack. . . . All we can do is triage cases.'' He says some public defenders ``don't want to talk about the problem. I decided to go the other way. This has to stop.'' Traditionally, Southern states have had the worst record of giving poor defendants counsel. But Jonathan Rapping, founder of the Southern Public Defender Training Center, says the problem now is more acute in Northeastern jurisdictions with shrunken industrial bases and chronic fiscal woes.
That describes Luzerne County, which gets no state funds for public defenders. Last year, Flora's $2.7 million budget was cut 7%, and later--until a judge intervened--a hiring freeze blocked him from filling five lawyers' slots that were budgeted.
In six months, he turned away more than 500 applicants for legal counsel, an approach that antagonized county officials. John Dean, a county attorney, has accused Flora of regarding the county as ``nothing more than a checkbook'' and suggested he handle more cases himself.
In June, a judge told Flora to resume taking all comers and told the county to let Flora hire more lawyers. Since then, the county has paid for a computerized case management system and promised to find more office space.
AN EROSION OF JUSTICE In the past 18 months, a third of the office's lawyers have left. One was Ed Olexa, 38. He'd read Gideon in law school but didn't bargain for what he found when he became a public defender four years ago.
Although he was a $34,000-a-year part-timer--19 hours a week--he usually had 150 to 170 cases, far in excess of the maximum recommended by the American Bar Association for full- time defenders. The cases took up 40 to 50 hours a week. Along with his private cases, he worked up to 70 hours a week.
He often was scheduled to appear before two or three different judges at the same time in different places around the county. He'd meet clients for the first time in the courtroom--some straight from jail, still in handcuffs--and go before the judge with only the complaint and a hurried conversation with his client as background.
That, he says, was the worst: No time to establish rapport with clients or get the details that can win an acquittal. No time to do what Turner did for Gideon. Instead, he spent his time asking judges for more time. ``It offended my sense of justice,'' he says.
And his clients'. He won't discuss their specific complaints but says, ``The best attorney in the world would be incompetent under those circumstances.'' Over time, most experts say, the costs are clear. Poor people arrested for misdemeanors plead guilty and go free rather than wait to see a public defender, even though a conviction on their record might hurt their chances for employment, loans or housing. At worst, the innocent go to jail, and the guilty go free.
The Luzerne chief public defender is a part-time post; the county plans to make it full time. Flora has applied.
``I want to see it done right,'' he says. ``I believe people who are impoverished and can't afford a lawyer deserve one. If we can't provide that, then what kind of society do we really have?'' ______ By Mrs. FEINSTEIN (for herself and Mr. Nelson): S. 598. A bill to prohibit royalty incentives for deepwater drilling, and for other purposes; to the Committee on Energy and Natural Resources.