Promise of landmark case remains unrealized

 By Steve Glassroth

Forty years ago last week, on March 18, 1963, the U.S. Supreme Court decided the landmark case of Gideon v. Wainwright and announced a principle we all take for granted: that everyone who is accused of a crime is entitled to be represented by a lawyer, even if the accused is too poor to hire one. 

No one can seriously question that a fair trial cannot be possible unless a competent lawyer is provided to those who cannot afford one. As the justices said, this "seems an obvious truth." However, decades later Gideon's promise remains largely unkept as we still find that the quality of justice frequently depends on the ability to pay for it. 

Far too often, those who are unable to afford counsel are left to meet their lawyer for the first time on the eve of an important court proceeding, or even trial. Many are faced with the prospect of being unable to spend more than a few minutes with their court appointed lawyer, contract lawyer or public defender, to give the lawyer sufficient opportunity to learn about the case. 

This leads to even less time for preparation of legal strategy, and still less to perform critical investigations. Small wonder we read about and hear stories with growing frequency about innocent people wrongly convicted. 

The poor are often saddled with contract lawyers or public defenders with huge caseloads who many times are paid less to defend someone who might spend the rest of his or her life in jail than for a basic closing for the sale of a home. 

Or, they might live in a judicial circuit that picks lawyers not for the quality of their service, based upon experience or training, but by whether the lawyer submitted the lowest bid -- in other words, justice on the cheap but with a far greater long-term cost. 

Those unable to afford counsel might end up convicted, or even condemned to death, for crimes they didn't commit simply because the lawyer didn't have the critical lab test, or the investigator, or the training to appropriately challenge the prosecution's case. A recent national study determined that inadequate legal representation was one of the main causes of wrongful convictions in death penalty cases. 

While we hear the horror stories of sleeping lawyers, scant attention has been given to the major underlying cause of inadequate representation: lack of resources. 

Ninety percent of Americans questioned in a recent poll said that the quality of justice people receive should not be determined by the amount of money they have. That poll also found that Americans want lawyers defending the poor to have salaries, resources and workloads equivalent to those of prosecutors. They want national quality standards for the defense of the poor, much like standards for doctors, architects or teachers. 

Americans can no more imagine expecting competence from a criminal defense lawyer without the necessary tools, like investigators, DNA testing and expert witnesses, than from a brain surgeon without anesthesia or a scalpel. The decision in Gideon v. Wainwright was a clarion call for justice that sounded 40 years ago. The continuing consistent corrosion of our justice system today calls out for action for reform and improvement. 

The keys to reforming the system for effective representation for those unable to afford lawyers are simple and basic -- things like proper training, resources proportionate to those for the prosecution, adequate payment for lawyers providing services, manageable caseloads and a guarantee of independence so that politicians or judges are unable to arbitrarily reduce lawyers' pay or fire them simply because they are effectively doing their jobs. 

To do this will require spending more money, something that is never politically popular. However, failing to take the necessary steps will only further erode public confidence in a system that treats the wealthy and poor differently and can tragically contribute to wrongful convictions. 

Gideon created the promise that all Americans would realize the grand words carved in stone on the Supreme Court building: "Equal Justice Under Law." Today, we are still trudging along the road toward equality. We cannot afford to wait another 40 years to get there. We can do better now. The time has come to invest in justice for all. 

Steve Glassroth practices law in Montgomery. He is a member of the board of directors of the National Association of Criminal Defense Lawyers, a past president of the Alabama Criminal Defense Lawyers Association, and a member of the Alabama Sentencing Commission.