By David K. Shipler
Will you get good lawyering if you can’t afford it? Maybe, depending on where you’ve been charged. The quality of your legal defense will be determined, like the value of real estate, by three factors: location, location, and location.
Fifty years today, the Supreme Court ruled unanimously in Gideon v. Wainwright that indigent defendants are denied their Sixth-Amendment guarantee of “the Assistance of Counsel” unless government provides them with lawyers. In practice, however, the effect of the ruling has been very spotty, creating a patchwork across the country. You’re better off in Washington, D.C., for example, than in parts of Texas and Georgia; anywhere in Alabama; and certain counties of New York, Michigan, and Pennsylvania. You’re usually more fortunate in federal than in state courts, and in local jurisdictions where indigent defense is funded by states rather than counties.
Ask Anthony Ray Hinton. He has been sitting on Alabama’s death row since 1986, when his court-appointed lawyer was given only $500 to hire a reputable firearms expert to dispute the questionable findings of a police lab. The “expert” he found on the cheap, a one-eyed retired engineer who couldn’t operate a comparison microscope, had jurors laughing in ridicule.
This would seem like a slam dunk in favor of Hinton. Yet his case has gone all the way up and down Alabama’s judicial hierarchy twice without a clear resolution. And it has been appealed only because it was taken pro bono by a non-profit organization, the Equal Justice Initiative, which spent $30,000 in charitable contributions to hire three respected toolmarks experts, who each concluded independently that bullets from three crimes could not be matched to a single weapon, and that none had discernible characteristics that could link them to Hinton’s gun.
Defense attorneys explain that the vast majority of their time is spent outside the courtroom, mostly in reinvestigating the case to challenge the police version by finding exculpatory evidence and witnesses, and by scrutinizing forensic analysis by crime labs that have frequently proved sloppy or dishonest. Without adequate funds for investigators and experts, the playing field is tilted sharply against the defendant.
The trouble is, taxpayers and their elected legislators aren’t wild about shelling out large sums for such a worthy cause. So Alabama, for example, has no statewide public defender system equivalent to the federal system. Some states do, but often without enough lawyers to keep caseloads down to levels, recommended by bar associations, to permit sufficient representation of each defendant. And after conviction, courts generally make it hard to prove that you’ve had ineffective counsel.
There are three basic ways lawyers are brought to the defense of poor defendants: by appointment, under contract, or as fulltime public defenders. Appointed lawyers place themselves on a list, from which they are assigned by judges on a case-by-case basis, usually at much lower rates than the market offers. Contract lawyers or law firms are retained by the court for a flat monthly fee to cover all defendants they’re sent, tempting them to hurry through indigent cases and back to private clients. Public defenders work as salaried attorneys of a government institution with its own office, clerks, and investigators.
In virtually all federal court districts, if you’re charged with a federal crime and don’t have the resources, you’ll get a fulltime federal public defender backed by investigators and appellate lawyers. The federal defense attorneys are paid the same salaries as the federal prosecutors, and the jobs are coveted positions that in some jurisdictions attract graduates of top law schools, including former Supreme Court clerks. Furthermore, in the federal defenders office in Washington, D.C., where I spent weeks observing, lawyers worked as teams, and the offices bristle with a synergy far beyond what most paying clients receive from private lawyers.
But the overwhelming majority of criminal cases are brought in state and local courts, where inconsistency reins. You don’t want to be in a place of financial shortages, overcrowded courts, or jurisdictions where judges invent ways to cut costs at defendants’ expense. Some judges withhold assignments from energetic defense attorneys who file lots of motions and petition for high experts’ fees. Others define “indigent” so uncharitably that you may not qualify for a court-paid lawyer even if you can’t afford one; the tactic is common in parts of South Dakota, Pennsylvania, and New York State. In numerous counties in Texas, you’re not considered poor if you can simply post bond. You get either a lawyer or pre-trial freedom, not both.
When the American Bar Association held hearings on the problems, respected judges and attorneys stepped forward with grim descriptions of assembly-line processing known in the trade as “McJustice.” To speed cases along, the prosecutor meets the accused briefly, with no defense lawyer present, pressing him to waive his right to counsel and plead guilty; the shortcut gets the judge’s acquiescence or encouragement as a way to ease the overloaded calendar.
There are huge holes even in this tattered system. Since the Sixth Amendment’s guarantee applies only to the accused in “criminal prosecutions,” there are ways you can end up behind bars without access to a lawyer if the case is civil or administrative, such as the failure to pay child support or a violation of immigration law. Even legal immigrants are routinely locked up without access to attorneys, usually pending deportation for an old criminal conviction that has come to light. Before an immigration court they have the right to a lawyer granted administratively, but not constitutionally, so if they can’t afford one and can’t find one for free, they’re out of luck.
The law is a labyrinth, best comprehended by the high priesthood of attorneys who fashion and interpret its abstruse language. No unschooled layman, standing nakedly unrepresented before the terrible engine of the criminal justice system, can possibly fathom the hidden dangers of error—or the invisible shields that offer unnoticed protection.
“When I go to court and the judge says something, I hear it,” explains Andrew Patel, a New York attorney. “I go to the client, and that client says, ‘What did the judge say?’ It’s not that they didn’t understand the words. It’s that all they can hear is the beating of their own heart, they are in such an alien situation.”