What’s a Fair Price for a Fair Trial?

Thirty-five years ago today, Justice Hugo Black of the U.S. Supreme Court declared “an obvious truth”: that “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.” The court’s decision in Gideon vs. Wainwright reversed the conviction of a down-and-out drifter for burglarizing a Florida pool hall and remanded the case for a new trial with an appointed lawyer to represent the defendant. At that retrial, after the prosecution witnesses were vigorously cross-examined by a competent lawyer, Clarence Earle Gideon was acquitted.

As we observe the anniversary of the Gideon decision, we may want to pat ourselves on the back. Today, every state is required to provide counsel for any indigent defendant who faces a potential jail sentence. Unfortunately, however, another “obvious truth” is being ignored: that the quality of representation will be directly proportional to the amount of money we are willing to pay for it.

Some will dispute this obvious truth by sanctimoniously citing the Code of Ethics, which requires lawyers to give every client vigorous representation. “Vigor” is a relative term, however. A public defender overloaded with 200 clients will try to give them all the same level of vigor, but that may not approach the level of what paying clients will enjoy from private counsel. The quality of representation is also affected by the affordability of other defense resources, such as investigators, consultants and expert witnesses.

The Code of Ethics is often used as an excuse to reduce the level of financial support for indigent legal services to the minimum necessary to attract any lawyer to accept a case. In Virginia, lawyers receive a maximum of $265 for representing indigents facing up to 20 years in prison. If the maximum sentence exceeds 20 years, the lawyer can get up to $575. In Alabama, the maximum compensation for a death penalty case is $2,000. Not surprisingly, some of the lawyers attracted by these rates are incompetents who can’t do any better in the marketplace.

In state after state during the past decade, officials seeking to cut budgets for indigent defense have contracted with the lowest bidder, regardless of the quality of representation offered. In McDuffie County, Ga., the low bid was $25,000 per year. Over three years, the lawyer who won the contract represented every indigent accused of a felony in the county: 214 of them. He pleaded 213 of them guilty. In three years, he filed three motions.

There are many heroic lawyers in underfunded states who accept appointments and deliver competent representation at great personal cost. One Alabama lawyer put in 500 hours preparing and trying a death penalty case, netting $4 per hour. Delivery on the promise of Gideon should not depend on the generosity of individual attorneys, however. The obligation imposed by Gideon is a public obligation.

The widespread public reaction to the O.J. Simpson trial confirms that Americans are more upset by the occasional possibility that one they judge guilty might escape because he can afford good lawyers than they are by the general reality that innocent persons are regularly convicted because we won’t pay a good lawyer to defend them. Our indignation that more money can make a difference in the outcome should carry with it the recognition of the obvious truth that less money can make a difference in the outcome, too.

Some have suggested that economic disparity should be eliminated by requiring that all defendants be represented by public defenders; let the quality of representation in all cases sink to the lowest common denominator. It’s interesting that no one suggests we eliminate economic disparity in housing by requiring everyone to live in public housing projects, or that we eliminate economic disparity in medical services by treating everyone at the county hospital.

The challenge of Gideon is not to achieve absolute equality in the level of legal representation. It is to elevate the level of competence in the representation of every accused person to a threshold of fairness, a level at which we can have confidence in the outcome.

The promise of Gideon is not fulfilled by simply providing every indigent accused person with a lawyer, but to ensure that every such person has the resources to receive the Constitution’s guarantee of a fair trial.