Still No Equal Justice for Poor

David Cole, a professor at Georgetown University Law Center, is author of "No Equal Justice: Race and Class in the American Criminal Justice System" (New Press, 1999).

Forty years ago this week, in what is undoubtedly one of the Supreme Court's greatest moments, the court accepted a handwritten note from Clarence Earl Gideon as a petition for review, appointed one of the nation's best lawyers, Abe Fortas, to represent him and ruled that all people facing serious criminal charges were entitled to a lawyer, whether they could afford one or not.

As Supreme Court Justice Hugo Black wrote in a related case, "there can be no equal justice as long as the kind of trial a man gets depends on the amount of money he has."

Gideon's story, memorialized in Anthony Lewis' bestselling book "Gideon's Trumpet," is widely known. Less widely known is that we -- the courts and the nation -- have utterly failed to realize its promise.

Today, the right to a lawyer for those without independent means remains captive to a political process unwilling to pay what it would cost to make the right a reality, and to a court supremely indifferent to the charade that indigent legal representation often is.

The political problem is a familiar one; the last people legislators are likely to want to spend money on are those accused of committing crimes. In 1990, the national average per capita spending on indigent defense was $5.37. That year, Kentucky spent more money on the University of Kentucky's athletic budget than it did on indigent defense.

The situation hasn't improved much since. In 2002, New York law provided that lawyers for the poor be paid only $25 an hour for out-of-court time and $40 for in-court time, with a per-case maximum of $1,200. That's not even enough to cover overhead.

Virginia pays a seemingly more generous $90 an hour but caps fees at slightly more than $1,000 per case, meaning that anything more than 12 hours on a case goes uncompensated. Maryland and Mississippi have per-case maximums of $1,000, no matter how much time the case takes.

You get what you pay for, and at these rates, you don't get much. Lawyers can earn more money as legal secretaries than they can defending people facing life in prison or death. The best and the brightest rarely sign up, and those who do find themselves overloaded and underfunded.

The real blame must be laid at the Supreme Court's door. Because indigent defendants are unlikely to get a fair shake in the political process, their only protection lies in the judiciary. Yet although the high court was willing to proclaim the right to a lawyer for all in Gideon, it has been unwilling since to require that such assistance be competent, or even apply to all stages of a criminal proceeding.

The Constitution requires "effective" assistance of counsel, the court has said, but it has set the bar for "effectiveness" so low that virtually anyone with a law degree satisfies it, even if they are unprepared, inexperienced, drunk or asleep.

Unlike Gideon, Exzavious Gibson has not had any books written or movies made about him. In 1996, Gibson, who is borderline mentally retarded and faces the death penalty, sought to challenge the effectiveness of his trial lawyer in a post-conviction proceeding in Georgia.

At a hearing, the state, represented by a career lawyer, had Gibson's former attorney testify that he had acted perfectly competently in representing Gibson. Gibson was incapable of cross-examining his former lawyer or making any legal arguments; all he could do was ask, repeatedly, for a lawyer.

The court went ahead without a lawyer for Gibson and denied the petition.

In 1999 the Georgia Supreme Court upheld the decision, citing precedents holding that the right to counsel does not apply to post-conviction proceedings, even when the defendant faces death.

Relying on the same precedents, Texas rejected Leonard Rojas' appeals and executed him in December. The Texas Court of Criminal Appeals ruled that Rojas' lawyer had forfeited all of Rojas' post-conviction legal claims by missing the deadline for filing his appeal.

Rojas' lawyer, who had been appointed by the Court of Criminal Appeals, had no capital punishment experience, had been sanctioned several times by the state bar and suffered bipolar disorder.

Yet only Rojas paid for his attorney's errors. Three justices filed a highly unusual dissent in Rojas' case, but only after he had been executed.

We are justly proud of the promise that the Gideon vs. Wainwright decision reflects, but the question remains whether we are willing to provide more than the mere appearance of fairness.

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