What if America Wasn’t America Anymore?

Editor’s Note: This article is based upon a speech Jeff Robinson gave on June 26, 2003 at the KCBA Annual Awards Dinner where he was both the keynote speaker and the recipient of the Outstanding Lawyer award. The speech was received with nearly universal acclaim and the Bar Bulletin has received multiple requests for a printed version.

A destitute, four-time loser sitting in a Florida prison, Clarence Earl Gideon was, as they used to say in the South, lower than a snake’s belly in a ditch. He was arrested for breaking into a poolroom in Florida, and was charged with a felony. Clarence said he was innocent. And while he did not have “book learning,” he knew enough to ask for the one thing he needed most to stay out of prison. He asked for a lawyer

The judge apologized, and told Mr. Gideon he was sorry that a lawyer would not be provided. The trial went forward, and Clarence represented himself. Like most pro se defendants, he was convicted and he got five years in prison. Clarence found himself sitting in a Florida prison cell, with lots of time and little to do. He found himself thinking about the fact that he sure could have used a lawyer.

So Clarence decided that he wasn’t going to take his five years and do nothing. He got a pencil and a piece of paper and from his Florida prison cell he changed the legal history of this country. That handwritten petition was the first step that led to the landmark decision Gideon vs. Wainwright.

On March 18, 1963, the United States Supreme Court told the State of Florida, that if Clarence Earl Gideon was going to be imprisoned for a crime, they had to provide him a lawyer. Justice Hugo Black used eloquent but simple words to describe the heart of the issue:

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 be an obvious truth- the right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

After March 18, 1963 Clarence Earl Gideon and anyone charged with criminal offenses in America got a lawyer- whether they could afford to pay for one or not.

Make no mistake about it, innocent people have avoided conviction and prison because of the right to a lawyer. Innocent people who were wrongly imprisoned, some awaiting execution on death row, have been released from prison and had their lives spared because they had a lawyer.

Criminal defense lawyers have done the heavy lifting that a pursuit of justice often requires. We work to press forward with appeals, to challenge the trial record, and to understand that breakdowns in the process are not mere technicalities. These breakdowns are the bricks and mortar that are used to build prisons for people who committed no crime.

Justice Thurgood Marshall reminded us that “the shortcuts we take with those we believe to be guilty injure the innocent, and ultimately ourselves.” Remember, when we discover that we have executed an innocent person, that blood will be on all of our hands.

And what of Clarence Earl Gideon? He got a new trial. He got a lawyer. And, he got an acquittal. He died a poor man, but he died a free man. That means something.

But the promise of Gideon has, in some instances, been a cruel joke on the poor and disadvantaged. Courts across the country have faltered in the commitment to the principles of fairness and equality that led to Gideon. When the Court granted Gideon’s handwritten petition to hear the case, prominent Washing-ton, D.C. lawyer Abe Fortas was appointed to represent him. Several other lawyers of the highest caliber assisted Fortas.

Contrast that dream team with the two lawyers appointed for Wallace Fugate, a man with no prior record who was charged with a capital crime in Georgia in 1991. Fugate’s lawyers later admitted that they were unfamiliar with even the most basic criminal and death penalty precedents. They did not ask for plea negotiations or request funds for an investigator. They filed only three motions, none exceeding two pages in length, and failed to present critical mitigating evidence. After Fugate was convicted, his sentencing hearing lasted 27 minutes.

• In Oregon, thousands of low-level felony and nonviolent misdemeanor cases are being dismissed because there are no lawyers available to represent the indigent defendants.
• In Riverside County, California, 12,000 defendants a year have pleaded guilty without ever talking to a lawyer. This has happened in Wisconsin in more than 11,000 cases a year.
• In Florida, some public defenders in Orange and Osceola counties handle an estimated 750 felony cases a year, more than five times the recommended caseload.
• In Mississippi, a cash-strapped county has sued the state, contending it is the state’s responsibility to fund indigent defense.

And of course, we have all heard of the sleeping lawyer in a death penalty case in Texas. The Atlanta lawyer who did the appeal for the defendant whose lawyer was sleeping expressed dismay that a three-judge panel had earlier upheld the sleeping lawyer case and that five of the court’s 14 judges dissented in the final ruling. The lawyer noted, “The inexplicable result is that five appellate court judges can reach the conclusion that the Sixth Amendment’s right to counsel doesn’t mean that the lawyer has to be awake.”

If this result occurred in the legal system of a country like Iraq or North Korea, we would be shocked and outraged. We would proclaim the hypocrisy of such a system. Unfortunately, it is our own dirty little secret.

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. 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.

Right here in our own state, lawyers in Clark County who fought to get adequate funds to defend people in homicide cases (the rate of compensation was $3,000 per homicide case) were rewarded for their efforts with an antitrust investigation.

The recent spate of exonerations based on DNA tests has demonstrated that inadequate representation can, and does, lead to wrongful convictions. A Montana man, speaking at an Open Society Institute panel, told of spending 15 years in prison on a sexual assault charge after a trial in which his court-appointed lawyer did no investigation, hired no experts and failed to file an appeal. After 15 years, he was cleared with DNA evidence. The funny thing is, some people point to these post-conviction exonerations as proof that the system works. Ask someone who spent 15 years in prison, maybe on death row, for a crime they didn’t commit if the system worked. You might get a very different viewpoint.

There is no great mystery about how to provide low-income defendants with appropriate legal representation. The state must ensure that lawyers’ caseloads meet accepted standards, and that there are sufficient resources for investigators and expert witnesses. The Supreme Court was right, four decades ago, when it said that the right to counsel is “fundamental and essential.” It is time, at last, to make the promise of Gideon a reality.

It is not all gloom and doom. Right here in King County Washington, some of the best and most dedicated lawyers are working as public defenders. Lawyers in private practice also do significant work on appointed cases in state and federal court. There is a very high-quality criminal defense in King County, and we should be proud of the folks who work tirelessly to provide it.

The Federal Public Defender Tom Hillier and Assistant Federal Defenders Mike Filipovic and JoAnn Oliver represented Ahmad Ressam in one of the most important cases in the Country. Their intelligence and dedication and their unquestioned loyalty to their client created the atmosphere for Mr. Ressam to decide that killing innocent people was unacceptable. His cooperation may save untold number of innocent lives. It would not have happened without his criminal defense lawyers.

Working with the King County Bar Association, Lisa Daugaard and other lawyers at The Defender Association created an impound clinic to help owners of cars that were impounded as a result of the driver having a suspended license. The ability to recover a car was the difference between having a job and being unemployed, the difference between transporting sick relatives to doctor appointments and missing the appointments. The State Supreme Court recently decided that the impounding of the cars was illegal.

The defense team representing Gary Ridgeway was instrumental in convincing Mr. Ridgeway to cooperate with King County authorities to resolve one of the worst serial killing sprees in the Country. And the defense team representing James Ujaama did outstanding work under incredible pressure from the Justice Department to agree to terms of confinement for their client that were unacceptable. Peter Offenbecher of Skellenger Bender and Bob Mahler of McDonald Hogue and Bayless, with their paralegal Renee Eskenazi refused to sign a SAMS (special administrative measure) restricting their contact with their client. Judge Rothstein ultimately ruled the SAMS unwarranted, and authorized the defense team to have appropriate contact with their client.

Robert Kennedy once said, “The poor man charged with crime has no lobby.” All a poor person has is the Constitution. If the promise of justice in America is more than just words, we must live up to the promise of Gideon.