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Poor defendants still go unrepresented

Thirty-five years ago, the Supreme Court answered a petition _ handwritten in pencil _ from Clarence Earl Gideon, a petty thief who had been convicted of breaking into a poolroom and stealing a pint of wine and some coins. He asked a local judge to provide him with a lawyer since he was too poor to hire one. This judge said that Florida law prevented him from accommodating the defendant.

On March 18, 1963, Justice Hugo Black, spoke for a unanimous Supreme Court on the Gideon vs. Wainright case, saying: "In our adversary system of criminal justice, 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. . . . Lawyers in criminal cases are necessities, not luxuries."

At first, the Gideon decision was generally interpreted to apply only to felony cases, but in 1972, the Supreme Court extended the right to an appointed lawyer to misdemeanor cases carrying a sentence of imprisonment.

In a new Yale University Press book, Virtual Justice: The Flawed Prosecution of Crime in America, Columbia University Law Professor Richard Uviller claims that Gideon "fixed" the problem of poor defendants without representation.

That is like saying the president's seminars on race have "fixed" police brutality. For example, as Stephen Bright _ a lawyer who has spent most of his life trying to make the Constitution work for prisoners _ points out, "There is no right to counsel in state post-conviction proceedings."

The great majority of criminal trials _ and appeals _ are held in the individual states. Only state defendants under a death penalty have a right to representation in federal court, but to get this habeas corpus review in federal court, you need first to exhaust your post-conviction remedies in state court. And for that, you need a lawyer _ if you can get one. Then _ thanks to Bill Clinton and Congress _ you only have one year to get a federal court to hear your petition.

In the proceedings before and during a trial, the Gideon decision has also largely failed _ with some exceptions _ to begin to live up to Justice Black's urgent expectations.

To begin with, most states have extraordinarily careless standards of competence for court-appointed lawyers. Some court-appointed lawyers have only fragmentary knowledge of the applicable laws and others have slept through portions of trials. Moreover, in public defenders' offices, many advocates are overburdened.

As for the fees of appointed lawyers or public defenders, Virginia-Pilot reporter Laura LaFray quotes a prosecutor, Bob Humphreys: "What it boils down to is, you get what you pay for. Look who's on a court-appointed list anywhere. Very few experienced lawyers are on those lists, and the reason is, they can't afford to be on them.

"So you either have very inexperienced attorneys right out of law school for whom any money is better than no money. Or you have people who are really bad lawyers who can't make a living except off the court-appointed list. . . . I don't think it serves justice."

"An Alabama lawyer," Stephen Bright points out, "who spends 500 hours preparing for a death penalty trial will be paid $4 an hour."

That makes Bob Humphrey's point, but does any politician care?

In one of the cruelest acts of Congress _ with no objection from the president _ in 1996, funds were totally taken from death-penalty resource centers. Staffed by lawyers experienced in death-penalty litigation, these centers throughout the country prevented some unlawful executions; from 1976 to 1991, federal courts ruled that 40 percent of 361 capital sentences were found to have constitutional errors. But it takes lawyers to bring such errors to the attention of the courts. And there are now prisoners on death row without lawyers.

There are lawyers who, against these odds, do provide professional, committed representation for indigent defendants. But they get no help from Congress, much too little from most state legislators, and none from the former professor of constitutional law who is president of the United States.

Is the redemption of the Gideon decision on the agenda of either federal or state political party?

Correction: The Web address provided in last week's column was incorrect. The correct address for the Kids' Page of the Justice Department is www.usdoj.gov/kidspage/.

Newspaper Enterprise Association

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