[Congressional Record Volume 159, Number 39 (Monday, March 18, 2013)]
[Senate]
[Pages S1903-S1907]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 597. A bill to ensure the effective administration of criminal 
justice; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, 50 years ago today, the Supreme Court 
issued its landmark decision in Gideon v. Wainwright. That case 
affirmed a fundamental principle of our democratic society, that no 
person, regardless of economic status, should face prosecution without 
the assistance of a lawyer. It is worth pausing today to celebrate 
Gideon and the extraordinary idea that in a free society the government 
which seeks to convict someone must also assume the cost of providing 
an effective defense.
  In the last 50 years, we have come a long way in ensuring equal 
justice for all Americans and there is much about our criminal justice 
system in which to take pride. But we must also be honest and recognize 
that in too many courtrooms it is better to be rich and guilty than 
poor and innocent. The rich will have competent counsel, but those who 
have little often find their lives placed in the hands of underpaid 
court-appointed lawyers who are inexperienced, overworked, inept, 
uninterested, or worse.
  The bottom line is that the promise made in Gideon remains 
unfulfilled. At

[[Page S1904]]

the core of this problem is the fact that too many States still lack 
adequate programs for providing effective representation. That failure 
results in miscarriages of justice, including wrongful convictions, in 
violation of our constitutional obligation to provide effective 
assistance of counsel. In his column yesterday in The New York Times, 
Lincoln Caplan noted, ``by well-informed estimates, at least 80 percent 
of state criminal defendants cannot afford to pay for lawyers and have 
to depend on court-appointed counsel.'' A recent article on the front 
page of USA Today correctly calls the problem a ``national crisis,'' 
highlighting one public defender's office in Pennsylvania that has four 
investigators to handle its 4,000 cases a year and where some lawyers 
have no desk or phone. A similar AP article which ran in the Washington 
Post cites additional examples of this ongoing failure of our criminal 
justice system, including one public defender in Indianapolis who was 
asked to represent 300 clients at a time. I know what it takes to work 
a case effectively from my time as a prosecutor, and no lawyer can 
provide effective counsel to 300 defendants at once.
  We can no longer ignore the disturbing examples discussed in these 
articles. We are on notice that a constitutional right is consistently 
being violated and, if we are to call ourselves a country of laws, it 
is our obligation as a nation, and particularly as the Congress, to 
take action and make a change. That is why today, I am introducing the 
Gideon's Promise Act of 2013. This legislation takes important new 
steps to breathe life into Gideon and ensure the fairness of our 
criminal justice system for all participants.
  I first introduced this legislation last Congress, as part of the 
reauthorization of the Justice For All Act. That law, passed in 2004, 
was an unprecedented bipartisan piece of criminal justice legislation. 
It was the most significant step Congress had taken in many years to 
improve the quality of justice in this country and to improve public 
confidence in the integrity of the American justice system. I plan to 
reintroduce the reauthorization of the Justice for All Act, again, 
later this spring and it will include this critical provision to ensure 
that our criminal justice system operates effectively and consistent 
with our constitutional obligations.
  The Gideon's Promise Act takes several important new steps to improve 
the quality of the criminal justice system. First, it seeks to 
encourage States to adopt a comprehensive approach in using the Federal 
funds received through the Edward Byrne Memorial Justice Assistance 
Grant, JAG, Program. This will help to ensure that their criminal 
justice systems operate effectively as a whole and that all parts of 
the system work together and receive the resources they need. 
Specifically, the bill reinstates a previous requirement of the Byrne 
JAG Program that States develop, and update annually, a strategic plan 
detailing how grants received under the program will be used to improve 
the administration of the criminal justice system. The requirement was 
removed from the Byrne JAG grant application several years ago, but 
groups representing States and victims have requested that it be 
reinstated in order to improve the efficient and effective use of 
criminal justice resources. The plan must be formulated in consultation 
with local governments and all segments of the criminal justice system. 
The Attorney General will also be required to provide technical 
assistance to help States formulate their strategic plans.
  This legislation also takes important new steps to ensure that all 
criminal defendants, including those who cannot afford a lawyer, 
receive constitutionally adequate representation. It requires the 
Department of Justice to assist States that want help developing an 
effective and efficient system of indigent defense, and it establishes 
a cause of action for the Federal Government to step in when States are 
systematically failing to provide the representation called for in the 
Constitution.
  This is a reasonable measure that gives the States assistance and 
time needed to make necessary changes and seeks to provide an incentive 
for States to do so. As a former prosecutor, I have great faith in the 
men and women of law enforcement, and I know that the vast majority of 
the time our criminal justice system does work fairly and effectively. 
I also know that the system only works as it should when each side is 
well represented by competent and well-trained counsel. That 
realization was reflected in the testimony of District Attorney 
Patricia Lykos of Houston that competent defense attorneys are critical 
to a prosecutor's job. Our system requires good lawyers on both sides. 
Incompetent counsel can result not only in needless and time-consuming 
appeals but, far more importantly, can lead to wrongful convictions and 
overall distrust in the criminal process.
  In working on this legislation, I have also learned that the most 
effective systems of indigent defense are not always the most 
expensive. In some cases, making the necessary changes may also save 
States money.
  I remain committed to ensuring that our criminal justice system 
operates as effectively and fairly as possible. Unfortunately, we are 
not there yet. Too often the quality of justice a defendant receives in 
our system depends on how much he or she can pay for an attorney. The 
Constitution requires that we do better. Americans need and deserve a 
criminal justice system that keeps us safe, ensures fairness and 
accuracy, and fulfills the promise of our Constitution for all people.
  This bill will take important steps to bring us closer to that goal 
and I urge all Senators to support this legislation.
  Mr. President, I ask unanimous consent that the text of the bill and 
three articles be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 597

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Gideon's Promise Act''.

     SEC. 2. EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE.

       (a) Strategic Planning.--Section 502 of title I of the 
     Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
     3752) is amended--
       (1) by inserting ``(a) In General.--'' before ``To request 
     a grant''; and
       (2) by adding at the end the following:
       ``(6) A comprehensive State-wide plan detailing how grants 
     received under this section will be used to improve the 
     administration of the criminal justice system, which shall--
       ``(A) be designed in consultation with local governments, 
     and all segments of the criminal justice system, including 
     judges, prosecutors, law enforcement personnel, corrections 
     personnel, and providers of indigent defense services, victim 
     services, juvenile justice delinquency prevention programs, 
     community corrections, and reentry services;
       ``(B) include a description of how the State will allocate 
     funding within and among each of the uses described in 
     subparagraphs (A) through (G) of section 501(a)(1);
       ``(C) describe the process used by the State for gathering 
     evidence-based data and developing and using evidence-based 
     and evidence-gathering approaches in support of funding 
     decisions; and
       ``(D) be updated every 5 years, with annual progress 
     reports that--
       ``(i) address changing circumstances in the State, if any;
       ``(ii) describe how the State plans to adjust funding 
     within and among each of the uses described in subparagraphs 
     (A) through (G) of section 501(a)(1);
       ``(iii) provide an ongoing assessment of need;
       ``(iv) discuss the accomplishment of goals identified in 
     any plan previously prepared under this paragraph; and
       ``(v) reflect how the plan influenced funding decisions in 
     the previous year.
       ``(b) Technical Assistance.--
       ``(1) Strategic planning.--Not later than 90 days after the 
     date of enactment of this subsection, the Attorney General 
     shall begin to provide technical assistance to States and 
     local governments requesting support to develop and implement 
     the strategic plan required under subsection (a)(6).
       ``(2) Protection of constitutional rights.--Not later than 
     90 days after the date of enactment of this subsection, the 
     Attorney General shall begin to provide technical assistance 
     to States and local governments, including any agent thereof 
     with responsibility for administration of justice, requesting 
     support to meet the obligations established by the Sixth 
     Amendment to the Constitution of the United States, which 
     shall include--
       ``(A) public dissemination of practices, structures, or 
     models for the administration of justice consistent with the 
     requirements of the Sixth Amendment; and
       ``(B) assistance with adopting and implementing a system 
     for the administration of justice consistent with the 
     requirements of the Sixth Amendment.

[[Page S1905]]

       ``(3) Authorization of appropriations.--There is authorized 
     to be appropriated $5,000,000 for each of fiscal years 2014 
     through 2018 to carry out this subsection.''.
       (b) Protection of Constitutional Rights.--
       (1) Unlawful conduct.--It shall be unlawful for any 
     governmental authority, or any agent thereof, or any person 
     acting on behalf of a governmental authority, to engage in a 
     pattern or practice of conduct by officials or employees of 
     any governmental agency with responsibility for the 
     administration of justice, including the administration of 
     programs or services that provide appointed counsel to 
     indigent defendants, that deprives persons of their rights to 
     assistance of counsel as protected under the Sixth Amendment 
     and Fourteenth Amendment to the Constitution of the United 
     States.
       (2) Civil action by attorney general.--Whenever the 
     Attorney General has reasonable cause to believe that a 
     violation of paragraph (1) has occurred, the Attorney 
     General, for or in the name of the United States, may, in a 
     civil action, obtain appropriate equitable and declaratory 
     relief to eliminate the pattern or practice.
       (3) Effective date.--Paragraph (2) shall take effect 2 
     years after the date of enactment of this Act.
                                  ____


                [From the New York Times, Mar. 9, 2013]

                      The Right to Counsel: Badly 
                             Battered at 50

                          (By Lincoln Caplan)

        A half-century ago, the Supreme Court ruled that anyone 
     too poor to hire a lawyer must be provided one free in any 
     criminal case involving a felony charge. The holding in 
     Gideon v. Wainwright enlarged the Constitution's safeguards 
     of liberty and equality, finding the right to counsel 
     ``fundamental.'' The goal was ``fair trials before impartial 
     tribunals in which every defendant stands equal before the 
     law.''
        This principle has been expanded to cover other 
     circumstances as well: misdemeanor cases where the defendant 
     could be jailed, a defendant's first appeal from a conviction 
     and proceedings against a juvenile for delinquency.
        While the constitutional commitment is generally met in 
     federal courts, it is a different story in state courts, 
     which handle about 95 percent of America's criminal cases. 
     This matters because, by well-informed estimates, at least 80 
     percent of state criminal defendants cannot afford to pay for 
     lawyers and have to depend on court-appointed counsel.
        Even the best-run state programs lack enough money to 
     provide competent lawyers for all indigent defendants who 
     need them. Florida set up public defender offices when Gideon 
     was decided, and the Miami office was a standout. But as 
     demand has outpaced financing, caseloads for Miami defenders 
     have grown to 500 felonies a year, though the American Bar 
     Association guidelines say caseloads should not exceed 150 
     felonies.
        Only 24 states have statewide public defender systems. 
     Others flout their constitutional obligations by pushing the 
     problem onto cash-strapped counties or local judicial 
     districts.
        Lack of financing isn't the only problem, either. Contempt 
     for poor defendants is too often the norm. In Kentucky, 68 
     percent of poor people accused of misdemeanors appear in 
     court hearings without lawyers. In 21 counties in Florida in 
     2010, 70 percent of misdemeanor defendants pleaded guilty or 
     no contest--at arraignments that averaged less than three 
     minutes.
        The Supreme Court has said that poor people are entitled 
     to counsel ``within a reasonable time'' after a case is 
     initiated. But defendants, after their arrest, can spend 
     weeks or even months in jail without a lawyer's help. In a 
     Mississippi case, a woman charged with shoplifting sat in 
     jail for 11 months before a lawyer was appointed.
        The powerlessness of poor defendants is becoming even more 
     evident under harsh sentencing schemes created in the past 
     few decades. They give prosecutors, who have huge discretion, 
     a strong threat to use, and have led to almost 94 percent of 
     all state criminal cases being settled in plea bargains--
     often because of weak defense lawyers who fail to push back.
        The competency of lawyers is, of course, most critical in 
     death penalty cases. In dozens of states, capital cases are 
     routinely handled by poorly paid, inexperienced lawyers. And 
     yet, only very rarely are inmates ever granted a new trial 
     because of incompetent counsel.
        In a Georgia death penalty case last year, the United 
     States Court of Appeals for the Fifth Circuit ruled that even 
     though the main defense lawyer drank a quart of vodka each 
     night of the trial, there was no need for a retrial. The 
     lawyer was himself preparing to be criminally prosecuted for 
     stealing client funds, and presented very little evidence 
     about the defendant's intellectual disability. But the court 
     said the defendant had a fair trial because proof that he 
     killed a sheriff's deputy outweighed any weakness in his 
     legal representation.
        In an infamous 1996 Texas death-penalty case, the Texas 
     Court of Criminal Appeals upheld a defendant's death sentence 
     even though his lead counsel slept during the trial.
        The Supreme Court has made it possible for courts to 
     uphold such indefensible lawyering. In 1984, in Strickland v. 
     Washington, the court said that for a defendant to be 
     entitled to a new trial, he must show both that his lawyer's 
     advice was deficient and that the deficiency deprived him of 
     a fair trial--a very high hurdle. And the court's majority 
     defined competency as requiring only that the lawyer's 
     judgment be ``reasonable under prevailing professional 
     norms.''
        Justice Thurgood Marshall, writing in dissent, said the 
     result of this empty standard ``is covertly to legitimate 
     convictions and sentences obtained on the basis of 
     incompetent conduct by defense counsel.'' That is exactly 
     what has happened in the past three decades. In fact, 
     incompetent counsel for poor defendants is so widespread that 
     under this standard the prevailing professional norm has been 
     reduced to mediocrity.
        After 50 years, the promise of Gideon v. Wainwright is 
     mocked more often than fulfilled. In a forthcoming issue of 
     The Yale Law Journal, Stephen Bright, president of the 
     Southern Center for Human Rights in Georgia, and Sia Sanneh, 
     a lawyer with the Equal Justice Initiative in Alabama, 
     recommend that all states have statewide public defender 
     systems that train and supervise their lawyers, limit their 
     workloads and have specialized teams in, for example, death-
     penalty cases.
        There is no shortage of lawyers to do this work. What 
     stands in the way is an undemocratic, deep-seated lack of 
     political will.
                                  ____


               [From the Washington Post, Mar. 17, 2013]

50 Years After Landmark Ruling, Lawyer's Help is Legal Fiction for Many 
                            Accused of Crime

                         (By Associated Press)

       Washington.--It is not the happiest of birthdays for the 
     landmark Supreme Court decision that, a half-century ago, 
     guaranteed a lawyer for criminal defendants who are too poor 
     to afford one.
       A unanimous high court issued its decision in Gideon v. 
     Wainwright on March 18, 1963, declaring that states have an 
     obligation to provide defendants with ``the guiding hand of 
     counsel'' to ensure a fair trial for the accused.
       But in many states today, taxpayer-funded public defenders 
     face crushing caseloads, the quality of legal representation 
     varies from county to county and people stand before judges 
     having seen a lawyer only briefly, if at all.
       ``There is no denying that much, much needs to be done,'' 
     Attorney General Eric Holder said Friday at a Justice 
     Department event to commemorate the anniversary.
       Clarence Earl Gideon had been in and out of jail in his 
     nearly 51 years when he was arrested on suspicion of stealing 
     wine and some money from vending machines at a Panama City, 
     Fla., pool hall in 1961. Gideon asked the judge for a lawyer 
     before his trial, but was turned down. At the time, Florida 
     only provided lawyers for indigent defendants in capital 
     cases.
       A jury soon convicted Gideon and the state Supreme Court 
     upheld the verdict on appeal. Then, from his Florida prison 
     cell, Gideon scratched out his Supreme Court appeal in pencil 
     on prison stationery. It arrived at the court early in 1962, 
     when the justices were looking for a good case to take on the 
     issue of indigent defense. The court appointed Washington 
     lawyer Abe Fortas, a future justice, to represent him.
       Just two months after hearing arguments, Justice Hugo Black 
     wrote for the court that ``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 us to be an 
     obvious truth.''
       Five months later, Gideon got a lawyer and a new trial, and 
     the attorney poked holes in the prosecution's case. A jury 
     quickly returned its verdict: not guilty.
       So that was the promise of Gideon--that a competent lawyer 
     for the defense would stand on an equal footing with 
     prosecutors, and that justice would prevail, at least in 
     theory.
       A half-century later, there are parts of the country where 
     ``it is better to be rich and guilty than poor and 
     innocent,'' said Sen. Patrick Leahy, D-Vt., chairman of the 
     Senate Judiciary Committee and a former prosecutor. Leahy 
     said court-appointed lawyers often are underpaid and can be 
     ``inexperienced, inept, uninterested or worse.''
       Regardless of guilt or innocence, few of those accused of 
     crimes are rich, while 80 percent say they are too poor to 
     afford a lawyer.
       People who work in the criminal justice system have become 
     numb to the problems, creating a culture of low expectations, 
     said Jonathan Rapping, a veteran public defender who has 
     worked in Washington, D.C., Atlanta and New Orleans.
       Rapping remembers walking into a courtroom in New Orleans 
     for the first time for a client's initial appearance before a 
     judge. Several defendants in jump suits were shackled 
     together in one part of the courtroom. The judge moved 
     briskly through charges against each of the men, with a 
     lawyer speaking up for each one.
       Then he called a name and there was no lawyer present. The 
     defendant piped up. ``The guy said he hadn't seen a lawyer 
     since he was locked up 70 days ago. And no one in the 
     courtroom was shocked. No one was surprised,'' Rapping said.
       Complaints about the quality of representation also are 
     difficult to sustain, under a high bar that the Supreme Court 
     set in a 1984 case. The relatively few cases in which a 
     lawyer's work is deemed so bad that it violates

[[Page S1906]]

     his client's rights typically have an outlandish set of facts 
     that would be funny if the consequences weren't tragic. ``You 
     see too many instances of ineffective assistance of counsel, 
     too many instances where you think, `Was this lawyer crazy?' 
     '' Supreme Court Justice Elena Kagan said at the Justice 
     Department event.
       She recounted a case from last term in which a lawyer 
     advised his client to reject a plea deal with a seven-year 
     prison term and go to trial The lawyer said prosecutors could 
     not prove a charge of intent to murder because the victim had 
     been shot below the waist. 'The defendant was convicted and 
     sentenced to 30 years in prison.
       Kagan was part of the 5-4 decision in the defendant's 
     favor.
       In some places, lawyers are overwhelmed by their caseloads. 
     A public defender in Indianapolis lasted less than a year in 
     his job after being asked to represent more than 300 
     defendants at a time, said Norman Lefstein, former dean of 
     the Indiana University Robert H. McKinney School of Law.
       ``A lawyer with an S on his chest for Superman couldn't 
     represent these people. He simply couldn't do it. There are 
     only so many hours in a day. But it's not just caseload. It's 
     the other support services that go along with it,'' including 
     investigators, said Lefstein, who has studied problems in 
     indigent defense for decades.
       In Luzerne County, in northeastern Pennsylvania, the chief 
     public defender told the local court he would stop accepting 
     certain cases because his office had too many clients, too 
     few lawyers and not enough money. A judge's ruling in June 
     acknowledged the lack of money and manpower, but forbade the 
     defender's office to turn away cases. The judge's ruling was 
     encouraging, Leftein said, but on his last visit to Wilkes-
     Bane in January he found ``the caseloads are worse than 
     ever.''
       Eighteen states, including California, Illinois, New York 
     and Pennsylvania, leave the finding of indigent defense 
     entirely to their counties, said Rhoda Billings, a former 
     chief justice of the North Carolina Supreme Court who has 
     looked at the issue for the American Bar Association. Those 
     states ``have a significant disparity in the appointment of 
     counsel'' from one county to the next, Billings said.
       Public defenders in those counties often report to elected 
     officials or their appointees, rather than independent boards 
     that are insulated from politics. But even programs run at 
     the statewide level are not free of political influence, 
     Billings said, citing the case of a New Mexico public 
     defender fired by the governor.
       The lack of independence raises questions about whether 
     decisions are being made in the best interests of clients, 
     Rapping said.
       The avalanche of cases and politics come together to 
     present a formidable obstacle to alleviating some of the 
     problems that afflict the system in some states. Politicians 
     do not like asking voters for money for indigent defense.
       ``Arguing for more money to defend criminals is not the 
     easiest way to win a close election,'' said former Vice 
     President Walter Mondale. As Minnesota's attorney general in 
     the early 1960s, Mondale recruited 21 other states to join in 
     a brief urging the court to rule as it did and rejected a 
     plea from Florida to support limits on states' 
     responsibilities to poor defendants.
       Heralded for its powerful statement about the right to a 
     lawyer, the Gideon decision also left states on their own to 
     pay for the provision of counsel, Lefstein said. ``It came as 
     an unfunded mandate to 50 state governments and that problem 
     endures,'' he said, noting that in England, Parliament 
     provides money to local governments to pay for legal 
     representation of the poor.
       ``The federal government does next to nothing to support 
     indigent defense in the United States,'' Lefstein said.
       Since becoming attorney general more than four years ago, 
     Holder has shown a commitment to the issue. He established an 
     ``Access to Justice'' program and made Harvard Law School 
     professor Laurence Tribe its initial director. The department 
     also has sent a few million dollars to defense programs 
     across the country. He announced nearly $2 million in new 
     grants on Friday.
       The right announced by the Supreme Court 50 years ago only 
     covers criminal cases. It has never been extended to civil 
     matters, although as Mondale pointed out, they can lead to 
     people losing their homes, their families, being confined in 
     a mental institution or being thrown out of the country.
       To people in those situations, he said, the distinction 
     between criminal and civil law ``doesn't make much of a 
     difference.''
                                  ____


                    [From USA Today, Mar. 12, 2013]

               You Have the Right to Counsel. Or Do You?


  50 years after the U.S. Supreme Court enshrined the constitutional 
 right to a lawyer, budget realities are undermining justice in America

                           (By Rick Hampson)

       Wilkes-Barre, PA.--The first face visitors see when they 
     walk into the public defender's office here is a photo of 
     Clarence Gideon, the drifter, drinker, gambler and thief who 
     became a hero of American jurisprudence.
       It was in his case, Gideon v. Wainwright, that the Supreme 
     Court ruled 50 years ago this month that everyone accused of 
     a serious crime has a constitutional right to a lawyer, 
     whether they can afford it or not.
       When he was charged with breaking into a pool hall outside 
     Panama City, Fla., Gideon asked for a court-appointed lawyer. 
     After the judge said no, he represented himself, was found 
     guilty and sentenced to five years. From prison, he appealed 
     to the Supreme Court, which took his case and ordered a new 
     trial.
       If he came back today, Clarence Gideon might rue the 
     quality of legal representation he'd receive. He might not 
     get any at all.
       Such was the fate last year of some indigent criminal 
     defendants who walked in the public defender's door here and 
     past Gideon's gaze. They were told that, because of a 
     shortage of staff lawyers, the office was turning down all 
     but the most serious new cases. They were given a letter to 
     show the judge.
       Al Flora, Luzerne County chief public defender, says that 
     ethically and legally he had no choice: His overburdened 
     lawyers couldn't take on new clients and do justice to those 
     they already had. He sued county officials--his bosses--to 
     let him hire more lawyers and to stop them from retaliating 
     against him.
       The situation in Luzerne County reflects what experts say 
     is a national crisis in indigent legal defense that has 
     thwarted Gideon's promise of legal equality.
       Many public defenders are overwhelmed by caseloads, and 
     financially pressed states and counties are levying fees and 
     applying means tests for granting counsel. ``We're not 
     calling the anniversary a celebration,'' says Edwin Burnette 
     of the National Legal Aid and Defender Association. ``There's 
     nothing to celebrate.''
       Flora is not the only rebel. The Florida Supreme Court is 
     considering a similar attempt by the Miami-Dade County public 
     defender's office to limit its caseload. Last year, the 
     Missouri Supreme Court authorized public defenders with 
     unmanageable caseloads to decline new cases, and the American 
     Bar Association urged states and counties not to fire public 
     defenders who do.
       The problem is money. An explosion in the number of 
     criminal cases has overwhelmed the indigent defense system, 
     which represents about 80% of all accused.
       The right to counsel is stronger than ever; it was expanded 
     by the Supreme Court during its last term. Although few in 
     state and county government quarrel with the principle of 
     Gideon, few are eager to cover the ever-growing tab for its 
     realization.
       That worries advocates on each side of Gideon, including 
     Bruce Jacob, the former Florida assistant attorney general 
     who argued the state's case before the Supreme Court, and 
     former vice president Walter Mondale, who as attorney general 
     of Minnesota in 1963 filed a brief supporting Gideon.
       ``We're not close to fulfilling the promise of Gideon,'' 
     Jacob says. Although more defendants see a lawyer than 50 
     years ago, he says, many advocates don't have time to give 
     clients ``effective representation.''
       Any celebration of the anniversary should be ``subdued,'' 
     Mondale says, because ``we've missed the mark, and we may be 
     going backwards.''
       Others, while conceding the problem, take a more positive 
     view. ``For the most part, public defenders and prosecutors 
     get it right,'' says Scott Burns, director of the National 
     District Attorneys Association. ``Gideon would celebrate this 
     anniversary.''


                    `I AM ENTITLED . . . TO COUNSEL'

       Clarence Gideon was jailed before he was old enough to 
     drive and behind bars for much of his young adulthood. By the 
     time he was 51, he'd been convicted of five felonies, 
     including thefts from a government armory and a country 
     store.
       His biographer, Anthony Lewis, described him as a ``used-up 
     man'' who looked 15 years older than his age. In a letter, 
     Gideon admitted ``the utter folly and hopelessness'' of much 
     of his life.
       On Aug. 4, 1961, facing trial on a charge that would send 
     him back to prison, Gideon told the judge, ``The United 
     States Supreme Court says I am entitled to be represented by 
     counsel.''
       The only problem: It had not, and he was not.
       Beginning with Betts v. Brady (1942), the court had refused 
     to declare a blanket constitutional right to counsel in non-
     capital state felony trials unless defendants faced ``special 
     circumstances,'' such as youth, illiteracy or unusually 
     complex issues.
       Undeterred, the imprisoned Gideon mailed the court a 
     petition for a new trial. Handwritten in pencil on lined 
     prison paper, it began with anachronistic legalese: ``Comes 
     now the petitioner . . .''
       The court received many petitions like it every week from 
     prisons around the country, but Gideon had two things in his 
     favor.
       First, he had raised the constitutional issue at trial, 
     which meant he could use it to appeal.
       Second, he didn't claim special circumstances, and--whether 
     Gideon knew it or not--a majority of the justices already 
     were inclined to jettison Betts v. Brady in favor of a flat 
     constitutional right to counsel.
       All the court needed was a case on which to rule. And here 
     came Gideon.
       On March 18, 1963, the court ruled unanimously that 
     Gideon's conviction was unconstitutional because he'd been 
     denied his request for counsel.
       Justice Hugo Black wrote that in our adversarial justice 
     system, the ``noble idea (that) every defendant stands equal 
     before the law . . . cannot be realized if the poor man 
     charged with a crime has to face his accusers without a 
     lawyer.''

[[Page S1907]]

       The case was sent back to Florida, which had quickly 
     established a network of public defenders. But Gideon 
     insisted on a private practitioner, Fred Turner. It was a 
     shrewd choice.
       Turner interviewed Gideon in jail and spent several days 
     investigating. He checked out the pool hall. He drove to the 
     town where the prosecution witness had been earlier on the 
     night of the crime. He picked pears with the witness's mother 
     in her yard. He became convinced the witness was the 
     perpetrator.
       The jury took just over an hour: Not guilty. Gideon went 
     out and got a hamburger.
       The jailbird's name became synonymous with freedom. In 
     Florida alone, 976 prisoners were released because of Gideon; 
     an additional 500 got a new trial.
       After his release, Gideon stayed out of trouble. He died of 
     cancer in 1972 at 61, too soon to see himself played by Henry 
     Fonda in the 1980 TV movie Gideon's Trumpet.
       His gravestone in Hannibal, Mo., bears a message drawn from 
     a letter he wrote in prison. It reflects his belief that he 
     was part of something bigger than himself: ``I believe each 
     era finds an improvement in law,'' Gideon wrote. ``Each year 
     brings out something new for the benefit of mankind.''


                        ALL WE CAN DO IS TRIAGE

       After the inspirational Gideon v. Wainwright poster in the 
     reception area, it's all downhill in the Luzerne public 
     defender's office.
       The walls are scuffed, the carpets stained. File folders 
     are stacked on the floor. ``It's a mess,'' admits Al Flora, 
     leading a tour. ``Half the time the secretaries can't find 
     the right file.'' As a result, clients sometimes aren't 
     notified of their court dates.
       Some of the office's 21 lawyers have no desk or personal 
     phone. The top of a file cabinet serves as a desk for one 
     lawyer. A nightstand in a corner accommodates another.
       The office, which handles about 4,000 cases a year in this 
     northeastern Pennsylvania county of 320,000, has only four 
     investigators and four secretaries. Lawyers often have to 
     type their own briefs. They have little time to take 
     depositions or seek discovery of prosecution evidence.
       A third of Flora's lawyers have never tried a case. They're 
     smart and energetic, he says, but so inexperienced that if 
     given a full caseload, ``they'd crack. . . . All we can do is 
     triage cases.''
       He says some public defenders ``don't want to talk about 
     the problem. I decided to go the other way. This has to 
     stop.''
       Traditionally, Southern states have had the worst record of 
     giving poor defendants counsel. But Jonathan Rapping, founder 
     of the Southern Public Defender Training Center, says the 
     problem now is more acute in Northeastern jurisdictions with 
     shrunken industrial bases and chronic fiscal woes.
       That describes Luzerne County, which gets no state funds 
     for public defenders. Last year, Flora's $2.7 million budget 
     was cut 7%, and later--until a judge intervened--a hiring 
     freeze blocked him from filling five lawyers' slots that were 
     budgeted.
       In six months, he turned away more than 500 applicants for 
     legal counsel, an approach that antagonized county officials. 
     John Dean, a county attorney, has accused Flora of regarding 
     the county as ``nothing more than a checkbook'' and suggested 
     he handle more cases himself.
       In June, a judge told Flora to resume taking all comers and 
     told the county to let Flora hire more lawyers. Since then, 
     the county has paid for a computerized case management system 
     and promised to find more office space.


                         AN EROSION OF JUSTICE

       In the past 18 months, a third of the office's lawyers have 
     left. One was Ed Olexa, 38. He'd read Gideon in law school 
     but didn't bargain for what he found when he became a public 
     defender four years ago.
       Although he was a $34,000-a-year part-timer--19 hours a 
     week--he usually had 150 to 170 cases, far in excess of the 
     maximum recommended by the American Bar Association for full-
     time defenders. The cases took up 40 to 50 hours a week. 
     Along with his private cases, he worked up to 70 hours a 
     week.
       He often was scheduled to appear before two or three 
     different judges at the same time in different places around 
     the county. He'd meet clients for the first time in the 
     courtroom--some straight from jail, still in handcuffs--and 
     go before the judge with only the complaint and a hurried 
     conversation with his client as background.
       That, he says, was the worst: No time to establish rapport 
     with clients or get the details that can win an acquittal. No 
     time to do what Turner did for Gideon. Instead, he spent his 
     time asking judges for more time. ``It offended my sense of 
     justice,'' he says.
       And his clients'. He won't discuss their specific 
     complaints but says, ``The best attorney in the world would 
     be incompetent under those circumstances.''
       Over time, most experts say, the costs are clear. Poor 
     people arrested for misdemeanors plead guilty and go free 
     rather than wait to see a public defender, even though a 
     conviction on their record might hurt their chances for 
     employment, loans or housing. At worst, the innocent go to 
     jail, and the guilty go free.
       The Luzerne chief public defender is a part-time post; the 
     county plans to make it full time. Flora has applied.
       ``I want to see it done right,'' he says. ``I believe 
     people who are impoverished and can't afford a lawyer deserve 
     one. If we can't provide that, then what kind of society do 
     we really have?''
                                 ______