March 4, 2003

The Ghost of 'Gideon'

The American Lawyer
Quitman County, Miss., is the kind of quiet rural community that recalls a bygone era in American life. Thomas "Butch" Scipper, the county administrator, likes to think of it as a real-life Mayberry, a place where the screen doors stay unlocked at night. "My keys are outside in my truck ignition right now," Scipper told me one day from his office.

So it came as a particularly horrible shock when, on Feb. 3, 1990, residents awoke to news of a quadruple homicide just outside the small town of Walnut in the southwestern corner of the county, about 70 miles south of Memphis. Carl and Bobbie Jo Parker and their two young children had been returning home from a Bible study class when they walked in on a pair of burglars. According to police investigators, the family was bound, shot and left to die in their burning home.

Less than 24 hours later, police arrested Robert Simon Jr., and Anthony Carr, two Memphis residents who were spotted driving Parker's truck soon after it was reported stolen. The pair were indicted on charges including murder, kidnapping and arson. Because they couldn't afford to hire their own lawyers, the judge assigned court-appointed counsel to represent them. That's when Quitman residents got another unpleasant surprise. Mississippi provided no state money for indigent defense, so the county was responsible for funding Simon's and Carr's defense. And since Quitman is one of the poorest counties in the country it would have to raise taxes and borrow money to cover those costs. By the time Simon and Carr were tried and convicted and mounted their appeals, Quitman had spent more than $250,000 on their defense, debt that lingered on for years. "You can imagine how well that went over," says Scipper.

Local residents weren't the only ones to take an interest in what happened in Quitman. In Washington, D.C., Kathleen Behan, a partner at Arnold & Porter, came across the cases in 1998 while investigating indigent defense programs around the country. Behan, along with her partner William Voth in New York, had recently formed the "Gideon Project," a rotating team of Arnold & Porter lawyers who worked pro bono on issues relating to indigent defense. But it wasn't Simon or Carr whom Behan was interested in representing. It was Quitman County.

Behan's strategy was part of an emerging trend. In recent years, public interest lawyers, weary of mounting futile post-conviction challenges based on claims of ineffective assistance of counsel, have begun to bring systemic challenges instead, arguing that states are violating the right to counsel by failing properly to regulate public defenders' crushing caseloads or provide them with adequate resources. To date, the results are mixed. But the latest, and perhaps most ambitious, of those challenges, Quitman County v. State of Mississippi, is headed to trial later this month. If Behan and her team prevail, the case may not only change indigent defense in Mississippi, but chart a course for other similarly overburdened counties around the country.

It's particularly appropriate that Arnold & Porter is bringing the Quitman case. In 1963 the firm, through partner (and future U.S. Supreme Court justice) Abe Fortas, represented another poor Southerner worried about indigent defense, a Florida convict named Clarence Earl Gideon who claimed he'd been improperly denied a court-appointed lawyer at trial. The resulting Supreme Court decision, Gideon v. Wainwright, guaranteed state-funded counsel to poor defendants facing felony charges. Fortas' argument on behalf of Gideon was so persuasive that not only did he win a 9-to-0 decision, but Justice William O. Douglas later remembered it as the finest performance he had witnessed in 36 years on the Court.

This month marks the 40th anniversary of Gideon, another milestone in what seems to be a season of important legal anniversaries. In January we passed the 30th anniversary of Roe v. Wade, and next year comes the 50th anniversary of Brown v. Board of Education. Next to those decisions Gideon seems something of a poor relation, a spectral presence haunting the halls of justice but not the minds of American citizens: No outraged protesters gather at the Supreme Court on Gideon's anniversary; fanatics don't post Internet hit lists of "providers" of legal services; and federal judges aren't overseeing sweeping implementation plans for indigent defense programs in recalcitrant states. In fact, to this day the Court has offered remarkably little guidance on how the states should organize representation of the poor.

Predictably, that has led to a patchwork system among the states. There are three basic ways that states provide indigent defense services: appointing private lawyers; bidding out for contract lawyers; and maintaining full-time public defenders. A study released in 2000 by the U.S. Department of Justice's Bureau of Justice Statistics showed that 27 states fund all or most of their indigent defense programs. Twenty-two others are funded primarily at the county level or through a mix of state and county funds (Alabama uses court fees to fund a county-based system. See "Defense Systems.")

The burden of defending indigent cases is huge. The 2000 bureau study, for example, conservatively estimated that, in 1999, public defense lawyers in the nation's 100 most populous counties handled about 4.2 million cases. Nationwide, the bureau estimates that about 80 percent of all criminal defendants in state court are indigent. That means that of the roughly 1.2 million people tried on felony charges last year in state court, more than 900,000 were represented by public defenders of one kind or another.

Lack of sufficient funding to handle that burden is the perennial lament of public defense advocates, and the numbers support their concerns. A comprehensive 1986 survey conducted by the bureau showed that indigent defense received slightly more than $1 billion in state, local and federal funding, as opposed to $3.2 billion for prosecutors, $13 billion for corrections, and $22 billion for law enforcement. The 100-county study released in 2000 showed that, though spending on indigent defense had increased greatly during the previous decade, it still constituted less than 3 percent of the counties' criminal justice budgets.

"Gideon is of immense symbolic importance," says Abe Krash, an Arnold & Porter partner who worked with Fortas on the case, "but in practice there's a great gap between the promise and how it's been realized."

In part that's because courts have proven amazingly tolerant of shoddy lawyering, like the 72-year-old lawyer in Texas who slept through much of his client's capital murder case. Or the lawyer in California arrested for drunk driving on the way to pick a jury in his client's murder trial. Or the lawyer in Georgia who didn't make a single objection during his client's capital murder trial.

"Being defended by such a lawyer," Stephen Bright wrote in the 1999 edition of the Annual Survey of American Law, "is much like being treated by a doctor who has never heard of penicillin." Y

Yet in none of the cases cited above was the lawyer's conduct deemed sufficiently bad to require a reversal on appeal.

"If Gideon just means having a warm body in court sitting next to the defendant, we might as well not call it a constitutional guarantee," says Kathryn Jones of the National Association of Criminal Defense Lawyers.

The difficulty in obtaining post-conviction relief for ineffective assistance of counsel stems from another Supreme Court ruling, issued 21 years after Gideon. In Strickland v. Washington, the Court devised a two-pronged test for granting new trials on the basis of Sixth Amendment violations. The defendant must demonstrate, first, that the lawyer was incompetent and, second, that the incompetence substantially prejudiced the outcome of the case. In practice, meeting that standard has proven impossible for most defendants, especially those who have rotten legal advice to begin with.

Even if successful post-conviction challenges for ineffective assistance of counsel under Strickland are necessarily case-by-case determinations, they hold little promise of having a general impact on indigent defense, no matter how compelling. As one legal commentator noted, Strickland challenges focus on an attorney's sins of commission, not on the system's omissions. But many indigent cases suffer because of what an attorney doesn't or can't do -- such as failing to conduct pretrial investigation, obtain expert testimony, or offer mitigating evidence at sentencing.

Addressing those issues, born largely of insufficient resources and training, is better suited to prospective, rather than postconviction, relief. Surprisingly, few systemic challenges to states' indigent defense programs have been mounted. "I think there are a couple of reasons why," says Behan. "First, in some states it can be hard to get standing. Second, it's hard to get your fees on these cases."

Some systemic challenges have had limited success. American Civil Liberties Union suits in Allegheny County, Pa., and in Connecticut have led to settlements increasing spending on indigent defense. Similar cases are pending in Montana, New York and Michigan. But the Quitman case is the most ambitious challenge a state has faced on its indigent defense program. At heart, it's a battle over what Gideon's guarantee actually means.

Quitman's suit is only the latest in what has been a rising chorus of complaints in Mississippi over the last decade calling for reform of indigent defense.

Twice in the 1990s the Mississippi Supreme Court admonished the legislature for not addressing problems with the system, and criticism of the system led the State Bar association to commission a study from The Spangenberg Group, a Massachusetts-based consulting firm that specializes in studying indigent defense programs.

Spangenberg's first report, issued in 1995, painted a damning portrait of Mississippi's county-based system, saying that "every aspect of defense representation is compromised. ... There is very little early representation provided, investigation conducted, attorney/client contact, or use of experts."

For such reasons, the report found, arrestees sometimes spend up to six months in jail before conferring with counsel and being arraigned. A follow-up report by Spangenberg in 1997 found things little changed. Indeed, Mississippi's per capita spending on indigent defense remained lower than what comparable southern states had spent three years earlier.

As of mid-February, the NAACP Legal Defense and Educational Fund Inc. was scheduled to release a report based on more than 150 interviews with Mississippi lawyers, criminal defendants, law enforcement personnel and others. It uncovered gaping holes in the system, including: a 50-year-old woman arrested for shoplifting $72 worth of goods who spent more than a year in jail before meeting with an attorney; a trio of teen-age murder suspects who spent more than four years in jail awaiting trial before the charges against them were dismissed; and a contract attorney in Tupelo who handled 700 felony cases in a year (the American Bar Association's recommended limit: 150).

Heavy reliance on part-time public defenders, all of these reports conclude, is a big part of Mississippi's problem. Only three of the state's 82 counties fund full-time public defenders. The majority use instead flat-rate contract attorneys who maintain their private practices. Such contracts are harshly condemned by the ABA and others because of the strong potential for lawyers to favor their paying clients. "Flat-fee does nothing but encourage pleas, because you get the same amount for that as [for] a two-week trial," says Abbe Smith, associate director of the Criminal Justice Clinic at Georgetown University Law Center. (A review in Quitman County found that 57 percent of indigent defendants pled guilty on the day of arraignment.)

In addition, counties rarely provided any money to contract attorneys for investigators or expert witnesses. By contrast, the Spangenberg report noted, the state funded all prosecutorial functions, using county attorneys, district attorneys, and the attorney general's office to handle the caseload. Another report by a state task force on indigent defense showed that, on a per capita basis, Mississippi spent about half as much as did Georgia or Alabama on indigent defense, and less than a third of what Florida spent.

Armed with such findings, the Mississippi Bar and others have long recommended that the state set up full-time public defenders in every circuit court district, funded on a par with the budgets enjoyed by the district attorney's offices. In 1998 the Mississippi Legislature seemed poised to do just that, passing the Mississippi Statewide Public Defender Act. However, funding for the system never materialized.

Surveying this scene in 1999, Robert McDuff, a Jackson-based lawyer and Harvard Law School graduate who had been active in the Bar's reform efforts, thought it was time to try another tack. Through contacts in the NAACP Legal Defense and Educational Fund, McDuff was in touch with Behan and her Gideon Project team. Both agreed that Mississippi's system was ripe for a challenge in court. "It was apparent the state was failing badly to meet their constitutional mandate on this," says Behan.

But how to go about it? McDuff was on a conference call with Behan in Washington and Voth in New York when someone, no one remembers who, suggested that they ought to consider an action that would appeal to a broader constituency than would a traditional suit on behalf of poor defendants. All agreed that the big losers in Mississippi's system were the county governments. "We all knew we wanted to prove a system violation," recalls Voth. Might any of the counties agree to sue the state? McDuff immediately thought of Quitman. As the Simon and Carr cases had unfolded, Butch Scipper had become a well-known commentator on the indigent defense question, testifying before the legislature and serving on a commission formed to study the problem. McDuff called Scipper, who invited him to make a presentation to his board of supervisors, which voted unanimously to approve the suit. Scipper says that the decision was not hard to make after what had happened with Simon and Carr.

In many ways Quitman typifies Mississippi's problems. It pays two part-time defenders a flat rate of $1,350 a month. The lawyers also have contracts with two neighboring counties and maintain their private practices. Quitman provides no money for witnesses or experts.
Indeed, in deposition testimony for the Quitman suit, one former contract lawyer named Thomas Pearson said that in 10 years of public defense work in Quitman he had never used an expert witness or an investigator in a noncapital case. Pearson maintained that indigent clients couldn't expect "Clarence Darrow"-type representation. "They're entitled to a country lawyer, and they got a country lawyer, and I do a country lawyer job for them," Pearson testified. (In 2000 Pearson's contract with the county was not renewed.)

But for Harold Pizzetta, a former lawyer with Washington, D.C.'s Wilmer, Cutler & Pickering now with the Mississippi attorney general's office, the answer to Quitman's dilemma is simple: If it's worried about indigent defense, it should dedicate the resources and hire a full-time public defender. "Quitman spends more on the public library than for public defenders," Pizzetta says. "It collected $135,000 in (criminal) fines, but only spent $38,000 on public defenders."

Scipper says those numbers are basically accurate but incomplete. Overall, he says, the county has run a deficit in 10 of the last 11 years. On the issue of funding the justice system, he says that last year the county collected about $165,000 in fines and fees, but spent more than $240,000 on the courts. Public defender contracts are a line item in that overall budget. "For indigent defendants, it's like bringing a knife to a gunfight," says Scipper.

After Quitman filed suit, the state did create an office to litigate capital offenses like the Simon and Carr cases. At the same time, however, it repealed the legislation passed in 1998 creating the statewide system.

Though Behan and the rest of the Quitman team were pleased at the creation of the capital crimes unit, they see it as far from sufficient to meet the constitutional mandate imposed by Gideon. "The case was concerned with noncapital cases," she says, "and if you don't have state money for that, you aren't providing representation and aren't fulfilling the obligations of Gideon." But with big budget shortfalls looming in Mississippi, it's clear to all that any further funding for indigent defense will only come at the sharp end of a court order.

What are Quitman's chances? The Mississippi Supreme Court has been sensitive in the past to indigent defense problems, but the overall litigation record of systemic challenges to indigent defense programs is decidedly mixed. As noted, the ACLU has forced favorable settlements in Pennsylvania (for Allegheny County, at least), and Connecticut (statewide). Earlier cases in Arizona, Louisiana and Oklahoma brought by individual public defender's offices also had limited success. However, systemic challenges in Minnesota, New Jersey and Georgia have failed. To date, no one has succeeded in generating a sweeping order, one that, for example, mandates comparable funding for public defense and prosecution. Some attribute the state judiciary's reluctance to the political vulnerability of elected judges who can't afford to be seen as "soft" on crime, even if they're sympathetic to the problems of indigent defense.

An alternative solution might be to sue in federal court. After all, the federal judiciary has a long history of making states fulfill unpopular constitutional mandates on everything from schools to prisons to nursing homes. If federal judges think they're qualified to run nursing homes or prisons, surely they are more than qualified to oversee indigent defense programs. But such ambitious endeavors are out of favor these days, and under a long-standing abstention doctrine, federal courts are loath to get involved in state court criminal matters. Then again, no issues of comity prevented the Court from making the Gideon ruling in the first place.

And where exactly is the Supreme Court in all this? To date, it's never decided a case involving a prospective challenge to a state's indigent defense program. It would seem that the current Court, with its deep concerns about federalism, would be a poor bet to do anything more to bolster Gideon's mandate. Certainly the Court has shown little inclination to grant reversals on claims of ineffective assistance of counsel. On the other hand, as recently as last year the Court extended Gideon to cover misdemeanor cases with suspended sentences. So the Court remains adamant that individual indigent defendants facing even the remote possibility of jail should have a lawyer. Whether it cares how good a defense that person gets is another matter.

For now, the battle over Gideon will be waged across scattered fronts. Almost 50 years ago, an Illinois judge wrote, "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have." In a nation of more than 1 million lawyers, that idea should count for more.
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