death penalty news--USA (general)

[Rick Halperin <rhalperi@post.cis.smu.edu>]

Who Cares for Poor Prisoners?
By Nat Hentoff

Saturday, May 2, 1998

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 had asked a local judge to provide him with a lawyer, 
because he was too poor to hire one.  The judge said that Florida law 
prevented him from accommodating the defendant.

On March 18, 1963, Justice Hugo Black, speaking for a unanimous Supreme 
Court, said: "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 v. Wainwright 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 one example, as Stephen Bright -- an attorney who has 
spent most of his life trying to make the Constitution work for prisoners 
-- points out:  "There is no universal right to counsel in state 
post-conviction proceedings, although some states do provide 
representation." 

The great majority of criminal trials -- and appeals -- are held in the
individual states. Only state defendants facing a possible death penalty 
have a guaranteed right to representation in federal court, but to get 
this habeas corpus review in federal court, you first need to exhaust 
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 have only one year to get a federal court to hear your petition.

In the proceedings before and during a trial, Gideon also has 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. As Chief Justice Warren Burger 
said:  "We are more casual about qualifying the people we allow to act as 
advocates in the courtrooms than we are about licensing our electricians."

Some court-appointed lawyers have only fragmentary knowledge of the 
applicable laws, and others have slept through portions of a trial. 
Moreover, in public defenders' offices, many advocates are crushingly 
overburdened.

As for the fees of court-appointed lawyers or public defenders, 
Virginian-Pilot reporter Laura LaFay 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," attorney 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 taken away from death-penalty resource 
centers.  Staffed by lawyers experienced in death-penalty litigation, 
these centers around 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 crucial errors to the attention of the courts. And 
prisoners now sit on death rows without lawyers.

There are lawyers who, against the 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 now president of the 
United States.

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







Rick Halperin
AI-Texas
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