Do American's have the right to counsel? Today that precious right is systematically ignored or undermined.

You have a right to an attorney in a criminal case, even if you cannot afford one. The Supreme Court said so half a century ago. But today that precious right is systematically ignored or undermined.

Next Monday, America will quietly mark one of the most profound anniversaries in its legal history. Exactly 50 years ago, on March 18, 1963, the United States Supreme Court unanimously announced in Gideon v. Wainwright that the Sixth Amendment guarantees to every criminal defendant in a felony trial the right to a lawyer. "Reason and reflection," Justice Hugo Black wrote, "require us to recognize that, 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 to him."

The Gideon decision, heralded in its own time, has profoundly changed America's criminal justice system ever since. In the past half century since the ruling, the constitutional right to counsel has ensured that millions of criminal suspects -- the guilty, the innocent, and the somewhere-in-between -- have been aided by earnest, capable lawyers. The mandate of Gideon has forced prosecutors to be fairer and more honest in their dealings with defendants. It has burdened trial judges with additional pretrial motions. As a result of all of that, in a justice system designed to test evidence rather than seek truth, the Gideon ruling undoubtedly has resulted in more accurate results at trial.

There is, indeed, much to celebrate about Gideon. The story of the case -- that is, the story of Clarence Earl Gideon -- is remarkable in every way. It is also impossible to imagine it taking place in today's world of law and justice. Here was a lowly man, like the Gideon of the Old Testament, who achieved a mighty and mightily unexpected victory on behalf of his fellow citizens. Here was a petty thief in Florida who told a trial judge that he deserved a lawyer, who was convicted and sentenced without one, and who was in the end proven right by the United States Supreme Court.

In Gideon, the justices of the Warren Court reached out eagerly to protect a suspect's fair trial rights; prosecutors around the country urged them to do so; and when Gideon got his second trial, this time with a seasoned lawyer, his quick acquittal struck home the value of the right which had just been recognized. Gideon is famous as Supreme Court precedent, and as popular narrative, because it is such an easy legal story to understand. And because all of us, at one point, may wonder what it feels like to be charged with a crime -- and to be all alone.

But 50 years later there is also much to mourn about Gideon and the Supreme Court standards that followed it. Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation's poorest litigants. Yes, you have the right to a court-appointed lawyer today -- the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer -- often just a "potted plant" -- by your side, you've earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial. 

Today, sadly, the Gideon ruling amounts to another unfunded mandate -- the right to a lawyer for those who need one most is a constitutional aspiration as much as anything else. And the reasons are no mystery. Over the intervening half-century, Congress and state lawmakers consistently have refused to fund public defenders' offices adequately. And, as it has become more conservative since 1963, the United States Supreme Court has refused to force legislators to do so. "I think the Court doesn't have the initiative to get involved in improving the administration of justice in every state," former Justice John Paul Stevens told me in late January. "The Court's really not the institution to get involved in that."

So today, the justices won't secure the basic fair trial rights they themselves recognized in Gideon. And today, elected officials see no political value in spending the money it would take to ensure that every American has an opportunity for equal justice. It's not that there aren't solutions to the problem of securing a meaningful right to counsel for all litigants. There are plenty of solutions floating around. The problem is the political and legal will to implement those policy choices -- to make good on the promise the Supreme Court made to America 50 years ago amid such hope and fanfare.

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."

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 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.

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.
http://www.theatlantic.com/national/archive/2013/03/how-americans-lost-the-right-to-counsel-50-years-after-gideon/273433/
http://www.usatoday.com/story/news/nation/2013/03/12/you-have-the-right-to-counsel-or-do-you/1983199/
http://sixthamendment.org/the-right-to-counsel/