Saturday, September 26, 2015

GateHouse: Preserving the fundamental right to counsel

Matthew T. Mangino
GateHouse Media
September 25, 2015

Is the right to counsel in America’s courtrooms merely lip service today? Court appointed counsel and public defenders are underpaid and overworked. According to a report by the Brennan Center for Justice published several years ago, court appointed attorneys often spend less than six minutes per case when their clients plead guilty.
More than 50 years ago, the U.S. Supreme Court decided Gideon v. Wainwright. In Gideon, a landmark decision, the U.S. Supreme Court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.
The decision is recognized as one of the most important of the 20th century. However, did the decision really alter the legal landscape a half-century ago?
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
In 1932, the U.S. Supreme Court decided Powell v. Alabama. The Court ruled that the U.S. Constitution requires defendants in capital cases be given access to counsel upon request.
Ten years later in Betts v. Brady the court refused to extend the right to counsel to criminal charges other than capital murder. In Betts, it was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.
Then came Clarence Earl Gideon, a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer.
The judge apologized to Gideon and said that Florida law only provides for counsel in capital cases. Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.”
Gideon represented himself, was convicted and appealed to the Florida Supreme Court. His appeal was denied and his case made its way to the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas to represent Gideon. Fortas would one day take a seat on the Supreme Court.
Fortas pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the Court to establish an absolute constitutional right to counsel in criminal cases.
Only five states—Florida, Alabama, Mississippi, North Carolina and South Carolina—did not provide counsel for indigent defendants.
Justice George Sutherland wrote in Powell some 30 years before Gideon, “Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Fortas argued in Gideon, “You cannot have a fair trial without counsel.”
The Gideon decision was reason for celebration, but as Andrew Cohen wrote in The Atlantic, “years later there is also much to mourn about Gideon and the Supreme Court standards that followed it.”
There is clearly a distinction between the defense of poor litigants and litigants with resources. The quality of legal counsel is not the problem - the disparity in access to investigators, experts and other litigation related resources is enormous.
Will Gideon’s promise of fairness and justice continue to fade away or will state and local governments step up to insure that the rights of the accused are adequately protected?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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