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Promise of Right to Counsel for Poor Remains an Illusion 40 Years After Gideon v. Wainwright (3/18/2003)

Joint Statement of Diann Rust-Tierney, Director, ACLU Capital Punishment Project, Robin Dahlberg and Vincent Warren, ACLU National Staff Attorneys

FOR IMMEDIATE RELEASE

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NEW YORK--The American Civil Liberties Union today marks the 40th anniversary of the historic Supreme Court decision in Gideon v. Wainwright by calling on states to provide adequate legal defense for the poor -- particularly those who face the death penalty.

The landmark 1963 decision held that the Constitution guarantees every person charged with a felony the right to an attorney even if he or she cannot afford one. Subsequent cases have refined the ruling to extend to misdemeanor cases and to require "competent" representation.

Unfortunately, the promise of Gideon remains largely unfulfilled four decades later because the legal representation many poor people receive is grossly inadequate. Many states still do not have an indigent defense system and rely instead on court-appointed attorneys who are not required to meet any type of standard for competency.

The ACLU has developed a focused and sustained program of litigation and public education aimed at improving indigent defense systems throughout the nation. ACLU challenges to inadequate indigent defense programs in Pennsylvania and Connecticut have brought about unprecedented changes in each state's public defender program. In both cases, settlements have resulted in increased government funds flowing into the representation of indigent defendants. Presently, the ACLU is undertaking a series of non-litigation reform and public education strategies in about 10 states.

Nowhere is the deficiency in counsel for the poor more sorely felt than in the representation many people receive in capital cases. A glaring example of this is the case of Delma Banks, Jr., a Texas man who would be dead today if it weren't for the last-minute stay he received less than a week ago.

Banks had such poor representation that former FBI Director and United States District Judge William Sessions intervened and asked the Supreme Court to temporarily stay his execution. As Judge Sessions wrote in his brief, "When a criminal defendant is forced to pay with his life for his lawyer's errors, the effectiveness of the criminal justice system as a whole is undermined."

The Banks case epitomizes the type of representation that poor people in capital cases can expect -- especially in cases where the defendant is black and the victim is white. The only evidence against Banks was the testimony of an informant who received $200 and the dismissal of an arson charge that could have gotten him a life sentence as a habitual offender. Banks' lawyer did not vigorously cross-examine the informant, nor did he investigate the case. Had he done so, he would have learned that Banks was in another city at the time of the crime.

After a one-day trial in which the prosecutors systematically struck all blacks from the jury -- a move not challenged by Banks' attorney -- Banks was sentenced to death. Banks' trial lawyer did not refute the state's claim that his client posed a "future danger to society" -- a requirement for a death sentence in Texas - even though Banks had no criminal record or history of violence.

The Supreme Court-the final protector of constitutional rights-has done little to make good on Gideon's guarantee of competent counsel. Last year, the Court upheld death sentences in a Virginia case where the lawyer had previously represented the murder victim and in a Tennessee case where the lawyer offered no closing argument on behalf of his client. Other courts have ruled that counsel was competent in cases where the lawyer was unaware of the governing law, intoxicated, or even asleep.

Fortunately, not all of the High Court justices are oblivious to the problem of incompetent counsel. Justice Ruth Bader Ginsberg has been quoted as saying that she has "yet to see a death case, among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well-represented at trial." Justice Sandra Day O'Connor recently suggested "perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used."

The problem of bad lawyering is not limited to Texas, nor is it limited to death cases. According to the American Bar Association, no state meets its standards for competent counsel in a death case. Judges often appoint the attorney who will get the case through the system the fastest, instead of the attorney who will most zealously safeguard the rights of the accused. A recent report on indigent defense in Georgia revealed some disturbing examples:

* A judge appointed a newly admitted member of the Georgia bar to handle a death penalty case on her fifth day of practice;
* An attorney who handled real estate cases out of his home asked to be relieved of representing juveniles in criminal cases because he did not have the experience, and when the judge declined he sued the county;
* One court-appointed attorney had 94 cases scheduled for trial on the same day; most were resolved by a hastily negotiated plea, and none went to trial.

Examples from other states include:

* In Pittsburgh, Pennsylvania, a 19-year-old innocent man sat in jail for 15 months because his public defender had neither the time nor the resources to visit him or to investigate his case;
* In Connecticut, a 23-year-old mentally retarded man spent 18 months in jail after pleading guilty to a charge of attempted robbery on the advice of his public defender, who was unaware that the man was so disabled that he had been found incompetent to stand trial on a previous charge;
* A Kentucky judge had difficulty finding someone to represent Gregory Wilson on a death case because a state statute capped attorneys' fees at $2,500. The head of a local indigent defense program suggested sponsoring a cruise down the Ohio River to raise money for the defense. Instead the judge posted a sign on the courthouse that read, "Please help. Desperate." The lead lawyer who came forward provided a contact number at a bar called "Kelly's Keg," and had recently been indicted for receiving stolen property.

Banks' fate is still to be decided. The temporary stay may be short-lived and the state may yet carry out his execution. Hopefully, instead, the Justices will use this case as an opportunity to fulfill some of Gideon's initial promise -- proving Banks with a competent lawyer who is capable of protecting his rights. If the Justices do not provide relief to Banks, then the concept of equal treatment under the law -- and under Gideon v. Wainwright -- remains unfulfilled.