A. Lewis on Gideon (cont)

One of the thirteen, Dennis Williams, had two trials contaminated by dubious lawyers. His first lawyer was later disbarred, the second suspended from practice. Then Williams was exonerated by DNA evidence.

So lawyers bear some of the responsibility for the disappointments since Gideon. But so do the authorities who picked indifferent, incompetent counsel to defend men and women on matters as serious as life and death—and so do faulty state systems for providing lawyers for the indigent. The lawyer who slept during Calvin Burdine’s trial, Joe Frank Cannon, was appointed by judges in Houston in other cases after that one.

Then there is the question of resources. I do not have to tell this audience that a defense lawyer in a capital case may have either no money for investigation, or expert witnesses, may have to try the case on his own, may have a ceiling on his compensation—a low ceiling—no matter how hard and long he or she works.

Dean Norman Lefstein of the Indiana University School of Law, after a study of capital cases, made this observation: “In order to achieve just results in criminal cases, we expect well-trained and adequately-supported professional prosecutors, equally talented and well-financed defense lawyers and impartial judges and juries. This adversary system is supposed to protect not only O.J. Simpson but also the thousands of indigent defendants who lack Simpson’s resources. There is convincing evidence, however, that in the most serious criminal prosecutions—cases in which the death penalty is sought—the defendant’s legal representation at trial is oftentimes woefully inadequate.”

Why did Bruce Jacob and Dean Lefstein come to such gloomy conclusions? Why has the dream of the Gideon decision—the dream of a country in which every person charged with crime is capably defended—remained in many places just that, a dream?

One answer is plain. Criminal defendants and prisoners have little or no political power. The Clarence Earl Gideons of this world are constituents who can safely be ignored; many are barred from voting, and the rest seldom bother. The political realities were made clear in a series of cases on prison conditions in Alabama, decided years ago by that great federal judge, Frank Johnson. He ordered the state to correct such things as a prison hospital so dreadful that a patient lay unattended for days with maggots in his wounds. Politicians denounced Judge Johnson. But later, privately, some of the legislators said they were glad he made them appropriate money for those degraded facilities.

But there is more to it than defendants lack of political power. This country deals more harshly than most other Western countries with crime and criminals. American prison conditions tend to be more unpleasant, sentences much longer. An of course most of our jurisdictions impose the death penalty, which has been abandoned everywhere else in the trans-Atlantic world as a savage relic. Why we are different is too profound a question for me to attempt an answer. But there is no doubt that we are, and the tendency is intensified as politicians compete to be tough on crime. In that atmosphere, support for the defense of indigent criminal suspects may be difficult to get.

Ladies and gentlemen, I have so far painted a rather dark picture of where we stand forty years after the decision in Gideon v. Wainwright. But that is not the whole story. Over the last dozen years there have been developments here and there that offer real hope of making the Gideon dream a reality.

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