A. Lewis on Gideon (cont)

Indiana is an important example. I have had the benefit of a communication from its chief justice, Randall T. Shepard, who is here this evening. I can give only a brief indication of the changes that he brought to my attention. In 1991 the Supreme Court of Indiana, troubled by the examples of inadequate defense in capital cases that reached it, adopted a new rule, Criminal Rule 24. The rule requires the appointment of two qualified lawyers to defend indigents facing a possible death penalty. It provides that the lead counsel have at least five years experience in criminal litigation and been in at least five felony jury trials. Much more detail is in the rule. It set a standard compensation rate of $70 an hour, now $90, and it called for the provision of “adequate funds for investigative, expert and other services.” The Indiana legislature appropriated the necessary funds, and a few years later it began to expand the system to non-capital cases. This year’s budget for indigent defense is the largest in the state’s history, despite the budget crunch that Indiana faces along with most other states.

Dean Lefstein, looking over the record since the changes in the Indiana system, found that it had had profound effects in helping to assure fairer and more efficient trials and appeals. Chief Justice Shepard, in his letter to me, said: “Even with the miles to go, we all find this heartening.”

I have recently been in Kentucky. I found that it has a remarkable network of public defender offices, covering most of the counties in the state. The Kentucky Bar Association, the state Supreme Court and an official called the Public Advocate work to make defense of the indigent accused an accepted obligation of a civilized society.
Then there was what I think was a signal last month from the United States Supreme Court. The issue was whether representation of a defendant was so inadequate as to be constitutionally flawed. After Gideon, one might have expected the Supreme Court to make its rule meaningful by requiring the provision of a lawyer for poor criminal defendants to mean a competent lawyer, with the resources needed. But the Court was reluctant to flesh out the Gideon doctrine in that way.

In 1984, in Strickland v. Washington, the Court said a convicted person claiming that his counsel was inadequate must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The Court made that a difficult test to meet.

Then, last month, the Supreme Court decided the case of Wiggins v. Smith. Wiggins was convicted of murder and sentenced to death in Maryland after a trial in which he was represented by two public defenders. He lost on appeal and in state post-conviction proceedings. On federal habeas corpus, the Supreme Court found that his defense had been constitutionally flawed. The vote was 7 to 2. The opinion of the Court, by Justice O’Connor, rested on Strickland v. Washington. But it analyzed the record in extraordinary detail to see whether counsel had made a “reasonable” choice of tactics—“reasonable” being defined as up to Maryland professional standards and the American Bar Association’s standards for capital defense. Counsel’s fault, the Court said, was the failure to follow up a clue suggesting that Wiggins had suffered brutal mistreatment as a child from his mother and various foster parents. A proper investigation, Justice O’Connor said, would have produced strong mitigating evidence to offer in the sentencing proceeding.

I read the Wiggins decision as a signal of the need for courts to pay closer attention to what the defenders actually do when their client’s life is at stake. Until now, it has not been unusual for defense counsel to make a skimpy investigation of the defendant’s life and fail to present mitigating evidence to the sentencing jury or judge. I think Wiggins reflects a growing awareness that capital cases have been flawed by inadequate counsel.

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