BACKGROUND – THE RIGHT TO COUNSEL

In June, 1961, Clarence Earl Gideon was charged with a felony for allegedly burglarizing a pool hall in Panama City, Florida. At his first trial, he was denied his request for a court-appointed attorney. Prosecutors produced witnesses who saw Gideon outside the pool hall near the time of the break-in, but none saw him commit the crime. In representing himself, Gideon, age 50 with only an eighth-grade education, was unable to disavow the credibility of the witnesses; the jury found him guilty and sentenced him to five years in prison.

Gideon petitioned the Florida Supreme Court claiming he was denied a fair trial since he had not had an attorney, but the Court upheld the lower court ruling. On January 15, 1963, the U.S. Supreme Court heard Gideon’s case (Gideon v. Wainwright). Abe Fortas, a future Supreme Court justice, represented Gideon pro bono. Fortas argued that the Sixth Amendment to the U.S. Constitution ensured legal representation to all defendants charged with felonies. He claimed that, for a court to reach the truth, both the defense and the prosecution need counsel. Without that and a judge, a court is not properly constituted. The Supreme Court ruled unanimously in Gideon’s favor and held that the right is obligatory on the states by the Fourteenth Amendment’s due process clause, by which the states are prohibited from depriving “any person of life, liberty, or property, without due process of law.”

Gideon was acquitted in 1963 and changed the justice system for millions of Americans. The story of his fight for the right to have publicly-funded legal counsel for the needy was captured in the 1980 movie, Gideon’s Trumpet, which can still be seen on the internet.

Unfortunately, the Supreme Court did not lay out a roadmap for states to provide counsel, nor indicate how states were to implement or pay for this new mandate. Without standards, there was no agreement on how this should happen. Diverting money from roads, hospitals, and schools to provide lawyers for poor people guilty of crimes was a hard sell. The most vulnerable and most despised people were not at the top of anyone’s priority list.

In 1971, Richard Nixon declared a “war on drugs” which targeted anti-war demonstrators and Black Americans. The country saw an expansion of drug law enforcement, especially in communities of color and an increase in the sentences people received for those crimes. People were locked up for longer and longer sentences, especially people of color. But the number of lawyers wasn’t increasing at the same rate as crime.

AN EMPTY PROMISE OF HOPE

“You have the right to an attorney and to have him/her present during the
interrogation. If you cannot afford an attorney, one will be provided for you.”

The Supreme Court in Miranda v. Arizona ruled that, prior to police interrogation, apprehended criminal suspects must be briefed of their constitutional rights addressed in the Sixth Amendment—right to an attorney—and the Fifth Amendment—protection from self-incrimination.

The promise of a free attorney, and the justice it implies, is provided by the public defender system. A public defender is an attorney employed by a government agency to represent indigent persons accused of crimes. Public defenders, like private lawyers, must graduate from law school and pass the state bar exam. Their salaries are typically paid by a country or state government. In the U.S., the average salary for an entry-level public defender is about $48,000. Public defenders with 15+ years of experience average a working salary of $76,000 per year + benefits. And because public defenders often represent people who are viewed negatively by society, they often bear a negative reputation.

Unfortunately, for many, the promise of an attorney and its implied justice is often shattered by the country’s public defender system. Public defenders are often overworked. Some public defenders are known to carry more than 100 cases at a time. According to an April 12, 2018 article by Louise Gaille in Vitanna, in Florida, the average annual felony caseload for an individual public defender is 500 cases per year. That same individual may also represent over 2,200 misdemeanor cases in the same year. In Tennessee, there are six public defenders that handle over 10,000 cases per year.

Prosecutors impact the number of cases public defenders have. They decide whether to bring charges against a defendant, what those charges should be, and whether to offer a plea deal or an alternative to jail time. Public defenders are required to meet with clients, attend hearings, investigate evidence, talk to witnesses, defend clients at trial, and negotiate plea deals where appropriate.

With such heavy caseloads, public defenders have little time to spend on each case. This means that more criminal cases end in plea bargaining. According to the California Criminal Defense Lawyer blog, 97% of criminal cases are resolved by a plea bargain, in which innocent victims plead guilty rather than go to trial.

A lack of funding to public defenders also impedes their ability to advocate for their clients. In Louisiana, ten judicial districts almost ran out of money in 2015 to pay their public defenders, despite assigning them new cases. And in states like Alaska, public defender budgets are often a first-line cut when balancing a budget. This means a lack of funds to hire independent investigators to work on behalf of clients, resulting in insufficient evidence which can impact the trial’s outcome.

The way plea deals work with prosecutors: Say someone is charged with drug trafficking. The prosecutor says, “I’ll recommend the minimum sentence if you plead guilty today.” Since many can’t afford bail and they know it will be months that they sit in jail, they take the deal.

FALLING THROUGH THE CRACKS

Kevin Shepard

Kevin Shepard was a 57-year old grandfather who had fought cancer and loved playing tag with his grandchildren. He lived on social security disability when he was being evicted from his three-bedroom apartment in 2018. One day as he was sleeping, two men with guns drawn, kicked open his door. Since he’d already had one break in, he assumed the men were intruders. He grabbed his gun. One of the men shot at Shepard and missed him, at which point Shepard threatened the two intruders, who were county employees delivering eviction papers. Police arrested Shepard and took him to the Jackson County jail. He was charged with unlawful use of a firearm. When he could not afford the $1,000 bail, he called the public defender’s office and was told they would get an attorney for him. After a week in jail, he was not receiving his medications and was sleeping on a mat because of a shortage of beds.

Kevin Shepard was in jail for two months before Jeff Esparza, a public defender who already had 105 cases, was assigned to him. Mr. Esparza appeared before Judge Standrige and told the judge that accepting any more cases would put his already existing clients at risk. The judge told him he could not decline the case.

Shepard had been in jail for 2 ½ months, when Esparza began working on his case. The court denied his motion for a hearing. Finally, with the help of his public defender, Shepard was released from jail 118 days after he was arrested, only to find his home and all his possessions gone. His grandchildren thought their paw-paw had been on vacation. Kevin Shepard died before he ever got his day in court; the state of Missouri dropped its charges against him.

Ricky Kidd

In February 1966, when Ricky Kidd was 21 years old, he was arrested and accused of killing two people. Despite his strong alibi and telling the prosecutor that he knew who had killed the men, he ended up spending the next 23 years in prison without parole for a crime he did not commit.

Theresa Anderson had been working as a public defender for three years when she was assigned to Ricky Kidd’s case. But Ms. Anderson had to finish a trial before she could handle Kidd’s case. She wanted him to plead guilty to a lesser charge and make a deal with the prosecutor. Kidd’s response, “An innocent man doesn’t take a plea.” Weeks went by and he begged Anderson to do what she could to prove his innocence. In August, 1996 she told him that she would only take one phone call from him or his girlfriend per week. He talked with her only three times in four months.

Lacking resources and bandwidth, Anderson didn’t start working on Kidd’s case early enough. She didn’t investigate what alibi witnesses said nor do sufficient preparations. She only met with the alibi witness on the morning of the trial and didn’t prep her for the prosecutor’s questions. She failed to knock down the prosecution’s story. The 4-year-old girl who called 911 after the murders could not recognize Ricky in court. The neighbor who identified Kidd as the murderer had been smoking weed on the day of the murder, but Anderson didn’t bring that up. And she failed to present important pieces of evidence, including a legal document stamped at the sheriff’s office confirming that Ricky and his girlfriend were there at the time of the murder registering for a gun permit.

Kidd was convicted of two counts of first degree murder. He was sentenced to four back-to-back life terms without possibility of parole. He believed in the promise that he would have someone to represent him. In September, 1996 he appealed to the court to dismiss Anderson as his lawyer but the judge denied his request.

Ricky Kidd had been on death row in a maximum security prison for six years when he began writing to Dan Grothouse, an investigator. In 2006, Dan solicited law professor Sean O’Brien, formerly a public defender, who is known for representing those on death row and overturning wrongful convictions. They took Kidd’s case.

In 2009, Ricky Kidd got another hearing. But the Judge ruled that he couldn’t consider evidence because of a federal circuit court rule preventing judges from considering evidence that was available to lawyers at the original trial. Twenty-two years after his original trial, a judge agreed to listen to all evidence, even evidence that had been rejected in 2009. In the four-day trial, it was proven that the original prosecutor had withheld information from the public defender, Theresa Anderson. On the last day of testimony, the judge said he had a lot of reading to do before he could make a decision. Kidd went back to jail. Months passed. On August 15, 2019, Ricky Kidd was released from prison. On September 13, 2019, the prosecution dismissed the charges.

These are just two stories among hundreds that reveal much about the justice system in America.

AN UNCONSTITUTIONAL CRIMINAL JUSTICE SYSTEM

Missouri

Steve Hanlon of the National Association for Public Defense began a process to establish new, data-driven standards that could assist the Missouri State Public Defender system in determining maximum workloads. The Missouri public defender system is one of the least funded defense system in our country.

His goal was to use objective measures to prove that the system is overloaded. The American Bar Association published his work, “The Missouri Project,” described by experts as the most credible of its kind. He determined the standard number of hours that should be spent on each type of case and found that 47.6 hours are required for high level felonies. Missouri public defenders were investing only 8.7 hours. For misdemeanors, they spent only two hours, while 12 were called for. A 2014 study found that the Missouri system needed 270 more attorneys to meet what was then the current caseload of between 70,000 and 100,000 cases per year. In 2015, the office’s 376 attorneys handled more than 82,000 cases. In Cole County, Missouri, defenders work more than 225% above the recommended caseload limits. The waiting list in Boone County has more than 1,000 defendants waiting for representation. People’s constitutional right to a lawyer was being violated.

“So when state leaders say, ‘Sorry, budget is tight this year,’ but then goes ahead and expands state parks or provides millions in tax credits to special interest groups or tries to build a new sports stadium, I get a little pissy,” said Michael Barrett, Missouri Public Defenders Director, referring to a failed effort by the state to keep the Rams football team from moving to Los Angeles.

In Missouri, where the defender office is funded entirely at the state level, former Governor Jay Nixon repeatedly blocked the passage of state legislation to cap defenders’ workloads and increase their funding. During his term, Nixon withheld $3.5m of a relief fund approved by the state legislature to hire additional staff.

“It’s a truism,” Hanlon says. “It’s generally known and accepted that public defenders have way too many cases. What we’ve come to realize is that we are operating a systemically unethical and unconstitutional criminal justice system . . . the judges know it. The state bar associations know it. The prosecutors know it. And this is a horrible . . . indictment of our profession.”

Louisiana

The American Bar Association (ABA) and a Louisiana-based accounting and consulting firm conducted a joint study of workloads of state public defenders in Louisiana. They found that the public defense system currently employs 363 full-time-equivalent (FTE) public defenders. But based on the workload standards developed, to provide reasonably effective assistance of counsel in Louisiana, 1,769 FTE public defenders would be required. The deficit amounts to 1,406 attorneys. Linda A. Klein, President of the ABA said, “This study demonstrates beyond question that Louisiana public defenders are daily put in grave jeopardy of violating their professional responsibilities to provide competent counsel.”

Kentucky

The situation in Kentucky, another state-funded system, is a little different; funding difficulties are tied to the legislature rather than the governor’s office. Although the defender program was spared from sweeping budget cuts across the state, the state senate rejected a $6.2m budget increase handed down by a sympathetic Governor, Matt Bevin, which would have created 44 new positions in the defender’s office.

Kentucky defenders took on average 448 cases in the past year, 54% above recommended national standards. Attorneys take on 11% more cases than they did a decade ago, and in areas such as Louisville now take close to double the national standard. The department received $49m last year – less than 0.5% of the overall state budget.

THE RISK TO PUBLIC DEFENDERS

In addition to suffering high levels of stress and stress-related diseases, public defenders are at risk of losing their licenses. The case of Karl Hinkebein is just one example. Hinkebein was a public defender in Columbia, Missouri handling more cases than he should have been. He consistently took the hardest cases. In the fall, 2017, he became ill and was hospitalized. He began missing deadlines. The oversight group for the public defenders charged him with neglect of six clients. A judge put him on probation and threatened that if he violated his probation, he would lose his law license. When Karl argued that the Court held a double standard for public defenders and private attorneys in that the latter have the ability to turn down cases, the judge told him that if he was unable to handle his case load, he should leave the job. He was disciplined by the state licensing authority but continued to advocate for those who were ill-served by the justice system until 2018 when he retired. He died in 2019.

LONG-TERM SOLUTIONS

According to Steve Hanlon, one solution is the supply side: provide more lawyers and adequate funding for public defenders. On the demand side, stop prosecuting minor offenses and low level issues that are really issues of mental illness and/or addiction. He wrote that misdemeanor cases are “clogging up the system and causing horrific collateral consequences – inability to get a job, education, housing, military. We need to get out of the criminalization of poverty, of homelessness, of mental illness, of drug addiction. These people do not need to be placed in cages or fined and fed to eternal poverty; they need social workers. The only reason they need lawyers is because we attach jail to it. Cages are not the answer.”

St. Louis County, Missouri has taken steps on Hanlon’s “demand side.” Wesley Bell, who started as a public defender, became a St. Louis county prosecutor and then a municipal judge. Bell ran to head the county prosecutors’ office on a platform of prosecutorial reform and won. After the disastrous investigation of Michael Brown’s killing in Ferguson, the public’s eyes opened to the power of prosecutors to decide whom and when to prosecute. He made a number of changes to the criminal justice system in St. Louis County, Missouri prioritizing who is prosecuted by focusing on serious and violent offenders. Some of the changes include:

• no longer setting bail for misdemeanors (non-violent offenders) so individuals can go home instead of into jails,
• no prosecution for possession of low levels (less than 100 grams) of marijuana,
• no jail time for child support violations; failure to provide child support became a civil issue, rather than a criminal issue,
• an end to forcing people to make plea deals with prosecutors,
• creation of treatment and diversion programs, in partnership with local health organizations, to address rather than criminalize addiction and mental illness, and
• expanded drug and mental health courts; issuing misdemeanors rather than felony.

Within nine months after his reforms were implemented, the jail population decreased 15% and public defenders focused on really serious cases.  Since 2019, several old-school prosecutors have been voted out of office, replaced by criminal justice reformers like Bell, in cities like Chicago and Philadelphia.

Michael Barrett, a former Missouri public defender, recently helped start a public-private initiative called the Missouri Coalition on the Right to Counsel in which private firms in the St. Louis area have taken cases to help overworked public defenders and, in turn, get their younger lawyers some court experience.

A SYSTEM IN CRISIS

What if the problem of addressing the issues of public defenders is really an issue of addressing our criminal justice system – a system that perpetuates two distinct systems of justice, one for the poor and one for the affluent?

As the rate of incarceration across the country has more than quadrupled and up to 90% of criminal defendants in the U.S. qualify as indigent, this cornerstone principle of the justice system has been eroded to breaking point. In a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense. Our current system seems indifferent to the intersections of poverty and criminal justice.

Public defenders are the first line of defense of American’s constitutional rights. Many public defenders do an incredible job under extraordinarily difficult circumstances. They have a commitment to work for the disadvantaged. They work late, sacrifice their weekends and families, and perform their own investigatory work to advocate for their clients.

The system failed when an innocent man went to prison and it took 23 years for him to be exonerated. The experiences of Kevin Shepard and Ricky Kidd are indicative of the state of our criminal justice system, a system that needs change. The public defense system requires more funding and human resources to be able to represent those who cannot afford a lawyer. While it is a tough road to travel, the price is too high not to try.

Much of the information for this newsletter was adapted from the PBS podcast Broken Justice.