THE PAPER TIGER OF GIDEON V. WAINWRIGHT AND THE EVISCERATION OF THE RIGHT TO APPOINTMENT OF LEGAL COUNSEL FOR INDIGENT DEFENDANTS

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1 THE PAPER TIGER OF GIDEON V. WAINWRIGHT AND THE EVISCERATION OF THE RIGHT TO APPOINTMENT OF LEGAL COUNSEL FOR INDIGENT DEFENDANTS Amanda Myra Hornung* "The rhetoric of the Sixth Amendment is grand; the reality is grim." ' -Pamela R. Metzger "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." 2 -Justice Hugo Black "Ensuring fairness and equal treatment in criminal trials is the responsibility of us all. The Gideon decision, with its promise of equal justice, showed the Supreme Court at its best. Forty years later, we must make that promise a reality." 3 -Edward M. Kennedy INTRODUCTION In 1963, a poor white man around fifty-years-old, who had been in and out of prison for most of his life, struck a massive blow not just for himself but for all indigent criminal defendants in this country. 4 Strangely enough, Clarence Gideon believed that he was simply asking * J.D. candidate, Benjamin N. Cardozo School of Law, June B.A. in Political Science, Miami University, Oxford, Ohio, Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-To-Counsel Doctrine, 97 Nw. U. L. Rav. 1635, 1636 (2003). 2 Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (J. Black). 3 Edward M. Kennedy, The Promise of Equal Justice, CHAMPION, Jan.-Feb Edward M. Kennedy, a Democrat, is the senior U.S. senator from Massachusetts and a member of the Senate Judiciary Comm.ttee. He began his first term in Congress in 1962, the same year that Clarence Gideon's petition for review was granted by the U.S. Supreme Court. Id. 4 See generally ANTHONY LEWIS, GIDEON'S TRUMPET (1964). The book was made into a movie of the same title starring Henry Fonda, GIDEON'S TRUMPET (Republic Studios 1980). Clarence Gideon died destitute in 1972 and the American Civil Liberty Union (ACLU) donated a tombstone twelve years later. TOM ELDEN, Gideon Remembered, 63 OR. ST. B. BULL 70 (2003).

2 496 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 the Court to enforce the United States Constitution as already interpreted, not a sea change in Constitutional and criminal law in this country-mr. Gideon believed the Supreme Court had already held that indigent defendants, such as himself, were entitled to appointed counsel at state expense. 5 Clarence Gideon, while wrong at the time, was proved right a short time later when the United States Supreme Court held that indigent criminal defendants in state court were entitled counsel at the state's expense. 6 Since 1932, the Supreme Court has interpreted the United States Constitution as conferring the right of appointed legal counsel to indigent defendants in federal criminal proceedings. 7 However, it was not until 1963 in the landmark case of Gideon v. Wainwright that the Supreme Court recognized the same right in state criminal proceedings. 8 Since that time, various cases have come before the Supreme Court challenging state practices regarding the appointment of legal counsel to indigent defendants. With each case, the Supreme Court has determined whether the state law or policy fulfilled the commands of the Constitution's Sixth and Fourteenth Amendments. This has been the mechanism by which states have learned which procedures and policies comport with or violate the Sixth Amendment and the right recognized in Gideon. Although Gideon's impact was significant, the case left open the all-important question of how state legislatures might develop a system of representation for indigent individuals charged with crimes and entirely ignored the question of the costs the decision imposed on the state. Later decisions have also failed to answer those questions. 9 Ad 5 See Gideon, 372 U.S. at 337 (1963) (dialogue between Clarence Gideon and the trial court judge evidences this fact). 6 See id. at Powell v. Alabama, 287 U.S. 45 (1932). In Powell, nine young black men were charged with raping two white girls near Scottsboro, Alabama. The defendants were rushed to trial, convicted of rape, and sentenced to death. The Supreme Court held that the defendants were denied effective appointment of counsel. According to the Court in Powell, the right to appointed counsel was derived from the due process right to a fair hearing under the Fourteenth Amendment Due Process Clause. Id. at 71. See Thomas F. Liotti, Does Gideon Still Make a Difference?, 2 N.Y. Ciry L. R~v. 105, 118 (1998). 8 Gideon, 372 U.S This decision overruled Betts v. Brady, 316 U.S. 455 (1942), decided twenty years before, in which the Court held that the Sixth Amendment did not apply to the states as it did to the federal government. 9 See, e.g., Argersinger v. Hamlin, 440 U.S. 25 (1972) (extending the right to appointment of legal counsel to indigent defendants in misdemeanor cases so long as actual imprisonment will result after conviction); Scott v. Illinois, 449 U.S. 367 (1979) (defining "actual imprison-

3 20051 PAPER TIGER OF GIDEON V WAINWRIGHT 497 hoc determinations by the Court of what does and does not satisfy the Sixth Amendment have not been effective in protecting the right to appointment of legal counsel in state criminal proceedings. One commentator recently remarked, "the responsibility to make Gideon a reality fell on three distinct entities: the bar, the courts, and the legislature." 10 None of these three entities, either by itself or in combination, have in any way succeeded in making Gideon a reality. This note argues that the manner in which the Supreme Court has interpreted the right of indigent defendants to counsel, as well as the Court's interpretation of the right to effective assistance of counsel, has given states the discretion within which they have been able to abridge those Constitutional rights. The Supreme Court is, of course, constrained by concerns of overstepping the bounds of federalism. Although this has had a great influence on these two lines of cases,'" federalism concerns should be malleable when measured against the allimportant rights to counsel and to effective assistance of counsel.1 2 The Sixth Amendment guarantees of counsel to indigent defendants and effective assistance of counsel are essential to the inherent fairness of our criminal justice system and thus the faith that the common man holds in that system. Creating higher standards of legal assistance to indigent defendants should not be left up to bar associations, or legal societies, or even the defense community. These rights are constitutional rights, not ment," the imprisonment standard under Argersinger, as "actual imprisonment," as a standard which did not encompass a mere threat of imprisonment or conditional imprisonment); Alabama v. Shelton, 535 U.S. 654 (2002) (interpreting the Sixth Amendment to bar the activation of a suspended sentence upon a probation violation if the indigent defendant was not provided with counsel during that initial prosecution). 10 John A. Lentine, Gideon v. Wainwright At Forty Fulfilling the Promise?, 26 Am. J. TRIAl ADVOC. 613, 619 (2003). 11 See, e.g., Smith v. Robbins, 528 U.S. 259, 273 (2000). In this effective assistance of counsel case, the Court recognizes its "established practice, rooted in federalism, of allowing the States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy." Id. at See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956); Anders v. California, 386 U.S. 738 (1967). 12 In the past, the Court has had to temper federalism concerns when confronted with unacceptable inequalities and the same should be done with regard to the right of indigent defendants to counsel. The Supreme Court had to temper the concerns of federalism against the vital goal of racial equality in this country in the 1950s in its decisions in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (known as Brown I, holding that racially segregated schools deprived minority children of an education and thus were a violation of the Fourteenth Amendment's Equal Protection Clause), and Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) (known as Brown I, concerning the implementation of Brown I and how state courts should evaluate such suits regarding the implementation of that decision).

4 498 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 guidelines created by legal scholars or practicing attorneys. As it is the role of the judiciary to say what the Constitution means, 13 the Supreme Court must, at its first opportunity, re-weigh the concerns of federalism and the Sixth Amendment in order to make the rights to counsel for indigents and effective assistance meet a satisfactory standard. The Court must limit the discretion given to the states by setting forth a more stringent standard for the application of the Sixth Amendment guarantees of the right to counsel for indigent defendants and the right to effective assistance of counsel. Such measures are needed in order to ensure that indigent defendants are treated with the same fairness at trial and in sentencing that we presume defendants who have the means to hire attorneys are provided. A defendant who is not granted a fair trial is more likely to be convicted and sent to prison. 4 The number of indigent defendants in prison may have a correlation to the type of assistance such defendants received at trial. If defendants are unable to get experienced, motivated attorneys and are unable to call into question the expert testimony and evidence of the prosecution with testimony from their own experts, then conviction is more likely than in a trial where the defendant does have competent representation and competing experts. 15 In a study published in 2000, the Bureau of Justice Statistics reported that nationwide there was no difference in the adjudication of guilt based on the type of attorney who represented a defendant, but of those defendants found guilty, higher percentages of defendants with court-appointed counsel were sentenced to prison.' 6 However, of those criminal defendants receiving jail or prison time in state courts in large counties, seventy-one percent of those with public counsel were sentenced compared to fifty-four percent of those with private counsel In Marbury v. Madison, 5 U.S. 137, 177 (1803), Chief Justice Marshall proclaimed, "It is emphatically the province and duty of the judicial department to say what the law is." 14 The Court, in Powell v. Alabama, makes this assertion in support of the statement that appointment of counsel is integral to a fair trial: "He [the defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." Powell, 287 U.S. at See John F. Decker, Expert Services in the Defense of Criminal Cases: The Constitutional and Statutory Rights of Indigents, 51 U. CIN. L. Rv. 574, (1982). 16 CAROLINE WOLF HARLow, PH. D., Defense Counsel in Criminal Cases, NCJ , 1 (2000). 17 Id. Seven out of ten defendants using publicly financed attorneys were sentenced to jail or prison time while only five out of ten defendants with private counsel were incarcerated. Id. at

5 2005] PAPER TIGER OF GIDEON V WAINWRIGHT In many capital cases the defendant is indigent, thus the court appoints counsel to him. In 1996, fifty-five percent of jail inmates charged with homicide had public defenders.' 8 Despite the proclamation by the Supreme Court that "death is different," the Court has not demanded that any different measures be taken in capital cases when the defendant is indigent.' 9 As a result of the work of innocence projects around the country, it can no longer be ignored that high numbers of innocent defendants are convicted and sent to prison, even death row, by our criminal justice system. 20 While the inadequacy of court-appointed counsel is not the entire problem (indicated by the fact that many of those exonerated had private counsel), the inadequate funding of public defender services and the lower standards to which public defenders are held, play a part. 2 1 If public defenders were better equipped and held to higher standards of 6. This statistic becomes more significant when considering that ninety-five percent of all criminal defendants are tried in State courts. Id. at Id. at In the judgment of the Court and opinion of Justice Stewart, which Justices Powell and Stevens joined, Justice Stewart observed in Gregg v. Georgia that the Court in Furman had recognized that "death is different in kind from any other punishment imposed under our system of criminal justice." 428 U.S. 153, 188 (1976). See also, Furman v. Georgia, 408 U.S. 238 (1972); Michael D. Moore, Tinkering With the Machinery of Death: An Examination and Analysis of State Indigent Defense Systems and Their Application to Death-Eligible Defendants, 37 WM. & MARY L. REv (1996) (arguing that state indigent defense systems do not function to provide indigent capital defendants with adequate and effective representation); Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REv. 329 (1995). 20 Since the 1990s, innocence projects have arisen all over the country. Such groups, usually consisting of both attorneys and law students, use post-conviction DNA testing to exonerate wrongfully convicted persons currently serving time in prison. One person that had courtappointed counsel that has later been exonerated is Jimmy Ray Bromgard. His court-appointed counsel did not object to faulty eyewitness and expert testimony. He served over fifteen years in prison before he was exonerated through the efforts of an innocence project. Innocence Project Case Profiles: Jimmy Ray Bromgard at php?id= 11/. See also, Kate Jones, Exoneration highlights the need for indigent defense reform in Montana, in CHAMPION 45, Dec A comprehensive study on the percentage of exonerated prisoners who had court-appointed counsel or public defenders does not exist, thus, any assertions are based on anecdotal evidence. 21 See Bad Lawyering, available at php. The Innocence Project at the Benjamin N. Cardozo School of Law was co-created by Barry Scheck and Peter J. Neufeld in 1992 and handles cases where post-conviction DNA evidence can be used to establish proof of innocence of those serving prison sentences or sitting on death row. To date, the Innocence Project has exonerated more than 150 wrongfully convicted persons. See generally See also, JIM DWYER, PETER NEUFELD & BARRY SCHECK, ACTUAL INNOCENCE (2000).

6 500 CARD OZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 assistance, the workload of innocence projects could be reduced, and many innocent men would never have to serve prison sentences while waiting for exoneration." The rights of indigent defendants to appointment and effective assistance of counsel are neither lofty philosophical ideals nor rights that only function to give us all faith in the criminal justice system. The rights to appointment of counsel and to effective assistance ultimately impact not only whether people are convicted of crimes based on fair processes but moreover, whether innocent people are convicted of crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible. This note argues that the Supreme Court has the wherewithal to do so by making the right to counsel and the right to effective assistance of counsel more robust. Part I of this note recounts the legal history of the right to counsel for indigent defendants as well as the right to effective assistance of counsel. Part II examines how states are violating the constitutional rights of indigent defendants to both appointment of legal counsel and the effective use of that counsel by discussing laws and policies concerning the determination of indigency, when the right to counsel attaches and when it ceases, the appointment of legal services to indigents, the funding of public defender's offices, immunity for public defenders, and appointment of experts. In Part III, this note proposes a course of action to begin the long process of constructing an adequate system for the legal representation of indigent defendants as mandated by the Constitution "Similarly situated defendants in New York and other state federal courts are receiving qualitatively better defense services. This unfair treatment of the indigent defendant leads to wrongful convictions that pack our prisons with wrongfully convicted defendants and robs the state of money that could be spent elsewhere to reduce crime." Thomas F. Liotti, Does Gideon Still Make A Difference, 2 N.Y. CriT L. REv. 105, 137 (1998) 23 "It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case." Strickland v. Washington, 466 U.S. 668, 708 (1984) (Marshall, J., dissenting). 24 For an in-depth analysis of Gideon v. Wainwright and the current problems with indigent defense as well as a comprehensive proposal that the indigent defense community itself seeks to establish standards of representation that effectuate indigent defendants' Sixth Amendment rights, see Kim Taylor-Thompson, Tuning Up Gideon's Trumpet, 71 FORDHAM L. REv (2003). See also Thomas F. Liotti, Does Gideon Still Make A Difference, 2 N.Y. CITY L. REv.

7 2005] PAPER TIGER OF GIDEON V WAINWRIGHT PART I A. Right To Appointment of Counsel The Sixth Amendment to the United States Constitution states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." 25 The Sixth Amendment applies to the states through incorporation in the due process clause of the Fourteenth Amendment. 26 In Powell v. Alabama the United States Supreme Court first interpreted the United States Constitution as requiring the appointment of counsel to certain indigent defendants in federal criminal proceedings. 27 Decided in 1932, Powell affirmed the belief that "[i]t is vain to give the accused a day in court, with no opportunity to prepare for it, or to guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case." 28 Powell involved the infamous Scottsboro Boys incident in Alabama. Nine African-American youths were prosecuted for the capital rape of two Caucasian young 105 (1998) (examining the problem of the right to counsel to indigent defendants and recommending various strategies to fight for equal justice for the poor). 25 U.S. CONST. amend. VI. In Argersinger v. Hamlin, Justice Douglas in the opinion of the Court makes the finding that "[tihe Sixth Amendment thus extended the right to counsel beyond its common-law dimensions." 407 U.S. 25, 30 (1972). 26 See, e.g., Gideon, 372 U.S The Court in Powell rested their analysis on an interpretation of the due process clause, holding that the trial court's failure to give the criminal defendant reasonable time and opportunity to secure counsel was a violation of the defendant's right to due process. Powell v. Alabama, 287 U.S. 45, 71 (1932). See also Johnson v. Zerbst, 304 U.S. 458 (1938) (construing the Sixth Amendment to require that counsel must be provided to indigent defendants unless they waive that right). 28 Powell, 287 U.S. at 59 (quoting Commonwealth v. O'Keefe, 148 A. 73, 74 (1929)) (deciding that due process of law required sufficient notice to the accused and adequate time to secure counsel and to prepare for trial). The opinion in Powellcontains an in-depth recitation of the English and American historical roots of the right to appointment of legal counsel to criminal defendants in both common law and constitutional law.

8 502 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 women. 29 The defendants were all illiterate, all from out-of-state, all kept under state militia guard to ensure their safety, and all unable to afford or elicit legal representation. They were arrested, are-aigned, put on trial, and found guilty in a matter of days. 30 The Court held that the trial court's failure to appoint legal counsel to the defendants upon the defendants' inability to provide counsel for themselves violated the Fourteenth Amendment Due Process Clause's right of fundamental fairness; thus, the judgments against the defendants were reversed.' The holding of Powell, if read narrowly, merely stands for the proposition that in capital cases, when the defendants are young, illiterate, and indigent, as a matter of due process, counsel must be appointed for them if they so request. 32 It was not until the case of Johnson v. Zerbst that the Supreme Court read the Sixth Amendment to unequivocally require the appointment of counsel to indigent defendants in federal criminal proceedings. 33 The Court held that "[t]he Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or 34 waives the assistance of counsel. This development in federal criminal law meant little for criminal defendants in state court. Four years after Johnson, in the case of Betts v. Brady, the Court refused to extend this mandate to state criminal proceedings, holding that the Sixth Amendment was not incorporated into the Fourteenth Amendment and thus did not apply to the states. 29 For an examination of events and issues surrounding the Scottsboro boys affair, see, e.g., GERALD HORNE, POWELL v. ALtABAA: THE SCOTTSBORO Boys AND AMERICAN JUSTICE (1997). 30 Powell, 287 U.S. at Id. at Craig Peyton Gaumer and Paul R. Griffith, Presumed Indigent: The Effect of Bankruptcy on a Debtor's Sixth Amendment Right to Criminal Defense Counsel, 62 UMKC L. REv. 277, 292 (1993). 33 Johnson v. Zerbst, 304 U.S. 458 (1938). 34 Id. at 463. The Court went on in its opinion: If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court-as the Sixth Amendment requires-by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. Id. at Betts, 316 U.S. 455 (1942).

9 20051 PAPER TIGER OF GIDEON V WAINWRIGHT The Betts case involved a defendant prosecuted for robbery. 3 6 The defendant informed the court that he was unable to afford an attorney and requested that the court appoint an attorney for him. The court denied his request because it was the practice of the county in which he was prosecuted to only appoint attorneys in rape and murder cases. 37 The Supreme Court found no violation of the Fourteenth Amendment Due Process Clause. 3 ' The Court's reasoning was that because "appointment of counsel is not a fundamental right, essential to a fair trial," it was "unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the states, whatever may be their own views, to furnish counsel in every such case." 39 The Court held that: [t]he Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel. 40 The Betts decision affirmed the double standard that had existed between state and federal courts since Powell and Johnson: indigent criminal defendants in state court did not have a right to appointment of legal counsel and were forced to represent themselves. Indigent defendants in federal court fared far better, receiving counsel at government expense, and were treated more fairly and with more dignity than those in state court. It was not until two decades later that this double standard was finally abandoned when in Gideon v. Wainwright the Court overruled Betts v. Brady. 1 The defendant in Gideon v. Wainwright was charged with breaking and entering into a poolroom with the intent to commit a misdemeanor-a felony under Florida state law. 42 Unable to 36 Id. at Id. at Id. at Compare with Justice Black's analysis in the majority opinion in Gideon v. Wainwright, 372 U.S. 335 at (explaining that the Sixth Amendment right to counsel is incorporated in the Fourteenth Amendment and why the Court in Betts was wrong in its analysis). 39 Betts, 316 U.S. at Id. at The Court in Gideon makes the observation that the two defendants in Gideon and Betts have striking similarities. Gideon, 372 U.S. at Id. at

10 504 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 3:495 afford an attorney, the defendant, Clarence Gideon, formally requested that the court appoint counsel. The trial judge replied: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. 4 3 Gideon briefly answered, "the United States Supreme Court says I am entitled to be represented by Counsel."" Although the Supreme Court observed that Gideon "conducted his defense about as well as could be expected from a layman," he was still convicted 45 and sentenced to five years in prison. 46 While serving his sentence, Gideon filed a handwritten in forma pauperis petition 47 to the United States Supreme Court asking the Court to issue a writ of certiorari to the Florida Supreme Court ordering his conviction set aside because he was denied a fair trial because of a lack of assistance of counsel. 48 The Supreme Court granted Clarence Gideon's request and later found that the Florida procedure of only appointing counsel to indigent defendants in capital cases is a violation of the Fourteenth Amendment. 49 In Gideon, the Supreme Court rejected the primary basis for the Betts decision-that representation by counsel is not "fundamental and essential to a fair trial." ' 50 The Court in Gideon repudiated Betts not only as a departure from established precedent recognizing that legal counsel was essential to the fundamental fairness of a trial, but also as establishing an irrational distinction between federal and state criminal proceedings. 51 Indeed, the Court in Gideon found that the Betts Court had "ample precedent" for recognizing that the Sixth Amendment guarantee 43 This portion of the dialogue between Gideon and the court was recited in the opinion of the Court in Gideon v. Wainwright, 372 U.S. at Id. 45 Id. 46 LEwis, supra note 4, at For a discussion of in forma pauperis petitions and new prohibitions on such petitions, see Cristina Lane, Pay Up or Shut Up: The Supreme Court's Prospective Denial of In Forma Pauperis Petitions, 98 Nw. U. L. REv. 335 (2003). 48 Gideon, 372 U.S. at Id. at Id. at Gideon at

11 2005] PAPER TIGER OF GIDEON V WAINWRIGHT of the right to appointment of legal counsel to indigent defendants applied to the states through incorporation in the Fourteenth Amendment. 52 The Court criticized Betts for ignoring precedent that had already established that the assistance of counsel was fundamental to a fair trial.1 3 The Court in Gideon proclaimed: In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. 54 Regardless of its legal reasoning, Gideon rested on those principles upon which this great country was founded. The decision was a declaration of the importance of the ideals of justice, equality, and fairness. In Gideon, the Supreme Court made it clear that justice and fairness are 52 Id. at 341. The Court's use of incorporation as the basis for extending the Sixth Amendment to the states is a marked difference from the Powell court's Due Process Clause fundamental fairness approach which asks the question of a given right is "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). A fundamental right is one deemed fundamental to all citizens of free nations. Fundamental rights are those "implicit in ordered liberty"-those that "neither liberty nor justice would exist if [they] were sacrificed." Id. at See Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., dissenting); Snyder v. Massachusetts, 291 U.S. 97 (1934) (Cardozo, J.). See Tracey L. Meares, Whats Wrong with Gideon, 70 U. CHI. L. REv. 215 (2003) (arguing that by rooting the right to counsel in state criminal proceedings in the notion that the Sixth Amendment is incorporated into the Fourteenth Amendment Due Process Clause as opposed to basing the right in an outright interpretation of the Due Process Clause using a fundamental fairness approach, the Court has lead to inflexibility in state criminal law and "risks a jurisprudence that diverges from the goal of determining what is fair in criminal justice."). Id. at 224. In Powell, the Court used a fundamental fairness approach to interpret the Due Process Clause, finding that the right to counsel was rooted in due process. See Powell v. Alabama, 287 U.S. 45, The Court's use of the notion of incorporation has continued to be the cornerstone of interpreting the right to counsel in state criminal proceedings, but legal scholars have argued that basing the right to counsel on the principle of incorporation has led to jurisprudential inflexibility. See, e.g., Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979); Michigan v. Reichenbach, 459 Mich. 109 (1998); Alabama v. Shelton, 535 U.S. 654 (2002). This inflexibility may indeed be part of the reason why the promise of Gideon has never been fully realized. 53 Gideon, 372 U.S. at Id. at 344.

12 506 CARDOZO PUB. LAW, POLICY & ETHICS J [[Vol. 3:495 not just for those people who can afford them. Every person in our society, whether rich or poor, is entitled to fairness in a court of law. Representation by counsel is integral to that fairness. The Supreme Court declared that in our society, a man should be judged in court not based upon how much money he has but rather on the evidence and law. 55 A year after Gideon, in the case of Escobedo v. Illinois, the Supreme Court considered the question of whether "the refusal by the police to honor petitioner's request to consult with his lawyer during the course of an interrogation constitutes a denial of 'the Assistance of Counsel,"' thereby making any incriminating statements made during such interrogation inadmissible. 56 The case did not involve appointment of legal counsel, but rather the failure of the police to allow the defendant to have the assistance of his retained counsel. 57 The Court held that statements made during interrogation, after a suspect has requested an attorney, are in violation of the right to counsel recognized in Gideon. 58 The Court reasoned that the admission of such statements would make the right to counsel useless since counsel may not be able to undo the harm done to the defendant's case during such a "critical stage" as interrogation. 59 The decision in Escobedo indicates that the Supreme Court at the time of Gideon was committed to strengthening the right to counsel, thereby ensuring that the legal system would not benefit from the denial of that right. 6 In 1972 the Supreme Court in Argersinger v. Hamlin 6 announced the new rule that the right of indigent defendants to appointment of 55 The Court in Gideon quoted Powell: If charged with crime, he [the layman] is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. Gideon, 372 U.S. at 345 (quoting Powell, 287 U.S. at 68-69). 56 Escobedo, 378 U.S. 478, 479 (1964). 57 Id. at Id. at Id. See infra Part Jl.B. 60 In Escobedo, the defendant made an incriminating statement to the police during interrogation. Although made voluntarily, it was made after his request to consult with counsel had been refused. The Court held that the statement was inadmissible at trial, as it was garnered in violation of the defendant's right to counsel. Escobedo, 378 U.S. at Argersinger v. Hamlin, 407 U.S. 25 (1972).

13 2005] PAPER TIGER OF GIDEON V WAINWRIGHT counsel was no longer limited to felony prosecutions. The Court in Argersinger extended the right to appointment of legal counsel to indigent defendants in misdemeanor cases so long as actual imprisonment will result after conviction. 62 The Argersinger Court found that although the defendants in Powell and Gideon were charged with felonies, the rules from those cases were relevant to misdemeanor prosecutions "where an accused is deprived of his liberty." 6 3 The Court in Argersinger recognized that "the requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution. ' "64 The Court held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." '65 By abandoning the distinction between felonies and misdemeanors as the determining factor in whether an indigent defendant has the right to appointment of counsel and replacing it with a standard that looks only to whether the defendant will suffer a deprivation of liberty if found guilty, the Supreme Court again chose to strengthen and extend the right to counsel. In Scott v. Illinois, decided in 1979, the Supreme Court, in an opinion written by Justice Rehnquist, affirmed "the central premise of Argersinger that actual imprisonment is... the line defining the constitutional right to appointment of counsel." 66 As in Argersinger, the defendant was charged with a petty offense-imprisonment was a possible, but not necessary, consequence of conviction. 67 The Court held that "the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." 68 The Court in Scott, however, declined to extend the Sixth Amendment right to counsel to defendants who were not in fact imprisoned. 69 If there is only the 62 Id. at Id. at Id. at Id. at Scott v. Illinois, 440 U.S. 367, 373 (1979). 67 Id. at 368. The defendant "was convicted of shoplifting merchandise valued at less than $150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine or one year in jail, or both." Id. 68 Id. at Id at 369.

14 508 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 "threat of imprisonment," or if imprisonment may occur only if a condition (such as paying a fine) is not met, then the actual imprisonment standard is not satisfied. 70 Under this framework, a defendant could ultimately be imprisoned after being forced to proceed without counsel, merely because the realized imprisonment was conditional. 7 ' Three recent cases addressing the right to counsel have shown both positive and negative developments in the plight of indigent defendants for adequate representation in the criminal justice system. Texas v. Cobb, decided in 2001, involved a defendant who had been indicted on burglary charges who subsequently freely confessed to murder committed during the commission of that burglary. 72 The Court held that this confession had not been taken in violation of the defendant's right to counsel as the right to counsel had not attached to that uncharged but factually related offense. 73 In Cobb, the Supreme Court limited the right to counsel, holding "that the Sixth Amendment right [to counsel] is 'offense specific,"' meaning that the right to counsel only attaches to the charged offense. 74 The Court held that the right to counsel attaches to uncharged offenses only if those offenses are essentially the same as the offense with which the defendant has been charged; 75 thus, the right 70 Id. at 373; see Michigan v. Reichenbach, 459 Mich. 109, 120 (1998). In Reichenbach, the threat of imprisonment if the defendant failed to pay a fine failed to constitute "actual imprisonment" under Argersinger. Id. 71 See Adam D. Young, An Analysis of the Sixth Amendment Right to Counsel as It Applies to Suspended Sentences and Probation: Do Argersinger and Scott Blow a Flat Note on Gideon " Trumpet?, 107 DICK. L. REv. 699 (2003) (arguing that "those courts interpreting Argersinger and Scott as drawing a definite line of Sixth Amendment protection at actual imprisonment undermine the protections afforded a criminal defendant and, further, the 'actual imprisonment' standard has proven difficult to define and apply," and concluding that "the only logical way out of this judicially created Sixth Amendment quagmire is to raise the constitutional minimum protection and require appointment of counsel in all criminal proceedings where imprisonment is an authorized penalty.") Id. at Texas v. Cobb, 532 U.S. 162, (2001). In Cobb, the defendant, upon further questioning by the police in regards to the disappearance of the occupants of the house he was charged with burglarizing, confessed to the murder of the mother and child who lived in the house. Id. 73 Id. at Idat 164 (citing McNeil v. Wisconsin, 501 U.S. 171 (1991)). See Angela Henson, Now You Have It, Now You Don't: The Sixth Amendment Right to Counsel After Texas v. Cobb, 51 CATH. U. L. REv. 1359, 1361 (2002) (examining Cobb and arguing that recent Supreme Court cases indicate "a trend of favoring law enforcement goals, while limiting the protection of the constitutional right to counsel."). 75 Cobb, 532 U.S. at The Court held that the determination of whether an uncharged offense is the same offense as the charged offense to which the right to counsel had attached is controlled by the test articulated by the court in Blockburger v. United States, 284

15 20051 PAPER TIGER OF GIDEON V WAINWRIGHT to counsel does not attach to crimes that are merely "factually related" to the charged offense. 76 In 2002 the United States Supreme Court in Alabama v. Shelton 77 meaningfully expanded the right of indigent defendants to counsel. The Court held that where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. 78 Such activation is barred because the conviction would then satisfy the Argersinger "actual deprivation" of liberty standard, and being an uncounseled conviction, imprisonment would violate the Sixth Amendment. 79 The holding in Shelton closed a pervasive loophole in the "actual imprisonment" standard by disallowing a probation violation to result in imprisonment when the accused, for whatever reason, was denied counsel at trial. In 2003, in Tesmer v. Granholm, the United States Court of Appeals for the Sixth Circuit struck a blow for the right of indigent defendants to counsel. In Tesmer, the Sixth Circuit heard challenges to the constitutionality of the Michigan practice of denying appellate counsel following plea-based convictions, and the statute that codified the prac- U.S. 299 (1932). "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at Cobb, 532 U.S. at U.S. 654 (2002). 78 Id. at See, e.g., Argersinger v. Hamlin, 407 U.S. 25 (1972). See also Nichols v. United States, 511 U.S. 738 (1994) (holding that a prior uncounseled misdemeanor conviction could be used to convert a subsequent misdemeanor into a felony leading to incarceration); Ralph Ruebner, et al., Shaking the Foundation ofgideon: A Critique ofnichols in Overruling Baldasar v. Illinois, 25 HOFSTA L. REV. 507 (1996) (arguing that the Supreme Court incorrectly decided Nichols and that it was a departure from the flow of Sixth Amendment jurisprudence); Michael J. Stacchini, Nichols v. United States: Narrowing the Sixth Amendment Guarantee to Counsel, 75 B.U. L. Ruv (1995) (criticizing the decision in Nichols and offering a proposal that balances concerns for reliability against the rationales for enhancement statutes).

16 510 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 tice.8 The court in Tesmer held that the Michigan law regulating the appeals process created "unequal access" even at the first tier of appeals, and that "the effect [of the system] is to create a different opportunity for access to the appellate system based upon indigency."' The court found this law to be a violation of the due process clause of the Fourteenth Amendment. 82 Overall, there has been an important shift towards greater effectiveness and meaning in the representation afforded to indigent defendants. Despite this shift, cases like Cobb 8 3 continue to undermine the Sixth Amendment right. Although Cobb is not confined to indigent defense, that case exhibits a denial of assistance of counsel to accused persons who may already have counsel appointed to them. Under Cobb, an accused has no protection against the police eliciting confessions or other inculpatory evidence from them, even if they have counsel, so long as the offense they are investigating is not essentially the same offense. 84 Obviously this is a very narrow exception. Yet with Shelton and Tesmer, we see positive developments towards granting indigent defendants greater constitutional protections. Shelton eliminated the threat of backhanded incarceration to indigent defendants. 85 Before Shelton, an indigent defendant could have been denied counsel at trial because there was no actual threat of deprivation of liberty from being judged guilty, only to later have the state use that very lack of assistance of counsel to imprison the defendant if 80 Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003). See infra Part II.C F.3d at 701. The court is Tesmer inferred from prior Supreme Court decisions that "appellate processes must be fair and may not be implemented in a manner that discriminates based on indigency." Id. at Id. at Texas v. Cobb, 532 U.S. 162 (2001). 84 The Sixth Amendment right to counsel attaches to both charged and uncharged offenses that are "the same offense" under the Blockburger test which requires an examination into whether the two charges require the same evidence to prove their elements. Id. at If the two charges require different evidence, although they may arise from a single transaction or set of events, the Sixth Amendment right to counsel while attaching to the first charge, does not at the same time attach to the second charge, making it possible for police to interrogate a suspect on the second charge without the presence of an attorney. Id. at Alabama v. Shelton, 535 U.S. 654 (2002). Alabama maintained the position that a suspended sentence based on an uncounseled conviction could be imposed on a criminal defendant for punishment for probation violations. Id. at 661. The Supreme Court held that this position was untenable according to the Sixth Amendment, "[a] suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense." Id. at 662.

17 20051 PAPER TIGER OF GIDEON V WAINWRIGHT any condition of probation were violated. 86 With Tesmer, the Sixth Circuit proclaimed that indigent defendants must have a right to counsel on appeal, even if they were convicted based on a guilty plea. 87 The Sixth Circuit has sent a message to state courts that they cannot use guilty pleas elicited from an indigent accused as an end-run around the right to appointment of counsel. In the effective assistance line of cases, we also see new positive developments. B. Right To Effective Assistance of Counsel The Supreme Court's interpretation of the right to effective assistance of counsel has an undeniable impact on the quality of service that indigent defendants receive from court-appointed counsel. There is little incentive for a public defender to provide services above and beyond the constitutional mandate. 88 Where both the right to counsel and effective assistance lines of cases impact the services that indigent defendants receive, the two lines of cases in combination provide a comprehensive framework that obligates the states to provide certain services in specific instances, and allows them the discretion to provide services in others, based on state laws and local preferences. In McMann v. Richardson, the Supreme Court held that the right to counsel presumes the right to effective counsel. 89 Over a decade later in Strickland v. Washington, the Court explained the rationale behind this conclusion: The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair An indigent defendant without counsel, and thus without the benefit of a greater knowledge of the law and tools of legal argument, would then in a sense later be imprisoned because of this lack of sophistication. 87 Tesmer, 333 F.3d 683. The court found that the Michigan statute denying appellate counsel to indigent criminal defendants on appeals on plea-based convictions violated the Due Process Clause of the Fourteenth Amendment and provided unequal access to the appellate system for indigent defendants. Id. at This is obviously true in light of the lack of funding the public defenders' offices receive and the low pay scales of public defenders. See infra Part II.D. 89 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). 90 Strickland v. Washington, 466 U.S. 668, 685 (1984). See William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 WM. & MARY BILL RTs. J. 91 (1995) (arguing that the Strickland decision functioned to undermine the

18 512 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 The Court in Strickland held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 9 ' A conviction will be overturned, if. (1) "that counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." 92 The second component requires a showing that the defendant did not receive a fair trial due to the deficiency in counsel's performance. Counsel is held to the standard of "reasonably effective assistance." '94 However, when scrutinizing counsel's performance, a strong rule of deference must be followed and the performance is judged based on the facts of the case and the time in which the contested conduct took place. 9 Prejudice is assumed in situations where assistance of counsel was completely denied, where there was certain state interference with counsel's assistance, and when counsel has the burden of a conflict of interest. 6 The Court in Mickens v. Taylor recognized that Strickland stood for the proposition "that assistance which is ineffective in preserving fairness does not meet the constitutional mandate." 97 The Court in Mickens also acknowledged that Strickland established that "defects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation." '98 A defendant alleging a Sixth Amendment violation must demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have holding of Gideon v. Wainwright, providing a system of assistance of counsel that endorses form over substance). 91 Strickland, 466 U.S. at Id. at 687. See Donald A. Dripps, Criminal Law: Ineffective Assistance of Counsel The Case for An ExAnte Parity Standard, 88 J. CRiM. L. & CRIMINOLOGY 242 (1997) (critiquing Strickland and proposing an ex ante parity standard as an alternative to the current framework which would ask before proceedings began whether the defendant's counsel could effectively represent him). 93 Strickland, 466 U.S. at Id. 95 Id. at Justice Marshall's dissent is illuminates the problems with the Court's approach in Strickland. See id at Id at 692. In Smith v. Robbins, the Supreme Court held that Strickland applies to claims by indigent defendants of ineffective assistance of appellate counsel as well. Smith v. Robbins, 528 U.S. 259, 289 (2000). See also, Christopher Stogel, Smith v. Robbins: Appointed Criminal Appellate Counsel Should Watch for the Wende in Their Hair, 31 Sw. U. L. REv. 281 (2002) (examining the Robbins decision and arguing that the problem the procedure adopted in Robbins was created to solve continues to exist). 97 Mickens v. Taylor, 535 U.S. 164, 166 (2002) (citing Strickland, 466 U.S. at ). 98 Id. at 166 (citing Strickland, 466 U.S. at 694).

19 2005] PAPER TIGER OF GIDEON V WAINWRIGHT been different,"' however, "where assistance of counsel has been denied entirely or during a critical stage of the proceeding," there does not need to be a showing of probable effect upon the outcome of the case. 99 The evidentiary difficulties of showing a reasonable probability that counsel errors changed the outcome of the case compounded by the extreme deference that judges show to counsel's performance, make proving the first prong of Strickland almost impossible. 1 "' Thus, a presumption of prejudice is a vital mechanism for vindicating the rights of defendants. The Supreme Court in United States v. Cronic described three broad categories of circumstances within which prejudice is presumed in ineffective assistance cases.' 1 The first is when the defendant is completely denied counsel.' 0 2 The second is when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. "103 The last is when counsel must render assistance in circumstances under which any competent counsel most likely could not do so.' 0 4 Thus, if the ineffective assistance claim alleges conduct by counsel that falls under one of these three categories, the appellant does not have to prove prejudice in order to sustain the claim. Cronic makes bringing an effective assistance claim easier for those appellants who are alleging such conduct; however, in the later case of Bell v. Cone, the Court refuses to make the second exception meaningful by interpreting it narrowly. 1 5 Claims of ineffective assistance are difficult to bring on direct appeal; thus, collateral review is the primary means by which such claims are heard Direct appeal is usually conditioned upon an objection being made at trial or the trial record clearly reflecting the grounds for 99 Mickens, 535 U.S. 164 at "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. "There are countless ways to provide effective assistance in any given case." Id. 101 United States v. Cronic, 466 U.S. 648 (1984). Cronic was decided on the same day as Strickland. 102 Id. at 659. In such instances it is assumed that complete denial of counsel at a critical stage is automatically prejudicial to the defendant's case and renders the trial unfair. Id. 103 Id. 104 Id. at The Court cited Powell v. Alabama as an example of one such case. See infra pp See infra discussion of Bell v. Cone pp See, e.g., United States v. Sevick, 234 F.3d 248, 251 (5th Cit. 2000) (denying direct review because the claim was not addressed by the district court and the record was not developed sufficiently); United States v. Osorio-Pena, 247 F.3d 14, 20 (1st Cit. 2001) (holding that the record was not sufficiently developed to hear claim so issue must be raised in a habeas petition); Matheney v. Anderson, 253 F.3d 1025, 1040 (7th Cir. 2001) (refusing to hear ineffective assistance claim as record not adequate to properly evaluate the claim).

20 514 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 the claim.' 7 In addition, state prisoners alleging ineffective assistance must exhaust all state processes before federal courts will hear the case on habeas review. Compounding the difficulty of bringing a claim, a public defender cannot argue on appeal the ineffectiveness of trial counsel if that counsel is another member of his own public defender office.'o 8 Strickland and its progeny set a very low minimum as to what is required for appointed attorneys in order for assistance to be deemed effective. Had the Supreme Court set a more stringent standard for effective assistance, state governments would have to set aside substantially larger amounts of resources to fund indigent defense services. 0 9 As with the right to counsel line of cases, the developments in the effective assistance line of cases have been both positive and negative. In 2002, the Supreme Court, in Bell refused to extend the holding of United States v. Cronic and interpreted the prejudice standard under Strickland to apply very broadly. " 0 From the holding in Bell, it is evident that the situations in which prejudice is presumed are extremely narrow; indeed, the attorney's performance must be an entire and complete failure in order for Strickland not to apply."' The Court in Bell held that under Cronic, in order for prejudice to be presumed, the attorney must have completely failed to test the prosecutor's case. 1 2 The respondent in Bell alleged that his attorney failed completely to present mitigating evidence at sentencing, and the Court held that this did not 107 See, e.g., United States v. Gonzalez-Airmont, 268 F.3d 8, 13 (1st Cir. 2001) (hearing claim on direct appeal because no critical facts in dispute and record sufficiently developed); United States v. Gambino, 788 F.2d 938, 951 (3d Cir. 1986) (holding that the claim was supported by allusions to a potential conflict of interest in memoranda filed in support of a Rule 33 motion); United States v. Finley, 245 F.3d 199, 204 (2d Cir. 2001) (hearing the claim because defendant was represented by new counsel on appeal and each ground argued was supported by the record); United States v. Gwiazdzinski, 141 F.3d 784, 789 (7th Cir. 1998) (hearing the claim because appellant had new counsel and record was sufficiently developed). 108 See Com. v. Bond, 819 A.2d 33, (Pa. 2002) (holding that as a general rule a public defender could not argue this as in essence he would be asserting a claim of his own ineffectiveness). 109 See Richard Klein, Symposium, Gideon-A Generation Later: The Constitutionalization of Ineffective Assistance of Counsel, 58 MD. L. REv (1999). 11o Bell v. Cone, 535 U.S. 685 (2002) (holding that petitioner's ineffective assistance claim was governed by Strickland as it challenged specific aspects of counsel's representation at sentencing, not its assistance as a whole). ' '' See id. at Id. at

21 2005] PAPER TIGER OF GIDEON V WAINWRIGHT 515 satisfy the complete failure standard-the failure must be complete during the entire proceeding.' 3 In 2003, the United States Supreme Court, in Glover v. United States, held that an increase in the length of a prison sentence constitutes prejudice for the purposes of the Strickland standard." 4 The Court found that the increase in prison term does not have to be significant in order to constitute prejudice; any increase in sentence satisfies prejudice. 115 That same year, the Sixth Circuit Court of Appeals in Frazier v. Huffman held that the failure of petitioner's counsel to investigate and present evidence of the client's brain impairment, did not comport with the behavior of a reasonable competent attorney. 1 6 The court arrived at this conclusion after learning that counsel was aware of the impairment but simply failed to investigate the matter or present evidence regarding it as a mitigating factor during the defendant's penalty phase. The failure to act as a reasonable competent attorney satisfies the first prong of the Strickland test.' 17 Also in 2003, in French v. Jones, the Sixth Circuit Court of Appeals held that petitioner was entitled to habeas relief after showing that he was denied counsel during a critical stage of his trial.' 18 Denial at a critical stage is presumptively prejudicial to the defendant's case. 1 9 ' In French, the defendant's counsel was not present when the trial judge gave the deadlocked jury a supplemental instruction. 12 The United States Supreme Court has since denied certiorari in the case Id; see Stuart E. Walker, "What We Meant Was. The Supreme Court Clarifies Two Ineffective Assistance Cases in Bell v. Cone, 54 MERCER L. REv. 1271, 1272 (2003) (examining Bell v. Cone in depth and arguing that the case "solidifies the practical difficulty of obtaining federal habeas corpus relief for ineffective assistance claims."). 114 Glover v. United States, 531 U.S. 198 (2003). The petitioner argued that the ineffective assistance resulted in an increase of his prison sentence by at least six months, possibly up to twenty-one months. Id. at Id. at Frazier v. Huffman, 343 F. 3d 780, 794 (6th Cir. 2003). Because the state court failed to show "any reason to explain or justify such a trial strategy," the behavior was not found to be that of the reasonably competent attorney. Id. at The petitioner must then show with reasonable probability that but for counsel's failure, the result of the sentencing phase would have been different. Id. 118 French v. Jones, 332 F.3d 430, 432 (6th Cir. 2003). While counsel was not altogether denied, because counsel was completely denied at that specific phase of the proceedings, it falls within one of the exceptions to the Strickland test and prejudice is presumed. Id. at Id at Id. at French v. Jones, 332 F.3d 430 (6th Cir. 2003), cert. denied, 124 S. Ct. 581 (2003).

22 516 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 3:495 Despite the disappointing holding of Bell,' 22 the overall objective of effective assistance of counsel is being further realized. While the Supreme Court, in Bell, refused to expand the circumstances under which prejudice would be presumed under Strickland, and indeed set an abysmally low minimum for effective assistance, Glover' 2 3 was an important step in the right direction. That any increase in the prison term resulting from the lack of assistance constitutes prejudice makes it easier for indigents to obtain a meaningful appeal of their convictions. 124 Frazier has a significant impact for those indigent defendants whose attorneys shirked their duties during the penalty/sentencing phase of the defendant's trial by failing to investigate and present mitigating evidence, which may have resulted in shorter lengths of incarceration. 125 Under Frazier, such indigent appellants (in the Sixth Circuit) will more easily satisfy the Strickland test and thus have more meaningful appeals with a greater chance of reversal. With French, the Sixth Circuit again chose to bolster the protections within the effective assistance jurisprudence. 126 With the aforementioned cases, it is evident that the Sixth Circuit'has, *overall, made commendable efforts to strengthen the protections afforded to indigent defendants and appellants. This recent trend in cases indicates that the tide may be changing in the United States towards providing greater assistance and protections to indigent criminal defendants. If this is indeed the case, and values and sentiments in this country are changing towards providing indigent 122 Bell, 535 U.S. 685 (2002). 123 Glover v. United States, 531 U.S. 198 (2003). 124 Id. at The Supreme Court remarked that "it is clear that prejudice flowed from the asserted error in sentencing." Id. at 204. This "asserted error" was an increase in his prison sentence ranging from an additional six to twenty-one months. Id. at 202. The Court also asserted that "authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance." Id. at Frazier v. Huffman, 343 F.3d 780 (2003). The court found that there was no rational trial strategy for the petitioner's counsel to fail to present evidence of a brain impairment as mitigating circumstances during the sentencing phase and instead to rely on residual doubt to spare his client's life, when residual doubt was not a mitigating factor under Ohio law. Id. at This was not a strategic choice allowed under Strickland because no reasonable attorney would have acted as such. Id F.3d 430 (2003), cert. denied, 24 S.Ct. 581 (2003). The court in French v. Jones recognized that the Supreme Court has repeatedly held that "absence of counsel during a critical stage of a trial is per se reversible error." Id. at 438. The court held that because the petitioner was denied counsel during a supplemental jury instruction by the trial court judge, he was indeed denied counsel during a critical stage of trial and thus under Strickland, petitioner did not have to show actual prejudice. Id. at

23 20051 PAPER TIGER OF GIDEON V WAINWRIGHT defendants with more meaningful representation and access, then there is no better time for the Supreme Court to step in and both strengthen and raise the Constitutional bar for these rights. PART II State governments, through their funding practices for public defender offices, methods of obtaining court-appointed counsel, and interpretation and limitations of Gideon v. Wainwright and its progeny, are unconstitutionally depriving indigent defendants of their rights both to court-appointed counsel and effective assistance of counsel. An indepth examination of the policies and laws of a number of states makes this apparent. While the United States Supreme Court has laid down certain criteria that must be met in order to satisfy the Sixth Amendment, it has deliberately given the states broad discretion to fashion laws and policies to effectuate the overall goals of fair trials and effective assistance. State legislatures are free to provide greater protections to indigent defendants than the Supreme Court mandates, but the majority of states have elected not to do so Because the right to counsel is integral to whether a defendant receives a fair trial and thus to whether we can say his liberty has been taken from him in a fair manner, we cannot allow states to limit this right in such a way as to de facto deprive defendants of a fair trial. The States have not answered Gideon 's call-it is time that they be required to do so. I. STATE LAWS AND POLICIES A. Determination of Indigency Courts do not merely take the defendant's word that he is indigent and therefore require state-appointed counsel. Upon a request for appointment of counsel, it is the court's duty to make further inquiry or to conduct a hearing to determine whether the defendant is in fact indi- 127 Federal law establishes a minimum right to counsel with which states must comply, however, states may establish a broader right to counsel than the one created by federal law. It is a well-established principle in other areas of law that states may provide greater protection than federal law mandates. See, e.g., Oregon v. Hass, 420 U.S. 719 (1975) (permitting the state to be more restrictive of police activity); Cooper v. California, 386 U.S. 58 (1967) (finding the state may provide greater protection against search and seizure); Sibron v. New York, 392 U.S. 40 (1968) (finding that the state may adopt rules to meet local needs so long as Constitutional protections are not trenched upon).

24 518 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 gent and entitled to representation at state expense. 128 Despite the importance of independent inquiry into the defendant's actual inability to pay for legal services, those defendants claiming indigency are not refused counsel until the court can make an official determination. Courts have held that an indigency determination cannot be expected to be made at the time the defendant enters his initial plea, thus the public defender should provide interim services if the determination of indigency cannot be made before services are first needed. 129 The burden to prove indigency most often lies with the defendant asserting his right to appointment of legal counsel.'13 In all states, two conditions must be met in order for a state criminal defendant to qualify for court-appointed counsel. First, the defendant must be found to be indigent-he must be unable to pay private counsel to represent him. 31 The burden of proof is usually on the defendant to show that he is financially unable to afford to hire private counsel. 132 Second, the defendant must be facing actual imprisonment if convicted of the crime. 33 Even if determined to be indigent, some state statutes require those receiving public defender services to pay a nominal sum for those services.1 34 Federal courts have not established any "precise constitutional standard of indigence."' 135 However, in dicta, the Supreme Court has dis- 128 See, e.g., State v. Melechinsky, 451 A.2d 585 (Conn. 1982); State v. Dean, 471 N.W.2d 310 (Wis. 1991). 129 See, e.g., Lager v. Pittman, 140 Ohio App. 3d 227 (Ohio Ct. App. 2000). 130 See, e.g., State v. De Joseph, 222 A.2d 752 (Conn. 1966), cert. denied, 220 A.2d 771 (Conn. 1966), cert. denied, 385 US 982 (1966) (finding defendant had the burden to prove indigency and absent proof, the trial court could constitutionally refuse to appoint him counsel); Martin v. State, 711 So.2d 117 (Fla. Dist. Ct. App. 1998) (holding defendant bore the burden of proof in determining indigency); Commonwealth v. Godwin, 804 N.E.2d 940 (Mass. App. Ct., 2004) (deciding defendant had the burden of substantiating claim of indigency); State v. Hilgers, 2004 WL (Aug. 4, 2004) (discussing defendant's failure to satisfy his burden of demonstrating indigency). 131 See, e.g., People v. Scott, 68 Ill. 2d 269 (1977); Alaska Public Defender Agency, Juneau Office v. Superior Court of First Judicial Dist, 584 P.2d 1106 (Ala. 1978). 132 See, e.g., In re Stuart, 646 N.W.2d 520, 526 (Minn. 2002). 133 See, e.g., Scott, 68 Ill. 2d 269; Alaska Public Defender Agency, 584 P.2d See, e.g., State v. Cunningham, 663 N.W.2d 7 (Minn. Ct. App. 2003) (finding that a statute requiring those receiving public defender services to make a twenty-eight dollar co-payment did not violate the defendants' Constitutional right to counsel). 135 Gaumer and Griffith, supra note 32, at 288 (citing Hardy v. United States, 375 U.S. 277 (1964))("[arguing] that criminal courts should incorporate the operation of bankruptcy law as part of their inquiry into whether a debtor accused of a crime should have court-appointed counsel." Gaumer and Griffith, supra note 32, at ).

25 2005] PAPER TIGER OF GIDEON V WAINWRIGHT cussed the issue of indigence and has explained that indigence is "a relative concept. An impoverished accused in not necessarily one totally devoid of means."' 36 In a concurring opinion in Hardy v. United States, 37 Justice Goldberg reasoned that courts should "look at the totality of the accused's financial circumstances to arrive at an accurate assessment of the accused's ability or disability to fund his own criminal defense."' 138 This test does not look so much at whether the defendant is in fact indigent, i.e., poor, but rather, "whether the defendant, whatever his net worth, lacks the ability to finance a proper defense."139 The Criminal Justice Act of 1964 sets out guidelines for federal courts in determining a defendant's indigence. 40 Many states have adopted similar indigence tests."' Indigence is not synonymous with a financial inability to pay, which is actually what concerns the courts.' 42 A person can have the financial inability to retain counsel although he is not indigent. 4 3 "If a person cannot gain access to his assets, he cannot finance his criminal defense." 1 44 It is this inability to finance one's criminal defense that entitles a defendant to appointment of counsel. Thus, some states have adopted standards of indigence that pose the question of not just whether a defendant is poor, but whether "the defendant has the 'financial ability to pay' for his defense."' 14 5 However, some argue that this 136 Id. at (citing Hardy v. United States, 375 U.S. 277, 289 n.7 (1964) (Goldberg, J., concurring)). 137 Hardy, 375 U.S Gaumer and Griffith, supra note 32, at Id U.S.C A (2004). 141 Gaumer and Griffith, supra note 32, at 294. Among these states are Arizona, California, Delaware, Florida, and Hawaii, Iowa, and Tennessee which have all have adopted a "financial inability to pay" standard not unlike that in the Federal Criminal Justice Act. Id. at n Id. at 295 (citations omitted). 143 Id. The definition of indigence is poverty or neediness. THE AMERICAN HERITAGE Dic- TIONARY OF THE ENGLISH LANGUAGE, (4th ed. 2000). 14, Gaurner and Griffith, supra note 32, at Id. (citing State v. McGonigle, 440 P.2d 100 (Ariz. 1968) ("using the standard of ready availability" of assets); In re Van Brunt, 242 Cal. App. 2d 96 (Cal.Dist. Ct. App. 1966) (utilizing the standard of financially unable to employ attorney); Potter v. State, 547 A.2d 595 (Del. 1988) (using the standard of unable to obtain legal counsel without impairing economic necessities of life); Sapio v. State, 223 So. 2d 759 (Fla. Dist. Ct. App. 1969) (determining whether the defendant personally has the means to hire representation); State v. Mickle, 525 P.2d 1108 (Haw. 1974) (utilizing the rule of financially unable to obtain counsel without hardship); Pharris v. State, 424 P.2d 390 (Idaho 1967) (using the standard of unable to obtain counsel because of his indigence); People v. Morrison, 449 N.E.2d 859 (Ill. App. Ct. 1983) (inquiring into

26 520 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 more sophisticated standard does not suffice to ensure that those who are truly unable to pay for their own defense services are in fact appointed counsel by the court. The argument has been made that to better effectuate this "financial inability to pay" standard, courts "should incorporate the operation of bankruptcy law as part of their inquiry into whether a debtor accused of'a crime should have court-appointed counsel" as the federal bankruptcy law operates to deprive a debtor of the ability to access his assets and thus fund his own defense Indigence tests often take various factors into account in order to determine a financial inability to pay. The court weighs such factors as employment, ownership of a home or an automobile, value of convertible assets, and other such factors that comprise a defendant's financial situation In 1963, a Florida court held that whether a defendant was indigent depended not upon whether the defendant's friends, relatives, or spouse were able or even willing to provide funds, but rather, whether the defendant himself personally had the means, or the property which could be converted to means, to employ a private attorney. 148 Some courts have held that if a defendant faces the prospect of awaiting trial in jail because he cannot afford to post bond, a public defender should defendant's lack of financial resources on practical basis); Graves v. State, 503 N.E.2d 1258 (Ind. Ct. App. 1987) (using the standard which asks whether the defendant lacks financial resources to fund his defense); State v. Woodyard, 414 N.W.2d 654 (Iowa App. 1987); Baldwin v. State, 444 A.2d 1058 (Md. Ct. Spec. App. 1982), cert. denied, 474 A.2d 218 (Md. 1984) (inquiring into the defendant's financial ability given nature, extent and liquidity of assets); People v. Kanouse, 350 N.W.2d 760 (Mich. Ct. App. 1984) (examining the defendant's inability to retain counsel); State v. Eichelberger, 418 N.W.2d 580 (Neb. 1988) (inquiring into the availability of defendant's resources); State v. Dale, 439 N.W.2d 112 (S.D. 1989) (utilizing the standard of lack of financial resources); State v. Henry, 733 S.W.2d 127 (Tenn. Crim. App. 1987) (examining the defendant's lack of financial resources). 146 Gaumer and Griffith, supra note 32, at See, e.g., In re Smiley, 427 P.2d 179 (Cal. 1967) (finding that indigency determined on basis of complete financial picture, including consideration of factors such as the number and age of his dependents, any child support or alimony, the extent and nature of the defendant's outstanding debts, and encumbrances on his home or car); Di Bartolomeo v. State, 450 So. 2d 925 (Fla. Dist. Ct. App. 1984) (holding that factors such as the accused's weekly income, number of dependents, amount of debts owed, debts that might be incurred due to illness or other family misfortune, and probable expense of defending case should be considered in determining indigency); State v. Dale, 439 N.W.2d 112 (S.D. 1989) (finding that in determining indigency, the trial court should require the accused to furnish information regarding bank accounts, bonds, income and the ability to borrow money, interest accrued on accounts, employment benefits, pensions, inheritances and pending claims, real and personal property owned, outstanding debts and encumbrances, number and age of dependents, fines and restitution, living expenses, etc.). 148 Keur v. State, 160 So. 2d 546, 549 (Fla. Dist. Ct. App. 1963).

27 20051 PAPER TIGER OF GIDEON V WAINWRIGHT be appointed, regardless of whether that defendant meets typical indigency standards or faces actual imprisonment.' 4 9 It is also worth mentioning that the right to counsel is not the right to counsel of one's choice. Thus, while a defendant may be determined indigent and a public defender is appointed to represent him, the defendant has no voice in who this attorney will be." 5 B. When the Right to Counsel Attaches The United States Supreme Court has held that the Sixth Amendment right to counsel attaches upon the commencement of criminal proceedings against the defendant-at the time that the defendant is formally charged. 15 ' The Supreme Court has repeatedly held that a defendant has the right to counsel once he has reached a "critical stage" of the proceedings against him. 152 What constitutes a critical stage can vary from jurisdiction to jurisdiction. Hamilton v. Alabama, held that a critical stage was at the arraignment, during which a defense of insanity, pleas of abatement, and motions regarding the improper choosing of jurors must be made.' 53 Arraignment was deemed critical as certain defenses and pleas, if not made at that time, could be forever lost to the defendant. 54 In White v. Maryland, the Supreme Court held that the preliminary hearing was as critical a stage in Maryland criminal procedure as arraignment was in Alabama criminal procedure, and thus, the right to counsel attached at that point in the proceedings against the defendant. 155 While these two cases interpreted the critical stage differently under Maryland and Alabama criminal procedure, the standard that emerges is the critical stage, the point at which a defendant, by his 149 See, e.g., Hardy v. State, 776 So. 2d 962 (Fla. Dist. Ct. App. 2000). 150 See, e.g,, People v. Stroble, 226 P.2d 330 (Cal. 1951), aff'd, 343 U.S. 181 (1952), rehg denied, 343 U.S. 951 (1952); Allsup v. State, 550 S.E.2d 425 (Ga. Ct. App. 2001); People v. Simeone, 282 P.2d 971 (Cal. Dist. Ct. App. 1955). 151 See, e.g., McNeil v. Wisconsin, 501 U.S. 171 (1991). 152 Hamilton v. Alabama, 368 U.S. 52, (1961). 153 Id. at Because the Court found that "what happens there [during arraignment] may affect the whole trial" and that during arraignment "[a]vailable defenses may be as irretrievably lost, if not then and there asserted," the Court held that defendants must have assistance of counsel during that proceeding. Id. at Id. 155 White v. Maryland, 373 U.S. 59, (1963). This stage was critical because during the preliminary hearing, the defendant enters a plea, and without the assistance of counsel, this plea cannot be entered intelligently and may harm his case irrevocably once counsel is later appointed. Id.; see also United States v. Wade, 388 U.S. 218 (1967) (holding that an indigent defendant is entitled to appointed counsel at a post-indictment, pre-trial lineup).

28 522 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 lack of legal knowledge, could irrevocably damage his case through a plea entered or defenses not asserted. Because the Court has interpreted the attachment of the right to counsel at different stages under the criminal procedure rules of different states, there is room for debate about what constitutes a critical stage. In addition, there can be delay between the attachment of the right to counsel and the rendering of that counsel to defendants Some have argued that the critical stage doctrine has altogether failed to guarantee the constitutional right to counsel and should be abandoned for a standard that would promote the basic ideals of the Sixth Amendment C. When Right to Counsel Ceases Various states have enacted laws that determine when an indigent defendant's right to appointed counsel ceases. States are free to give a broader right to counsel than the Constitution mandates, but many have not gone beyond the constitutional requirements. If the laws of a state give a convicted criminal defendant the right to an appeal, then that appellant has a right to counsel on that appeal. 158 If an appellant is indigent, and the appeal is not frivolous, then the appellate court must appoint counsel to the indigent to argue the appeal The Court in 156 See Merea L. Beeman, Fulfilling the Promise of the Right to Counsel- How to Ensure that Counsel is Available to Indigent Defendants 1) Upon Questioning Following Arrest and 2) Following Probable Cause Determination and Awaiting Indictment, 27 NEW ENG J. ON CraM. & Civ. CONFINEMENT 27 (2001) (arguing that the Constitutional framework results in substantial delay in the provision of counsel after the right to counsel has attached and during custodial interrogation). 157 See, e.g., Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-To-Counsel Doctrine, 97 Nw. U. L. REv. 1635, 1637 (2003) (arguing that the critical stage doctrine does not promote the values of the Sixth Amendment and proposing a right-to-counsel doctrine that does promote those basic values). 158 In 1963 the Supreme Court established that the Fourteenth Amendment guarantees the right of a criminal appellant to counsel on a first appeal as of right. If the State confers a criminal appeal as of right, then it must provide at its expense the assistance of counsel to indigent appellants. See Douglas v. California, 372 U.S. 353 (1963). See also In re Barnett, 31 Cal. 4th 466 (2003). States are under no constitutional obligation to confer criminal appeal as of right. 159 See, e.g., Anders v. California, 386 U.S. 738, 744 (1967) (holding that the right to appeal does not include the right to make a frivolous appeal, hence the assistance of counsel in making an appeal is conditioned upon the appeal having merit); McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429 (1988) (holding that states do not have to strictly follow the constitutionally satisfactory procedure described by the Court in Anders and instead have the discretion to formulate their own procedure to safeguard the indigent's right to appellate counsel); Smith v.

29 20051 PAPER TIGER OF GIDEON V WAINWRIGHT Douglas v. California reasoned that the indigent defendant must be appointed counsel so that he can have a "meaningful appeal" (as a defendant who could afford counsel would have) instead of a mere "meaningless ritual," which is what an appeal without counsel would in effect be. 6 o If a criminal defendant is not granted the right to appeal his conviction but must instead file some sort of petition for appeal, as was required by a Michigan law, 16 1 then based on United States Supreme Court precedent, the state has no duty to appoint an attorney to assist the indigent appellant on that appeal. 162 In 1994, Michigan voters amended their state constitution to eliminate appeals as of right for criminal defendants who plead guilty, guilty but mentally ill, or nolo contendere. 163 Thus, such defendants have no first appeal as of right and thus have no right to appointment of legal counsel on any appeal they may wish to pursue. In the 2003 case Tesmer v. Granholm, the Court of Appeals for the Sixth Circuit held that this violates the Fourteenth Amendment States do not have the constitutional obligation to appoint counsel to indigent appellants in second-level discretionary appeals. 165 Thus, even if the incarcerated indigent has a first level appeal as of right (and is thus appointed counsel), if the outcome of that appeal is not favorable, he has no right to appointment of counsel on a next appeal if he has no second level appeal as of right. The Supreme Court has ruled that states are free to adopt whatever procedure they so choose in regards to effectuating indigent criminal defendants' right to counsel on appeal so long as that procedure "adequately safeguard[s]" that right. 166 The Court has held that "a State's procedure provides such [adequate and effective ap- Robbins, 528 U.S. 259 (2000) (discussing the rationale and the specific holding of the Anders case as well as the requirements for state compliance). 160 Douglas v. California, 372 U.S. 353, 358 (1963). 161 MICH. COMP. LAws (d)(1), (d)(2), (d)(3) (2004). 162 See supra note MICH. CONST. art I, 20 (2004). See MICH. COMP. LAws (d)(1), (d)(2), (d)(3) (2004) for the codification of the procedure for defendants seeking appeal who fall under the amendment. 164 Tesmer v. Granholm, 333 F.3d 683 (2003). "The effect of the statute is that most indigent defendants who plead guilty will be denied appointed counsel when applying for leave to appeal. Only very limited circumstances will require appointed counsel to help with a petition for appeal." Id. at Ross v. Moffitt, 417 U.S. 600, 610 (19 7 4). 166 Smith, 528 U.S. 259, 265 (2000) (citing Griffin v. Illinois, 351 U.S. 12, (1956)).

30 524 CARD OZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 pellate] review so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal. 167 Obviously these terms are vague and lead to varied interpretations. The United States Supreme Court has held that criminal defendants seeking state collateral post-conviction relief possess no constitutional right to counsel. 168 Because the Supreme Court has failed to recognize a constitutional right to assistance of legal counsel in state post-conviction proceedings, the existence of any right to counsel in post-conviction proceedings depends entirely on the state legislatures. In addition, because no constitutional right to assistance of counsel in collateral post-conviction proceedings exists, a petitioner cannot make a claim of ineffective assistance of counsel regarding the post-conviction proceedings. 9 From the plethora of cases in the majority of states in the Union, a general rule has emerged, according to which a public defender does not have the duty to present an appeal for every indigent defendant seeking one, and has the right to refuse if he finds no meritorious ground for appeal. 170 This is problematic for several reasons: (1) attorneys may interpret differently what grounds are "meritorious" and which are frivolous; (2) courts afford public defenders wide discretion in determining whether an indigent has "meritorious" grounds for appeal; and (3) courts rarely question an attorney's estimation on the merits of an appeal. Thus, an attorney's belief that the grounds for appeal have no merit will often serve as the death knell to any hope of reversal in an indigent defendant's case. Also of concern is that many states do not provide indigent defendants with counsel during prosecution appeals.' 7 ' In many states, prose- 167 Smith, 528 U.S. at In Pennsylvania v. Finley, 481 U.S. 551 (1987), the Supreme Court held that states were not constitutionally required to provide assistance of counsel in collateral post-conviction proceedings. The Supreme Court in Murray v. Giarratano, held that the rule of Finley also applied to state prisoners on death row who were seeking post-conviction relief. 492 U.S. 1 (1989). 169 See e.g., McCarty v. State, 83 P.3d 249 (Kan. 2004). 170 See, e.g., Fredericks v. Reincke, 208 A.2d 756 (Conn. 1965); Lee v. State, 204 So. 2d 245 (Fla. App. 1967); Carr v. State, 180 So. 2d 381 (Fla. Dist. Ct. App. 1965); Lindsey v. State, 204 N.E.2d 357 (Ind. 1965). 171 Some states authorize such prosecution appeals made before the end of trial: Arkansas (ARK. CODE ANN (Michie 1987)); Iowa (IowA CODE ANN (West 1994)); Kansas (KAN. CraM. PROC. CODE ANN (West 1973)); Ohio (Ohio Rev. Code Ann (Anderson 1997)). But see State v. Viers, 469 P.2d 53 (Nev. 1970) (holding state courts unauthorized to issue advisory opinions).

31 2005] PAPER TIGER OF GIDEON V WAINWRIGHT 525 cution appeals are not barred in absolutely every circumstance as a violation of a defendant's right to be protected against double jeopardy. 172 The prosecution can appeal certain judgments mid-trial in order to resolve issues of law that may impact future prosecutions so long as the appellate court's holding has no retroactive effect upon the defendant in the case at hand Some state statutes provide for appointment of counsel or payment of attorney's fees on appeals by the state. However, procedures of such appointment vary among states While some states provide that it is the trial court's responsibility to ensure that the defendant's right to counsel is not violated, others provide that the defendant's attorney has that burden. 175 D. The Delivery of Indigent Defense Services There are three basic ways in which indigent criminal defense services are administered across the nation: public defender programs, assigned attorney programs, and contract attorney programs. In a public defender program, full or part-time attorneys, in the form of a private or public organization, or comprised of government employees, provide defense services. 176 In an assigned attorney program, a list of private attorneys is maintained by the court and attorneys are appointed to defend indigent defendants on a judge-by-judge, case-by-case, or court-by-court 172 "Appeals from final judgments are explicitly authorized by statute in at least thirty-seven states and the federal government, and appeals form interlocutory orders are explicitly authorized in at least thirty-five states and the federal government." Brian L. Zavin, The Right to Appointed Counsel on Prosecution Appeals: Hard Realities and Theoretical Perspectives, 25 N.Y.U. REv. L. & Soc. CHANGE 271, (1999). U.S. CONST. amend. V: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This relevant portion of the Fifth Amendment has been deemed to be incorporated into the Fourteenth Amendment and thus applicable to the states. 173 See Zavin, supra note 172 (arguing that prosecution appeals should constitute a Lritical stage in the proceedings against a defendant and thus the right to counsel should automatically attach). 174 For statutes providing for appointment of counsel on prosecution appeals, see, e.g., OHIO REv. CODE ANN (B) (Anderson 1997); Wvo. STAT. ANN (Michie 1999); N.M. R. App. P (C) (Michie 1998); Me. R. Crim. P. 37B(d) (West 1997). 175 See e.g., N.M. R. App. P (C) (Michie ) (charging trial counsel with the burden of ensuring the defendant's right to counsel is not abridged); Ill. Sup. Ct. R. 607 (2004) (charging the trial court with the burden of ensuring the defendant is represented by counsel on appeal). See also People v. Jovani Garcia, 710 N.E.2d 247 (N.Y. 1999) (ending a department split, holding that the state had the responsibility to notify the defendant of his or her rights in prosecution appeals). 176 CAROL J. DEFRANcus, PH.D., State-Funded Indigent Defense Services, 1999, NCJ , U.S. Dep't of Justice 3 (2001).

32 526 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 3:495 basis. 177 Finally, in a contract attorney program, non-salaried private attorneys, bar associations, law firms, consortiums of attorneys or nonprofit organizations contract with a funding source to provide courtappointed representation to indigent defendants in a given jurisdiction. 178 A Bureau of Justice report published in 2001, examined twentyone states whose indigent defense programs are funded almost entirely by state monies, and which use one, or a combination, of such programs to provide indigent criminal defense services. 179 Nineteen of those states provide indigent defense through public defender programs;... ten of those states maintain a roster of private attorneys that can be appointed to indigent criminal defendants, 8 ' while eleven states provide indigent defense through contract attorney programs.' 82 Of the nineteen states with public defender programs, sixteen have statewide indigent defense programs that are administered through local branch offices. 183 In the remaining three states, the public defender programs, while state-funded, are locally established.' 84 In 1999, the Bureau of 177 Id. 178 Id. 179 Id. These twenty-one states which at the time accounted for twenty-seven percent of the U.S. population were: Alaska, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin. Id. at Id. at 1. These nineteen states were: Alaska, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Missouri, New Hampshire, New Jersey, North Carolina, OQcgon, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin. Id. at DEFRANCES, supra note 176, at 1. Ohio is one such state. As a college intern at the City of Mansfield Municipal Court in Richland County, Ohio, one of the tasks I performed was calling the attorneys on the list upon the arraignment of an indigent defendant in order to secure them counsel. Often, I had to call multiple attorneys to find one that had the time to represent the defendant. If several indigents were arraigned in one morning, often it took most of the workday to find counsel to represent them all. 182 Id. States reported administering contracts awarded to public defenders, individual solo practitioners, law firms which handled both indigent and private cases, nonprofit organizations, and law firms or a group of private attorneys joined solely to provide indigent representation under the contract. None reported awarding contracts to bar associations. Id. at 9. Maine and Oregon are the only two states that have zero expenditures on a public defender programs. Id. at 3. In some counties, contract awards are the primary way in which indigent criminal defendants are given services. Id. at 9. The eleven states that utilize contract attorney programs are: Alaska, Connecticut, Iowa, Maine, Minnesota, New Hampshire, New Mexico, North Carolina, Oregon, Vermont, and Wisconsin. 183 Id. at 2. Maine and Oregon were the two states that did not have a state-funded public defender program. Id. at Id. at 4. These three states were North Carolina, Virginia, and West Virginia.

33 2005] PAPER TIGER OF GIDEON V WAINWRIGHT Justice Statistics reported that in the nation's one-hundred most populous counties, public defender programs existed in ninety counties, assigned counsel programs in eighty-nine counties, and contract programs in forty-two counties In the same survey of the twenty-one states that funded their indigent criminal defense systems almost entirely without the aid of the federal government, it was reported that all of the states provided at least ninety percent of the funding for their indigent defense services. 186 In nine of those states, indigent defense services relied entirely on county funds. 187 These twenty-one states that rely almost entirely on state funding, account for approximately twenty-seven percent of the nation's population and spend a total of $662 million annually on indigent defense. 188 In addition, this same survey reported that the minimum salary for an entry-level public defender ranged from $29,000 to $45, Another survey reported that the median minimum annual salary for entry-level assistant prosecutors was $40,000 and the median maximum salary was $51,000.'90 State governments typically spend three times as much on prosecution as on public defense. 191 Two states that illustrate this disparity are Kentucky, which spent $56 million on prosecution and $19 million on indigent defense in 1998, and Delaware, which spent $16 million on prosecution and $6.9 million on indigent defense in the same year. 192 From the foregoing facts and statistics, it seems that public defender offices suffer from an overall lack of funding.1 93 Because their 185 CAROL DEFRANCES, PH.D. AND MARjKA F.X. LITRAS, PH.D., Indigent Defense Services in Large Counties, 1999, NCJ (2000). 186 DEFRANCES, supra note 176, at Id. at 2. New Jersey, which has the highest population of the states studied in the report, spent the most with an indigent defense budget of $73 million. Id. at 2-3. The nine states in which country governments entirely funded indigent criminal defense services were: Arizona, California, Idaho, Illinois, Michigan, Pennsylvania, South Dakota, Texas, and Utah. Id. at Id. 189 Id. at 5. While in today's lagging economy such salaries are coveted, they are quite small considering that a year of law school costs approximately just as much as these attorneys are being paid. 190 Carol J. DeFrances, Ph.D., State Court Prosecutors in Large Districts, 2001, U.S. Dep't of Justice 3 NCJ , (2001). 191 Marion Yoder, Gideon at Work and in Wyoming, 26-APR Wyo. LAw. 45 (2003) (discussing public defender programs, specifically that in Wyoming). 192 Id. 193 See Stacey L. Reed, A Look Back at Gideon v. Wainwright After Forty Years: An Examination of the Illusory Sixth Amendment Right to Assistance of Counsel, 52 DRAKE L. REv. 47 (1999)

34 528 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 funding is so much lower than that of prosecutors' offices, public defenders are at a comparative disadvantage-prosecutors have the resources to put on stronger and more technical cases than the defense. Because states fund their indigent defense programs with little federal aid, the amount of the state budget designated for indigent defense services is a product of local politics and regional preferences. Because there are no federal funding mandates, the state legislature determines just how important delivery of indigent defense services is to the citizens of that state and thus how much of the budget will be apportioned to protect the legal rights of indigent defendants. Attorney General Robert F. Kennedy once said, "the poor man charged with crime has no lobby." 194 We cannot assume a priori that indigents have a strong voice or influence in the local legislative processes that determine what type of defense services they shall receive. This under-funding puts indigent defendants at a comparative disadvantage to those defendants capable of retaining private attorneys. 195 "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." 196 We see a trend in courts today of buying a not-guilty verdict where those defendants with lesser funds would most likely have been found guilty. 197 When properly funded, statewide public defender offices have been implemented in different states with overwhelming success. One shining example was the California State Public Defender Office, created by the California Legislature in 1976, which lasted until The Cal- (arguing that the costs of maintaining an effective indigent defense system are nearly insurmountable for many localities, making the guarantee to assistance of counsel under the Sixth Amendment a mere illusion). 194 This statement by then Attorney General Robert F. Kennedy is attributed to him in an article by his brother Senator Edward M. Kennedy, The Promise of Equal Justice, in CHAMPION, Jan.-Feb Underfunding does not only impact the indigent population as a whole, but may reinforce societal and judicial inequalities on ethnic minorities. See Rebecca Marcus, Racism in Our Courts: The Underfunding of Public Defenders and Its Disproportionate Impact Upon Racial Minorities, 22 HASTINGS CONST. L.Q. 219 (1994). 196 Griffin v. Illinois, 351 U.S. 12, 19 (1956). 197 Arguably, one example of this is the O.J. Simpson trial in which the wealthy defendant was able to hire the most sophisticated legal defense team ever assembled, including Johnny Cochrane, F. Lee Bailey, and Barry Sheck (co-founder of the Innocence Project). These highly skilled attorneys were able to call into question certain evidence that could have easily convicted another defendant with less funds, facing the same charges as O.J. Simpson. 198 Charles M. Sevilla, Gideon and the Short Happy Life of California Public Defender Office, in CHAMPION 44, Jan.-Feb Sevilla is a criminal defense lawyer in San Diego, CA. Id.

35 2005] PAPER TIGER OF GIDEON V WAINWRIGHT ifornia State Public Defender Office's main job was to represent the thousands of indigent felons appealing their convictions at that time. 99 Due to the efforts of the Public Defender Office, the statewide reversal rate doubled in California. 2 " These defense attorneys "won a series of significant legal victories including decisions protecting against unfair lineups, coerced confessions, and discriminatory prosecutorial challenges to potential jurors, causing the California criminal law to undergo substantial changes." ' 20 ' The State Public Defender Office had enormous success attacking death judgments and obtained relief for all of its clients. 2 2 Despite the overwhelming successes of the California State Public Defender Office (or perhaps due to their successes), in 1983, the new Republican Governor George Deukmejian (a death penalty proponent) slashed the Office's funding in half-the first step to its imminent demise In addition to under-funding, the use of low-contract bidding has contributed significantly to the inadequacy of state-administered indigent defense services. In a 1999 study, out of the eleven states that utilize contracts to provide indigent defense, only five reported competitively bidding for indigent criminal defense services. 204 Of the nine states reporting caseload information, contract attorneys handled approximately 122,000 criminal cases. 205 The large amount of cases that these contract attorneys handle makes their contribution to indigent defense both considerable and troublesome. E. Caseload of the Typical Public Defender In a study published by the Department of Justice in 2000, the Bureau of Justice Statistics reported that eighty-two percent of felony defendants in large state courts were represented by public defenders or court-appointed counsel Indigent defense programs in the largest 199 Id. 200 Id. 201 Id. 202 Id. 203 Id. 204 DEFRANCEs, supra note 176, at 9. These five states were Alaska, Maine, New Hampshire, Oregon, and Wisconsin. Id. 205 Id. at 10. These nine states were Connecticut, Maine, Minnesota, New Hampshire, New Mexico, North Carolina, Oregon, Vermont, and Wisconsin. Id. In the same study, these nine states reported a total combined caseload of 454,504 indigent criminal cases, making the number of cases handled by contract attorneys significant. Id at HI-ARow, supra note 16, at 1.

36 530 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 3:495 one-hundred counties handled an estimated 4.2 million cases in About eighty percent of these were criminal cases. 2 8 Half of the counties received over 20,000 cases and the average county received nearly 35,000 indigent criminal cases in addition to other types of cases Of the 4.2 million cases in these counties, public defenders handled eighty-two percent, court-appointed private attorneys handled fifteen percent, and contract attorneys handled three percent. 210 In Wyoming, the public defender caseload has more than doubled in the last ten years, and it is growing, with 805 new cases opened each month. 21 ' Surprisingly, these figures are not far above the ratios that the American Bar Association and other national standards recommend: 200 felonies per year per attorney, or 400 misdemeanors or 200 juvenile proceedings. 212 In 1999, state-funded public defender programs received over 726,000 criminal cases along with 144,000 juvenile cases, 26,000 civil cases, and 33,000 other types of cases. 213 In the thirteen states in the 1999 study that supplied caseload information, assigned counsel programs received almost 700,000 cases (302,000 criminal cases). 214 In Wyoming, forty-two "full time equivalent" attorneys around the state handled 9,662 new clients' cases in 2002, including seventy-eight appeals to the Wyoming Supreme Court. 215 Caseloads over 500 are not uncommon in some places; a New York Times investigation in 2002 found defenders each trying to handle over 1,600 cases annually It is illuminating to compare any of these numbers to the national median prosecutor caseload of 123, as reported by the Bureau of Justice Statistics in "Prosecutors in State Courts, 1994 and 1996."2,7 207 DeFrances & Litras, supra note 185, at Id. 209 Id. 210 Id. at Yoder, supra note 191, at Id. 213 DEFRANCFS, supra note 176, at 7. These other types of cases included child abuse cases, child protection cases, special proceedings, post-conviction parole and probation cases, and withdrawals. Id. 214 Id. 215 Yoder, supra note 191, at Id. 217 Id.

37 2005] PAPER TIGER OF GIDEON V WAINWRIGHT F. Immunity from Suit The Supreme Court has held that the indigent defendant must receive representation that is substantially equal, although not necessarily identical, to that provided by privately retained counsel. 218 Because the assistance that a public defender provides to a defendant is not held to the same standard as that of privately hired counsel, it stands to reason that the same behavior that could subject private counsel to malpractice suit would not be actionable if committed by a public defender. 219 Bringing suit under 42 U.S.C is one method by which people can seek a remedy when the state or a state actor is responsible for the denial of their constitutional rights. 220 However, the use of 1983 has been almost entirely rejected as a basis for bringing a claim of ineffective representation or tortious malpractice, 221 because 1983 can only be invoked if the plaintiff was injured as a result of state action and public defenders or court-appointed attorneys are not deemed to act under color of state law. 222 The exception to this is that public defend- 218 McCoy v. Ct. App. of Wis., Dist. 1, 486 U.S. 429, 438 (1988). See, e.g., Douglas v. California 372 U.S. 353, 357 (1963). 219 It is likely that an indigent defendant would not file a malpractice claim at all, due to lack of funds and awareness of legal professional standards. When viewed in combination with the double standard, attorneys representing indigent defendants will almost never have to defend the quality of their representation. 220 Section 1983 reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C.S (2004). 221 See, e.g., Taylor v. Windsor Locks Police Dep't, 71 Fed. Appx. 877 (2d Cir. 2003) (holding that public defender not subject to 1983 liability); Fletcher v. Hook, 446 F.2d 14 (3d Cir. 1971) (finding that a tort claim against court-appointed attorney for malpractice not cognizable under 1983); Smith v. Clapp, 436 F.2d 590 (3d Cir. 1970) (finding that claims of malpractice against court-appointed attorneys are not cognizable under 1983). 222 See, e.g., Hamilton v. Wold Johnson Law Firm, 34 Fed. Appx. 508 (8th Cir. 2002) (holding that contract public defenders do not act under color of state law for 1983 purposes when performing a counsel to criminal defendants); Srivastava v. Newman, 12 Fed. Appx. 369 (7th

38 532 GARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 3:495 ers are not immune from suit under 1983 if the plaintiff alleges a conspiracy between the public defender and state officials acting under color of state law to deprive clients of federal rights. 223 Absent such an allegation of conspiracy, the general rule is that a claim cannot be sustained under 1983 of the Civil Rights Act. Insulating appointed counsel from suit does not bode well for the indigent defendant and the vindication of his rights. 224 New York State, in Scott v. City of Niagara Falls, found that a public defender should have qualified immunity-that he or she should be immune from suit for all discretionary acts or omissions made in the course of executing his or her official duties towards the client. 225 The court's finding was based on the high volume caseload of most public defenders and the limited time and resources they have for each case. 226 Other states have followed New York's example and provide either qual- Cir. 2001), reh' and rehg en banc denied, (May 18, 2001) (holding that employees of the public defender's office not liable under 1983 as were not acting under color of state law when representing the criminal defendant); Sosa v. Albin, 17 Fed. Appx. 885 (10th Cit. 2001) (holding a public defender while performing a lawyer's traditional functions as counsel to defendant is not acting under color of state law); McCloud v. Jackson, 4 Fed. Appx. 7 (2d Cir. 2001) (holding that court-appointed attorney representing an inmate at a parole revocation hearing and parole proceedings did not act under color of state law and thus was not subject to a claim under 1983); Dunker v. Bisonnette, 154 F. Supp. 2d 95 (D. Mass. 2001) (holding a state appointed attorney does not act under the color of state law under the meaning of 1983 even when his defective performance violates the defendant's constitutional rights); United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cit. 1976) (finding that court-appointed attorney are not liable under 1983 for malpractice-type actions and omissions in relation to criminal trial in state court because his acts were not under color of state law); Page v. Sharpe, 487 F.2d 567 (1st Cit. 1973) (dismissing claim under 1983 against court-appointed attorney for tortuous malpractice on grounds that the attorney was not acting under color of state law); Pugliano v. Staziak, 231 F. Supp. 347 (W.D. Pa. 1964), affd, 345 F.2d 797 (3d Cir. 1965) (holding that a court-appointed attorney's status of an officer of the court did not make him an officer of the state and for purposes of 1983 he was a private actor not acting under color of state law). 223 See, e.g., Tower v. Glover, 467 U.S. 914 (1984) (finding a public defender is not immune from suit when alleged conspiracy to violate the client's federal rights occurred); White v. Bloom, 621 F.2d 276 (8th Cir. 1980) (holding a court-appointed attorney is not immune for conspiracy with judge and prosecutor to impanel an all-white jury in defendant's trial); Africa v. Anderson, 510 F. Supp. 28 (E.D. Pa. 1980) (holding that plaintiff could assert 1983 claims for declaratory relief where court-appointed attorney alleged to have conspired to deny plaintiff her constitutional rights with a judge exercising state authority). 224 See, e.g., Howard H. Chen, Malpractice Immunity: An Illegitimate and Ineffective Response to the Indigent-Defense Crisis, 45 DuKe L.J. 783 (1996) N.Y.S.2d 103 (1978). 226 Id. at 105.

39 2005] PAPER TIGER OF GIDEON V WAINWRIGHT ified or absolute immunity to public defenders and court-appointed attorneys. 227 Some states do not grant public defenders and court-appointed counsel malpractice immunity. State courts in Connecticut, Pennsylvania, Michigan, Florida, Indiana, and New Jersey have all held that there should be no immunity afforded to court-appointed counsel and public defenders. 228 In refusing to extend immunity to public defenders and court-appointed counsel where private attorneys are also liable, these state courts have asserted that attorneys for the indigent have the same function and purpose and must be held to the same standard as private attorneys. G. Right to Expert Services The United States Constitution does not give indigent defendants a right to the appointment of experts or investigators at state expense to assist in trial preparation or to testify during trial. 229 The United States Supreme Court has only once examined the question of whether an indigent criminal defendant in state court has the right to the appointment of an expert at state expense. 23 In 1953 in United States ex rel. Smith v. Baldi, the petitioner challenged his conviction, arguing "that the assistance of a psychiatrist was necessary to afford him adequate counsel" and that the lack thereof was constitutionally impermissible. 231 The Court rejected the petitioner's argument, holding that the State did not have a constitutionally mandated duty to appoint expert assistance to indigent defendants. 232 In Smith, the fact that the defendant did have the assistance of psychiatric experts may have impacted the Court's 227 See, e.g., Morgano v. Smith, 879 P.2d 735, 737 (Nev. 1994); Browne v. Robb, 583 A.2d 949 (Del. 1990), cert. denied, 499 U.S. 952 (1991); Bradshaw v. Joseph, 666 A.2d 1175 (Vt. 1995); Coyazo v. State, 897 P.2d 234 (N.M. Ct. App. 1995); Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993). 228 This list is not exhaustive. See, e.g., Spring v. Consantino, 362 A.2d 871 (Conn. 1975); Windsor v. Gibson, 424 So. 2d 88 (Fla. Dist. Ct. App. 1982); White v. Galvin, 524 N.E.2d 802 (Ind. Ct. App. 1988); Donigan v. Finn, 290 N.W.2d 80 (Mich. Ct. App. 1980); Delbridge v. Office of Public Defender, 569 A.2d 854 (N.J. Super. Ct. Law Div. 1989); Reese v. Danforth, 406 A.2d 735 (Pa. 1979). 229 See United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953). 230 Id. See Ruby B. Weeks, LL.B., Annotation, Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R. 3d 1256 (1970). 231 Smith, 344 U.S. at Id. The Court held that the State was not constitutionally required to provide a psychiatrist to the defendant for pretrial examination to assess his mental competence before entering a plea. Id. It was a capital case.

40 534 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 3:495 holding. This may also be true in the later case of Ake v. Oklahoma, in which the Court held that where the indigent defendant's sanity is at issue in both the guilt and penalty phase of the trial and that defendant is denied access to psychiatric assistance, the United States Constitution requires the state to appoint a psychiatric expert to the defendant. 233 Despite this, the Court has yet to hold that indigent defendants have an absolute constitutional right to the appointment of experts for their defense. There are many cases from various states holding that indigent criminal defendants have no constitutional right to the appointment of experts to assist in their defense However, even without a constitutional mandate, a number of states have enacted legislation providing for the appointment of experts or investigators to assist in the defense of an indigent criminal defendant Furthermore, courts in some states have themselves recognized a constitutional right to the appointment of expert services at state expense as a requirement of due process. 236 In most cases an indigent defendant seeking the appointment of an expert must show a need for that expert. 237 Thus, even if state courts recognize a right to appointment of experts or investigators to indigent defendants at state expense (by virtue of statute, or state or federal constitutional right), the appointment of such experts is often at the discretion of the trial court. 238 This discretion has the potential to be abused by trial judges. Also, judges may differ whether in a given case, the defendant has need of an expert, making such determinations capricious. In addition, prosecutors' offices use expert services both before and during 233 Ake v. Oklahoma, 470 U.S. 68 (1985). Some states have interpreted Ake broadly to apply to non-psychiatric experts. See, e.g., Pace v. State, 714 So. 2d 320 (Ala. Crim. App. 1996), rev' in part on other grounds, 714 So. 2d 332 (Ala. 1997), reh'gdenied, (1997), on remand to, 714 So. 2d 340 (Ala. Crim. App. 1998), cert. denied, 523 U.S (1998). 234 See, e.g., Thomas v. State, 459 N.E.2d 373 (Ind. 1984); Cardenas v. State, 695 P.2d 876 (Okla. Crim. App. 1985); State v. Allen, 692 S.W.2d 651 (Tenn. Crim. App. 1985). 235 Some of the states that have enacted such legislation are California, New York, Pennsylvania, South Dakota, Vermont and Wisconsin. Weeks, supra note See, e.g., U.S. v. Decoster, 624 F.2d 196 (D.C. Cit. 1976); Harrison v. State, 707 N.E.2d 767 (Ind. 1999). 237 See, e.g., Beauchamp v. State, 788 N.E.2d 881 (Ind. Ct. App. 2003). 238 See, e.g., People v. York, 207 Cal. App. 2d 880 (Cal. Ct. App. 1962); Dolan v. People, 449 P.2d 828 (Colo. 1969); Lance v. State, 560 S.E.2d 663 (Ga. 2002); Booker v. State, 790 N.E.2d 491 (Ind. Ct. App. 2003).

41 20051 PAPER TIGER OF GIDEON V WAINWRIGHT trial It is troublesome that indigent defendants do not have that same access. In a survey conducted in 2001, 100% of prosecutors' offices in large districts reported that they used DNA evidence during felony trials and ninety percent reported using DNA evidence during plea negotiations. 24 In 2001, 73.1 % of prosecutors' offices in small districts reported using DNA evidence during felony trials and plea negotiations. 2 1 l Indigent defendants are among those defendants prosecuted with DNA evidence. This means that while the prosecution is able to present expert evidence and have expert testimony, indigent defendants do not have that luxury-putting them on unequal footing. Recently, there have been alarming reports of not only botched DNA analysis, but also outright fraud on the part of DNA laboratories across the country. With insufficient access to experts, indigent defendants may be prosecuted and ultimately convicted based on fraudulent or erroneously tested evidence they have no way to challenge. PART III A. What Should Be Done to Protect Indigent Defendants' Sixth Amendment Rights The Supreme Court has given the states room to fashion their own implementations of Gideon v. Wainwright for the last forty years. Each state has been free to adopt the system it chooses, be it a statewide public defender system or a decentralized system of county-by-county lists of private attorneys willing to be appointed to indigent defendants. This discretion has been consistent with the Court's dedication to feder- 239 "No mitigation defense can be adequately prepared without the assistance of mental health experts, among others." Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REv. 329, 392 (1995). 240 Large Districts are those serving populations over 500,000. DEFRANCES, supra note Small districts are those serving populations of less than 250,000. CAROL J. DEFRANCES, PH.D., State Court Prosecutors in Small Districts, 2001, U.S. Dep't of Justice 1 NCJ , (2001). There are 2,113 small districts. Id. 242 See Houston Police DNA Lab Woes Result In Reexamination Of 525 Cases, CNN.com, available at Mary Alice Robbins, Police Crime Lab Under the Microscope Hearing Held to Examine Possible Problems with DNA Tests, TEXAS LAWYER, Vol. 19, No.1, at 1, March 10, 2003; Matt Lair & Scott Glover, DUI Case Botched by Blood Mix-Up: A Collegian Finds LAPD Lab Used Wrong Man's Sample to Finger Him, L.A. TIMES, Dec. 15, 2002, at BI; Associated Press, FDLE Says No Cases In Danger After Orlando Analyst Resigned, NAPLES DAILY NEWS, July 21, 2003, available at /web. naplesnews.com/02/07/florida/d767503a.htm.

42 536 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. V 3:495 alism and the Court-endorsed idea of each state serving as a laboratory within which different methodologies can be tried and from which other states can learn As noble as these values are, the reality of what has happened over the last forty years cannot be ignored. States have used the discretion they have been given to only half-heartedly make Gideon a reality and have done little to ensure that indigent defendants are not just appointed counsel, but that indigent defendants are appointed counsel in a meaningful way. 244 It has become abundantly clear that if we are truly a nation that not only espouses, but embodies the ideals of justice, fairness, and equality, we can no longer leave the fate of indigent defense services to state courts and legislatures. NWhile recent cases indicate that courts (including the Supreme Court) are willing to do more to protect the rights of indigent defendants, 24 5 the quickest and most effective way to do this is for the Supreme Court to unequivocally state what practices and procedures do and do not satisfy the right to counsel in state criminal proceedings. The time has come for the Supreme Court to fulfill its rightful role in protecting the rights and liberties of all Americans The Supreme Court should not become paralyzed by federalism concerns. In the past the Court has been willing to let the interests of federalism be malleable when confronting issues of equality and fairness Gideon and its progeny deal with economic equality-with the 243 Justice Louis Brandeis in his dissenting opinion in New State Ice Co. v. Liebmann: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." 285 U.S. 262, 311 (1932). This notion of states acting as laboratories of democracy, is a supporting principal of federalism. Under this rubric, each state can try a different approach to a problem while the rest of the states watch the experiment to see how it works. If a given program or institution is successful within a state or locality, then the whole country is free to adopt it. If the experiment fails, then the harm is minimal as it is localized in that one state. See generally James A. Gardner, The 'States-as-Laboratories'Metaphor in State Constitutional Law, 30 VAL. U. L. REv. 475 (1996). 244 See generally National Legal Aid & Defender Ass'n, Gideon Reviewed- The State of the Nation 40 Years Later, available at Reviewed; PA. SuP. CT. COMM. ON RACIAL & GENDER BIAS IN THE JUST. Sys., Final Report (2003). 245 See infra Part I.A.-B. 246 See Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. PIrr. L. Rpv. 293 (2003). 247 With Brown v. Board of Education of Topeka, the Court refused to let federalism concerns stop them from addressing the cancer of racial segregation in this country. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (segregation of public schools on the basis of race violated the equal protection clause of the Fourteenth Amendment). While the Brown holding

43 2005] PAPER TIGER OF GIDEON V WAINWRIGHT right of indigent defendants to be on equal ground with prosperous defendants. The cases deal with the rights of indigent defendants and appellants to appointment and effective assistance of counsel, and meaningful access to the criminal justice apparatuses that ensure fair trials and fair outcomes. 248 These rights are too important for federalism to get in the way of their effectuation. What would constitute a stronger, and more effective, system of appointment of counsel to indigent defendants? First, in regards to the appointment of legal counsel, because the term critical stage is ambiguous as to what exact point in the proceedings constitutes a critical stage, 249 the creation of a bright line standard may be more appropriate. One possible bright line that would more effectively protect the rights of indigent defendants would be if the right to counsel attached at the moment that an individual is brought in for police questioning in connection with a criminal investigation. While admittedly cumbersome, this alternative would leave no doubt that the rights of defendants were being protected. What constitutes a critical stage in proceedings can be left up to interpretation, but whether an individual is physically present rested on the Equal Protection Clause as opposed to the Due Process Clause, with which we are concerned here, there are valuable lessons to learn from that example. Id. at [W]e hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment [citations omitted]. While education was considered (and still is) a traditional area of state control, and thus states considered it an intrusion on their sovereignty for the federal government to mandate how states were to fashion their public education system, the Supreme Court still proclaimed racial segregation in public schools unconstitutional. In Brown II, it was asserted that "[a]ll provisions of federal, state, or local law requiring or permitting such [racial] discrimination must yield to [the] principle" that racial segregation is unconstitutional. Brown v. Board of Education of Topeka, 349 U.S. 294, 298 (1955). While Brown II arguably backed away from the explicit holding in Brown I, in the former, the Supreme Court still affirmed the holding in Brown I and charged localities with the duty to ensure that decision was implemented effectively. "School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles." Id. at In both Brown I and Brown II, the Supreme Court allowed federalism concerns to fall in the face of the all-important goal of racial equality. As in Brown, these rights, the right to counsel and to effective assistance, are too important for federalism to get in the way of their effectuation. 249 See infra Part IL.B.

44 538 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:495 in a police precinct or is being interrogated by police officers is a more clear-cut determination. Second, in order to make the right to counsel more robust, the standards regarding appoint of counsel for appeals must be augmented. It is incomprehensible that indigent defendants are unable to obtain counsel for appeals in every state. 2 5 ' The appeals process is vital to our criminal justice system, providing a needed check on trial proceedings and ensuring that defendants are judged guilty and incarcerated only when proceedings were fair and in accordance with the law. The problematic standard of allowing the public defender to decide whether an indigent's appeal has merit should also be changed to a stricter standard that removes this enormous discretion. 251 Third, indigent defense funding must be increased. Indigent defense is in a funding crisis in this country today. 252 Public defender offices are underfunded and court-appointed attorneys are underpaid. 253 Because of the overwhelming disparity in the funding of prosecutor offices compared to indigent defense, 254 funds must be increased in order to ensure that indigent defendants are on an equal playing field with the prosecution and have the same resources to put on a defense as effective as defendants with private counsel. Fourth, the typical caseloads of public defenders must be reduced. 255 Public defenders, even with the funds to put on a proper defense, will be unable to do so if they are burdened by too many cases. The most straightforward way to accomplish this is by an increase in funding that would allow public defender offices to hire more attorneys. An increase in the hourly wages of court-appointed attorneys would also induce more attorneys to request being put on the list, thereby reducing attorney shortages that many counties have suffered. 256 Fifth, public defenders should be held to a similar standard to that of private attorneys. Indigent defendants deserve nothing less than absolute equality with non-indigent defendants. A public defender or court-appointed attorney should be held to the exact same standard 250 See infra Part II.C. 251 See infra Part II.C. 252 See infra Part II.D and note See supra note 244. See also Leonard Post, Citing low pay, lawyers refuse indigent cases; A long-simmering dispute erupts with threats of discipline, NAT'L L. J., Aug. 23, 2004, at See infra Part II.D. 255 See infra Part 1I.E. 256 See supra note 253.