GIDEON DEAD AT 50: AN OBITUARY

For those of you who are casual or non-esq readers of the blog, or for those of you who wear a black robe to work, the landmark case of Gideon v. Wainwright established the foundation for ensuring that every criminal defendant facing incarceration is provided competent counsel for his or her defense. In other words, Gideon breathed life into the 6th Amendment. 

Justice Hugo L. Black, wrote the opinion for the Court in Gideon. Black wrote  in another case that ''there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.''

The petitioner in Gideon-Clarence Earl Gideon- was prosecuted in Florida. A Florida prosecution was the genesis for the case that set the standard for representation of the indigent. Which makes the situation in Florida all the more ironic and troubling. 

In 2003 the NY Times interviewed Bruce Jacob, the lawyer who represented Florida against Gideon and his right to counsel:

''I hoped that legislatures would meet the challenge,'' Jacob wrote. ''That was at a time in my life when I still believed that legislators want to do the right thing. . . . The record of the courts in fulfilling the hopes represented by Gideon is a dismal one.''

Little did Mr. Jacob know what the Florida Legislature had in store for indigent defendants. 

Last year Florida enacted, and Dade County implemented, the "Limited Registry" which represented the final death blow against the decision in Gideon and the 6th amendment right to counsel for indigent defendants. 

The Limited Registry capitalized on tough economic times for lawyers. Lawyers who signed up  had to sign a contract signing away their rights to ever ask for more money on a case. Once they accepted appointment, based on the level of the felony- no matter how complicated the facts of the individual case was- they agreed to a flat fee- NO MATTER WHAT. 

And just to give you an idea of the level of that flat fee- the fee for handling murder cases, which are usually the largest and most complicated cases in our criminal state court system, where the penalty upon conviction is  life without parole, is ....steady yourself......$2,000.00!

So pick a basic inner city/gun violence murder.  Generally you might have a prosecution witness list of two dozen officers, crime scene technicians, a medical examiner, a firearms/ballistics/gunshot residue expert,  and perhaps a few civilian eyewitnesses. Twenty five witnesses, assume the attorney deposes half for an hour each and spends another hour reading and notating each of the depos once they are transcribed. 

Figure  few hundred pages of police reports that will require another five to ten hours to read and notate, five hours of case law research and a minimum of twenty- one hour visits with the client. So far without stepping into court the attorney has spent 60 hours: 2000/60= $33.33 per hour. 

Court appearance, preparation for motions, and discussions with the prosecution would be a minimum of another 20 hours (more likely 40, but lets assume 20.) Now if the attorney is diligent and gets a witness list from his client and investigates it- or investigates an alternate theory of defense- diminished capacity, self defense, etc.,  the figure quickly reaches 100 hours or $20/hour- or less than a well qualified legal assistant the attorney might employ- and certainly less than the attorney pays his/her  plumber or car mechanic. 

Very successful attorneys who want to handle a murder case every few years as a semi-pro bono endeavor could afford such rates. But that is not the makeup of the Limited Registry. The Limited Registry is comprised of attorneys who have made an economic calculation that by quickly settling most of their cases before they do a lot of legal work, they can squeak out a profit. 

Let's say that again slowly: the Limited Registry provides an economic incentive for attorneys to 1) not fully investigate cases; 2) quickly settle those cases. 

Put aside a murder case and focus on an armed robbery case or an armed burglary or a sexual battery case (where the flat fee is less and $2,000.00)  where the plea offers can often start at 50 years. The attorney spends a few hours, takes one or two depos, the prosecution witnesses get a little edgy and the plea offer is reduced to 20 or even 15 years  and the defendant takes it. Except s/he is innocent, but so poor and perhaps of such limited intelligence that they cannot refute the logic that 15 is better than 50. 

Let the Florida legislators  waste 15 years of their life in prison for a crime they didn't commit. Let some Florida legislator try and deal with a Limited Registry attorney representing their mildly mentally impaired 19 year old son on a sexual battery charge he didn't commit- where all the attorney wants to do is close the case quickly. Then lets see how they feel about the Limited Registry. 

But since that won't happen, we are stuck with watching the corpse of Gideon rot in a stinking mess in our courtrooms every day. 

We are forced as Judges and Lawyers to turn away from the spectacle of the Sixth Amendment writhing on our dirty courtroom floors as it gasps for air. It's as if we are a pedestrian who sees someone hit by a car and rather than rendering aid we quickly duck into a Starbucks and pretend we didn't witness an accident.  

The Limited Registry turns what should be a great justice system into a Henry Ford assembly line, where the Limited Registry attorneys are semi-skilled line workers feeding their clients into the maw of assembly line "justice" (read: prison). 

Gideon is dead. And we helped killed it by our silence=complicity. 

RIP. 

Post Script:
The situation in Florida's misdemeanor courts are even worse. According to the recent  NY Times article on Gideon last week:
In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes.

Try getting a job these days with even a misdemeanor record, not to mention qualifying for a mortgage or a credit card. The American dream is being lost to an assembly line criminal justice system meting out fines, court costs, and criminal records to unrepresented defendants at a record pace.