EQUALITY BEFORE THE COURT

There are times when our government gets close and personal with us. I cannot think of any time when this is more true than when our government drafts us into military service or when the government, either at the federal or state level, charges us with a crime. Now-a-days we have put the draft into hiatus and most of us are never charged with a crime. I remember when as a young man, I was in a car accident and was charged with causing it. I was directed to go to court and I remember the document stating the State of Florida vs. Robert Gutierrez. The actual charge was driving too fast for the conditions. I remember my emotional discomfort when I saw in black and white that I was pitted against the State of Florida. I think that hurt more than the $25 fine – and that was despite the fact I was a poor college student at the time and was facing expensive costs caused by the damage. As bad as it is to be charged, how much worse is it when a person can't afford legal representation? This wasn't an issue in my case, but for serious accusations it is an issue of significant consequence. It is our constitutional right to have representation by a licensed lawyer. So, as the familiar refrain states, if you can't afford one, one will be appointed for you.

Who assigns an indigent defendant a lawyer? A judge does. Problem solved? Not really. Take the case of George Stinney from the 1940s (a story much in the news these days); he was a fourteen year old boy who was charged, tried, and executed for the murder of two white girls – Stinney was an African American youngster. His incarceration lasted 81 days, there was no physical evidence of his guilt, the trial lasted two hours, and there was no appeal filed by his court-appointed lawyer. The only “evidence” there was was the fact that Stinney was seen with the two girls on the day of the murders and that he had “confessed.” There was no written account or a recording of the confession. There was only the testimony of the police officers stating the young boy confessed to the crimes. While this is an extreme case from a highly segregated South, it is not unique. How unjust the criminal procedure can be has been amply portrayed in our popular media. We hear of a sufficient number of convictions that have been overturned by DNA testing. My understanding is that nationally there are over 4,000 such cases to date. How many of those were cases initially defended by court-appointed lawyers, I don't know. But the point here is that the system is flawed enough and that we need to address this area of concern. If we are serious about our claims of honoring equality – we have stamps on which the word is boldly printed – then we need to do what we can to minimize the chances of an injustice occurring within our legal system. We need to keep very clear in our minds what an injustice of this type means to those victimized. It means, in terms of a faulty verdict, that a person is condemned for a crime he or she did not commit and that that means a person is doomed to years of imprisonment or even an undeserved execution – a horrible consequence to consider. Yet we seem to tolerate an unacceptable level of probability that such a result happens and happens all too often. So if something – some change in policy – can minimize this probability, we are constitutionally obliged to pursue it.

Under this light, I found that there is an experiment being conducted in Texas that deserves mention. There, in Comal County, it has been determined that court-appointed lawyers are a source of serious systemic injustices.

“The fundamental problem is that [court-appointed] lawyers in this country are oftentimes beholden to judges for appointments,” said Norman Lefstein [a Texas official] … “The allegiance of the lawyer is not principally to client, where it ought to be.”

The other problem is that clients have no meaningful control over this important professional relationship. It is hard to trust a lawyer you have not chosen and generally cannot fire.¹

These Texas officials addressed these concerns by developing a conservative approach to the problem. That is, they have begun issuing vouchers to defendants so that they can purchase legal representation of their own choosing. The idea for this policy originally was presented in a law-reviewed article. The authors of this article are Stephen Schulhofer and David Friedman. I believe that the proposal appealed to conservative policy makers because of its reliance on a market solution. It has been criticized by respectable experts – for example, Judge Richard A. Posner, a federal appeal judge, fears that defendants could paralyze a local legal system if they all begin to demand the same lawyer or a select few number of lawyers. I personally don't see this as a possibility since a lawyer can beg off a case if he or she is overloaded with existing clients. A Comal official claims that implementation of the policy can be regulated in such ways that the main concerns can be addressed. One official stated that this will not be a purely free market. It will be monitored and regulated. It is believed by the officials who are implementing the policy that there will be practical limitations so that the system will continue to function under reasonable conditions.

I will not claim I know enough to pass judgment on this option, but I believe that consideration for it is justified. My main message here is that this is an ideal “federalist” issue and has the makings of a powerful civics lesson. It focuses on a condition that, as it is now experienced around the country, puts in question any claim that our justice system is run by the principle of equality. In addition, here is a proposed policy option that, at least in terms of its stated rationale, is meant to level the legal playing field. If it works, it will put substance into the promise of the fifty year old Supreme Court decision, Gideon v. Wainwright, which ruled that every poor defendant is entitled to legal representation. Whether giving these defendants the ability to choose their attorneys will rectify the systemic problems such defendants face, only time will tell.

In any event, for civics instructors this issue is a promising one, one that directly relates to our national goal of instituting meaningful equality, one that is suitable to analyzing actual and proposed solutions, and one that reflects real, active concerns with ample local examples. It has the promise of engaging students on a meaningful national problem.

1Liptak, A. (2013). Need-blind justice. The New York Times, January 5, Sunday Review section, p. 4. The facts related in this posting regarding this Texas experiment are contained in this source.