PERSPECTIVE ON JUSTICE: WHAT'S A FAIR PRICE FOR A FAIR TRIAL?

The guarantee of legal counsel for indigents is honored to the letter but
not the spirit of the 1963 Gideon ruling.

Thirty-five years ago today,Justice Hugo Black of the U.S. Supreme Court
declared "an obvious truth": that "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." The court's decision in Gideon vs. Wainwright reversed
the conviction of a down-and-out drifter for burglarizing a Florida pool
hall and remanded the case for a new trial with an appointed lawyer to
represent the defendant. At that retrial, after the prosecution witnesses
were vigorously cross-examined by a competent lawyer, Clarence Earle Gideon
was acquitted.

As we observe the anniversary of the Gideon decision, we may want to pat
ourselves on the back. Today, every state is required to provide counsel
for any indigent defendant who faces a potential jail sentence.
Unfortunately, however, another "obvious truth" is being ignored: that the
quality of representation will be directly proportional to the amount of
money we are willing to pay for it.

Some will dispute this obvious truth by sanctimoniously citing the Code of
Ethics, which requires lawyers to give every client vigorous
representation. "Vigor" is a relative term, however. A public defender
overloaded with 200 clients will try to give them all the same level of
vigor, but that may not approach the level of what paying clients will
enjoy from private counsel. The quality of representation is also affected
by the affordability of other defense resources, such s investigators,
consultants and expert witnesses.

The Code of Ethics is often used as an excuse to reduce the level of
financial support for indigent legal services to the minimum necessary to
attract any lawyer to accept a case. In Virginia, lawyers receive a maximum
of $265 for representing indigents facing up to 20 years in prison. If the
maximum sentence exceeds 20 years, the lawyer can get up to $575. In
Alabama, the maximum compensation for a death penalty case is $2.000. Not
surprisingly, some of the lawyers attracted by these rates are incompetents
who can't do any better in the markerplace.

In state after state during the past decade, officials seeking to cut
budgets for indigent defense have contracted with the lowest bidder,
regardless of the quality of representation offered. In McDuffie County,
Ga., the low bid was $25,000 per year. Over three years, the lawyer who won
the contract represented every indigent accused of a felony in the county:
214 of them. He pleaded 213 of them guilty. In three years, he filed three
motions.

There are many heroic lawyers in underfunded states who accept appointments
and deliver competent representation at great personal cost. One Alabama
lawyer pup in 500 hours preparing and trying a death penalty case, netting
$4 per hour. Delivery on the promise of Gideon should not depend on the
generosity of individual attorneys, however. The obligation imposed by
Gideon is a public obligation.

The widespread public reaction to the O.J. Simpson trial confirms that
Americans are more upset by the occasional possibility that one they judge
guilty might escape because he can afford good lawyers than they are by the
general reality that innocent persons are regularly convicted because we
won't pay a good lawyer to defend them. Our indignation that more money can
make a difference in the outcome should carry with it the recognition of
the obvious truth that less money can make a difference in the outcome,
too.

Some have suggested that economic disparity should be eliminated by
requiring that all defendants be represented by public defender; let the
quality of representation in all cases sink to the lowest common
denominator. It's interesting that no one suggests we eliminate economic
disparity in housing by requiring everyone to live in public housing
projects, or that we eliminate economic disparity in medical services by
treating everyone at the county hospital.

The challenge of Gideon is not to achieve absolute equality in the level of
legal representation. It is to elevate the level of competence in the
representation of every accused person to a threshold of fairness, a level
at which we can have confidence in the outcome.

The promise of Gideon is not fulfilled by simply providing every indigent
accused person with lawyer, but to ensure that every such person has the
resources to receive the Constitution's guarantee of a fair trial.