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  • Benjamin B. Wagner

  • Linda Harter

Viewpoints: Right to counsel is under duress due to sequester cutbacks

Published: Sunday, Mar. 17, 2013 - 12:00 am | Page 5E

Fifty years ago this Monday, the U.S. Supreme Court issued its opinion in Gideon v. Wainwright, a seminal case that brought lasting and positive change to the American criminal justice system.

Clarence Earl Gideon was arrested in Florida in June 1961, and charged with breaking into a pool hall to commit petty larceny. Gideon proclaimed his innocence and, being without the means to hire an attorney, asked the trial court to appoint one to represent him. That request was denied and Gideon was convicted and sentenced to five years in prison.

In a handwritten petition to the U.S. Supreme Court, Gideon argued that his conviction was invalid because he was not assisted by an attorney. The Supreme Court agreed, and in its opinion, issued March 18, 1963, ruled that the assistance of counsel was a fundamental right, and that indigent defendants in all states had the right to the appointment of counsel. Upon a retrial of his case, Clarence Gideon, assisted by a court-appointed attorney, was acquitted and released.

Today we take for granted that those accused of crimes are guaranteed the assistance of counsel, but this was not always the case. Those accused of crimes in England and the former colonies did not have a right to the appointment of defense counsel. The Sixth Amendment to the Constitution guaranteed defendants the right to the assistance of counsel, but did not require the appointment of counsel for those who could not afford it.

Our adversarial criminal justice system is founded on the notion that the truth-seeking function of criminal trials is facilitated when each side presents its best case before an impartial judge and jury. The ability to effectively present a case, however, can be fatally compromised without the assistance of counsel.

In Gideon, the Supreme Court observed that "in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." While far from perfect, the American justice system today is the envy of much of the world, largely because of its reputation for procedural fairness. That reputation is due in no small part to the right to appointed counsel in criminal cases established in the Gideon case.

The right to appointed counsel is more important now than it was 50 years ago. Far more defendants are being prosecuted than in the 1960s, the laws are more complex, and the nature of the evidence in criminal cases is more technical. But current budget challenges at both the state and federal level are squeezing the public defender agencies that carry out the mandate of Gideon.

Public defender agencies in California have been facing severe budget cuts, layoffs and furloughs in recent years. Now the sequester – across-the-board federal budget cuts that took effect this month – is having a profound impact on those who represent defendants in federal criminal cases. In the Eastern District of California – a district that stretches from the Los Angeles County line to the Oregon border and is home to 7.5 million people – indigent defendants are represented by the Office of the Federal Public Defender and a panel of private attorneys who accept appointment to federal cases. Already lean budgets for those services are being cut further. Attorneys and staff in the Federal Defender's Office are being furloughed in a last-ditch effort to avoid cutting funds necessary for defense experts, investigations and interpreters.

Ensuring that defendants in criminal cases receive effective representation is not just a concern of the defense bar. All participants in the criminal justice system, and those who care about it, seek to avoid miscarriages of justice of the sort that are more likely in cases where defendants have not had adequate access to quality defense counsel. As a federal prosecutor and a federal defender, we share an appreciation for the importance of access to effective defense counsel. The role of the prosecutor, after all, is not to win cases, but to do justice. Even in cases where defendants are rightly convicted, claims of ineffective assistance of counsel can lead to convictions being reversed, increasing costs and decreasing the efficiency of the system.

The U.S. Department of Justice is taking steps to ensure that the rights established in Gideon are real and effective. Through its Access to Justice Initiative, it is working to promote increased representation of indigent defendants. The department has made grants available to strengthen indigent defense programs, to fund litigation of certain post-conviction innocence claims and to provide loan repayment assistance to public defenders. The research arm of the department is funding projects that examine issues arising from the representation of juveniles and those with mental health disorders.

More needs to be done. Effective indigent defense is not a luxury; it is critical to the success of our justice system. On the 50th anniversary of Gideon, we should reaffirm the notion that a fair criminal justice system requires effective representation for all defendants, and urge our representatives and policymakers to protect the fundamental right to counsel that the Supreme Court so loudly proclaimed five decades ago.

Benjamin B. Wagner is the U.S. attorney for the Eastern District of California. Linda Harter is the chief assistant federal defender for the Eastern District of California.

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