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The Supreme Court’s landmark decision in Gideon v. Wainwright 40 years ago was based on the “obvious truth,” as Justice Hugo Black wrote, that the vast majority of citizens lack the legal skills to defend themselves against criminal charges. Without “the guiding hand of counsel,” defendants cannot obtain a fair trial. As a matter of constitutional principle, a judicial system is not just if it provides fair trials to defendants able to afford lawyers, but denies fair trials to the poor. Anthony Lewis put it eloquently in his classic book Gideon’s Trumpet: The Gideon decision was grounded fundamentally in the Court’s view of America as “a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.” In the years since 1963, the Supreme Court has continued to recognize the indispensable role of defense lawyers in our adversarial system. While Gideon involved a felony charge, the Court later applied its ruling to all cases involving a potential loss of liberty for the defendant. Even when a state characterizes offenses as “petty” or “minor,” defense lawyers are needed to prevent assembly-line justice. Last May, the Court held in Alabama v. Shelton that counsel must also be appointed for defendants who face suspended sentences of imprisonment, because such sentences can be readily converted into actual prison time. COUNSEL OF YOUR NIGHTMARES The Court has faltered, however, in keeping its commitment to the principles of fairness and equality that led to Gideon. When the Court granted Clarence Gideon’s handwritten petition to hear the case, the justices appointed prominent Washington lawyer Abe Fortas to represent him, and Fortas was assisted by several other lawyers of the highest caliber. Contrast that dream team with the two lawyers appointed for Wallace Fugate, a man with no prior record who was charged with a capital crime in Georgia in 1991. Fugate’s lawyers later admitted that they were unfamiliar with even the most basic criminal and death-penalty precedents. They did not ask for plea negotiations or request funds for an investigator. They filed only three motions, none exceeding two pages in length, and failed to present critical mitigating evidence. After Fugate was convicted, his sentencing hearing lasted 27 minutes. No wealthy defendant facing a prison sentence — much less the death penalty — would tolerate such shoddy representation. Nevertheless, the state and federal courts that reviewed Fugate’s case all concluded that he had received effective assistance of counsel, and he was executed in August 2002. Sadly, in such cases, the current Supreme Court also looks the other way. It applies a minimalist standard of review to claims of ineffective assistance of counsel. A year ago, the Court upheld a death sentence in Mickens v. Taylor, a case in which the trial judge appointed a lawyer who, at the time of the murder, was representing the very person the defendant was accused of killing. Last year, it also upheld, in Bell v. Cone, the performance of a lawyer who failed to interview witnesses, present mitigating evidence, or even plead for his client’s life at the sentencing hearing. The Court’s constitutional jurisprudence on this fundamental issue has now deteriorated to the point that it is unclear whether a defendant is “prejudiced” when a defense lawyer sleeps through substantial portions of his capital trial. In 2000, a panel of the U.S. Court of Appeals for the 5th Circuit ruled in Burdine v. Johnson that he is not. Fortunately, that ruling was overturned by the full 5th Circuit a year later. But five of the judges dissented. Today, pervasive deficiencies are reported in indigent defense cases in many states. A committee appointed by the Pennsylvania Supreme Court concluded that the state was inadequately funding county public defender offices. A Georgia Supreme Court commission described that state’s system as inadequate, unconstitutional, and responsible for much needless incarceration. A recent report by the NAACP Legal Defense and Educational Fund documented numerous cases in which poor Mississippi defendants — many charged with misdemeanor or juvenile offenses — waited in overcrowded county jails for months, even years, before speaking to a lawyer. A FAIR AGENDA We can do more in Congress to uphold the “noble idea” that the Supreme Court emphasized in Gideon — “fair trials before impartial tribunals in which every defendant stands equal before the law.” We can start by passing the Innocence Protection Act, a bipartisan bill to improve indigent defense in capital cases, which was reported favorably by the Senate Judiciary Committee in the last Congress and attracted 250 co-sponsors in the House of Representatives. This legislation will provide funds to states to establish an independent authority — as opposed to an elected trial judge — to set qualifications for appointed counsel, identify and appoint attorneys who meet those qualifications, and monitor their performance. Federal courts will be able to assess state indigent defense programs and order changes to bring failing programs into compliance. The Innocence Protection Act will also ensure that convicted defendants have the opportunity to prove their innocence through DNA testing. By strengthening the legal system in capital cases, we can increase fairness and minimize the risk of wrongful conviction. Reform is needed in noncapital cases too. Congress should increase the hourly rates for attorneys appointed for indigent defendants in federal court, and require minimum standards for their legal representation. As for the states, those that do not have public defender systems should create them. All states should provide adequate resources for indigent defense by funding public defender offices and paying fair rates for lawyers appointed to represent indigent defendants. We should no more tolerate a difference in justice between federal courts and state courts than a difference in justice between defendants who can afford counsel and those who cannot. In addition, attorneys should take the initiative themselves, by challenging deficiencies in their local indigent defense systems through civil rights lawsuits. As Attorney General Robert Kennedy once said, “the poor man charged with crime has no lobby.” Ensuring fairness in criminal trials is the responsibility of us all. The Gideon decision, with its great promise of equal justice, showed the Supreme Court at its very best. Forty years later, it is time to make that promise a reality. Edward M. Kennedy is the senior U.S. senator from Massachusetts and a member of the Senate Judiciary Committee and its Subcommittee on the Constitution, Civil Rights, and Property Rights.

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