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Some 40 years ago, the state of Florida charged Clarence Gideon with breaking and entering a pool room with intent to commit a crime. Because he had no counsel, Gideon represented himself in the courtroom, making his own opening statement, cross-examining the state’s witnesses and presenting his own. Gideon even knew enough not to put himself on the stand. Nevertheless, and not surprisingly, he lost. In the seminal decision that followed, Gideon v. Wainwright, 372 U.S. 335, the U.S. Supreme Court ruled that the right to counsel was a fundamental right protected by the Bill of Rights and the Fourteenth Amendment. Supported by the attorneys general of 22 states, the Supreme Court held that “in our adversary system of criminal justice, 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. This seems to be an obvious truth.” No one remotely familiar with our current court system would dispute this “obvious truth.” Nevertheless, in court after court, state after state, this fundamental protection is at risk. The threat does not come from legal challenges, nor does it come from fundamental shifts in public policy. Rather, the deterioration of our indigent defense system comes instead from even more powerful forces: neglect and inadequate funding. In Gideon, the Supreme Court noted that state and federal governments “properly spend vast sums of money” to prosecute criminal defendants. In contrast, spending money to defend those same defendants has not and will never be the subject of the same type of popular support. The reality is that there often is not the political will to support this vital government responsibility. As lawyers, it is that reality that we must face, and one against which we have an obligation to fight. Faced with reduced revenues and tighter state budgets, indigent defense systems throughout the country are in states of extremis and, in many instances, outright crisis. In many states, accused citizens sit in jail for days or weeks waiting for counsel, only to be represented by overburdened and overwhelmed attorneys who often are unable to mount even the minimal defenses necessary to defend their clients properly. In Massachusetts, the situation reached such a point of crisis, and the money paid to private attorneys retained by the state to represent indigents was so low, that attorneys stopped handling cases by the hundreds. As a result, criminal defendants sat unrepresented in jails for weeks or even months, and children taken from their homes by the state sat indefinitely in foster homes until a lawyer could be found to represent their interests. This crisis culminated in multiple lawsuits filed with the state’s highest court. One of those suits was a class action brought by Holland & Knight on behalf of all citizens entitled to court-appointed attorneys. It was my privilege to serve as trial counsel in that matter. Because of that and other suits, as well as the countless hours spent by those committed to this issue, the Massachusetts Legislature recently passed comprehensive legislation. That legislation reforms a system that had been decimated by years of underfunding and neglect. Although it is only a first step in a long process, the Massachusetts state government should be commended for its willingness and ability to address this critical constitutional issue. Major problems with public defense systems in other states throughout the country are still pervasive, however. Like all publicly supported systems, funding for indigent defense must compete with other legitimate interests. Many of those interests support programs that serve the same indigent population entitled to competent court-appointed counsel. Even in the face of these competing interests, however, we cannot ignore this fundamental protection. To allow criminal defendants to sit in jail indefinitely without representation, and then allow states to try those same individuals, knowing that they cannot get a fair trial, strikes at and threatens the very core of what makes this country special. When we ignore this problem, we ignore a basic and fundamental constitutional protection. The right to counsel is a critical cog in the machine that protects our citizens from government over-reaching and intrusion. When we turn our back on the indigent defense system, when we rationalize it as a problem that affects others but not ourselves, we do so at our peril. Joshua C. Krumholz is a partner in the Boston office of Holland & Knight and a trial attorney who concentrates his practice in civil litigation, focusing primarily upon intellectual property and complex commercial litigation. He is a member of the firm’s intellectual property practice group. This article was originally published in The National Law Journal, a Recorder affiliate based in New York City.

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