March 18th marked the 50th anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963), the landmark case that changed the landscape of indigent defense. In Gideon, the Supreme Court held that the Sixth Amendment requires states to provide an attorney to indigent defendants charged with a serious crime. Nine years after Gideon, in Argersinger v. Hamlin, 407 U.S. 25 (1972), the court extended the right to counsel to defendants facing a potential loss of liberty in criminal cases without regard to whether the offense was classified as a felony.
As communities across the country celebrate Gideon‘s 50th anniversary and reflect upon the five decades since the decision, we should acknowledge that the promise of Gideon -  that every person charged with a crime be capably defended and that our legal system will do justice to the poor and the rich alike - remains unrealized. The indigent defense system in this country is severely underfunded and overburdened. As U.S. Attorney General Eric Holder explained: "Too often, when legal representation is available to the poor, it is rendered less effective by insufficient resources, overwhelming caseloads, and inadequate oversight." This remains true even in capital cases. In a report ordered by the Pennsylvania Supreme Court, a judge in Philadelphia recently concluded that the compensation of court-appointed capital defense attorneys in Philadelphia is grossly inadequate and unacceptably increases the risk of ineffective assistance of counsel.
The increasingly limited authority of federal courts to correct constitutional errors on habeas review serves to further exacerbate the problems caused by our inadequate indigent defense system and makes access to effective assistance of counsel in the first instance more important than ever.
In one case recently before our court, Blystone v. Horn, 664 F.3d 397 (3d Cir. 2011), the defendant in a capital murder case was represented by a public defender with only three months’ experience as a practicing attorney. Although the attorney received assistance from the chief public defender in the jurisdiction, in preliminary hearings in the case, he had no assistance preparing for the sentencing phase and conducted an extremely limited investigation into potentially mitigating evidence, interviewing at most three people in addition to the defendant. Scott Wayne Blystone was ultimately convicted and sentenced to death, and the state court subsequently rejected his ineffective assistance claims. The Third Circuit, however, ultimately overturned the state Supreme Court finding.
Fortunately, such examples of counsel are the exception rather than the rule within the U.S. Court of Appeals for the Third Circuit, as the overwhelming majority of public defenders who practice in the state and federal courts within this jurisdiction are highly skilled, thoroughly committed and extraordinarily competent attorneys. In my 11 years as a state trial judge in Philadelphia, and the 18 years serving on the Court of Appeals since then, I have constantly been impressed with the high quality of representation that is routinely afforded those who are represented by public defenders. Unfortunately, this is not the case everywhere.
Although, in Blystone, we remanded for resentencing after concluding that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in ruling against Blystone, federal courts’ ability to correct constitutional errors in state criminal proceedings has been significantly curtailed by the Antiterrorism and Effective Death Penalty Act of 1996 and the U.S. Supreme Court’s subsequent AEDPA jurisprudence. The AEDPA’s highly deferential standard applies even where the state court summarily denies relief. In addition, in Cullen v. Pinholster, 131 S.Ct. 1388 (2011), the Supreme Court held that federal habeas review of a state court conviction is limited to the record developed before the state court. Thus, when inadequate representation results in a state court conviction, there is often no remedy available in federal court.
Moreover, under the "independent and adequate state ground" doctrine, federal habeas relief is barred when a state court declines to address a prisoner’s federal claims because the prisoner failed to meet state procedural requirements. Thus, in Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court ruled that Roger Keith Coleman had forfeited his right to seek federal habeas relief because, in prior state proceedings, his attorneys mistakenly filed their notice of appeal one day late. Virginia authorities executed Coleman one year later.
More recently, in Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court ruled that Keith Bowles had lost his right to appeal denial of habeas relief because he filed his notice of appeal two days late, even though he did so in reliance on the deadline in the district court’s order. In so ruling, the Supreme Court overturned Harris Truck Lines v. Cherry Meat Packers, 371 U.S. 215 (1962), which had held that "unique circumstances," such as a district court error that misled litigants into thinking they had more time to file notices of appeal than a statute actually provided, may excuse a late filing.
Alongside the crisis in indigent criminal defense, this country’s system for providing civil legal services to the poor is experiencing its own emergency. As a result of the worst financial crisis in the United States since the Great Depression, the number of people who are eligible for civil legal aid has increased dramatically. The latest U.S. Census Bureau figures estimate that more than one-quarter of the residents of Philadelphia lived below the poverty level from 2007 to 2011. According to the Legal Services Corp. Report of the Pro Bono Task Force, an estimated 61.4 million Americans qualified for civil legal assistance in 2012 — representing an increase of more than 10 million since 2007.
In 2011, the Supreme Court decided the first right to counsel in civil litigation case that had come before that court in three decades. In Turner v. Rogers, 131 S.Ct. 2507 (2011), the court reaffirmed that there is no constitutional right to counsel in civil cases — even where an individual faces possible loss of freedom in civil contempt proceedings. Thus, despite growing demand for civil legal assistance, millions of Americans cannot access the justice system today because they cannot afford an attorney. Although an impressive network of government and nonprofit agencies is dedicated to providing free civil legal services to the poor, at least 50 percent of those seeking help from Legal Services Corp.-funded organizations must be turned away because of insufficient resources, and there is little reason to believe that those seeking assistance from non-LSC-funded organizations fare any better.
The reduced access to representation in civil cases has an even more dramatic impact because of the increased importance of procedural barriers, and the resulting need for skilled counsel who can navigate them. In Ledbetter v. Goodyear Tire & Rubber, 550 U.S. 618 (2007), the Supreme Court held that the plaintiff’s claim for relief was barred by the statute of limitations as measured from the first act of discrimination rather than the last. Ledbetter alleged that she was the victim of gender-based employment discrimination, but her claim was barred because the court held that Title VII’s statute of limitations began to run when she received her first discriminatory paycheck, even though she claimed she had no reason to know of the discrimination until the pattern of disparate treatment emerged. The decision prompted Congress to pass the Lilly Ledbetter Fair Pay Act to allow a claim to be brought within 180 days of any discriminatory compensation decision, not just the first one.
More recently, the Supreme Court’s decision in Dukes v. Wal-Mart Stores, 131 S.Ct. 2541 (2011), arguably narrowed the interpretation of the commonality requirement in Federal Rule of Civil Procedure 23(a); and in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), the court upheld class action waivers in arbitration agreements. Many commentators suggest that the result of both decisions will be to make it more difficult for similarly aggrieved individuals to join together as a class to pursue relief. Because individual claims often do not justify the cost of litigation, the class action mechanism is frequently the only realistic vehicle for seeking relief.
Although the cost of providing counsel is easy to quantify, there is an underappreciated societal cost endemic in not providing counsel to the indigent where liberty is at stake or where meritorious claims go wanting. "JUSTICE, THE GUARDIAN OF LIBERTY" is the phrase emblazoned around the exterior of the building housing the U.S. Court of Appeals for the Third Circuit. However, the goal of equal access to justice, without regard to economic status, continues to reside just beyond our grasp.
My grandmother was fond of reminding me that "it is better to light one candle than to curse the darkness." The members of the legal profession are uniquely well positioned to address this problem and countless committed individuals across the country work tirelessly to address these concerns and improve the delivery of legal services to the poor.
In addition to the multitude of pro bono opportunities available through government organizations, bar associations and nonprofit legal services organizations, there are a number of opportunities at the Third Circuit. For example, attorneys may volunteer to represent individuals in a range of civil appeals, including prisoners’ civil rights, bankruptcy, ERISA, employment and immigration matters. Through an appellate Criminal Justice Act panel, the court appoints attorneys to criminal matters. Attorneys may also volunteer to represent pro se litigants in the mediation of pro se cases through the court’s appellate mediation program. In both civil and criminal cases, we maintain a policy of granting oral argument to pro bono counsel whenever possible. I encourage those who practice before us to explore these opportunities and get involved.
Theodore A. McKee is chief judge of the U.S. Court of Appeals for the Third Circuit, which he joined in 1994. He was previously a trial judge in the Philadelphia Court of Common Pleas.