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WebQuest: How to Provide Counsel to Indigent Defendants

Introduction

"In many courts all over the country today, it is better to be rich and guilty than to be poor and innocent. And, of course, that is not equal justice. If the quality of legal representation in criminal cases does not improve in some places, it is going to become necessary to sandblast the words 'equal justice under law' off the Supreme Court building and admit that our courts are like the country clubs and the skyboxes at the stadiums, available to those who can afford them, but not the poor" (Bright).

What does this mean? The author seems to feel that the quality of legal representation in our country seems to increase with the cost of that representation, leaving the poor in a precarious position.

  • Do you agree or disagree?
  • Can you think of any examples that support your viewpoint?

In Gideon v. Wainwright, the Supreme Court of the United States ruled that persons accused of a felony are entitled to a lawyer in all criminal cases tried in state courts. However, the Court did not address how states should go about providing a lawyer for the indigent. Figuring out how to provide these people with adequate representation is a big issue since they represent a high percentage of the defendants in this country. At the time of the Gideon decision "the proportion of indigents among state criminal defendants [was] . . . about sixty percent" (Lewis 197).

The Task

You live in a state that has a high number of indigent defendants. You believe that they are entitled to "equal justice under the law." To achieve that goal, each of the accused must be provided with a defense that is better than "adequate."

Your task is to work with a group of concerned individuals to answer this question: How will your state ensure high-quality legal defense for indigent defendants?

The Process
  1. Your teacher will assign you to one of the four "base groups." Meet with the other members of your base group to read the assigned text. If you have a large class, your teacher will divide the class in half, and then divide each half of the class into four "base groups."
  2. Download a copy of the PMI Chart or construct your own. Then use the information you have gathered in the designated reading to complete the chart for your assigned group.
  3. When all of the base groups have completed their section of the PMI chart, you will move into jigsaw groups as assigned by your teacher, meaning that you will now be in a group with one member of each of the other groups. In these jigsaw groups, each person will provide a basic explanation of the option he or she explored and will address the pros and cons of that system. As you listen to these reports, you will use the information to complete the remainder of your PMI chart.
  4. Next, your jigsaw group will debate the various proposals and decide which option will work best for your state as a whole. You may select one of the options discussed or develop your own system. Be prepared to share your selection, as well as the reasoning, with the rest of the class.
  5. Each jigsaw group will present its choices to the class.

Groups
Base Group 1: Public Defender

Under this system, certain lawyers agree to work full time defending indigent clients. Their fees and salaries are paid by the state. The greatest advantage of this system is that the public defenders become experts who are knowledgeable in criminal law. Because they have chosen to defend criminal defendants, they generally believe that all individuals are entitled to a lawyer and are "innocent until proven guilty." They differ from lawyers with independent practices who defend wealthy clients and do occasional pro bono work.

Despite the generally good intentions of public defenders, there are some drawbacks to this system. Read each of the following articles to find out what those might be. Be sure to focus on the sections that address Public Defenders.

Base Group 2: Court-Appointed Lawyers on a Case-by-Case Basis

This option is similar to the public defender system. The difference is that instead of having a full-time paid public defender on staff, the judge of the court in which the case is to be tried would appoint local counsel to represent indigent defendants. Among the advantages of this system are that local lawyers will rotate through the system. This will give them—even noncriminal lawyers—the opportunity to experience the practice of criminal law. Author Anthony Lewis argues that this will be good for everyone because "the practice of criminal law might be elevated, the typical corporate lawyer might be educated in social responsibilities, and the gap in the profession might be narrowed" (199). Others claim that noncriminal lawyers who are appointed will not be qualified or motivated to provide adequate defense—they may even look down upon their clients. Some states have addressed this problem by appointing only criminal lawyers or by contracting with specific criminal law firms or "panels" who agree to represent indigent defendants.

According to former Attorney General Robert F. Kennedy, the disadvantages of this system are as follows: The attorneys "are not paid for their services. They are not reimbursed for their out-of-pocket costs. They do not receive a shred of investigative or expert help. They are not appointed until long after arrest, when witnesses have disappeared and leads grown stale. They often lack the trial experience essential for a competent defense" (Lewis 195). At the time that Kennedy made that comment, many states did not pay their court-appointed lawyers. That has since changed, but as many of the articles note, this pay is often meager. As for the problem of inexperience, that was confirmed by a study conducted by the Harvard Law Review, which noted that the burden of representing indigent accused criminals in the federal courts fell mainly on "young, inexperienced lawyers, little versed in the technicalities of the criminal law" (Lewis 195).

To find out how states have addressed these and other issues, read each of the following articles. Be sure to focus on the sections that address court-appointed lawyers or contract lawyers.

Base Group 3: Legal Aid Societies

Legal Aid Societies are nonprofit organizations founded to provide free—or very inexpensive—legal aid, including advice and courtroom representation, to those who are unable to afford a lawyer. Such organizations exist in most major cities and are sometimes affiliated with or sponsored by the local bar association.

This system functions in a manner similar to that of a public defender's office in that there is a regularly employed staff of lawyers who represent indigent clients. While they could represent criminal defendants, most choose instead to deal only with civil cases. Others, however, are specialized associations, which serve only those who are charged with the death penalty. The upside of this system is that lawyers in legal aid associations have chosen this line of work. This is a strong indication that they believe in the rights of the indigent. They are by nature committed to the cause and thus will work hard to develop a strong line of defense. This works to the advantage of their client.

The downside is that the budgets for Legal Aid Societies are often subject to the whims of the economy because many of them receive funding based on a percentage of interest earned on certain accounts (called IOLTA).  So, ironically, when the economy is good, many Legal Aid Societies can serve more people, but when the economy is poor, their resources are stretched very thin.  Some associations must raise money, often by holding fundraisers or soliciting grants, either from private organizations or government institutions. Other associations have to pay fundraisers or hire them, further stretching their budgets. 

  • Explore the Web site of the Legal Aid Society, which provides free legal services to people in New York City.
  • Another take on legal aid societies is the clinic system set up at law schools. There, law students defend local criminal defendants in misdemeanor cases under close supervision of the faculty. Read about the Georgetown University Law Center and think about the advantages and disadvantages of this type of legal aid.
Base Group 4: New Brunswick Option

In New Brunswick, Canada, lawyers have adopted a twist on the traditional Legal Aid Societies, which are nonprofit organizations founded to provide free—or very inexpensive—legal aid, including advice and courtroom representation, to those who are unable to afford a lawyer. One of the problems with traditional legal aid societies is money—the funding often runs out. Another problem is that people who can't afford an expensive lawyer but don't meet the criteria of indigent can't get a lawyer under this system. Those that do qualify don't usually don't get to choose who they want to represent them.

  • To find out how New Brunswick has improved upon this system, go to the web site of The Lutz Longstaff Firm.  Click on the Criminal Law link and find and read the commentary titled "Criminal Legal Aid in New Brunswick (March 19, 1998)," and think about the advantages and disadvantages of this system.
  • For more information on this system, also read the commentary titled "Legal Aid Saved an Unlucky Man (April 30, 1997)."
  • Look at the Review of Legal Aid Services in New Brunswick, published by the Province of New Brunswick.  Read section 4 on Criminal Legal Aid and note the problems the Review finds with this system.
Conclusion

As a class, discuss the options selected by the various jigsaw groups. Then, working individually, respond in writing to the following questions:

  1. Is there "equal justice under the law" for rich and poor defendants in this country? Explain.
  2. If not, what do you think needs to be done to ensure that all people receive "equal justice under the law?"

(Note to Teachers: You may choose to discuss these questions as a class.)

Works Cited
  • Lewis, Anthony. Gideon's Trumpet. New York: Random House, 1964.
  • Steve Bright. "Making Good on the Promise of Gideon v. Wainwright: The Challenges and Rewards of Defending the Poor." [Online] 5 August 2001.
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