The Free Press, Mankato, MN

March 17, 2013

Public defense need remains

By Scott Cutcher
My View

— Imagine being arrested and charged for burglarizing a pool hall where $5 in change and a couple bottles of soda and beer are missing. You are taken to jail and go in front of a judge who sets bail you cannot afford to post because you are poor. You remain locked up until your trial. You want an attorney to represent you as you are facing 5 years in a Florida prison if you are convicted.

The judge denies your pleas for an attorney to represent you, stating that the right to an attorney at public expense only applies in death penalty cases. You prepare your defense for your upcoming trial as best you can from your jail cell. You’re going up against a seasoned prosecutor with many resources, including the police, at his disposal.

You have your trial and are found guilty. The court sentences you to 5 years in prison. End of story.

Thankfully not.

After starting his five-year sentence, Clarence Earl Gideon, from his prison cell, wrote (in pencil) a five-page petition to the United States Supreme Court explaining how he should have been appointed an attorney to defend him in his burglary case. The Supreme Court agreed unanimously with Gideon and on March 18, 1963, ordered he receive a new trial with the assistance of counsel at public expense.

Fifty years since the court’s decision, Gideon v. Wainwright remains one of the most significant cases in American jurisprudence. Requiring the states to provide an attorney for people who can’t afford to hire one, via the Sixth Amendment, is one of our Constitution’s shining principles and promises. Regardless of social status, wealth, skin color, citizenship or guilt, all people have that right.

Unfortunately, in some parts of the United States the right to an attorney is paid only lip service. In a country that leads the industrialized world for incarceration and where up to 90 percent of people charged with felonies can’t afford a lawyer, the true test in determining if the right to counsel is being fulfilled is: how effective is appointed counsel?

The right to counsel is an empty, meaningless promise when a poor person is appointed an attorney who is simply a warm body in the courtroom with little to no criminal law experience. Grossly underfunded public defense organizations, or oversight of public defense organizations by the courts and even prosecutors, have made for a broken promise to the indigent who are guaranteed the assistance of counsel.

In Minnesota we are blessed with a public defense organization that is independent of the courts and prosecution. Our public defenders, both full and part time, are members of a defense team consisting of investigators, paralegals, dispositional advisors, legal secretaries and office managers that ensure clients appointed an attorney by the courts receive zealous, effective representation at every level of every type of criminal and juvenile case.

That said, we as citizens are often in jeopardy of losing effective representation due to high caseloads that strain our entire defense team. Without adequate funding to hire and replace personnel, provide continuing educational training for all staff and keep up to date with technology that changes almost daily, our defense team is hard pressed to adequately prepare an effective defense for societies most financially and emotionally vulnerable people.

We never want to see innocent people locked up and the guilty person must have a zealous advocate in order for our system of justice to work. More often than not the best response to a crime is probation, alcohol and/or mental health treatment, restitution — not the state prison system. Everyone benefits when there are enough public defenders and support staff to present reasonable alternatives to the court.

Public defenders in Minnesota are some of the best attorneys in the nation as is the entire defense team. Let’s not take it for granted or stress it to and beyond the breaking point. Equal and effective justice, as does everything, comes with a price tag. Adequately funding public defense is a cost we as a society can ill afford to neglect.

By the way: At Gideon’s second trial, with his public defender, the jury deliberated for one hour and found him not guilty.

Scott R. Cutcher is the chief public defender in the Fifth Judicial District.