Gideon’s Heritage Comes to Pennsylvania: Toward A Metric For The Right To Counsel

Everyone should know the story of Clarence Gideon.  Charged with Burglary, he asked for but was denied a lawyer:

The Defendant: Your Honor, I said: I request this court to appoint Counsel to represent me in this trial.

The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the state of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to represent you in this case.

The rest, as they say, is history.  With a self-prepared petition on Florida’s prison paperwork, Gideon brought the Supreme Court to rule 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.”

That was 1963.  This year, for the first time, the Pennsylvania Supreme Court had to confront whether Gideon was satisfied as long as there is some lawyer; or whether, instead, a county [if not the Commonwealth] must provide real funding and resources to make the right to counsel meaningful.  The case arose in Luzerne County as an injunctive action seeking proper resources for its Public Defender Office.  On September 28, the Court strenuously endorsed the ‘real funding’ approach.

The case is Kuren v. Luzerne Cnty., Nos. 57 MAP 2015, 58 MAP 2015, 2016 Pa. LEXIS 2191 (Sep. 28, 2016).  The Court’s first conclusion was unequivocal:

Gideon‘s clear command to state courts would be a dead letter if states—or the counties that comprise them—need only go through the motions. The Court’s eloquent descriptions in Johnson and Gideon of the essential nature of the right to a lawyer would ring hollow, and would amount to empty rhetoric, if appointment of counsel for indigent defendants is but a mere formality. It is the defense itself, not the lawyers as such, that animates Gideon‘s mandate. If the latter cannot provide the former, the promise of the Sixth Amendment is broken.

From this the Court concluded that the claim was litigable.  “There is a cognizable cause of action whereby a class of indigent defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel.”

But what I suggest is the most important part of the decision is the metric it approved for assessing whether the right to counsel was being honored.  The Court, without hesitation, adopted as its own plaintiffs’ “six essential components of competent ‘legal representation’ that offices servicing indigent defendants require in order to comply with the Sixth Amendment[.]”

They are:

  • the attorneys must have adequate knowledge of the relevant areas of the law;
  • the attorneys must be assigned to represent indigent clients at the earliest possible stage;
  • the attorneys must be present at every critical stage of the client’s case;
  • the office and attorneys must be able to conduct reasonable factual and legal pre-trial investigations, pursue and comply with the discovery rules, and utilize investigators when necessary;
  • the attorneys must be able to consult with their clients to discuss the material aspects of the case, as well as the client’s substantive and procedural rights, to ensure that the client is making informed decisions regarding the case; and
  • the attorneys must be able to perform their work with reasonable diligence and promptness.

Why is this important?  This is now the measuring stick for every Public Defender Office in Pennsylvania.  But it is equally applicable to each county’s ‘system’ for appointing conflict counsel – the lawyers in private practice who are appointed in cases where the Public Defender represents a codefendant or otherwise cannot represent the accused.

Consider the Court’s repetition of one of the flaws in Luzerne County.  “Trial attorneys, untrained in appellate practice, were required to appeal their own cases, which often resulted in missed deadlines, waived issues, and unpersuasive arguments.”  Is this a message that ‘one size does not fit all?’  Does it invoke the need for resource/support centers for counsel for indigent defendants?

And in Philadelphia, where there is a crisis in finding counsel for post-conviction representation, the question must be asked whether these standards apply to those lawyers as well.  While Gideon itself applies only through trial, sentencing, and a direct appeal, the Pennsylvania Supreme Court has recognized a right to effective counsel in post-conviction proceedings.  To make that right meaningful, proper funding and resources – the core underpinnings of the six metrics approved in Kunen – will be needed.  Counties and Courts – take notice.