After 25 years, public-defender system still has shortcomings

Twenty-five years ago today, a poor convict's penciled appeal to the United States Supreme Court climaxed in a dramatic reversal and the birth of the public defender system nationwide. But the promise of Gideon v. Wainwright, say observers and participants in the public defender system, has not been fulfilled.

Virtually no one charged with a crime goes to trial without a lawyer, regardless of the defendant's means. But to ensure that such counsel is ``effective, and not merely present,'' says David Rudovsky, a law professor at the University of Pennsylvania, more needs to be done.

Much more, says Mary Broderick, director of the Defender Division of the National Legal Aid and Defender Association. Nationally, the system is ``in disgrace,'' she says.

In 1962, Clarence E. Gideon was sentenced to five years in prison for breaking into a pool hall in rural Florida. He'd been jailed four times already for other felonies. But this time, he said before his trial, he was innocent. The Constitution guaranteed him a fair trial, and because he could not afford a lawyer the court should appoint him one, he maintained. Federal law mandated free counsel only for death penalty cases and in other limited circumstances. His request was denied. From his cell he scribbled his now famous request to the Supreme Court.

In a case celebrated by a book and a made-for-TV movie starring Henry Fonda, the high court unanimously set aside a 20-year-old precedent and broadly ruled in Gideon's favor. (He was acquitted of the break-in at a retrial.) Ten years later, the Gideon ruling was expanded to include representation for the poor in civil suits as well.

An enormous stride toward more universal justice was taken with the decision, say observers, and significant steps have been taken since. But, say Ms. Broderick and others, problems remain:

Nationally, public defenders are out-spent and outmanned by prosecutors. Prosecutors generally have three times the budget to pursue cases, Broderick says. They can use police, forensic laboratories, and state-employed psychiatrists. Public defenders must pay for these services out of limited budgets.

Also, the Reagan administration has been trying since 1981 to cut back the Legal Services Corporation (LSC), which provides major funding for state and local agencies handling civil cases for the poor. The administration asserts that LSC lawyers engage in political activities beyond the agency's purpose.

Public defenders face staggering case loads in some places. As police departments ``get tough'' on crime, more defendants are fed into the court system. In 1983, lawyers at a Spokane, Wash., legal-aid agency filed suit to reduce their annual case loads of 900 misdemeanor cases per lawyer - three times the national standard. Today, the addition of more staff has reduced that load by a third.

Private lawyers who are asked by courts to defend clients are poorly paid. For some, the money doesn't even cover expenses. The most dramatic examples of this occur in capital-offense trials, says Professor Rudovsky. A lawyer may spend 1,000 hours or more to prepare such a case - for which he may be paid $1,500 to $2,000.

In capital cases, the right of a poor defendant to have a lawyer does not apply to all phases of the appeals process.

The American Bar Association's 18-month-old Post-Conviction Death Penalty Representation Project was formed to educate the legal community to this fact, to recruit lawyers to appeal capital cases, and to seek a long-term solution.

From one-third to one-half of the cases reviewed are found to be so seriously flawed that the decisions are reversed, says Esther Lardent, the program's chief consultant.

Perhaps the biggest hurdle to wider implementation of the Gideon principle is that there is not a great deal of public sympathy for better legal services for criminal defendants. ``The popular belief is that if you got arrested, you must have done something,'' says Broderick.

For that reason, Rudovsky says, the burden is on the courts to review how the Gideon ruling is being carried out.