By John Bigelow N.M. Public Defender's Office
Forty years ago, in the landmark case of Gideon v. Wainwright, the United States Supreme Court declared "any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided for him." As the justices said, "This seems an obvious truth."
Ten years later in 1973, the Legislature created the New Mexico Public Defender Department to meet the constitutional obligations first set forth in Gideon. Although progress has been made in New Mexico and elsewhere in the last 40 years, Gideon's promise is a long way from being fulfilled.
At a recent conference of chief public defenders from across the country, lawyers and administrators from public defense systems told their stories. Many were hair-raising tales reminiscent of the dark days before Gideon.
Too often, people who can't afford to hire a lawyer must settle for an attorney with too many cases to spend more than a few minutes to learn the facts of a case, and even less time to prepare a legal strategy.
Indigent clients might get a lawyer with 1,600 other clients, getting paid less to defend someone who might spend the rest of their life in jail than for a routine real estate closing, as The New York Times found in an investigation in 2001.
A lawyer might be assigned cases based on a low bid rather than on training and experience. One such attorney in California was assigned 330 new cases a month — about the same number that national standards set as an outside limit for an entire year. Under the weight of such caseloads, time and money must be divided into meager allotments for each person who is accused of a crime.
Clients might end up convicted, or even sentenced to death, for a crime they didn't commit, because the lawyer didn't have the lab test, or the investigator, or the training to pick apart the government's case.
A recent, in-depth national study found that inadequate legal representation was one of the top causes of wrongful convictions in death penalty cases. While the rare "sleeping lawyer" makes media headlines, little attention has been given to the principal underlying cause of inadequate representation: a simple lack of resources.
Nine out of 10 Americans in a recent poll said the quality of justice people receive should not be determined by the amount of money they have. The poll also found that Americans want public defenders to have parity of salary, resources and workload with prosecutors. They want quality standards for public defense, just like for teachers or doctors. They can no more imagine demanding competence from a lawyer without the necessary tools, like DNA tests and expert witnesses, than from a surgeon without a scalpel.
In February 2002, the American Bar Association synthesized thousands of pages of public defense standards down to a short and sweet Ten Principles of a Public Defense Delivery System. They are simple, and utterly basic, requiring things like manageable caseloads, training and resources proportionate to those for the prosecution.
Along with other states, counties and cities required to carry out Gideon's mandates, New Mexico needs to continue the effort to comply with these 10 irreducible principles.
True, it might cost money. But the cost of a system that treats rich and poor differently, or that does not address a major cause of wrongful convictions, or in which the public does not have confidence, is much higher. Investment in equal justice is money well spent.
Before Gideon, people accused of crime without the ability to pay for counsel were at the mercy of a system that often shows no mercy. Things are better now, but we still have a long way to go. We must not forget that these people are our neighbors and members of our families. What happens to them in the criminal justice system affects many others. If we fail them, we fail our community.
John Bigelow is chief public defender for New Mexico.
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