Sunday, July 13, 2008

Ted Strickland: Meet Clarence Gideon

Today's Enquirer summarizes a report just released by the National Legal Aid and Defender Association on the Hamilton County Public Defender's Office.

Full disclosure: I have not read the full report and cannot find it on the internet, so I take the Enquirer's summary as accurate. Further, a significant portion of my own law practice is devoted to indigent defense as an attorney contracted by the Public Defender to defend both felony and misdemeanor cases. So I operate in this area from a huge conflict of interest, which I both recognize and now disclose.

I'm not going to comment on the bulk of the allegations (at least one of which I find outright unbelievable) or NLADA's recommendations. But one thing is clear from both the report and the comments by those quoted in the article: the State of Ohio needs to step up to the plate with funds to guarantee that indigent defendants receive effective assistance of counsel. I'd hoped that once a Democrat took up residency in the Governor's Mansion we might see some real leadership on this issue, but so far, there's been nothing but silence from Ted Strickland.

This year marked the forty-fifth anniversary of the Supreme Court's decision in Gideon v. Wainwright, which held that the right-to-counsel clause of the Sixth Amendment required the states to provide counsel to those who could not afford to retain an attorney. (It had long been established that the federal government was required to do so in federal criminal cases, but Gideon was the first time the Court recognized that the Fourteenth Amendment incorporated (that is, made applicable to the states) the protections of the Sixth Amendment.) It's clear that nearly a half-century later, we still have much work to do to protect those in our society who are most vulnerable to the loss of their liberty or life at the hands of the State.

A few months after the decision, then-Attorney General Robert F. Kennedy had this to say about Gideon:

If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court, and if the Supreme Court had not taken the trouble to look for merit in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed.

But Gideon did write that letter. The Court did look into his case and he was retried with the help of a competent defense counsel, found not guilty, and released from prison after two years of punishment for a crime he did not commit, and the whole course of American legal history has been changed.

The report of NLADA's assessment is in sharp juxtaposition to this article, also in today's Enquirer, which reports that Ohio's machinery of death is once again churning.

A final note: nothing in this post should be read to impugn the individual attorneys who toil at the Hamilton County Public Defender's Office, or at any other Public Defender's office in Ohio. The attorneys who work there are eager, bright, talented individuals (most of whom could practice in the private sector for far greater pay and far fewer headaches) who are tirelessly devoted to passionately advocating for their clients with too little salary, too few resources, and not nearly enough support. But we need to start thinking about whether--and if so, how--our Public Defender's Office differs from those held out as models of indigent defense, such as the Cook County (Illinois) and District of Columbia public defenders' offices. The answer starts with adequately funding the office charged with safeguarding the liberty of the people of this county.

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