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Utah lawyers: Historic ruling's legacy at risk
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Clarence Earl Gideon was a high-school dropout, a drifter, a petty criminal. He worked blue-collar jobs for low wages. He married four times.

Gideon was a nobody who could have been anybody.

That's why on March, 18, 1963, when the U.S. Supreme Court ruled that Gideonreceived an unfair burglary trial in Florida where he was denied legal counsel because he could not afford it, the message was clear: The Constitution's promise of fairness is universal. The right to counsel, the court ruled, is "fundamental," and should guarantee that "every defendant stands equal before the law."

On Monday, Gideon v. Wainwright — often heralded as one of the most important legal rulings in the history of the United States — turns 50.

But its anniversary, experts say, is no cause for celebration.

Gideon's legacy has been battered and bruised nationwide, and certainly in Utah.

Unsupportive governments, threadbare budgets and ever-expanding caseloads threaten to weaken what's been a fundamental right for half a century.

"This is not an opportunity to celebrate, but to see how far we are from fulfilling Gideon's promise, and hopefully start over again," said national advocate Jonathan Rapping, founder of the Southern Public Defender Training Center. "It's a call to order, a civil rights issue we should all be very concerned about."

Each state is left to decide how it will handle the guarantee of counsel. Most — 26 of 50 states — delegate that responsibility to counties.

In Utah, that means a patchwork system with 29 different ways of doing things.

"Every county is sort of left to its own devices, so each county's decision-making body will have its own idea of how much of a priority they want to make [indigent defense]," said John Mejia, legal director for the American Civil Liberties Union of Utah. "It's difficult because these counties know they have a constitutional duty, but they're not necessarily educated as to what it means to provide effective counsel."

'Woefully undercompensated' • Utah is one of only two states to give neither funding nor oversight of its criminal defense services for the poor.

That means the representation an indigent defendant gets in Utah depends entirely on what county that defendant is in. The differences can be as stark as night and day.

Some counties, such as Salt Lake and Utah, have public defender offices that function like conventional law firms with full- or part-time salaried employees charged with providing public defense services.

According to those who work there, caseloads are managed closely and rarely exceed national standards. Defenders are given guidance and access to experts. They work in a supportive environment.

But most counties in Utah employ what national experts widely consider to be the least effective and most problematic method of public defense: the contract system.

In this model, private attorneys are awarded tax-funded county contracts to take on indigent clients. There is no limit to how many clients these attorneys will have to represent, and their rate is fixed.

This provides a disincentive for attorneys to fight hard on behalf of their indigent clients, said Kent Hart, executive director of the Utah Association of Criminal Defense.

That's because the extras — travelling to and from jails or prisons, employing forensic services, acquiring expert witnesses, and so on — can come out of the attorney's pockets.

"Public defenders are woefully undercompensated," Hart said.

In 2010, the ACLU issued a report on Utah public defenders that said the state was failing Gideon. Lack of funding was a key point in the study.

While the numbers vary by county, according to the study, public defenders were working with budgets that amounted to less than half what legislators granted the county attorney offices.

Since then, Mejia said, little has changed.

"I don't think that the money paints an entire picture," Mejia said. "But it's a very clear indicator that we're underfunding this system … statewide."

A broken system • The nation's failure to uphold the promise made in Gideon v. Wainwright does not begin and end in its coffers, experts said. It's a cultural problem, too.

"People have come to accept these low standards for poor people," Rapping said. "We've lost sight of the role [public defenders] are supposed to play in promoting justice."

What role is that?

Protecting the civil liberties of all people, defense attorneys said, rich or poor.

"My number one job is to protect my client from the state," Salt Lake City public defender Jesse Nix said. "People always say, 'How can you defend a guilty person?' And that's the wrong question. First, you're innocent until proven guilty, and second, it doesn't matter. What matters is that their rights, constitutional and civil rights, are protected every step of the way."

In a society that often seems all too willing to lock someone up and throw away the key, Nix said, defending the poor can be an increasingly difficult task.

"The biggest challenge I face being a public defender is seeing a judicial system that isn't fair to many of my clients," said Nix, also the president of the Utah Minority Bar Association. "I've seen bicycle license tickets written to the homeless, theft charges for innocent people, and cases where the evidence is offensively weak."

Public defenders are frequently the only thing standing between a person and a jail or prison cell.

It is estimated that as many as 80 percent of defendants in our nation's criminal justice system require public representation, according to the National Legal Aid and Defenders Association.

The system, U.S. Attorney General Eric Holder has said, is in "crisis."

But often the political support and public outrage needed to revamp a broken system just isn't there.

Clarifying House bill defeated • Last week, the Utah Legislature killed a bill that was to have clarified and expanded the circumstances under which an indigent person charged with a misdemeanor could get a public defender.

As the law stands, it is left to the court to decide whether there is a substantial possibility that the person may be incarcerated. If there is such a possibility, they are appointed counsel.

The bill, HB339, was to have mandated representation for all defendants accused of a crime for which incarceration is an option. Whether it was likely would be irrelevant, according to the language of the bill.

"It set a clear line in the sand," Mejia said. "And it would have been good for the people of this state, because even if you're not going to jail, a criminal charge can pose all sorts of problems: You may have trouble finding a job, can't live in certain places, your scholarship opportunities at school are cut off — it's an endless list of things."

But representation comes at a cost.

Fiscal analysts estimated Utah justice courts would be required to provide legal counsel for about 15,000 more indigent defendants than they already do, which would cost $750,000 to $1.5 million annually.

The bill was defeated 44-28.

Advocates for public defense argued that budget constraints should not justify the denial of civil liberties.

"We want to protect our citizens more than the very minimum requirement," said Mejia, who testified before the House on behalf of the bill. "Let's go the extra mile when we're talking about courts and fundamental fairness. Let's go the extra mile to protect our citizens, to ensure their rights, to uphold this standard we have all been trusted to uphold."

mlang@sltrib.com

Twitter: @marissa_jae

High court • They say "right to counsel" system is a mess after 50 years.
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