New York Times

April 15, 2003
County Says It's Too Poor to Defend the Poor
New York Times By Adam Liptak

MARKS, Miss., April 11 — Diana Brown met her court-appointed lawyer for the first time on the day she pleaded guilty to several serious crimes five years ago. They spent five minutes together and have not spoken since.

"You are guilty, lady," the lawyer, Thomas Pearson, told Ms. Brown, according to her sworn statement, as he met with her and nine other defendants as a group, rattling off the charges against them.

He told her she was facing 60 years in prison for assault, drunken driving and leaving the scene of an accident, and should accept a deal for 10 years, court papers say. He gave her five minutes to decide. Offered no other defense, she took the deal.

Lawyers say cases like Ms. Brown's are not unusual here in Marks, the seat of Quitman County, a patch of Mississippi Delta farmland about 60 miles south of Memphis. But now the county is trying to do something unusual about it.

The county is suing the state because it says it cannot afford to provide defendants with anything more than assembly-line justice. Mississippi is among a handful of states that provide no money for the defense of the indigent in noncapital cases.

The lawsuit, which will go to trial here this month, is in its way a commemoration of the 40th anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, which held that poor people accused of serious crimes are entitled to legal representation paid for by the government.

The new case is being litigated by the same firm, Arnold & Porter, that represented Clarence Gideon, a Florida drifter accused of breaking into a poolroom who was tried and convicted without a lawyer. (The firm was appointed after the Supreme Court agreed to hear the case based on Mr. Gideon's handwritten petition.)

And the lawsuit is seeking answers to some questions left open by Gideon that legal scholars, government officials and advocates for the poor have been asking for years: How decent a lawyer does the constitution require? Who should pay for that lawyer? And how much money should be paid?

Abe Krash, 75, who worked on Mr. Gideon's case and remains a partner at Arnold & Porter, said the court's unanimous decision in Gideon was important but, in retrospect, painfully incomplete.

"There was a gap between our great hope and what was realized," he said. "It is simply not sufficient to say you're entitled to a lawyer. You have to have a lawyer who is competent and experienced in trying criminal cases. Equally important, the lawyer who is appointed has to have the resources available to adequately defend the case."

"The problem," he continued, "is that in a number of states the representation is treated with indifference."

Prosecutors around the nation, however, say that poor defendants generally get passable representation and were not promised more.

"We are looking at a completely different world than Clarence Gideon saw," Joshua Marquis, district attorney in Astoria, Ore., said. "In noncapital cases, indigent defendants get anywhere from an A to a C defense. I think they're entitled to a C-plus level defense."

Counties and states have varied approaches to legal defense for the poor. Twenty-seven states pay all or most of the bill; 22 rely mostly or entirely on counties; and Alabama depends on fees collected from others using the court system. Only a small number of states pay nothing toward indigent defense in noncapital cases: Mississippi, Pennsylvania, South Dakota, Utah and Wyoming.

States also use different systems. Some states and many larger counties have institutional public defender offices with resources and expertise that match and sometimes exceed those of prosecutors.

Here in Quitman County, on the other hand, two lawyers are paid $1,350 a month each to represent every indigent defendant who comes along. In the first nine months of 2002, there were 45 cases involving serious charges; in all of 2001, there were 20; in 2000, 35. The fee is to cover trials, appeals, investigators, experts and every kind of overhead.

"We're providing a bare-bones public defense for these people and it's not enough, and we can't afford it," Thomas Scipper, the county administrator, who is known as Butch, said. "I've seen some people slam-dunked in drug cases. I've seen some people plead because they don't have confidence in the system."

Ms. Brown, who was sentenced to three 10-year sentences for running her car into three pedestrians, was recently released and is back home here. The sentences ran concurrently and were partly suspended.

Mr. Pearson, the lawyer who handled her case, said he did not remember her. But Mr. Pearson, who no longer works for the county, defended his approach.

"They got an adequate representation," he said of his clients. "If they want Clarence Darrow, they should hire Clarence Darrow."

Others say it is barely possible to call the representation that clients receive in places like Quitman County "legal work."

"They are not being represented," said Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta and an expert witness for Quitman County in this month's lawsuit. "They're being processed through the system."

In Quitman County, for example, Roderick Applewhite, 32, is facing a series of charges, including resisting arrest. He says he has no money for a lawyer and has not seen one in the two and a half months he has spent in Quitman County Jail.

"I said, `I want a lawyer,' " Mr. Applewhite said. "And they don't want to hear about it."

A report commissioned by the Mississippi Legislature says that the state and county governments pay $3.19 per capita for indigent defense. Only North Dakota spends less. Texas spends $4.65 per capita; Florida spends $11.70.

These sums represent an enormous increase from those of recent decades, said Robert L. Spangenberg, president of a consulting firm that studies indigent defense systems for governments, bar associations and others. In 1983, 20 years after the Gideon decision, state and local governments spent $625 million on such expenses, or $2.76 per capita. Spending today is estimated at $3 billion, representing more than $10 per capita.

But he and other legal experts say that as the economy has faltered, spending has not kept up with the need. About 80 percent of the more than one million criminal defendants prosecuted in state courts on felony charges each year are indigent.

Bryan Stevenson, executive director of the Equal Justice Initiative in Montgomery, Ala., said the problems were most pronounced in certain parts of the country.

"We have made substantial progress in a lot of areas and a lot of places, but there are other areas that are underserved, in the deep South and the rural West, where we have not," Mr. Stevenson said.

"In some communities there is downright hostility to making sure poor people get adequate representation," he added. "In counties in Alabama, Georgia and Mississippi, it is not uncommon to see people meeting counsel for the first time and pleading guilty with no investigation and serving much longer sentences than if they could afford counsel."

There are three ways to provide lawyers for poor defendants.

Most experts say that formal public defender offices, with their professional staffs, institutional continuity, opportunities for specialization and economies of scale, are preferable to the alternatives where there is enough work to justify them.

The second alternative, appointing individual lawyers in given cases, is subject to cronyism and can be an incentive for lawyers to be less than zealous to move cases along to stay in an appointing judge's good graces, experts say.

The third method, used in Quitman County, is the flat-fee contract. For $1,350 a month, Mr. Pearson said, he handled all the work that came his way, including trials and appeals, a along with "travel, books, supplies, phones, secretarial, everything."

"If I put too much time or money into these cases at these prices, I wouldn't be able to keep going myself," Mr. Pearson testified at a deposition in Quitman County v. Mississippi.

Some legal experts say that the amount of money a state puts into defense of the poor is more important than the kind of defense program it has in place.

"There are a lot of good programs around the country, and they're not all public defender programs," Mr. Spangenberg, the consultant, said. "What they have in common is state funding."

Though the Supreme Court has guaranteed the poor a lawyer, it has made individual challenges to the adequacy of those lawyers difficult.

People who feel they did not receive effective assistance are required to prove not only that the lawyer was incompetent, but also that the incompetence affected the outcome of the case. And they need to typically prove this after conviction in a proceeding in which they are not entitled to a lawyer.

Systemic challenges brought on behalf of criminal defendants or public defenders who say they are underpaid have met with limited success in Arizona, Connecticut, Louisiana, Oklahoma and Pennsylvania, generally bringing small increases in financing. Cases are pending in Michigan, Montana and New York.

The Quitman County lawsuit is the first, legal experts said, in which the plaintiff is the government itself.

For Quitman County, the appeal for state aid is not only about the quality of defense work for the poor, it is also an effort to use money for other pressing needs.

Mr. Scipper, the Quitman County administrator, said that an earlier capital trial nearly ruined the county. To pay the $250,000 cost of the defense of two men with no connection to the county beyond having committed four murders in it, the county had to raise taxes three years in a row and take out a bank loan that took years to repay.

"We lost four members of our community, including two adults who were taxpayers," Mr. Scipper said. "They were murdered and their house was burned down on top of them. And we're supposed to pay for the defense?"

The state has since then assumed most capital defense costs. Still, Quitman's finances are severely strained, another lawyer at Arnold & Porter representing the county, Kathleen Behan, said.

"Quitman is down to those minimal essential services it's essential to have to run a county — the county library, the county school," she said.

Harold E. Pizzetta, a special assistant attorney general who represents Mississippi in the Quitman County lawsuit, is dismissive of the county's concerns.

He said the defense provided to poor defendants here was adequate "in the overwhelming majority of cases." If it is not, he added, it is up to the county to fix it.

"Is there a component of the right to counsel that protects a county from making tough budget decisions?" Mr. Pizzetta asked. "They can either take it from existing funds or raise revenues."

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