Better Lawyers for Our Criminal Courts

THE tragic events of November 22 and 24, 1963, in Dallas, have focused public attention on the administration of criminal justice and on the lawyers who represent those accused of serious crimes. A few months earlier, in March, 1963, the Supreme Court of the United States had called the attention of the bench and bar in every state to the constitutional requirement that counsel be provided to represent criminal defendants who are financially unable to retain their own counsel. The Supreme Court did this by reversing the conviction and fiveyear jail sentence of Clarence Gideon, in a Florida state court, for breaking and entering with intent to commit a misdemeanor. The Supreme Court’s action was taken because the Florida court had refused Gideon’s request that counsel be appointed, and he had been compelled to defend himself. Upon his retrial, Gideon was acquitted.

Each state must now survey its practices and methods of providing counsel for indigent defendants. Failure to make adequate provision may result in the nullification of convictions in cases where retrial and further successful prosecution may be difficult or impossible. In addition, many related questions have to be considered: Must counsel be provided in every criminal case, or only in those where substantial jail sentences may result? At what stage of the case must counsel be provided? What experience must counsel have had? Must necessary expenses be paid? And so on. These questions will be answered by each state according to its laws and public opinion as it is informed by the state’s judges and lawyers. But the crucial question is whether the lawyers now retained to defend criminal cases and those who are accepting assignments to defend indigents are adequate to the task of preparing a reasonably good defense.

What kind of lawyers now represent those who are accused of crime, and how good a job do they do? As most of these lawyers must be assigned by the court, frequently without any fee or any reimbursement for out-of-pocket expenses, the picture is a very mixed one. Connecticut has a statewide public-defender system in which the salaries and expenses of the defenders are paid by the state. Massachusetts is now developing and expanding such a system. Los Angeles has had a public defender for many years. New York State has excellent legalaid organizations in some of the large cities but few or no organizations in other cities and in many counties. Any summary must paint with a broad brush, and we must generalize about the overall situation in order to sec the criminal lawyer as he is and take stock of what can and should be done.

Taking the fifty states as a whole, the basic fact is that 60 percent of all defendants charged with serious crimes are indigents in the sense that their income and resources make it impossible to retain counsel. In the large cities, such as New York, about 75 percent of the defendants are indigent. An analysis of the lawyers who represent those accused of crime in New York will show the problems which must be attacked.

WHAT kind of lawyers do the defendants of Group One retain? Group One consists of the privileged few, less than 5 percent, who are able to and who do retain first-rate lawyers. The number of first-rate lawyers who are willing to appear in a criminal court is diminishing every year. The fact is that there are not enough first-rate counsel who are willing to represent the defendants who can pay for the defense.

First-class counsel will consider and employ every proper means for attaining the best result for the defendant, including investigation, research, pretrial motions, and bargaining for a plea of guilty. Of course, this is just what a good lawyer should do. If the district attorney is willing to recommend, and the court to accept, a plea to secondor third-degree assault instead of first-degree, the defendant will usually receive a lighter sentence. In this way many cases are settled by pleas of guilty, and usually substantial justice is done.

Well over 95 percent of all defendants do plead guilty, which makes it possible for the criminal courts to handle their business. Clearly, what almost all defendants are chiefly interested in is the sentence they will receive. First-rate counsel will know how to get the best bargain for his client because he knows the ropes. As in every other human activity, a show of strength and skill in placing matters in the most favorable light is bound to get a better result. The patient who employs the best surgeon has this advantage over those who cannot do so. Although many of the poor do get attention from the great surgeons, indigent defendants rarely, if ever, get the help of our greatest trial lawyers.

All too seldom are first-rate lawyers assigned in important cases. During the Second World War, in 1942, the New York federal court assigned Harold Medina to represent Anthony Cramer, who was charged with treason, and in another case the court appointed Theodore Kiendl and George Leisure to represent some Nazi bundists charged with sedition. I know of no such assignments since 1942.

Nor is the matter of sentence a simple one. The federal statutes on sentencing are now so complicated that the country’s federal judges have been meeting in institutes to study problems of sentencing. The laws of our larger states are equally complex.

Group Two consists of all other defendants able to pay for a lawyer who get less than first-class counsel. Most of Group Two get their lawyers on the recommendation of the bail bondsman or some lesser court or police official. They usually steer the defendant to a lawyer who will kick back to them a substantial part of the fee. The lawyer gets much of his business this way. He hangs around the courts; he may have desk space somewhere, but few, if any, lawbooks. He is lazy and incompetent and wants a quick turnover. His investigation of the case is usually limited to how much money he can get out of the defendant and his family, frequently on the misrepresentation that he can fix someone. He seldom knows any law or reads any cases. For trial his preparation is nil; his summations are always the same. His exaggerated claims and charges and his references to liberty, justice, due process, and the flag are so transparently hollow and insincere that it is not easy for most juries to sympathize with his client.

A few of the Group Two defendants will get into reasonably good hands, either through another lawyer or friend or by applying to a bar association referral service where available. These lawyers do a good professional job for reasonable fees; they give the case such attention as it needs.

We now come to the remaining 75 percent, the indigents — Group Three. I think we can agree on the kind of representation the indigent defendant should have. The indigent is entitled to have assigned to him, before arraignment, and in some cases even earlier, counsel who is reasonably competent and who has had some trial experience in the criminal courts. Such counsel should be paid a reasonable fee so that he is in a position to devote to the indigent’s case the time and attention which would be devoted to the case by the average competent lawyer who receives a reasonable minimum fee. Counsel should also be reimbursed for necessary investigation and out-of-pocket expenses. Such counsel is adequate; anything less than this is inadequate.

Measured by this standard, it is clear from recent surveys that there are very few communities in this country where a majority of indigent defendants in criminal cases have adequate counsel. The difficulty is that most lawyers who are assigned simply cannot give a case the necessary attention unless they arc reasonably paid to do so.

Does the full-time compensated public defender give adequate representation? The answer is yes, where the public defender and his assistants have time enough and means enough to do substantially what counsel receiving reasonably minimum compensation is able to do. But the growing case loads and the meager budgets in many instances are cause for real concern.

The Legal Aid Society in New York has recently expanded its services to encompass many courts in New York City which it has never serviced before. Founded in 1876, it was the first organization in this country to furnish counsel to the poor; since then it has been a leader in the excellence of its services and the expansion of its activities. Even with a criminal-attorney staff of forty lawyers, it is obvious that the task of the Legal Aid Society in handling more than 60,000 cases, as in 1962, raises serious questions of adequate attention in many of these.

The Judiciary Committee of the New York State Assembly has recently published a report of the work of the Society in representing the indigent accused. It points out that New York law now requires that the indigent have adequate opportunity to consult informed and competent assigned counsel, and it uses as a yardstick the “type of service . . . provided by the average lawyer versed in criminal practice, if retained at a minimum standard fee.” The report further states that the demands on the Society make it impossible for one lawyer to follow the case through from one court to the next, and it says: “The dialogue between attorney and client is frustrated by the very manner in which Legal Aid operates. Persons who have been defended by Legal Aid have complained to us that they never knew who their lawyer was, and that they had to educate a new lawyer with respect to their case each time they appeared in court.”

It points out that “no one lawyer assumes advance individual responsibility for preparation.” Giving the Society credit for the capable supervision of its attorneys and the zeal and dedication of its well-trained staff, the report states that “Under present circumstances it is simply impossible for a Legal Aid attorney to devote the individual time and effort to every case which it requires. . . . In our judgment, The Legal Aid Society, Criminal Branch, is severely overtaxed. As a result, the indigent Criminal Court defendant is not assured of adequate representation.” Let it be added that in 1962 the Society employed only five investigators. The city now gives the Legal Aid Society $250,000 per year, which pays less than half the cost of its criminal court work, while the city budgets the district attorneys of the three counties where Legal Aid operates in depth — New York, Brooklyn, and Bronx — a total of more than $4,400,000. Moreover, this does not take into account the many detectives and police who are assigned to the district attorneys for investigations.

This analysis of the New York situation would probably apply in some degree to most publicdefender organizations in the large cities. More staff and more money are badly needed almost everywhere, whether the work is on a statewide basis, as in Massachusetts, or citywide.

In many cities and in most of the counties in the United States, the judges assign individual counsel in each case as needed. Except in capital cases, there is usually no compensation and no reimbursement of expenses. When advised that an indigent needs counsel, the judge usually picks out some lawyer who happens to be in the courtroom. Many of the lawyers so assigned have been recently admitted to practice and have had little or no experience in criminal cases. The lawyer then spends a few minutes with his newfound client at the side of the courtroom, or perhaps in an anteroom under the scrutiny of the bailiff or the marshal. In most of such assignments, after a few minutes of conference, the defendant is advised to plead guilty, and he feels he has no choice but to do so. Everyone who participates in these proceedings knows that this is a farce — the judge, the district attorney, the assigned lawyer, the bailiff, and, of course, the defendant himself. The point is that a defendant able to retain his own counsel gets far different treatment.

In most courthouses and courtrooms there are simply no facilities for any private conference with counsel for the indigent defendant, who almost always has been remanded to jail because he cannot post bail. As the recent report of the New York Assembly Judiciary Committee says:

A major disability of any lawyer at the time of arraignment results from the inadequate facilities provided for interviewing prisoners prior to arraignment. In many counties, such facilities are simply non-existent. In Bronx County, in the older of the two buildings occupied by the Criminal Court . . . the prisoners are fed into the courtroom through a narrow and dark staircase which leads from the detention pen on the floor below to a cage immediately to the left of the bench.

In any county in New York City, the attorney (whether assigned or privately retained) has no alternative but to exchange a few whispered words in the courtroom with his client. At very best, he may be able to spend a few moments outside the gates of the detention cell where he is compelled to speak to his client packed in along with dozens ol other prisoners.

The New York report regards the appointment of individual lawyers as unsatisfactory because the assignments “are frequently not given the lawyer’s best efforts,” and it points out that the inadequacy of this hit-or-miss method is what led to the creation and expansion of the Legal Aid Society. There can be no doubt that individual assignment of uncompensated counsel is the worst system for securing representation for the indigent; the real absurdity of it is that it places the burden almost entirely on a small group of lawyers who are least able to bear the burden financially and who frequently are not able to do a competent job.

THE public has been almost totally disinterested in the difficulties of properly defending the indigent. The public has not understood the problem, and the reason for this is that the bar does not understand it. How else can one account for all the years during which Congress has taken no action on bills providing for the public defender and alternative methods of defending the indigent in the federal courts, particularly in view of the fact that more than 60 percent of all the members of Congress are lawyers?

While everyone professes belief in the right to effective representation for the indigent, the public and most lawyers really have a “Yes, but —” attitude. Their first reservation is that the 95 percent who are going to plead guilty anyway do not need a lawyer. Second, they claim that almost all the rest are guilty, so that any lawyer is good enough for what needs to be done. Third, they say, “Well, I’ll give some money, but I can’t do anything else.”As we have seen, each of these attitudes is based on assumptions which are contrary to fact.

The bar in general looks down upon even the best of the lawyers who practice in the criminal courts. Most of our leading trial lawyers will not handle criminal cases, except income tax frauds or antitrust cases against corporate executives. They say they will not represent defendants who might be guilty; thus they are themselves in large part responsible for the failure of the average citizen to understand that the lawyer has a duty to represent a defendant whether guilty or innocent. It is not the lawyer’s business to pass upon guilt except as he may have to consider the likelihood of a verdict of guilty in advising his client how best to answer the charges. These lawyers are fearful that their business clients would not understand their appearance in the criminal arena. The result is that many law firms have no lawyer on their staff who is qualified even to advise a business client about the hazards of the criminal law.

These attitudes on the part of many lawyers only serve to compound our difficulties. Young lawyers avoid the criminal courts except to get trial experience for two or three years as prosecutors. But many firms discourage their juniors from accepting appointments as assistant prosecutors or assistant public defenders.

Let us not forget the lawyers for the prosecution. In most states, prosecutors are elected in each county. In those states, the local politicians pick out some bright ambitious lawyer to run for district attorney. They usually choose someone who is likely to win elections for his party on his way up to more important and better-paid offices. The emphasis here is on political advantage, not on competence or experience for the position. All too frequently the most important criminal cases are prosecuted by lawyers of little experience and with little understanding of the overriding obligations of the office. I refer to the obligation to see that defendants are fairly treated and fairly tried, that no relevant evidence is suppressed, and that constitutional rights are not disregarded. Anyone who watches television or reads the daily press will see constant reminders that police, prosecution, and defense think that publicity will help their cause or promote some private ambition. Suffice it to say that there are many important criminal eases in which the public would be better served by the designation of leading trial counsel to prosecute, as is done in England. The notion that young and inexperienced lawyers can prosecute important criminal cases is hard on the public, and all too frequently it may work a grave injustice to defendants.

WHAT can we do about the present unhappy situation of inadequate counsel?

First, every community where there is no established public-defender or Legal Aid organization should re-examine its system for assignment of counsel so that competent and properly compensated counsel will be available to represent indigent defendants. Second, every effort should be made to secure the enactment into law of the federal Criminal Justice Act, proposed by the Attorney General, which provides for public defenders or their appropriate alternative in every federal district. Third, where a public-defender office or a Legal Aid Society is carrying a staggering load with too few lawyers and almost no additional help, funds should be made available so that additional competent staff may be recruited as rapidly as possible. Last on the immediate list, every criminal court should set aside suitable space where the indigent and his counsel may confer privately. The court should also make sure that private consultations may be had at the places of detention.

For the long run we need a complete change in the attitude of the bar toward the criminal courts and the administration of criminal justice. Instead of sweeping this whole business under the rug and treating it as the least important part of our legal system, we must realize that without proper manning of the criminal courts we deny to many defendants any real protection of their constitutional rights, we undermine law enforcement, and we encourage disrespect for the law.

I should like to make the following suggestions:

1. The law schools should give their courses in criminal law and procedure more content, meaning, and emphasis. It was a meaningless halfcourse in the first year when I was at law school; it had no relevance to what I found in the United States Attorney’s office just after graduation. 2. Opportunity should be given to qualified secondand third-year law students to do publicdefender work under proper supervision, as law schools such as Harvard and Columbia have been doing for many years. Equally important, more senior law students should be given the chance to work in law-enforcement offices, such as the local district attorney’s and the United States Attorney’s office. In 1953 I initiated such a system in the United States Attorney’s office in New York for forty-five third-year students each summer and for forty-five students about to begin their third year.

3. All applicants for admission to the bar who have not done any of the work just suggested for law students should be required to do comparable work with a public defender or a district attorney before their admission — enough to get some idea of what it is really all about by working on live cases.

4. The organized bar should take an active interest in the selection or the nomination of district attorneys and public defenders, just as the American Bar Association and many local associations have been enormously helpful in the selection of federal judges. Such interest would be certain to raise the caliber of these officials and their assistants.

5. Young lawyers should be encouraged to spend two years or more in prosecution or defense offices. From such offices have come almost all of our firstrate trial lawyers and many leaders of the bar.

6. Under any system it will be necessary and desirable to assign individual lawyers in certain cases. Lawyers so assigned should be only those who have had previous criminal trial experience. The judges should require the leading trial lawyers to take their turn. They can well afford to do this; we cannot afford to run the courts without their participation.

7. The judges, by rule and notice, should advise the bar and defendants that statements to the press and interviews concerning pending cases will not be tolerated and will be treated as contempt of court. The lurid and prejudicial matter which is now broadcast to the public before trial cheapens and degrades criminal proceedings.

8. Where assigned counsel or any counsel representing a defendant shows himself to be grossly inattentive or incompetent, the judge who knows of this should offer to permit substitution of other counsel, and during trial he should declare a mistrial if the defendant so desires. A judge should never try the case for either side because the scales seem unfairly balanced, but in criminal cases he should exercise supervision over counsel’s conduct and, where justified, take such action as is necessary to meet the situation. 9. Every defendant should be advised of his right to counsel by printed notice given to him and posted in all places of detention. In this way he may learn that there are other ways of getting counsel besides being steered by a bondsman or hanger-on and that the organized bar can help him retain a competent lawyer.

10. Public defenders and Legal Aid organizations, where they are publicly subsidized, should be given enough funds to provide adequate representation for all indigents who require it.

11. Once each year the district attorney and the public defender should render detailed reports of their work to the judges, and the appropriate bar associations and committees of the bar associations should be charged with constant surveillance of these public offices.

12. It should become the practice of the federal and state governments to retain first-rate trial lawyers as special counsel in important cases. Expert criminal lawyers should appear not only for defendants; serving both as prosecutors and as defense counsel, as their retainers may require, would go a long way toward improving the public image of the criminal trial lawyer. It should bring back to the criminal courts many leading lawyers who have stayed away in recent years.

Once the bar understands the situation confronting the criminal courts and the indigent defendant and wishes to move forward, I have no doubt that public support may be enlisted. There is much that the bar and the law schools can do to support such a program by gathering the facts and publishing them.

It is all too clear that many of the lawyers now handling criminal court work are not adequate to represent indigent defendants. The institution of public-defender systems will go far toward relieving the immediate situation. In several communities many first-rate lawyers appearing in criminal cases formerly served as public defenders. The establishment of more public-defender offices is bound to improve the defense of criminal cases and the whole tone of our criminal courts. Surely every state now has the means, in terms of well-trained lawyers and the money to reimburse them, so that the criminal law will be properly administered. As with all the problems which challenge the courts, we must make sure that our effort goes far enough. Most important, we must keep in mind our paramount obligation to ensure equal justice under law to the guilty as well as the innocent, to the poor as well as the rich.