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November 4, 2012

Great symposium at Washington & Lee on Gideon a half-century later

GideonAs detailed in this posting, the folks at Washington & Lee School of Law have on tap at the end of this week a terrific symposium titled "Gideon at 50: Reassessing the Right to Counsel."  Here are the details via the posting:

Fifty years ago the landmark case Gideon v. Wainwright established the right to counsel for criminal defendants. An upcoming symposium at Washington and Lee School of Law will explore the legacy of this case, its impact on the criminal justice system, and the future of the right to counsel.

The symposium is scheduled for Nov. 8-9 in the Millhiser Moot Court Room, Sydney Lewis Hall on the grounds of Washington and Lee University.  The event is free and open to the public.

W&L professor and symposium co-organizer J.D. King, who directs the school’s Criminal Justice Clinic, notes that this is not a celebration of the case, but rather a cold, hard assessment of what has gone right and what has gone wrong since Gideon became law.

“One of the failings of the criminal justice system is that while we do provide lawyers to people who can’t afford their own, there is no meaningful check on how good those lawyers are,” says King.  “The reality of indigent defense is that in many cases defendants get a lawyer in physical presence only.”

Another problem, says King, is how Gideon and the right to counsel has been limited to apply only to so-called “serious” cases, that is, cases that could result in incarceration. However, there are more serious consequences that can result from a misdemeanor conviction now than there were when Gideon was decided.

“You can get deported, kicked out of your housing, lose student aid, not a get a job because of a background check, or wind up on the sex offender registry, all for misdemeanors for which you were not entitled to counsel,” says King.

The symposium is especially timely, adds King, as the fiscal crisis of the last several years has put increased strain on funding for public defender systems.  Indeed, in many states, including Virginia, defendants eventually bear the burden of the cost of their attorney, which can force them to waive their right to counsel from the outset.

The symposium will bring together scholars and practitioners representing a range of views on the issues.  Symposium attendees include Norman Reimer, executive director of the National Association of Criminal Defense Lawyers and Robin Steinberg, founder of the visionary defense support service The Bronx Defenders, as well as leading academics from law schools around the country.

The symposium is sponsored by the W&L Law Review, the Frances Lewis Law Center, the National Association of Criminal Defense Lawyers and the Foundation for Criminal Justice. A complete list of panelists, symposium schedule and registration information is available online at this link.

November 4, 2012 at 08:16 PM | Permalink


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Gideon was not a serious case. It was a flimsy pretext for the Supreme Court to generate massive amounts of government make work jobs for the lawyer profession. Rent Seeking is the best theory of appellate decisions, limited only by the fear of public outrage.

A cigarette machine had been broken into. Gideon called a cab from a booth just outside the scene of the crime. He was arrested with $23 in quarters in his pocket. He represents himself quite well but is found guilty quite correctly, in the first trial.

After the decision, thousands of convicted violent felons are loosed on the public. He waits months for a second trial. He refuses the ACLU bungler, and demands a high priced defense lawyer. No fool he. He claims to have won the quarters in gambling. The Dream Team type lawyer gets him off at the second trial.

He returns to his heavy drinking and the physical abusing of his wife. He dies of alcoholism some years later. So Gideon is freed to kill himself slowly and to beat up his wife, whether she needed it or not.

Criminal defendants do better pro se than relying on public defenders. Most are faced with massive evidence and 75% will lose with or without a lawyer. So there is no benefit to the public, who is forced to pay for this worthless service. There is no benefit to the defendant. Representation will not benefit the guilty defendant, nor even the innocent one. This case is the poster child for lawyer rent seeking. Spend $billions, get nothing of any value to anyone back.

Posted by: Supremacy Claus | Nov 4, 2012 9:13:56 PM

Symposia like this give legal academia its deserved reputation as an utterly one-sided enterprise. Could it be any more obvious that the only real question at this thing will be whether the already beleaguered taxpayers should be dunned a large amount more for indigent representation, or a massive amount more?

Well, no, on second thought, there might be one more question: Is there any difference between the Department of Justice and the Ku Klux Klan?

Some of these things make at least a pretense of balance, but this one took a pass.

Posted by: Bill Otis | Nov 4, 2012 10:19:55 PM

You will never hear the facts of this case from any lawyer. Nor of the subsequent consequences to Gideon.

You will never hear advocacy of a remedy in torts for a ruinous false prosecution, when the careless prosecutor should made to make the innocent defendant whole.

You will never hear the pro se criminal defendant does as well if not better than the public defender.

I attended the Occupy Philadelphia rally with a daughter. We then marched to Constitution Hall, running a long gauntlet of lawyer freed paranoid schizophrenics every block of Market Street from City Hall to 6th Street, each promising to kill us. Thank the defense lawyer for loosing the paranoid schizophrenic on the public. This type of mental patient will murder 2000 people a year, thanks to the defense lawyer. We get to Constitution Hall. Gideon is encased in a separate gigantic exhibit more akin to a church shrine, with his original cert petition written on a grocery bag or some such. All that was missing were the angels singing. This is a very big case for the lawyer criminal cult enterprise.

Lastly, you will never, ever, never hear the V word.

Posted by: Supremacy Claus | Nov 4, 2012 10:41:45 PM

In the absence of any disclosure of economic conflict of interest by just about every single participant, this symposium should be considered to be unethical and unprofessional. The credibility should be judged accordingly as stemming from unethical lawyers, refusing to disclose extreme conflicts of interest. Every single one of the birds participating makes her living off the maintenance of a high crime rate, and in protecting the criminal, especially the violent criminal, from eradication. That includes that Yale Law grad that clerked for Sam Alito.

Posted by: Supremacy Claus | Nov 4, 2012 11:06:18 PM

If we're worried about the cost of prosecution, there is a VERY easy/quick solution. Exercise prosecutorial DISCRETION with respect to what and when to prosecute. An even more effective, but not as easy fix, is to decriminalize or dramatically reduce penalties for certain offenses.

But more to Gideon in particular: I would be most interested if this Symposium raises the issue of the indigent being CHARGED for the services of a court-appointed attorney. I recently became aware that there is a bit of a nationally trend toward this of varying degrees and, of course, ad hoc application. Seems logically inconsistent to me as well as impeding on the spirit of Gideon and its progeny.

Posted by: Mark Allenbaugh | Nov 5, 2012 9:15:57 AM

My understanding of the fees for court-appointed counsel (at least in my state) are that they are minimal (in the area of $500 for a felony trial) and are merely assessed as a court cost at the end of the case (and thus might or might not ever be paid be the defendant).

Every time I see a symposium on the inadequacy of appointed counsel for indigent defendants, I would like to see a symposium on the inadequacy of retained counsel. My experience with the going rate is that most people with retained counsel can't actually afford to pay an attorney to try a case (something that would cost $20,000 or more) and thus actually get less representation than those with an appointed attorney.

Posted by: tmm | Nov 5, 2012 9:23:43 AM

Mark Allenbaugh --

"Exercise prosecutorial DISCRETION with respect to what and when to prosecute. An even more effective, but not as easy fix, is to decriminalize or dramatically reduce penalties for certain offenses."

Prosecutorial discretion is exercised every minute of every day. It will never, however, be exercised in a manner satisfactory to the defense. It is the nature of the defense to want things ratcheted down one more notch. That will never change.

As for decriminalization: We can save ALL the money spent on prosecutions if we never do any. The question is where we draw the line. As I say, the defense side will always want less, no matter where the line is drawn. Such is the nature of advocacy.

"But more to Gideon in particular: I would be most interested if this Symposium raises the issue of the indigent being CHARGED for the services of a court-appointed attorney."

Gideon was decided in a different era. The country was optimistic, the economy was growing fast, and we didn't have sixteen trillion to pay off.

The day of spending without limit is over with. Everyone, rich, poor and in between, is going to have to shoulder more of his own load. Unless we affirmatively want national bankruptcy, government is going to have to spend less -- probably vastly less -- not more.

Posted by: Bill Otis | Nov 5, 2012 10:29:50 AM

Well bill there is a simple solution to the indigent costs. Our corrupt govt seems to want now to serve for life. Well then let's help em out. Cut thier pay to nothing. Most are crooked fat cat's who never worked a day in thier life anyway....

There we now have billions extra.

Posted by: rodsmith | Nov 5, 2012 1:37:19 PM

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