Oregon State Bar Bulletin — FEBRUARY/MARCH 2013

“Poor people have access to American courts in the same sense that Christians thrown to lions had access to the Coliseum.” — Earl Johnson Jr., retired justice,California State Court of Appeal

It’s the stuff of a John Grisham novel, or at least a nonfiction book by a Pulitzer Prize-winning author.

A criminal defendant with an eight-grade education who had the presence of mind to request court-appointed counsel. A petition for review of the trial court’s denial of that request, written in pencil on lined paper in a Florida jail cell. A U.S. Supreme Court poised to reverse itself. And an appellate attorney, selected by that Court to represent that defendant, who shortly thereafter would become an associate justice himself.

The date was March 18, 1963, 50 years ago this month; the case was Gideon v. Wainwright, and the issue was whether indigent persons charged with felonies in state courts have an absolute federal constitutional right to court-appointed counsel.

In saying “yes,” the Warren Court (1953-69) made a decision that changed the face of criminal prosecution in the United States, a decision that — unlike some of that Court’s other “landmark” decisions — has withstood the test of time.

“It’s startling for my students to realize that before Gideon , the Sixth Amendment meant that if you were paying for a lawyer, you could bring that lawyer with you to court,” says Prof. Margie Paris, who teaches criminal law and procedure at the University of Oregon School of Law.

There was just one little problem with this new right, the same problem that had caused Clarence Earl Gideon (pictured below) to request court-appointed counsel in the first place:


Gideon is my favorite opinion,” says Portland lawyer Barnes Ellis, who played an instrumental role in the development of Oregon’s public-defense system and chairs its Public Defense Services Commission. “It is a tectonic-plate shift. It goes for like 40 pages. And nowhere in the opinion is how public defense is going to be paid for even mentioned.”

The Legal Landscape Pre- Gideon

The concept that an indigent defendant might have a constitutional right to court-appointed counsel was not entirely novel when Gideon appeared on the scene.

In 1932, the U.S. Supreme Court had held, in Powell v. Alabama , that a state trial court’s failure to provide criminal defendants with effective assistance of counsel was a denial of their 14th Amendment protection against deprivation of “…life, liberty or property … without due process of law….”

“For the first time” Pulitzer Prize-winning reporter Anthony Lewis said of Powell in his 1964 book, Gideon’s Trumpet. “the Supreme Court had held that the Constitution could entitle the poor and friendless accused to the lawyer he could not retain himself. It was the first occasion on which the Supreme Court had actually reversed a state criminal conviction because of unfair procedures at trial.”

But, at the same time, the Court made it clear that its holding was limited to the “special circumstances” of that case: nine poor, black teenagers —the so-called “Scottsboro Boys” — who were sentenced to death after hastily appointed and unprepared counsel represented them on charges of raping two white girls.

Six years later, in Johnson v. Zerbst , the Court held that the Sixth Amendment, which provides that “… the accused shall enjoy the right … to have the Assistance of Counsel for his defence” requires the appointment of counsel for indigent defendants in federal criminal cases.

The result of these two decisions was that in state courts, the 14th Amendment required appointment in some criminal cases, while in federal courts, the Sixth Amendment required appointment in all such cases.

Because of this disparity, Lewis wrote, “Many informed observers thought it was inevitable that the requirement [that the court appoint counsel] would be extended to the states.”

But then, in 1942, came Betts v. Brady.

In Betts , the Court — instead of extending Zerbst to state court proceedings — expanded Powell to noncapital cases in which lack of counsel denied indigent defendants “fundamental fairness” due to “special circumstances.”

In later decisions, “special circumstances” were held to include a defendant’s illiteracy or youth; a prosecutor’s or judge’s conduct and/or the complexity of the charges.

The Stage Is Set

This was the state of the law in 1961, when Clarence Gideon was denied counsel in a case involving petty larceny from a pool hall; received the maximum sentence of five years in prison and petitioned for review.

The defendant, Wainwright, was a prison official in Florida, where Gideon was imprisoned.

The U.S. Supreme Court, which, as author Lewis noted, “has virtually unlimited complete freedom to select the … cases to which it will give a full hearing each term…,” allowed the petition.

Following its practice of personally appointing counsel for unrepresented petitioners, the Court chose Abe Fortas, a prominent Washington, D.C., lawyer who would himself be appointed to the Court several years later, to represent Gideon.

The fact that the Court chose to revisit Betts , on Gideon’s seemingly insignificant case, was not as surprising as it may appear: Betts and its virtual case-by-case analysis of “special circumstances” had proved cumbersome.

“There were some indications that these issues were coming down the pike,” says Portland attorney Arden Shenker, who worked on the petitioner’s brief on one of three other cases consolidated with Gideon for hearing. “So when the Court granted these petitions, I had a clue how big the decisions could be. We were optimistic.”

Shenker was assisting a lawyer from Washington state, Charles “Chuck” Luce, on Draper v. Washington ( concerning an indigent’s right to free transcript on appealfrom state - court conviction) because Luce recently had been named head of the Bonneville Power Administration and was pressed for time. (Ironically, one of their work sessions was cut short when the Columbus Day Storm hit Portland, forcing Luce to respond to BPA storm-related calls and Shenker to shut down their office in the federal courthouse.)

Meanwhile, Oregon’s then-attorney general, Robert Y. Thornton, was filing two amici curiae briefs in Gideon , both on behalf of the criminal defendant , not the fellow state of Florida. In one, Oregon was joined with 21 other states and commonwealths; in the other, it was the only state to file a separate amicus curiae seeking reversal of Gideon’s conviction.

Gideon had the best of the four cases in terms of the fairness of the need,” Shenker says. “But in all four cases we were able to demonstrate the need: if you can’t afford a transcript on appeal, how will the appellate court know what errors were made?”

In Gideon , the Court ruled unanimously that the 14th Amendment requires state courts to appoint counsel for indigent defendants in felony cases, thereby extending the identical requirement made on federal courts by the Sixth Amendment and Zerbst .

Shenker never had the opportunity to cite Draper : he immediately went into private practice, doing complex commercial litigation. But former Oregon Attorney General Dave Frohnmayer, who later would argue seven cases before the U.S. Supreme Court, winning six of them, says that the impact of Gideon , its companion casesand their progeny was felt in other legal circles quickly and powerfully.

“Practically our first day of law school, a professor said, ‘There’s this wonderful book called Gideon’s Trumpet ,’ ” says Frohnmayer, who had graduated magna cum laude from Harvard University in 1962 and would receive his law degree from the University of California Berkeley School of Law in 1967. “I read it in almost my first week of law school.”

“This was very heady, confusing stuff,” says Frohnmayer. “Our criminal procedure book immediately was outdated. I remember getting huge supplements on Escobedo [ Escobedo v . Illinois , right to counsel during police interrogations (1964)] and Miranda [ Miranda v . Arizona , advice of rights (1966)]. It was very exciting.”

Frohnmayer had the opportunity to help prison inmates exercise their new rights when, as a “rookie lawyer” for a large corporate firm in San Francisco, he did pro bono work on habeas corpus cases.

“I was an early part of a group of young, volunteer attorneys, many with large firms, that was building on what the Warren Court had done,” he says, referring to that Court’s great expansion of the use and scope of the federal writ of habeas corpus by prisoners to bring their cases before courts. “Our [federal] jurisdiction just got a boatload of these cases because San Quentin [State Prison] is in it. I spent more weekends than I can count at San Quentin, seeing my clients.”

“People were getting their teeth into this time of constitutional revolution,” Frohnmayer says of the immediate post- Gideon era. “Your sense of being able to have a personal impact on the development of law was very profound.“

Still a Landmark

Fifty years later, “ Gideon is still a landmark,” says Prof. Tung Yin, who teaches criminal procedure at Lewis & Clark Law School.

“If you survey the peak of the Warren Court and what criminal procedure looked like at that time,” he explains, “there have been deep cutbacks in some areas, cutbacks in some areas and other areas that are essentially untouched. The right to counsel is among the latter.”

But, while Gideo n has survived as a legal principle for 50 years, Yin says that “If you look at the practical terms of what Gideon means versus the aspirational right, you’re going to see some difference.”

“It’s not that the court has cut back on the Gideon right,” he elaborates. “It’s a practical issue: how much money is available for public defenders.”

The UO law school’s Paris, who practiced criminal defense in Chicago before moving to Oregon, agrees.

“I spend almost half of my time, when teaching, on assistance of counsel: what does the right, in reality, provide today?” she asks. “That’s a very serious and troubling question. Nowadays, the public defense system is very, very seriously underfunded, so that what many defendants get is really not effective assistance of counsel. That lack of funding has had a profound, profound effect on the quality of counsel, and it has affected one population disproportionately: African Americans.”

“In some states, the money for indigent defense comes from the counties, and some counties can’t, and don’t, afford it,” says Paris. “What people are getting, in terms of defense counsel, is ridiculous. Two, three, four hundred cases a year. There’s no way you can effectively assist [someone]; basically, you’re just pleading defendants guilty.”

Other issues, she says, include appointed counsel who “…make so little on these cases that they don’t spend any time on them…” and/or are “not even qualified to handle the cases on which they are appointed.”

“Add to this layer of underfunding a second problem,” Paris continues. “The Supreme Court’s standard for determining whether a defendant has received the effective assistance of counsel is both very, very low and courts have not been very demanding when they apply that standard. Convictions have been upheld where the lawyers were sleeping .”

“To make Gideon real, to hold up the guarantee it created, we have to fund lawyers and have a meaningful standard to evaluate [appointed counsel] after the fact,” Paris concludes. “We haven’t lived up to the promise that the court gave us in Gideon .”

Encouraging Signs

There are encouraging signs, at least in some parts of the country.

“Oregon has one of the better [indigent defense] systems,” says Paris, “[And] the federal system is pretty good.”

In addition, she says, “In the last few years, the Supreme Court has begun to pay attention (to the adequacy of counsel), particularly with guilty pleas.”

This increased attention is not limited to the U.S. Supreme Court or to cases in which defendants pled guilty.

“Within the last two years, a slew of cases have been sent back on post-conviction relief (PCR) proceedings, in Oregon, for ineffective assistance of counsel,” says Corvallis attorney Peter Fahy, who defends death-penalty cases all over the state.

PCR is one of two kinds of inmate-initiated proceedings — the other being habeas corpus — in which judicial review of the adequacy of counsel takes place after direct appeals are exhausted.

“In the 13 months since the governor (John Kitzhaber) placed a moratorium on executions in Oregon,” attorney Jeff Ellis of the Portland-based Oregon Capital Resource Center said in late December, “there have been no new death-penalty cases handed down by Oregon juries. During that same period of time, there have been five reversals in Oregon death-penalty cases, two on direct appeal, three in PCR proceedings.” (The two appellate reversals did not involve inadequate assistance of counsel.)

“It is an unusually high number,” says Ellis, who receives state funding to provide assistance to attorneys representing clients in death-penalty cases in Oregon. “It had been quite some time since any capital case was reversed on state PCR.”

In order to prevail on an inadequate assistance of counsel claim under the Oregon Constitution, the petitioner/inmate must prove, by a preponderance of the evidence, that his trial counsel failed to exercise necessary professional skill and judgment and that the petitioner/inmate was prejudiced as a result.

Under the federal constitutional standard, he must demonstrate that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that, but for such performance, his case would have had a different outcome.

In capital cases, says Ellis, there actually are two outcomes to be considered: that of the trial and that of the penalty phase.

In the three PCR cases to which Ellis refers, judges upheld the petitioners’ convictions — all for aggravated murder and other crimes — but reversed their death-penalty sentences and remanded them for new penalty phases.

“One the one hand, it is discouraging that appointed counsel performed deficiently in death-penalty trials,” says Ellis of these outcomes. “On the other hand, it is encouraging that the post-conviction courts are holding trial counsel to a performance standard designed to guarantee not just that a capital defendant is represented by a warm body with a bar card, but by an attorney who is providing a skillful and vigorous defense.”

Fahy, who represented defendant Samuel Adam Lawson in a case that made headlines in November when the Oregon Supreme Court reversed convictions on aggravated murder and other charges for reasons other than ineffective assistance of counsel, says being a prosecutor taught him the importance of well-qualified defense counsel.

“It’s an adversarial system,” says Fahy, who was a deputy district attorney in Lincoln County, prosecuting noncapital cases, for over 12 years. “If the prosecutor and defense counsel are not closely matched, it can be the difference between life and death.”

Organizing in Oregon

Immediately post- Gideon , Oregon had nothing like the state-directed and funded system of trial-level public defense that it has today.

“There were always good ol’ boys, typically older lawyers who were either has-been or never-was, sitting in the back of the courtroom,” recalls Barnes Ellis, a career civil practitioner with a long-term interest in civil liberties who chairs Oregon’s Public Defense Services Commission (PDSC). “The judge who was arraigning a defendant would look in the back and say, ‘I’ll appoint him.’ ”

Then, in 1970, the Multnomah Bar Association got a $10,000 grant for a pilot program to provide counsel to indigent defendants in the then-existent Portland Municipal Court.

“We hired a young guy in the Multnomah County District Attorney’s Office, Jim Hennings,” says Ellis of the program that, in 1971, became what is now Metropolitan Public Defender Services, Inc. (MPD).

“MPD exists because of Gideon ,” says Hennings, who would remain the program’s executive director until his retirement in 2008, 37 years later. His former colleague at the DA’s office, Mike Schrunk, who was elected the DA in 1981, remained in that position until December 2012.

“The concept of forming an indigent defense nonprofit with a board was new in the country, as far as I know,” Ellis says. “It turned out to be a wonderful vehicle. Our little pilot program, by the early 1980s, was a very successful concept. Forty to 50 judges in the state got their start at MPD, and two or three law professors at Lewis & Clark Law School. Many other lawyers got their experience there and then moved into private practice. The cream of the defense bar started there.”

But, on a practical level, says Ellis, “All during the ’70s, the cost of public defense was rising rapidly.”

“It was not just Gideon,” he says, noting that the right to counsel had been extended to indigent defendants charged with misdemeanors, juveniles in delinquency cases, and parents in juvenile-dependency cases, in which the parents’ conduct, not the child’s, is at issue.

“Indigent defense had become a huge issue for the counties,” says Ellis, “because the cost had become a huge strain on them.”

As a result, in 1983, the state — which had been providing indigent defendants with counsel on appeal and in PCR proceedings since 1963 — created a statewide, trial court-level public-defense system.

“The problem,” says Ellis of this plan, “is that it was totally underfunded. There was still resistance by many legislators. They were asking, ‘Why is the state paying for defense counsel? The state is prosecuting .’ ”

Lane Borg, now executive director of the MPD, remembers this time well because of a funding crisis that was unique to Clackamas County, where the MPD was at that time providing public defense.

“I had my first trial, as a third-year certified law student, in March 1984, the day my daughter was born,” says Borg. “In ’83-84, the only misdemeanors being prosecuted in Clackamas County, because of budget issues, were DUIIs (Driving Under the Influence of Intoxicants). I was the misdemeanor section. I did 200 DUIIs that year.”

In 2001, after years of experimentation with different systems, Oregon adopted its present system.

Under the current system, the Public Defense Services Commission (PDSC), an independent commission whose seven members are appointed by the chief justice of the Oregon Supreme Court, governs an Office of Public Defense Services (OPDS), a state agency, and appoints its executive director, a state employee.

The OPDS has staff attorneys and also contracts with outside attorneys to represent adult criminal defendants, at trial and on appeal, on misdemeanor and felony cases; juveniles on delinquency cases; parents on juvenile dependency cases; and inmates appealing parole board decisions. The contracts are with community-defender entities made up of full-time public defenders, of which the MPD, which provides defense services in Multnomah and Washington counties, is the largest; consortiums of lawyers in private practice who combine to do public defense, as now occurs in Clackamas County; and single, local firms, as occurs in Wasco County.

But then, over the course of the 2001-03 biennium, the Public Defense Services Account was reduced by $27.6 million, or 17 percent, from the budget that the Legislature had adopted to fund the new system.

“Right off the bat,” says Barnes Ellis, “we had multiple special sessions of the Legislature. That led to then-Chief Justice Wally Carson’s decision that funding for defense was so curtailed that the courts were not going to process any misdemeanor cases except DUII.”

“I have the most-vivid memory of a day in Salem,” Ellis says of that biennium. “Police chiefs, sheriffs, district attorneys, all coming to the legislature and saying, ‘The system can’t work if we don’t fund defense.’ ”

Some of the funding subsequently was restored, but not until after Oregon’s district attorneys, including Multnomah County’s Schrunk, had joined in a federal lawsuit to compel appointment of counsel. The suit was dismissed when the restoration of funding after the start of the new biennium rendered it moot.

“Since that time, public defense in Oregon has been a very responsible system,” says Ellis. “At this stage, Oregon can properly say that we are regarded as one of the best systems in the country.”

Equivalent But Not Equal

“Things have changed since Gideon ,” says Borg, who was a judge pro tem and attorney in private practice before returning to public defense as the head of the MPD in 2008.

“The biggest thing is whether or not you qualify for a public defender has been refined,” he says. “The state has a more realistic sense of what it costs to retain private counsel. Even 15 years ago, having $2,500 in the bank meant that you couldn’t get an appointed attorney, even for a Rape I. No decent attorney is going to do a Rape I for $2,500.”

“If you’re in custody, they’re going to appoint you counsel,” Borg continues. “And most judges don’t want to do felonies without an attorney; they will generally override any decision that the defendant doesn’t qualify for counsel. My guess is that 65 percent of persons in MPD’s jurisdiction charged with misdemeanors have appointed counsel. It’s probably as high as 85, 90 percent for persons charged with felonies.”

Nonetheless, issues remain, of which one is the pay disparity between full-time public defenders and prosecutors who sit at adjacent counsel tables and try the opposite sides of the same criminal cases.

“We have such disparity,” says OPDS Executive Director Nancy Cozine, who notes that according to the Oregon State Bar’s 2012 Economic Survey, the statewide average pay disparity between full-time public defenders and prosecutors is approximately 27 percent.

“My lawyers are making more than lawyers at Legal Aid,” says Borg, “but when you compare it to DAs, it’s way lower. It really gets to them (public defenders).”

For MPD attorney Conor Huseby, it’s not just a matter of equity or morale: it’s the question of whether he’ll be able to continue as a public defender after he marries his fiancée — also a public defender — in August and also own a home and start a family.

“Between my (law-school) loans, my rent, my food, and I am not by any means an extravagant person — I lead a pretty frugal life style — I break even every month,” Huseby told the PDSC in October. “I am not saving any money.”

“I think the problem would be solved if there was some sort of parity between district attorneys and public defenders,” continues Huseby, who became a member of the Oregon State Bar in 2006 and has been a public defender since then, now working exclusively to death-penalty cases.

“I went to law school in California,” he says. “There was parity there. There were substantial salaries there. For example, (at) the San Francisco public defender, it is almost impossible to get a job there, because once people get in … they stay forever because they can. They can make a career out of it. They can eventually buy a house. They can pay off their loans. They can have a family and all that. In the state of Oregon, that is pretty rare, unless you are lucky enough not to have student loan debt. It is hard to last very long in public defense under the current system.”

Huseby’s boss, Borg, says that when he raises the issue of pay parity, one of the responses he receives is, “‘It would be too much money. It would break us.’ ”

“I’ve heard that more in the last 10 years,” he says.

Effecting Changes in Culture

Cozine and Borg say that for the right to counsel to truly be meaningful, the “culture” needs to continue to evolve.

For example, says Cozine, “There are high caseloads in [juvenile] dependency,” in which it is the parents’ conduct, not their children’s, that is at issue.

“We’re having parents in Oregon with no attorneys at their first appearance, and the judge is swearing them as witnesses and asking them if they approve of foster care for their children,” says Cozine. “We also have counties where there’s no lawyer at the defendant’s first appearance/arraignment in criminal cases, so the court will appoint a lawyer, schedule the next court appearance and tell the defendant to contact the assigned lawyer.

“Particularly for defendants who are in custody and risk losing jobs or having children placed into foster care — which places additional strains on other state resources — representation at the first appearance is crucial,” says Cozine.

“No one has ill intentions,” she continues. ‘It’s that we haven’t been able to effect changes in culture in every county. You have crowded court dockets and overburden [defense-service] providers who want to do a good job but can’t be in so many places at once. It’s a big systemic problem, not just in Oregon but elsewhere.”

“If the lawyer has the opportunity to meet with the client,” says Cozine, “things can go much more smoothly. If you have a system that doesn’t give people adequate representation, the system loses credibility. I get calls from clients who say, ‘Help me: my lawyer doesn’t have time to see me.’ ”

“The vast majority of bar complaints are about communication,” says Borg. “I have a murder case where I see the client at least every other week. We’re being paid $20,000 for that case. If I add up all those hours, it’s about $35-40 an hour. If we’re going to increase the quality of representation, we’ve got to increase the money. But the only place that I see that kind of analysis is on juvenile-dependency cases. The legislature really loves kids. But you need to do that same analysis with criminal representation if you want to see better results.”



Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

© 2013 Janine Robben

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