The Right to An Attorney

[0] For the conviction of the accused, every weapon is provided and used, even those poisoned by wrong and injustice.

[1] But what machinery is provided for the defense of the innocent?

[2] None.

[3] Absolutely none.

[4] It's 1893, and a well -known lawyer named Clara Fultz has traveled halfway across the country all the way from her home in California to, to give a speech at the World's Fair in Chicago.

[5] Counsel for the Defense is an absolute essential to the just examination of a case.

[6] A trial without it would be little less than a farce.

[7] 26 million people would pass through the fair that year.

[8] People flocked there to see new inventions, like the Ferris wheel and Cracker Jacks, and to hear new ideas.

[9] The remedy.

[10] For many of the evils of the present criminal court practice lies in the election or appointment of a public defender.

[11] For every public prosecutor, there should be a public defender chosen in the same way and paid out of the same fund.

[12] This speech in 1893 cemented Clarifolds as a pioneer in U .S. legal history because her proposal was revolutionary.

[13] She was one of the first people who came up with this whole idea of the public defender in the United States.

[14] Clara Fultz was actually the first woman to be licensed to practice law in California.

[15] As a woman, it was difficult to get hired at, you know, a law firm or take on paying clients.

[16] And so what she would do was go to the criminal courts and see if the judges might appoint her.

[17] defendants who were on trial and couldn't afford a lawyer.

[18] And what she found was appalling.

[19] She described, you know, smelling whiskey on the breath of the other lawyers who had showed up to take these cases.

[20] Plus, other lawyers who take on clients and then extort their families for as much money as they could.

[21] There were also lawyers who might have been well -intentioned, but were just very young and starting out and didn't really know how to handle a criminal case.

[22] And there were people who had no lawyer at all, which is why Clara Foltz came up with this idea in the first place.

[23] If the government on the prosecution side is hiring what we would call a district attorney or a public prosecutor to prosecute the case and they get paid by the government, why not hire also a government official on the other side who could really specialize in this kind of work?

[24] A public defender.

[25] At the time, her idea was not necessarily well -received by audiences.

[26] Newspapers referred to the idea as ridiculous, quote, or strange, or this is kind of this wacky woman lawyer out in California who has this kind of new idea.

[27] And for a long time, that was how people thought about the idea of public defenders, with a deep suspicion.

[28] For decades, people fought against the notion that, lawyers working for the government could both prosecute and defend crimes.

[29] It was a conflict of interest, they said, a government takeover of the legal profession, totalitarian, and communist even.

[30] But these days, most of us take it for granted that if we're ever in court and we can't afford a lawyer, one will be provided for us.

[31] 80 % of people who are charged with crime need a public defender.

[32] 80 percent.

[33] Four of every five people charge with a crime.

[34] When you think about it, it's staggering.

[35] I don't think that anyone could have anticipated how rapidly our criminal justice system has grown.

[36] Public defenders have actually become the backbone of the legal system in the U .S. They're the walking embodiment of the right to, quote, assistance of counsel written into the Sixth Amendment.

[37] a right that's been on the books for more than 200 years.

[38] But it's actually only much later that the courts are going to interpret the Sixth Amendment to actually say, well, the state has an obligation to actually provide a lawyer for you.

[39] So how?

[40] How did lawyers for people in need go from a shady, suspicious concept to bearing the brunt of our current legal system?

[41] Why are public defender offices so overloaded and underfunded?

[42] And in our current age of mass incarceration, is the public defender system equipped to live up to its promise?

[43] I'm Ramtin Arablui.

[44] And I'm Randavid Fettar.

[45] On this episode of ThruLine from NPR, the history of public defense, this is the next installment in our occasional series looking at amendments to the U .S. Constitution.

[46] Today, the Sixth Amendment and what the government owes us.

[47] Hi, this is Lisa Mandel from Astoria, Queens, and you're listening to Trueline from NPR.

[48] Just to take a step back for a second.

[49] Let's talk just about the idea of having the right to legal defense, even if you can't afford it, or legal defense, period.

[50] That comes from the Sixth Amendment to the Constitution.

[51] Can we just talk about what the Sixth Amendment is?

[52] and how people were thinking about it by the time Clara Foltz comes along.

[53] Sure.

[54] So the Sixth Amendment is part of the Bill of Rights, which are the first set of amendments to the Constitution.

[55] This is Sarah Mayu.

[56] Law and history professor at Vanderbilt University.

[57] An author of the book, Free Justice, a history of the public defender in 20th century America.

[58] So the Sixth Amendment deals in particular with criminal prosecutions.

[59] It's the amendment that guarantees the right to a quick trial with an impartial jury to know what you're being charged with and to call witnesses.

[60] And one of those protections mentioned in the Sixth Amendment is that the accused shall have the right to the assistance of counsel for his defense.

[61] When the Sixth Amendment was first ratified, what they, seemed to have meant by the right to the assistance of counsel was that if you have a lawyer, then when you show up at court, the judge has to allow that lawyer to appear in court and can't interfere with your choice of counsel or your ability to have that lawyer speak on your behalf.

[62] But because in England, historically, actually, there were situations where defendants actually were not even allowed to hire a lawyer and had to just kind of defend themselves.

[63] So up to that point, just so I understand, most legal experts, most of the society did not interpret the Sixth Amendment as, hey, you get a lawyer no matter what if you're being, like let's say you commit a crime or petty crime or some sort and you get arrested and you're getting prosecuted for it.

[64] All it means is that you can bring a lawyer to the courtroom if you can afford what.

[65] Right.

[66] Now, I will say it might be the case that if you are on trial for a murder or a serious matter like that and you don't have a lawyer, the judge.

[67] might, just as kind of a case -by -case matter, try to help find a lawyer or appoint a lawyer to represent you.

[68] But certainly, there was no sort of entitlement or guarantee of that necessarily.

[69] And in very low -level criminal cases, people would just routinely appear and go through the whole case without ever having a lawyer.

[70] So Claire Foltz comes along and basically says it makes sense for the government to not just be providing funds for the prosecution, but to also provide funds or some kind of office, some kind of structure to then defend people who are being prosecuted.

[71] When does that idea start to pick up steam?

[72] You know, because this is in the late 19th century.

[73] Does at some point other people start, like her argument, start to catch on?

[74] And where does it catch on and how?

[75] It catches on in a very patchwork way in some places earlier than others.

[76] and it really depends where in the country you're talking about.

[77] In California, there are public defender offices by the 1920s.

[78] In Chicago, the Cook County Public Defender Office dates to the 1930s.

[79] But these were exceptions to the norm.

[80] In a lot of the country, particularly in the deep south or rural areas, there was not really any kind of organized institutional infrastructure for this kind of effort.

[81] And so Clara Volz took her idea for a public defender office on the road to places without one.

[82] And she wasn't just making speeches.

[83] She was putting in work to see her idea become a reality.

[84] She drafted model legislation, wrote actual state bills to create county public defender offices.

[85] And then lobbied politicians and statehouses across the country to pass it, which was an uphill battle.

[86] Historically, the United States has this very adversarial legal culture.

[87] The traditional idea was that because they're adversaries, the lawyers on the opposite sides of the case can't both be working for the same entity or they can't both be getting paid by the government because there was some concern that would create a problem of divided loyalty.

[88] But I think also more generally it just kind of contributed to the idea that, well, if the government starts hiring defense lawyers, is that kind of encroaching on a government takeover of the legal profession or something like that?

[89] I also want to understand this systemic problem that was there.

[90] One thing we haven't talked about is that people just, and it's still the case now, people don't have money.

[91] People just don't have money.

[92] They get charged with something and people don't have money to get a lawyer for them so they end up going in by themselves.

[93] But as prosecution got more sophisticated, the kind of legal defense, seems to me would need to get more sophisticated as well.

[94] So what was the like social problem that they were identifying?

[95] So absolutely one problem is just simply that it's always been true that most people charged with crimes tend to be poor.

[96] The defendant is not going to be someone that has the resources to go and sort of hire a lawyer on their own or even necessarily knows how to navigate that.

[97] And you can't really, though, expect people to represent themselves in court.

[98] The legal system has become increasingly modern and complex.

[99] So there's the sense that you really need a lawyer on the defense side of the case.

[100] And moreover, you also need a lawyer that actually is putting some effort into, you know, investigating and preparing the case.

[101] That it's not good enough to just kind of hire appoint someone the morning of the trial that happens to be in the court.

[102] courtroom and let them improvise on the fly.

[103] There's also a more specific set of concerns around ways in which the criminal courts are being used to target African Americans in the community or in California, there might have been a concern with prejudice against.

[104] For example, there's a longstanding Mexican -American community.

[105] A lot of cases start to attract both national and even international outrage, in which you have examples of injustice that appears really targeted along racial lines.

[106] It's March 1931, the middle of the Great Depression.

[107] You're on a freight train crowded with homeless and jobless people.

[108] White and black, mainly young, many riding the rails in search of work.

[109] You see a fight breakout between a group of black teens.

[110] and a group of white ones.

[111] The white teens lose, with some forced off the slow -moving train.

[112] At a station in a small town in Alabama, the train comes to a halt.

[113] The white teens pushed off the train, had run to a nearby station, and reported they'd been attacked by a gang of black teens.

[114] The station master wired ahead.

[115] And while the train chugged along, a posse of armed white men, men had formed.

[116] They get stopped around the town of Scottsboro, and you have a group of nine black teenagers pulled off the train.

[117] The posse of men also find two white stowaways, a young woman and a teenage girl, who make a shocking claim about the black teens.

[118] It turns out falsely, but have accused them of raping them on the train.

[119] The nine black teens are arrested.

[120] They're between 13 and 19 years old.

[121] The Scottsboro Courts rushed them basically within a matter of days through a death penalty trial, and they're convicted and sentenced to death.

[122] Eight of the nine, all but the youngest, sentenced to die.

[123] This was a very famous case that if you had been living in the 1930s would probably have heard about.

[124] It's an example of a type of case that people referred to as legal lynching.

[125] Now, the judge did appoint a couple of lawyers that were in the town to represent them theoretically, but remember, this trial happened within a matter of days.

[126] There's nine defendants.

[127] It's a death penalty trial.

[128] The lawyers actually didn't do anything to represent them.

[129] They didn't have time to investigate the case.

[130] They actually didn't make any opening or closing argument at the trial.

[131] And so they didn't actually provide meaningful representation.

[132] And that could have been it.

[133] But times were changing.

[134] 200 organizations joined fight to save nine Scottsboro boys.

[135] Scottsboro demonstration in Union Square tomorrow.

[136] Scottsboro, lads.

[137] Victims of hideous class frame -up.

[138] This case becomes an international cause.

[139] Actually, the Communist Party takes this up as a horror story of, you know, the worst case scenario of capitalist and racist.

[140] in justice in the United States.

[141] At the time, the Communist Party was trying to make inroads in the U .S. and defending civil rights was a cornerstone of their platform.

[142] The party organized marches, meetings, and letter -writing campaigns to defend the boys.

[143] It becomes implicated in global politics and organizing, basically.

[144] The Communist Party's legal defense wing took the Scottsboro Boys on as clients.

[145] and party -affiliated lawyers help the boys appeal their death penalty conviction all the way up to the U .S. Supreme Court.

[146] The United States Supreme Court issues an opinion called Powell v. Alabama, which holds that their initial trial violated the constitutional requirements of due process or a fair trial because basically they didn't have legal counsel in their trial.

[147] And that opinion written by Justice Sutherland has this very lengthy passage about why it's so important to have defense counsel in a criminal trial.

[148] He requires the guiding hand of counsel at every step in the proceedings against him.

[149] Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

[150] Supreme Court Justice George Sutherland.

[151] What is the impact of this decision in terms of the Scottsboro boys themselves?

[152] Well, unfortunately, the long story of the Scottsboro cases does not end in a very happy way because when the Supreme Court sends the case back to Alabama, Alabama keeps trying to retry some of them.

[153] And eventually all of them were exonerated.

[154] But by that time, it had been years of their lives.

[155] many of them met with tragic.

[156] And I don't think that the Supreme Court decision really was able to, you know, write the injustice in that particular case.

[157] It wasn't until 2013, more than 80 years after they were falsely accused and wrongly convicted on rape charges, that Alabama posthumously pardoned the final Scotsboro boys.

[158] But it is nevertheless important as, as putting kind of into the law books of the United States this idea that the state actually had an obligation to see to it that effective representation was provided.

[159] And so that precedent is going to become important over time and built on over time.

[160] In the case, the court laid out that at least in capital cases, having a lawyer was necessary for a fair trial.

[161] But still, over the next decades, the notion of a government -funded office dedicated to defending people accused of crimes was suspicious, tainted with communism and socialism.

[162] But coming up, public defenders get a patriotic makeover.

[163] Listening to NPR's Thurline.

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[169] The communists honestly believe in the doctrine that the highest welfare of the human, human race, is to be attained only by complete subservience to an all -providing state.

[170] I do not understand that that was a doctrine of the authors of our Bill of Rights.

[171] Nevertheless, great danger now faces our country, that it will become a doctrine of ours.

[172] In 1956, the federal judge Edward J. DeMach published an article in the legal profession's National Magazine, warning about the totalitarian -like nature of the public defender system.

[173] The idea of a broader public defense system had been kicked around, and Judge DeMach was clear.

[174] He wanted nothing to do with it.

[175] It was essentially the police state, he wrote, and he set up a thought experiment for his readers.

[176] Put yourself in the place of a poverty -stricken Puerto Rican who does not speak English and who, though innocent, has been a identified by bystanders as the man who fatally stabbed a government narcotics agent who was attempting to make an arrest in an East Harlem Street crowd.

[177] How would you like to be told that another government official would act as your representative?

[178] His view was widely shared, but the Scottsboro case had changed something.

[179] It's like a opening, right?

[180] And it's not, it's in the 1960s with another court case where that really starts to, where it comes together.

[181] Can you talk a little bit about who Clarence Gideon was and the story of his case, Gideon v. Wainwright?

[182] Sure.

[183] So, yeah, Gideon is a very famous Supreme Court decision and it is decided in 1963.

[184] So if we jump ahead 30 years from the Scottsboro case to 1963, we are now in what we call the Warren Court era under Chief Justice Earl Warren, which is the era in which the Supreme Court decided Brown v. Board and the school desegregation case and all these sort of landmark decisions.

[185] And Gideon is certainly one of those cases.

[186] Now, Gideon himself, his full name is Clarence Earl Gideon.

[187] He was a 50 -year -old white man living in Florida.

[188] He dealt with alcoholism, and he dealt with a gambling problem and had a string of kind of petty theft convictions.

[189] So he had been kind of in and out of prison.

[190] But the case that ultimately becomes Gideon v. Wainwright, it's not really the crime of the century exactly, but he was convicted of breaking and entering into a pool hall in Panama City, Florida, and stealing some wine and cigarettes out of that pool hall.

[191] And so he's tried for that crime.

[192] And he actually asked his trial judge, you know, I don't have a lawyer.

[193] Can you appoint a lawyer for me?

[194] And the judge said, well, you know, at the time in Florida, the rule was that if this was a capital case or you were kind of on trial for murder, the judge would appoint you a lawyer.

[195] But this is just kind of, you know, you stole some cigarettes.

[196] So we don't have to provide you a lawyer.

[197] It's not that big of a deal.

[198] You can kind of deal with it on your own, basically.

[199] He's tried and convicted without a lawyer.

[200] While he's in prison in Florida, he actually writes a handwritten legal petition complaining about the fact that he was convicted without the benefit of counsel.

[201] I, Clarence Earl Gideon informs this court that I am a pauper without funds or any possibility of obtaining financial aid.

[202] And I beg of this court to listen and act upon my plea.

[203] And he sends it to the Supreme Court.

[204] Washington, D .C. I did not have a fair trial and was denied my constitutional rights that is guaranteed by the Constitution and the Bill of Rights by the United States government.

[205] The funny thing about this case is that the Supreme Court, like any government institution, is probably receiving hundreds of letters complaining about things from people all of the time, and they don't really respond to that usually because they have, you know, they just don't have time.

[206] But in this case, the justice has actually noticed Gideon's handwritten petition and they actually agreed to hear his case as a Supreme Court case.

[207] I want to understand why they would have like taken this dude's handwritten note and decided to take on this public defender issue.

[208] In a weird way, the Gideon case is a great case precisely because it's not an international scandal like the Scottsboro case.

[209] it seems like a pretty ordinary criminal case.

[210] And so they wanted to really force themselves to actually have to decide, do you have the right to counsel in all criminal cases?

[211] Because before that time, they had always suggested that, well, if it's a really complicated case or it's a murder case or something like that.

[212] But Gideon's case allowed them to really just decide, okay, across the board, does every criminal trial require the state to appoint counsel?

[213] So the irony of this case is that Gideon, who did not have a lawyer at all at trial, is represented at the Supreme Court by a very, very well -connected member of the legal establishment because the Chief Justice appoints a lawyer named Abe Fortis to argue Gideon's side of the case.

[214] Mr. Fortis, Mr. Chief Justice, may have pleased the court.

[215] Abe Fortis is an icon of the D .C. power elite of the time.

[216] He's a friend of Lyndon Johnson.

[217] He drives a Rolls -Royce.

[218] And so it's kind of ironic that Gideon sends his handwritten petition, but the court then appoints a very sort of high -powered lawyer to argue the defense.

[219] A criminal court is not properly constituted, and this has been said in some of your own opinions, under our adversary system of law, unless there is a judge and unless there is a counsel for the prosecution and unless there is a counsel for the defense without that how can a civilized nation that it is having a fair trial and ultimately the Supreme court rules unanimously in favor of Gideon and holds that it's true that his Sixth Amendment rights were violated because when he asked the judge for a lawyer at his trial, the court says that the court should have appointed him a lawyer.

[220] The opinion describes defense counsel as necessities.

[221] That's not a luxury, but it's actually necessary for a fair trial.

[222] Any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.

[223] This seems to us.

[224] us to be an obvious truth.

[225] Supreme Court Justice, Hugo Black.

[226] The case gets sent back to Florida for retrial.

[227] He's represented now at trial by yet another lawyer, a lawyer locally in Florida who represents him at trial.

[228] And he actually was acquitted the second time around.

[229] So it kind of illustrates that, okay, well, if you have a lawyer, you actually might have had a good case after all.

[230] So how is this?

[231] decision received.

[232] Is it seen as a big monumental kind of landscape -changing decision?

[233] Well, it's received fairly well, I would say.

[234] It certainly gets a lot of attention.

[235] It's on the front page of the New York Times.

[236] It then became the subject of a book called Gideon's Trumpet.

[237] That book packaged the story kind of for the general public, and it became a very celebrated case and it kind of becomes almost this symbolic representation of the American commitment to individual rights and to fairness and to equal justice.

[238] How much does this is the kind of Cold War tension and cultural kind of volatile moment play into why people were receptive to this decision and saying, like, yeah, people do need counsel?

[239] In this context, I actually found a lot of primary sources where lawyers, would specifically say, you know, we're fighting the Cold War.

[240] The thing that distinguishes totalitarian justice from democratic justice is that in a communist regime, for example, or a dictatorship, you know, they might have some show of a criminal trial in some sense, but the outcome of the trial is a foregone conclusion.

[241] And lawyers really celebrated the American courts in contrast for being this truly open process.

[242] And if you can convince the jury that the government hasn't proved its case, then you go free.

[243] And so there was this real celebration of the criminal courts as this democratic commitment to individual rights and the right to challenge the government.

[244] And so against that backdrop, it's funny because, you know, at one point you might have heard lawyers saying, well, I don't know, government provided defense counsel itself might sound kind of like a socialist type of an idea.

[245] But But instead, by the 1960s, when you get Gideon, the defense lawyer is kind of this cultural icon and this sort of symbol of the commitment to individual rights as a real hallmark of democracy.

[246] When does that decision translate into the beginnings of public defender offices opening?

[247] Like, we've heard all this stuff, but like, when do actual public defenders start working and doing their job as we know it today?

[248] Gideon itself doesn't actually say that, okay, your local county now has to establish a public defender office.

[249] It just says every defendant in a serious criminal case, the state has to provide that defendant with a lawyer.

[250] And so although there already were some places that had public defender, offices.

[251] What you see in the late 1960s and early 1970s is this nationwide effort to expand those existing offices or if there wasn't a public defender office to get one up and running.

[252] But there's actually a lot of disagreement at the local level over the years about what exactly that should look like and who exactly should pay for it.

[253] So Gideon didn't really answer any of those questions, it just kind of left it to every community to figure out on their own.

[254] There was no sort of logistical plan in place for how this was going to get carried out.

[255] And it was sort of a disaster.

[256] Coming up, how Gideon's promise played out.