THE CONSTITUTIONAL
RIGHT TO COUNSEL
Who Stole Gideon's Trumpet?
Mark Stephens
Public Defender
6th Judicial District
Amendment Six Right to Speedy Trial, Confrontation of Witnesses.
In all criminal prosecutions, the accused shall...
have the Assistance of Counsel for his defense.
The United States Supreme
Court says I am entitled
to be represented by Counsel.
003826
CLARENCE
GIDEON
In Gideon v. Wainwright, Justice Hugo Black
said, “it is an obvious truth that lawyers in
criminal courts are necessities, not
luxuries."
Counsel is fundamental and essential
to a fair trail.
In addition, Justice Black stated, "The right of
one charged with a crime to counsel may
not be deemed fundamental and essential to
fair trials in some countries, but it is in
ours."
Gideon... the last of his kind.
According to the Supreme Court's opinion in
Gideon v. Wainwright, Clarence Gideon was
supposed to be the last of his kind. The United
States Supreme Court had solved the problem of
poor people being tried without legal
representation.
"Nearly 50 years later, [the problem] has not been solved
at all… the whole system is pretty awful right now. The
Gideon case, the ideals that the court announced, have
just not come close to being met."
- Bruce Jacob, Assistant Attorney General, Florida
Fix left to states
The Supreme Court left it to the individual states to determine how and
when counsel should be provided and to whom. The Court also left it
up to the States to find the necessary funds wherever they could.

This led to a patchwork of systems across the country in which the
availability and quality of counsel varies significantly from state to
state and, in some cases, between county to county in a single state.
Many states passed on some or all of the financial
responsibility to their county governments, which are
typically far more limited in how they can raise money.
The result was that the nations poorest counties, which
often had a larger percentage of indigent defendants,
were the ones least able to provide counsel.
Tennessee Constitution, Article 1, § 9, Rights of
the accused in criminal prosecutions.
“That in all criminal prosecutions, the accused
hath the right to be heard by himself and his
counsel...”
The Tennessee constitutional right to counsel has
been held to be identical to the provisions
contained in the Sixth Amendment of the United
States Constitution, Baxter v. Rose, 1975.
The right to counsel is only guaranteed in criminal
cases - there is no absolute right to counsel in a
civil trial.
The right to counsel begins in Tennessee when
judicial proceedings are initiated. This occurs
when the arrest warrant is issued, a preliminary
hearing is held, or when an indictment or
presentment is made.
There is no right to counsel during investigation
and surveillance.
Get tough on crime
In the early 1980's, politicians discovered that the
“tough on crime” candidates began to win elections.
That reality resulted in:
Legislatures creating new crimes;
Expansion of the number and severity of collateral
consequences of those crimes;
Increase in funding for law enforcement and DAs;
Explosion in public defender caseloads.
There was no corresponding increase in funding for the
defense function.
"A chief impediment to an effective criminal justice system is the
vast number of misdemeanor offenses clogging court dockets
and overcrowding the nation's prisons, including turnstile
jumping, fish and game violations, dog leash violations, and a
minor in possession of alcohol.”

– Minor Crimes, Major Waste, NACDL
"All the TV shows give you the impression that not only does
everyone get a lawyer when they need one, but that they show up
at the police station right on time. They walk right in in the middle
of the interrogation, and they're all pretty good."
– John Payton, President, NAACP Legal Defense Fund
Even the most dedicated public defenders lack the
resources they need. Public defenders everywhere are
forced to juggle hundreds of felony and thousands of
misdemeanor cases each year.
National Felony Caseload Standards

National standards recommend that attorneys handle
no more than 150 felony cases a year.
Public defenders are often forced to juggle several times
that amount.
For example, in Dade County, the average public
defender caseload exceeds 500 felonies per lawyer.
One trial-level attorney currently has over 900 open
felony cases. In 2009, that lawyer plead 200 cases at
arraignment... the day he met his client for the first
time.
National Misdemeanor Caseload Standards


National standards recommend no more than 400
misdemeanor cases per attorney per year.
In some states, defenders are handling between 1,500
and 2,000 cases each year - far too many to provide an
adequate defense for any of them.
When Public Defenders have too many cases and too
little resources, mistakes are made.
In 1981, Alan Crotzer was convicted of rape, kidnapping
and robbery. He was sentenced to 130 years in prison.
Mr. Crotzer didn't match the victim's description, had an
alibi for the night of the crime, and didn't know either of
the other two men charged with the crimes.
DNA evidence eventually proved Crotzer was innocent.
He was released in 2006, having served 24 years in jail.
"I spent more than half my life in prison. My life was
turned upside down. I am not the only one," said
Crotzer, testifying before the House Committee on the
Judiciary Sub-committee on Crime, Terrorism and
Homeland Security.

"This system is broke; it failed me from the very
beginning. Why? I'm indigent."
3 Recognized National Caseload Standards
* NAC
* NLADA
* ACCD
150 felonies
or
400 misdemeanors
per year
In 1999, the Tennessee Legislature required a weighted
caseload study be conducted for purposes of
determining staffing needs. The Spangenberg Group
conducted the defense component of that
legislatively-required study.
That caseload study recommended that Tennessee
adopt a caseload standard higher than any recognized
national standard.
The Spangenburg Group's
Tennessee Recommended Caseload Standards
233 felonies per year
(42% more than national standards)
or
500 misdemeanors per year
(25% more than national standards)
If a lawyer worked
10 hours per day,
6 days a week,
52 weeks per year...
under Spangenberg Group
recommendations, the
lawyer could commit up
to
6 hours per
misdemeanor case
and
13 hours per felony case.

In Tennessee, public defenders maintain caseloads that
average 150% of recommended levels. The Knox
County Public Defender operates with approximately
70% of the attorney resources called for by national
standards.
Challenging PD Caseloads: The Rule 13 Standard
Rule 13 Section 1(e)(4)(D):
The Court shall not make an appointment if counsel
makes a clear and convincing showing that
adding the appointment to counsel's current
workload would prevent counsel from rendering
effective representation in accordance with
constitutional and professional standards.
Cases don't come into a PD office one at a time;
they flood in. In Knox County, we receive
appointments overnight; sometimes over 100 new
cases at a time.
Rule 13 contemplates a clear and convincing showing
that counsel could not be effective in each new
appointment.
Lawyer must show “prospective ineffectiveness.”
Beyond caseloads... We have a Systems Failure.
These difficult financial times have adversely effected
local governments as well as state government.
“Locals” are looking for ways to hold down costs and
generate revenue.
KNOX COUNTY SYSTEMS BLUEPRINT
SYSTEM GOAL
Make sure a defendant meets
with an assistant district
attorney general before the
defendant meets with a
defense lawyer.
TO FURTHER THE SYSTEM GOAL
Don't give
incarcerated
defendants access
to a phone for a
day or two (or ten).

Initial appearance
should occur in
open court;
preferably, a docket
defense lawyers
don't cover.
KNOX COUNTY GENERAL SESSIONS COURT
Felony Division – Monday, January 25, 2010

334 cases were set on the docket.
Court started 45 minutes late and was finished before
4:00 PM.
Having spent 7 hours on the bench, the Judge was
able to spend about 1.5 minutes on each case.
In Michigan, the situation has grown so bad that local
lawyers refer to processing of misdemeanor cases as
"McJustice."
Studies have found that defendants charged with
misdemeanors are the most likely to go to jail without
ever talking to a lawyer.
Their first court appearance is likely to be their last,
primarily because most are actively encouraged to
plead guilty.
In Colorado, defendants charged with misdemeanors
are required to attempt to negotiate a plea with
prosecutors before they can receive a public
defender.
Crushing caseloads force many poor defendants who did
not want to plead guilty to spend weeks or months in
jail waiting for their lawyer. Many eventually plead
guilty just to get out of jail.
Walter Mansenior spent more than a year in a Texas jail
without ever seeing a lawyer because his court date
was repeatedly postponed.
Judges continue to appoint bad lawyers.
Many lawyers take appointments, but don't meet with
their clients, don't even have an office, or a secretary
to answer their phone... if they have a phone. Many
lawyers representing the poor fail to conduct any
investigation and seem to lack interest... or skill... in
Judges have allowed trials to proceed and death
sentences to be imposed even when the defense
counsel was clearly intoxicated or slept through parts
As of 2008, 1 in every 100 adults in America were in jail or
in prison, saddling cash-strapped states with soaring
costs and failing to demonstrably impact either
recidivism or overall crime.
– Pew Charitable Trust's Safety Performance Project
Several groups that have examined indigent
representation nationwide - including the American Bar
Association - argue that while indigent defense is a state
responsibility, it is also a constitutionally and federally
mandated expense that the federal government should
help shoulder.
Congress spent only $39.1 million this year on indigent
defense.
By contrast, Congress spent nearly $400 million funding
Legal Services Corporation, which provides counsel to
low income litigants involved in civil cases – even
though there is no constitutionally mandated right to
counsel in those cases.
While the federal government provided next to nothing to
defend indigents, it has spent tens of billions of tax
dollars over the last two decades to law enforcement
and prosecutors.
"By giving money to law enforcement without
corresponding support to public defense, they're
actually exacerbating the problem. They are creating a
real imbalance of the system which, ultimately, doesn't
support the fair administration of justice."
– Joann Wallace, President and CEO, NLADA
In 2007, Tennessee spent $140 million on the
prosecution function, but only $56 million on defense.
“It will be an enormous task to bring to life the dream of
Gideon v. Wainwright, the dream of a vast, diverse
country in which every person charged with a crime
will be capably defended, no matter what his economic
circumstances, and in which the lawyer representing
him will do so proudly, without resentment at an unfair
burden, sure of the support needed to make an
adequate defense.”
- Anthony Lewis, author of Gideon's Trumpet