The State Bar Association of North Dakota Spring 2013 Gavel Magazine | Page 26

FULFILLING THE PROMISE OF GIDEON: A WORK IN PROGRESS
by Robin Huseby, Attorney
in the appeal of the conviction4, to name a few. We often hear the phrase “Gideon’s Promise;” that is, the ongoing promise that an indigent defendant will be represented competently by an appointed attorney on the same footing as the prosecutor; equal in pay, equal as to the level of available resources and training, and equal in experience. You don’t have to dig into this discussion very deep to find many opinions expressed by respected experts in the field of indigent defense, or by federal Congressional members tasked with studying indigent defense, that conclude the promise of Gideon is fleeting and fading. For example Senator Patrick Leahy, D-Vt., chair of the Senate Judiciary Committee and a former prosecutor, recently stated that courtappointed lawyers are often underpaid and can be “inexperienced, inept, uninterested or worse.” He further stated that there are parts of the country where “it is better to be rich and guilty than poor and innocent.” Jonathan Rapping, a veteran public defender who has worked in Washington, D.C., Atlanta and New Orleans, opined that people who work in the criminal justice system have become numb to the problems, creating a culture of low expectations.5 I have been to the national seminars and have witnessed sister agencies in various stages of despair because they are, for example, county funded and unable to get adequate funding. I hear the stories of the public defenders who triage their cases causing defendants to sit in jail longer than necessary. I talk to agency directors who are filing motions to withdraw due to high case loads and who are considering litigation with prosecutors and/or the courts over who is responsible for the overflow cases. I have heard of court “cattle calls” in some areas of the country where defendants appear, en masse, and really only have the prosecutor to rely on for guidance. These dire situations do not describe the strides to achieve “Gideon’s Promise” in our state. Are there challenges and roadblocks to achieving the promise of Gideon in North Dakota? Absolutely. The most immediate issue facing us is primarily the result of the economic surge in the state; the growing population causes us to have a higher caseload. Our clients are increasingly more transient and difficult to effectively represent. We have caseloads in western and central counties that are exceeding our present attorney pool, and we are seeking creative ways to provide services and expand our program using independent contractors. While we need to be cognizant that our attorneys are laboring under stressful conditions, North Dakota is fortunate to have several factors affecting the caseload problem in a positive manner, however. First, the attorneys providing indigent defense are not, as described by Senator Leahy, “inept or uninterested.” On the contrary, the pool consists of some of the most experienced and dedicated defense attorneys in the state. Secondly, no one has become “numb to the problems,” as set forth by Mr. Rapping, and in fact, the Judiciary, State Bar Association, and Court Administration have all worked with our agency to address case load problems and other functional challenges associated with the population and economic surge. Finally, our legislature has been an informed and engaged partner in this journey of maintaining the agency, and we have not experienced the dreadful battles some other states have encountered due to seemingly impossible conflicts with the legislative branch. Reducing caseloads costs money and requires additional counsel. It will be a neverending quest in a state like North Dakota where, as they say, business is booming. Enticing attorneys to work at the rate of $75 an hour is a tricky matter when they, too, are experiencing growth with clientele. Many attorneys in Williston, Dickinson and Bismarck, for instance, report that they are turning away some of their own paying clients. We recently raised the hourly attorney rate from $65 an hour to $75 an hour for legal work, and considering that more than half of our budget consists of legal fee expenses, that $10 raise alone had a significant impact on the budget. We are fortunate to have a growing number of attorneys in the state willing to take on indigent cases at this rate. The reasons are varied, and in a nutshell they tell me we are prompt with payment of fees, the attorneys continued on page 27

Robin Huseby

Attorney at Law

The month of March during the legislative session is both fascinating and frustrating when one is dealing with a state-supported budget, full time employee requests, and legislative mandates. The other day while wrestling with some of these problems before a legislative committee, one of the legislators asked me “why do people have a right to an attorney? I realize that’s a pivotal question, and instead of droning on about the Sixth and 14th Amendments, I told him about a poor man named Clarence Gideon who, at 51 years of age in 1961, was arrested for theft in Florida. He was denied the appointment of legal counsel, and represented himself. (Florida did not allow for appointed counsel in felonies). He was convicted, and appealed his conviction to the United States Supreme Court. He penciled his appeal on prison stationery, and brilliant attorneys, like Abe Fortas (future Justice himself) represented Clarence on the appeal. On March 18, the country observed the 50th anniversary of the landmark U.S. Supreme Court decision of Gideon v. Wainwright.1 This decision held that the Sixth Amendment’s right to legal representation was “fundamental and essential to a fair trial,” thus entitling indigent felony defendants to court-appointed counsel in all American criminal cases. It was a unanimous decision. Interestingly enough, Walter Mondale, who was the Minnesota Attorney General in 1963, organized an effort to get state attorney generals to support the cause of Gideon, and 22 other states joined him in submitting a supportive brief. The Gideon ruling set in motion further expanding decisions affecting the right to counsel in misdemeanor cases2, juvenile cases3, and

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The Gavel Spring 2013