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Progress, room for improvement 50 years after Gideon decision

Fifty years ago Monday, U.S. Supreme Court Justice Hugo Black delivered the unanimous, nine-page majority opinion in Gideon v. Wainwright.

The decision overturned a remarkably similar case, Betts v. Brady, and made the Sixth Amendment’s right-to-counsel provision applicable in state courts.

“Gideon was the centerpiece decision of the modern criminal-procedure revolution that occurred in the 1960s,” said Professor Michael O’Hear of Marquette University Law School. “This was the time when the (U.S.) Supreme Court for the first time recognized many of the rights that criminal defendants now enjoy in state court prosecutions. But those rights would be meaningless in practice if the court had not also recognized that defendants have a right to counsel, because pro se defendants are not able to effectively vindicate their rights.”

“That, I think, is the most important legacy of Gideon,” he added. “It makes all the other rights work.”

Gideon paved the way, said Mike Tobin, deputy public defender in Madison, for Wisconsin’s transition from a judge-based system of providing counsel to a statewide agency.

The Wisconsin Public Defender was created by statute in 1965, two years after Gideon. Initially the office was just one lawyer, an employee of the state court system, representing the indigent defendants in postconviction cases.

In 1977, the Public Defender’s Office became an independent, executive-branch agency. A year later, Tobin said, the agency opened its first trial offices in Juneau and Fond du Lac counties. Within the next year, several other trial offices followed.

The agency now has 36 trial offices, two appellate offices and an administrative office.

Nationally, 24 states have a statewide indigent defense system similar to Wisconsin’s, Tobin said. Some of those states have agencies that handle all indigent defense but Wisconsin uses a mix of approximately two-thirds staff attorneys, with the remainder represented by private-bar attorneys.

The central benefit of Wisconsin’s system, Tobin said, is the agency serves as the appointing authority, choosing between either a staff attorney or a private-bar attorney. That gives flexibility for any variances in caseloads, so that staff attorneys don’t become overwhelmed when the case volume is high.

“We’re looked at, both nationally and internationally, as a model program,” Tobin said. “We have a strong tradition of funding indigent defense, considering that it is not only necessary under Gideon, but also a valued part of the justice system.”

Gov. Scott Walker’s proposed 2013-15 budget continues that, he said, as it proposes maintaining pay progression so that public defenders and prosecutors are paid the same. There’s also a proposal to address private-bar appropriations, so that by the end of the next biennium the agency won’t run out of money to pay attorneys who accept appointments.

Walker and former Gov. Jim Doyle have both been supportive of the raised indigency standards for eligibility, which took effect in 2011. And last year Walker appointed Wisconsin Public Defender Kelli Thompson as a member of his 20-person statewide Criminal Justice Coordinating Council.

There’s still room for improvement, however, said criminal defense attorney Kathleen Stilling, a former public defender and former Waukesha County judge.

Though the state’s indigency standards recently were raised, they are still way too low, she said.

“People who are under the poverty line should all qualify and they don’t,” Stilling said. “I think access to legal services to people who are the working poor is the most limited.”

Staff attorneys’ caseloads also are an issue, she said.

“The Public Defender does the best they can, through training and support to help their lawyers make their caseloads,” Stilling said. “But I remember it was a real struggle for me.”

And the pay for private-bar attorneys — $40 per hour and $25 for travel –- essentially makes taking appointments pro bono work, she said.

La Crosse County Judge Elliot Levine, a former public defender, agreed.

“The reality is that the system does get starved for resources at times,” he said, “from experts, to caseloads, to the compensation for private attorneys.”

The private-bar pay rate is much lower, Levine explained, than the rate court-appointed attorneys in other circumstances typically receive.

And almost every two years, appropriations for private-bar attorneys run out and the Public Defender must find supplemental sources or wait until the next biennium to pay them.

Still, Levine said, Gideon has been beneficial for the system as a whole.

When defendants are represented by competent counsel, he said, there are fewer appeals and potentially fewer retrials, so victims don’t have to go through trials more than once. Prosecutors’ jobs also are much easier when defendants have attorneys on the other side, Levine said. The same holds true for judges, he added.

Stilling agreed, saying, “Justice Black was absolutely right: Lawyers in criminal courts are ‘necessities, not luxuries.’ I think that since 1963, that’s become even more true.

“The laws have become more complex, and forensic evidence has become more complicated.”

The necessity of public defenders became particularly apparent, she said, during her time as a judge.

“Seeing the system work from the bench was a completely different experience for me,” Stilling said. “I appreciated and respected good lawyering so much. And I could see what a benefit that was to the clients.”

Although Gideon was controversial at the time it was issued, said attorney Mike Gonring of Quarles & Brady LLP, Milwaukee, it is now “part of the fabric” of Wisconsin’s court system.

“This anniversary is one of the more significant, in the history of American individual rights,” said Gonring, the firm’s pro bono coordinator. “Before it was the law, it was an unbelievably unfair and unjust situation, and Gideon righted that. To the point where no one even thinks about it anymore.

“It’s the way things are and the way things should be.”


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