Tales from the struggle to give poor defendants a chance

Chasing Gideon: The Elusive Quest for Poor People's Justice

Karen Houppert

The New Press

As Baltimore author Karen Houppert points out in the introduction to her new book, Chasing Gideon: The Elusive Quest for Poor People's Justice, any American who's ever seen a cop show on TV knows the deal: If you've been arrested, you have the right to an attorney, and if you can't afford one, one will be provided for you. A cop reading a suspect his or her Miranda rights while the handcuffs go on often serves as the button on an episode, shorthand for the wheels of justice trundling into action en route to seeing it done.

But if you haven't experienced the grinding of those wheels personally, Chasing Gideon will prove a horrifying revelation about what often happens after the cuffs click closed.

If you can't afford an attorney-and that includes as much as 80 percent of those arrested in some jurisdictions-you're not alone. Your local government will surely attest it can barely afford one either. The lawyer that you'll be assigned is sometimes employed by the lowest bidder for a contract to provide so-called indigent defense and thus receives a flat fee to represent you, all but ensuring that he or she will expend the minimum amount of effort on your behalf. If in private practice and appointed, he or she very well may have little experience defending the sort of crime you're charged with or even with criminal defense in general, and, again, will often be receiving a flat fee.

If you happen to be assigned one of the thousands of dedicated, well-meaning local public defenders employed by state and local governments, your attorney will likely be underpaid (often $40,000 a year or less), under-resourced, and overburdened with clients. Caseloads of more than 150 cases a year are fairly standard; caseloads north of 300-more than one case that must be dispatched somehow every single working day in a year-are not unusual. As recently as five years ago, PDs in Miami could be assigned more than 700 cases per year. Given the number of files on your public defender's desk and the time and effort involved in mounting even a perfunctory defense in court, don't be surprised if he or she attempts to move your case along by getting you to plead guilty to a charge, no matter how much you protest your innocence. If you get a public defender who is less dedicated and well-meaning, you can expect it.

And this is new and improved American justice-as Houppert reminds us, arresting officers advising suspects of their rights is a fairly recent innovation (courtesy Miranda v. Arizona, 1966). Mandating an attorney for all who face criminal charges in court isn't much older.

In 1963, a marginally literate, career petty criminal Clarence Gideon took a handwritten motion for a new trial on his burglary charges all the way to the Supreme Court of the United States. He based his motion on the premise that he had not received a fair trial because he "requested the court to appoint me a [sic] attorney and the court refused." Up to that time, attorneys were mandated for all capital cases but otherwise most states threw poor, often undereducated suspects in front of judges and prosecutors to fend for themselves against the law. The Supreme Court had even upheld the practice as the preserve of the states in Betts v. Brady, a 1942 decision involving a Carroll County man charged with robbery whom the state of Maryland denied appointed counsel. As Houppert recounts in her unflashy, fact-packed prose, the Supreme Court appeared to be itching to overturn Betts, and it did, mandating that all states had to provide all their citizens with legal representation in criminal matters if need be.

And the states did, and still do-to a point. Public defenders' offices and other mechanisms of indigent defense have rarely been well-funded, and they remain popular targets for budget cutbacks. After all, politicians love to run on being tough on crime, and those most likely to need indigent defense are among those least likely to vote. Houppert notes that some public-defender offices handle almost as many cases as their corresponding district attorney's office on half the budget.

To Houppert's credit, this is not a book about dry policy. Each of the four novella-length chapters builds around the story of a man (or in one section, two men) who has faced the law without the benefit of private legal representation, creating a series of courtroom dramas. These stories are not generally happy ones. True, the story of Sean Replogle, a young man from Washington state who was saved from a likely vehicular homicide conviction in 2004 by a tenacious PD named Carol Dee Huneke, has a nominally positive outcome. But Houppert's account of Replogle's ordeal and the extreme difficulty that Huneke had in ensuring that her client got an adequate defense and a fair trial isn't likely to leave a reader feeling uplifted.

Chasing Gideon's centerpiece is almost worth a spoiler alert. Houppert's extended survey of indigent defense in New Orleans, both before and after a post-Katrina reform, inspires outrage with its jaw-dropping details. Suffice to say that archaic laws, aggressive policing and prosecution, feeble funding for indigent defense, and the kind of cronyism and corruption seemingly endemic to the Big Easy have led to epic dysfunction. It's the kind of system where a literally nonexistent defense offered by a public defender named Robert Zibilich in a one-day trial could send Greg Bright to the notorious Angola prison for 27 years for a murder he could not have committed.

What Gideon v. Wainwright has wrought in the 50 years since the Supreme Court's decision, according to Chasing Gideon, is not in most cases equality before the law for poor and rich alike, as was intended. Rather, we all sign off on "due process theater," an official form of lip service paid to the notion of shielding the poor from the full weight of the state's power. Houppert describe various occasional attempts at reform while also making clear that even the victories don't go nearly far enough in delivering something like actual justice. And it's not just the accused who get caught up in the gears of the system; the true believers working to fight the entropy and tilted odds often get ground down too.

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