Читать книгу Rebooting Justice - Benjamin H. Barton - Страница 9
ОглавлениеHow We Got Here: Criminal Defense
To understand where America is going, we have to understand where we have been. This chapter offers a brief history of criminal procedure and the right to an appointed lawyer. We start with the story of Powell v. Alabama, the case that launched modern constitutional criminal procedure when the United States Supreme Court used the Bill of Rights to the Constitution to overturn a state court criminal conviction for the first time. It was also one of the first cases in which the Court sought to manage what passed for justice in the Jim Crow–era South.
The story of Powell v. Alabama takes us back to a dark time in American history.1 In 1931, ordinary Americans were so desperately poor that they would jump onto a freight train in one town and “hobo” their way to the next in search of work or food. South of the Mason-Dixon line, Jim Crow still ruled. The Ku Klux Klan was everywhere, and lynchings, cross burnings, and other atrocities were a way of life. And yet, with the Depression in full swing, there was little appetite for reining in the American South.
On March 25, 1931, a freight train left Chattanooga for Memphis along the Southern Railroad Line, the oldest east-to-west train route in the South. To avoid the Cumberland Plateau, the line runs south through Alabama from Tennessee before turning north again to Memphis. A few dozen youths, black and white, hopped aboard the long freight train in an open gondola car, hoboing their way to Memphis. Unsurprisingly, the racial mixing was volatile. Barely outside of Chattanooga, on the far side of the Lookout Mountain tunnel, a fight broke out. A white teenager stepped on the hand of Haywood Patterson, a black teenager traveling with his friends. According to Patterson, the white teen refused to apologize and said, “This is a white man’s train. All you nigger bastards unload.” When Patterson and his friends refused, the white and black youths began hitting each other and throwing stones. The black teens eventually got the better of it and threw the white teens off the train. The victory proved beyond costly, however. The white boys walked on to the next town and told the stationmaster that a gang of blacks was beating up whites on the train and that they wanted to press charges.
The stationmaster sent word ahead to Paint Rock, Alabama, and a lynch mob/posse assembled with ropes and guns. They stopped the train and dragged all the riders off. They found nine black teenagers, but also two young white women wearing men’s caps and overalls. A serious situation turned very dangerous. In the Jim Crow-era South, blacks and whites were legally required to live separately, and black men and white women were never to be seen together. At first, the women chatted with several bystanders, but about twenty minutes later they told a deputy that the blacks had gang-raped them, offering little detail.
The black teens were fortunate to escape with their lives. They were bound and driven to the jail in nearby Scottsboro, Alabama. A lynch mob gathered in the night, and frenzied news coverage began calling for blood. Soon, the media dubbed them “the Scottsboro Boys.” To stave off the lynch mob, the sheriff had to move them to a sturdier jail in the next town, threaten to shoot to kill any lynchers, and call out the National Guard.
Officials also promised swift justice, and the public demanded it: Locals complained that it took all of five days to indict the teens. The state sought the death penalty for eight of the nine teens and life imprisonment for the youngest, who was thirteen. At arraignment, the court did not ask the defendants whether they wanted to hire counsel and did not give them time to do so. They had no lawyer to investigate or prepare before trial.
The first of the four trials began on April 6, a mere twelve days after the incident. As usual, blacks were systematically excluded from the jury pool. A mob of five to ten thousand gathered outside the courthouse, which had to be protected by National Guardsmen wielding machine guns. The judge appointed as defense counsel Stephen Roddy, a real estate lawyer who had been sent from Chattanooga by some of that town’s leading black citizens. Unfortunately, Roddy was an alcoholic who could hardly walk a straight line the morning of the first trial and who protested that he was unprepared and did not know Alabama law. To help him, the judge appointed local lawyer Milo Moody, who was nearly seventy, doddering, and senile. Roddy had less than half an hour with his clients before the trial began and effectively no time to investigate the facts. The appointment of counsel was largely a sham.
Despite inflammatory news coverage and the lynch mob, the court refused to move the trials. The medical evidence of gang rape was weak: While doctors found semen in both women’s vaginas, it was non-motile, almost ruling out intercourse in the previous few hours, and the amount found in one of them was far less than a gang rape would have produced. Neither woman was bruised, injured, or hysterical, and their clothes were not torn even though they had supposedly been gang-raped in a rail car full of jagged rocks. One of the two could not even identify which of the defendants had supposedly raped her. Yet the judge all but precluded defense counsel from cross-examining the victims about their history of prostitution and their sexual intercourse with their boyfriends the night before the incident. Neither defense lawyer offered an opening or closing argument, and they called no witnesses besides the defendants. Each trial lasted only a few hours and convicted all defendants; all but the youngest one were sentenced to death.
Southerners prided themselves on having let justice take its course as a substitute for lynching. Outsiders saw the trial as a travesty and a legal lynching. The Alabama Supreme Court affirmed the judgment in a brisk 6–1 ruling. The U.S. Supreme Court eventually reversed, and on retrial one of the two women recanted her entire story, but Alabama juries kept convicting the defendants. There were eventually three more retrials. Charges were dropped against four of the defendants, but five were eventually convicted and ended up serving substantial prison sentences.
The outcome of Powell seems painfully obvious today, but it presented a terrible dilemma to the U.S. Supreme Court. On the one hand, the trial transcript and circumstances were shocking and unacceptable to jurists. The evidence was shabby, the trial was rushed, the defense lawyers did almost nothing, and the jury was packed with white Southerners who would have convicted the Scottsboro Boys based on appearance alone.
On the other hand, the U.S. Supreme Court had previously refused to overturn state criminal convictions for violating a specific provision of the Bill of Rights. In the nineteenth century, the Supreme Court had treated the Bill of Rights as limiting only the federal government, as suggested by the First Amendment’s first word limiting only what “Congress,” not state governments, could do. After the Civil War, the Fourteenth Amendment explicitly required states to provide “due process of law,” which was later interpreted to forbid at least mob-dominated trials. But even after the Fourteenth Amendment, the Supreme Court had specifically declined to apply the Fifth Amendment’s guarantee of a grand jury indictment to state prosecutions, reasoning that the Fourteenth Amendment’s Due Process Clause did not list or require states to follow the specific guarantees of the Bill of Rights.2
Thus, until Powell, the Court had declined to specify any particular constitutional criminal procedure governing state prosecutions. Doing so would have required upsetting decades of precedent and starting to apply the Bill of Rights to the states. So Powell was a true “crossing the Rubicon” moment. Would the Court take responsibility for managing the unmanageable? Would it overturn a string of cases and tradition allowing states largely to handle their own business in criminal matters? But if it chose to let Powell stand, would it be a silent partner in Jim Crow–era “justice”?
The Court chose the path of justice and overturned the convictions. American criminal procedure and constitutional law have never been the same. Powell was the first step in the journey that led us to the system we have today. Our system is unquestionably a radical improvement over 1931-era justice, but it has not come without its own costs and wrong turns.3
Today, the constitutional right to criminal defense counsel is far broader than it was two centuries or even half a century ago. On its surface, criminal defense has grown much stronger, progressively marching toward a fair, level playing field. But this simple story of progress overlooks the costs and tradeoffs. While the Supreme Court has repeatedly expanded the right to criminal defense counsel, it has paid much less attention to funding and implementing it. As the right has broadened, it has also grown shallower. The Court began by responding well to high-stakes injustices in complex criminal trials. But as it kept expanding the right down the criminal justice pyramid, it also watered it down. Without legislative cooperation, courts by themselves cannot and will not guarantee defenders the salaries, support, and caseloads they need to represent their clients vigorously and effectively. In practice, poor criminal defendants have a right to a warm body with a law degree and not much more.
The Right to Hire One’s Own Defense Lawyer
Until almost three centuries ago, English defendants were forbidden to hire defense counsel in routine felony or treason cases. Defendants usually knew the facts of their own cases, and in defending themselves they would air their version of events. Trials were a bit like shouting matches among the victim, defendant, and witnesses, with few technical rules of law or evidence that would require a lawyer’s intervention. But then prosecuting attorneys began handling some prosecutions (in lieu of victims) and relying on dubious evidence by paid informants. Thus, in the mid-eighteenth century, English courts allowed defendants to hire defense lawyers to cross-examine prosecution witnesses and speak for their clients more generally. The goal was to level the playing field against public prosecutors.4
The American colonies likewise rejected the older ban on privately retained defense counsel. And after the Revolutionary War, the Bill of Rights ensured that defendants could hire their own lawyers to protect them from government oppression. The Sixth Amendment guarantees every criminal defendant the right “to have the Assistance of Counsel for his defense.” This was understood to mean a right to hire one’s own lawyer, not to have the government provide one for free.5 The colonies did not routinely appoint defense counsel.
Over the course of the nineteenth century, the American legal system grew much more professionalized. Professional police forces grew up, investigating crime and turning evidence over to the prosecution. Public prosecutors displaced more and more victims bringing private prosecutions, and in response defendants who could afford to do so hired defense counsel.
Some states, by statute or practice, appointed defense counsel for capital or even noncapital felonies, though these were often unpaid: New York started doing so by 1810 and California began in 1872. But Massachusetts and Florida, for instance, did not appoint lawyers for noncapital felonies until the second half of the twentieth century.6
Cities then started creating public defender offices as either government agencies or nominally private charities, beginning with Los Angeles in 1914. Advocates sympathized with poor defendants and sought to end their exploitation by shyster lawyers. Some early boosters favored public defenders as aggressive advocates for defendants, while others hoped they would be almost the mirror image of prosecutors: “quasi-judicial officers [who] would owe a duty not only to their clients, but also to the state.” New York lawyer Mayer Goldman even suggested that public defenders would not “seek to defeat justice by securing the acquittal of a guilty defendant,” but would instead “work harmoniously” with public prosecutors to bring out the truth, protecting the innocent from conviction and the guilty from excessive punishment. These conflicting visions reflected ambivalence about whether adversarial combat against the prosecution or a more neutral, inquisitorial system would better serve truth and justice.7 In the end, public defenders were built and run as traditional, adversarial representatives of defendants’ interests, but these competing sales pitches reflect public qualms about criminal defense that persist to this day.
Once prosecutors and defense lawyers ran many criminal cases, courts developed rules of evidence and procedure to regulate trials, making them longer and more complex. (In the eighteenth century, most trials lasted no more than a few hours; in the nineteenth, they could run for days.) Prosecutors and defense counsel also developed plea bargaining. As repeat players, they could forecast likely outcomes after trial, develop going rates, and build the trust needed to strike bargains and short-circuit these new, elaborate procedures. In other words, increasing complexity begat professionalization, which begat more complexity, which in turn begat shortcuts such as plea bargaining to circumvent costly, cumbersome procedures.
Powell v. Alabama Redux
By the twentieth century, trials had grown long and complex. Defendants could no longer just stand up and argue with victims and witnesses about whodunit. Felony jury trials required elaborate pretrial investigations, witness interviews, jury selection, opening statements, direct- and cross-examination, evidentiary objections, closing arguments, jury instructions, sentencing, and post-trial motions and appeals. Yet many defendants were too poor to hire their own lawyers, and these defendants were often the ones who needed help the most. Many parts of America (especially rural areas) did not have public defenders, and even public defender offices could not represent everyone.
Well into the twentieth century, the U.S. Supreme Court avoided interfering with state criminal justice systems. But the racism and legalized lynchings of the Jim Crow–era South prodded the Court to act. In Powell v. Alabama, the U.S. Supreme Court reversed the defendants’ convictions, holding that Alabama had denied them their right to hire counsel of their choice. Central to the Court’s reasoning was the need for legal expertise to navigate complex trial procedures. Without counsel, the due process right to be heard would mean little. “Even the intelligent and educated layman has small and sometimes no skill in the science of law,” such as the technical rules of pleading and evidence. Without “the guiding hand of counsel at every step,” innocent men risk being convicted based on incompetent, irrelevant, or inadmissible evidence, even if they have strong defenses. That was especially true of the young, illiterate Scottsboro Boys, who were surrounded by a bloodthirsty mob, cut off from their friends and families, and on trial for their lives. Though the issue had been framed as giving defendants time to hire counsel, the Court threw in an aside that opened the door to free lawyers, at least in these extreme circumstances: Courts must appoint lawyers for those who cannot hire them, at least for “incapable” defendants in capital cases.8
Powell was an important first step toward protecting poor criminal defendants. Yet its reasoning and focus raised more questions than they answered. For starters, the Scottsboro Boys did have lawyers, and they never sought court-appointed lawyers free of charge. As the dissenters noted, the Court’s language about appointed counsel was dictum—that is, irrelevant to deciding this case. The Court should not have addressed the right to counsel, which covers whether a defendant has a lawyer at all. The real issue in Powell was what counsel must do to be effective. But the Court in Powell all but avoided that question, as it would continue to do later. The right-to-counsel cases make much of the presence of counsel, but little about how to tell if that counsel was effective.
More generally, the real problems in Powell were not so much the defense lawyers as the rush from the arrest to the trial, the exclusion of blacks from the jury, the domination by a lynch mob, and the biased judicial interference with cross-examining the victims. But tackling Southern racism head-on would have been too explosive, shaking the foundations of Jim Crow criminal justice. In that respect, the right-to-counsel ruling was a dodge, and the Court largely avoided acknowledging the strong racial biases that had tainted the trial. Nevertheless, it planted the seed of a constitutional right to appointed counsel (albeit a small and limited one) that would flower in coming decades.
Even Powell itself is not an unmitigated triumph. The Supreme Court overturned the Scottsboro verdicts one more time in 1935 in Patterson v. Alabama and Norris v. Alabama, because Alabama systematically excluded blacks from those juries. But Alabama kept retrying the cases, and eventually the Supreme Court let convictions in five different cases stand.9
Beyond Capital Cases: From Betts to Gideon
Not long after Powell, the Court clarified that federal criminal defendants had a right to appointed counsel, as did capital (that is, death-penalty) defendants in state court. Criminal cases are full of “intricate, complex, and mysterious” legal rules and prosecuted “by experienced and learned counsel,” so federal defendants needed lawyers to level the playing field. For three decades, however, the Court refused to extend this right to state criminal trials. In Betts v. Brady, the Court held that a poor defendant has no fundamental right to appointed counsel in all cases. Where there are special circumstances that make a defendant unable to try his own case, states may have to appoint counsel on occasion to satisfy due process of law. But Betts was a mature man of ordinary intelligence with past experience in criminal justice, and he chose a bench (non-jury) trial, which made the procedures more informal and flexible. He had no special need for a lawyer to navigate the procedures.10
In later decades, the Court proved increasingly willing to find special circumstances requiring appointed counsel even in routine cases. Reviewing matters case by case in hindsight, the Court could not provide clear guidance to lower courts and legislatures on which cases needed counsel. As Justice Harlan eventually put it, “[t]he Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial.” Thus, in 1963 the Court overruled Betts in Gideon v. Wainwright.11
Clarence Gideon was a sometime drifter, gambler, and small-time thief. In 1961, someone broke into a pool hall in Panama City, Florida, and stole coins from the cigarette machine and juke box, as well as some beer and wine. Witness Henry Cook identified Gideon as the burglar, though Cook had a criminal record and may have committed the crime himself. A police officer arrested Gideon with pockets full of change, which he later testified he had won by gambling. Gideon’s request for appointed counsel was denied, and he was convicted of breaking and entering with intent to commit a misdemeanor.
The Supreme Court unanimously reversed Gideon’s conviction, overruling the special-circumstances requirement to trigger appointment of counsel. Writing for the Court, Justice Black stressed that the Sixth Amendment’s right to appointed counsel is fundamental, so states must follow it to ensure due process of law. “[I]n our adversary system of criminal justice,” poor criminal defendants need appointed counsel to ensure fair trials. “Governments . . . quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” and defendants who can afford it hire “the best lawyers they can get.” Thus, for both the prosecution and the defense, “lawyers in criminal courts are necessities, not luxuries.” Tellingly, when Gideon was tried a second time, his appointed defense lawyer caught the prosecution’s key witness (Cook) in a lie about his criminal record, and the jury quickly acquitted Gideon.
Gideon was rightly hailed as a triumph for justice, a heroic decision vindicating the little guy and ensuring justice for the poor. Anthony Lewis immortalized the case in his stories for the New York Times and his prize-winning book Gideon’s Trumpet, and Henry Fonda later played Clarence Gideon in a movie made for prime-time TV. But one OF the most striking facts about Gideon is that the Court largely followed developments in the states, reining in a few Southern outliers, rather than leading them. By the 1960s, all but five states routinely appointed counsel for poor felony defendants. Almost two dozen states filed an amicus (friend-of-the-Court) brief supporting Gideon (!), led by Minnesota Attorney General and future Vice President Walter Mondale, while only two other states supported Florida. The very end of Justice Black’s opinion cited the former brief, implicitly confirming that Gideon’s rule had proven workable in the states. Gideon, in short, was a right on which almost everyone could agree.
Stretching Gideon to Minor Cases
Gideon left open a plethora of questions, including how serious a crime must be to qualify for appointed counsel, how well an appointed counsel must perform, and what compensation and resources he must have. On the first of these questions, the Court soon extended Gideon beyond felony cases to misdemeanors, in Argersinger v. Hamlin. The Florida Supreme Court held that the constitutional right to appointed counsel extends only as far as the right to a jury trial, that is, to crimes punishable by more than six months’ imprisonment. But the U.S. Supreme Court reversed Jon Argersinger’s concealed-weapon conviction and ninety-day jail sentence, extending the right to counsel to all cases in which a court imposes any actual imprisonment. The Court argued that even low-stakes cases may be too complex for laymen to handle themselves, and even brief imprisonment can harm defendants’ liberty, careers, and reputations. The Court also worried about “assembly line justice,” and hoped that appointing lawyers for misdemeanants would give defendants a chance to examine and fight all criminal charges. The majority dismissed concerns about cost, asserting that only a couple of thousand lawyers, about half of one percent of all lawyers, would be needed to handle all non-traffic misdemeanors in the United States. In his separate concurring opinion, however, Justice Powell worried that the right would cost and demand much more, exacerbating court congestion and delay.12
Argersinger is dubious for several reasons. First, Argersinger is far more radical than Gideon. Gideon merely codified a right that was already working in a majority of states. But Argersinger swept far more broadly, creating a new right that was broader than most states’ practices at the time. Given the novelty and breadth of the right, it is unsurprising that the majority’s predictions proved to be far too sanguine. Second, the Court relied upon the American Bar Association’s recommendations, but of course the ABA’S members are the ones who benefit from the Court’s full-employment mandate. Third, the right to a jury trial is expressly guaranteed twice in the Constitution, and the Founding Fathers made it central to the Bill of Rights. Yet the Court treated its novel right to counsel as more fundamental than the venerable right to a jury, stretching it much further.
The Court, in Alabama v. Shelton, extended Argersinger to suspended sentences that later result in imprisonment. But in Scott v. Illinois it drew the line at cases imposing imprisonment, not just fines, heeding earlier warnings about cost. Broadening the right to fine-only misdemeanors, it worried, “would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.”13
The bottom line? The very limited right first announced in Powell had grown broad indeed: All criminal defendants facing even a day of jail time, plus defendants with suspended sentences that later result in jail time, plus juvenile defendants facing imprisonment, get a free government lawyer if they cannot afford to hire one. Misdemeanors that result only in fines do not require a lawyer.
Minimal Performance Standards
Collectively, Gideon, Argersinger, and Shelton extended the right well beyond capital cases or felonies to millions of misdemeanors, making its reach quite broad. But the Court refused to make it deep. It has imposed only the most minimal standards for how well appointed counsel must perform and what pay, support, and resources they must have in order to assist their clients effectively.
Even though the Scottsboro Boys had lawyers, the circumstances prevented their lawyers from giving “effective aid” in preparing and trying the cases, making their trials fundamentally unfair. More than half a century after Powell and more than two decades after Gideon, the Supreme Court finally defined “effective aid” as requiring only minimal competence in Strickland v. Washington. In so doing, it revealed how little the right ultimately guarantees in practice. The point of the right to counsel is to ensure a fair trial with a just result by testing the prosecution’s case. Our adversarial system relies on defense lawyers to play that role, but the Supreme Court has hardly held their feet to the fire.
Unfortunately, Strickland’s standard is so complex and murky in practice that it requires lawyers to litigate ineffectiveness after the fact. Under Strickland, courts assess ineffective assistance of counsel in retrospect, when reviewing convictions and sentences, and require defendants to bear the burden of proving both (1) deficient performance and (2) prejudice. On performance, reviewing courts must be “highly deferential” and strongly presume that any debatable decisions were reasonable tactical choices rather than errors. It treats lawyering as an art, not a science, with few definable rules. Courts do not seek to raise the prevailing bar, but simply to ensure that defense lawyers’ performance fell within the “wide range” of reasonable competence. In other words, Strickland is supposed to catch outliers but simultaneously makes it hard to define “outliers.” Bar standards and checklists are at most guidelines, not rules. In the past decade or so, the Court has paid more attention to bar standards in assessing counsel’s failures to investigate mitigating evidence in capital cases or to advise clients pleading guilty that they may face deportation. But these guidelines do not amount to codes for defense lawyering; opinions relying on these guidelines are the exception, not the rule.14
By and large, ineffective assistance still depends on fact-specific, case-by-case judgments of effectiveness. The lack of concrete standards impedes teaching defense lawyers how to defend effectively and relieving defendants whose lawyers fail to do so. Strickland is all about reviewing individual cases after the fact, not promulgating or codifying rules for future cases ahead of time. Because the point of the right to counsel is to ensure a fair, adversarial trial, Strickland’s test of prejudice is whether the trial’s result was fair and reliable. Courts will presume prejudice only when the state failed to supply defense counsel altogether or interfered with his performance, or the defense lawyer labored under an actual conflict of interest. Otherwise, defendants must prove, case by case, “a reasonable probability” that the error changed the trial’s verdict of guilt or sentence. “Reasonable probability” means “a probability sufficient to undermine confidence in the outcome,” in light of all the evidence.
The Strickland Court also advised that either prong of the test, performance or prejudice, could come first in a reviewing court’s analysis. Unsurprisingly, this has meant that reviewing courts often start their analysis with a catalogue of the evidence of the defendant’s guilt before finding no prejudice. Once the prejudice issue is settled, courts can briefly ratify the performance of the lawyer or just ignore it altogether. This is one of the reasons why truly horrible lawyering by drunk or sleeping lawyers has been allowed on appeal. The reviewing courts focus on the prosecution’s case (evidence of guilt), find no prejudice, and then glide over the defense work, regardless of how bad it was. To paraphrase Justice Scalia, making prejudice the focus of our ineffective assistance of counsel analysis is “akin to dispensing with jury trial because a defendant is obviously guilty.”15 The primary question should not be whether the prosecution presented sufficient evidence of guilt; that is easy to do when an opposing lawyer does no work at all. The focus should be on whether the defense lawyer fulfilled the constitutionally crucial role of actually providing a defense.
Strickland’s performance standard is too weak, too vague, and far too deferential. The Court in Strickland bent over backwards to guard against Monday-morning quarterbacking. The Court reminded us that calculated risks sometimes fail, and admonished that courts should not second-guess counsel’s decisions in hindsight. Moreover, defense lawyering is a craft or an art, not a science, so different craftsmen may investigate and try cases very differently. For instance, one defense lawyer will attack a prosecution witness’s truthfulness on cross-examination; another will more subtly question his memory or eyesight. One will try to strike a deal to cooperate with the prosecution; another will hang tough in plea bargaining. One defense lawyer will take the risk of having his client testify to an alibi, at the cost of being cross-examined about his prior convictions; a second will put on no witnesses but poke holes in the prosecution’s theory to create reasonable doubt. While that is all true and calls for some judicial deference, it makes these tactical judgments hard to second-guess in hindsight. Unfortunately, the murkiness of Strickland’s standard plus the strong presumption of effectiveness make it extremely hard to review convictions case by case. The lack of rules makes it hard to specify what a defense lawyer should have done and so what qualifies as an error rather than a judgment call.
The strong presumption of reasonableness compounds the problem of vagueness, leading courts to imagine reasons why a defense lawyer might have meant to do something that in fact was a dumb mistake. And instead of 20/20 hindsight, reviewing courts fall into the opposite trap: In retrospect, convictions seem inevitable, and it becomes easy to dismiss errors as immaterial to the foreordained result. Psychologists call this perception the “inevitability bias.” That perception is particularly strong because most convictions result from guilty pleas, which lack trial transcripts to document counsel’s performance and are colored by defendants’ admissions of guilt.16
Moreover, Strickland’s focus on a few bad apples distracts attention from the broader deficits that breed systemically poor representation in the first place. As Chapter 2 explained, the problems of poor defense lawyering are rooted in system-wide underfunding and overwork. By and large, courts cannot and will not fix these deeply flawed structures. They are loath even to specify and enforce maximum caseloads, salaries, and support staff. Those are all systemic foundations of the problem, which bear indirectly on the guilt and conviction of any particular defendant before a court. A few adventurous state courts have tried halting prosecutions in excess of recommended defender caseloads, or ordering their state legislatures to increase defense funding, equalize prosecutors’ and defense lawyers’ salaries, or at least cover defense lawyers’ out-of-pocket expenses. But courts are poorly equipped to manage tax revenues, other funding sources, and budget tradeoffs in a world of scarcity. Though court orders have occasionally led to onetime bumps in indigent defense funding, any gains have been transient; inflation and rising caseloads soon wipe them out.17
As a result of all these failings, Strickland means little in practice. Defendants routinely challenge their lawyers’ performance when they are convicted, and reviewing courts routinely rubber-stamp their convictions and sentences. Courts of appeals, swamped with frivolous ineffectiveness claims, approach each one with a jaundiced eye. As Justice Jackson put it, “It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”18 This is particularly so because reversing a conviction would require a whole new trial, often with similar lawyers and resources in similarly strapped and busy circumstances.
Thus, courts wind up reversing only a small percentage of all cases, catching only the most egregious outliers. As Chapter 2 explained, courts sometimes even overlook lawyers’ abuse of drugs and alcohol and napping during trials. They rarely overturn less glaring malpractice, let alone mere failure to test the prosecution’s case zealously. In short, any “lawyer with a pulse will be deemed effective.”19 Gideon’s trumpet is muted.
Powell began from the top of the pyramid of crimes. It envisioned equal justice and a level playing field for the most serious crimes in the most outrageous circumstances: a mob-dominated legalized lynching of young black men accused of raping white women. Gideon rightly generalized Powell to all felony cases, now that they have become too complex for laymen to navigate on their own. Gideon was right both symbolically and practically; it was an important step toward leveling the playing field in felony cases. But simply announcing a right does not make it effective. The Court kept extending this vision of formal, Cadillac justice down the pyramid to more and more misdemeanors, beyond courts’ ability or legislatures’ willingness to implement it well. And legislatures kept expanding the breadth and depth of criminal laws so as to claim political credit and give prosecutors more tools. As a result, the system grew ever more complex and more reliant on plea bargaining to clear growing dockets. Argersinger even envisioned routine constitutional challenges to vagrancy prosecutions, as if even the tiniest and most routine cases were snowflakes to be marveled at in all their hidden complexity. As Strickland shows, Gideon means far less in practice than it should in theory. The emperor has a few clothes, but his suit is shabby indeed.
