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Poor Defendants And Foggy Mirrors

FOR Richard Teissier, it was the last straw. When a judge last year told the New Orleans public defender that there was no money to hire the expert witness Mr. Teissier had requested for his defense of a poor man accused of armed robbery, the PD refused to let the trial proceed.

After he served a day in jail for contempt of court, Teissier filed a motion to have his representation of the suspect declared ineffective, in violation of the Louisiana Constitution and the Sixth Amendment to the United States Constitution. In the four-day hearing on the motion, testifiers established that Louisiana's system of defense for indigent suspects is grievously underfunded. The result: Public defenders like Teissier stagger under crushing case loads with insufficient money to hire investigato rs, retain expert witnesses, and take other steps often deemed necessary to mount an effective criminal defense.

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In an opinion granting the defender's motion, Judge Calvin Johnson wrote: "Not even a lawyer with an `S' on his chest could do the job Mr. Teissier has been asked to do." The judge ruled that Louisiana's indigent-defense system is unconstitutional and ordered the legislature to provide more money for staff, investigators, and the public defenders' library. The order has been appealed to the Louisiana Supreme Court.

This month marks the 30th anniversary of the historic Supreme Court decision in Gideon v. Wainwright requiring that the federal and state governments provide a lawyer to criminal defendants too poor to hire their own counsel. Most experts acknowledge that America has made large strides toward realizing Gideon's promise of effective defense for poor people who, charged with crime, face the enormous prosecutorial powers and resources of the state.

Defense lawyers, legal scholars, and other experts on the US criminal-justice system also say, however, that for too many poor defendants, the Gideon ruling is still an empty pledge.

Indigent defense doesn't have a strong lobby. In statehouses and on Capitol Hill, legislators are under greater pressure from voters to pass crime-fighting bills than to protect the rights of poor defendants.

Consequently, in many states indigent defense is still provided on a shoestring. In these states public-defender offices are understaffed - last year Louisiana's Teissier handled 680 cases, nearly seven times the 100 cases per year recommended under American Bar Association guidelines - and there is little money for investigators and expert witnesses.

In all states private lawyers are either recruited or drafted to take indigent-defense cases that PDs can't handle, but frequently low fee caps and other budget limits impair the quality of the representation provided by these lawyers, as well. In states where indigent defense is a mandatory obligation of all lawyers, it's still not uncommon for poor defendants to get a court-appointed lawyer who has no criminal or even civil trial experience.

"The Supreme Court has implied that a lawyer is competent to represent poor defendants if you can pass the foggy-mirror test," says Judy Clarke, a federal public defender in Spokane, Wash. "If you breathe on a mirror and it fogs up, you qualify."

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As a federal PD, Ms. Clarke works in a system that is better equipped than many state indigent-defense programs. By most accounts, federal public-defender offices are well staffed and adequately funded. But such offices exist in only about half the federal court districts. Moreover, the federal system faces a serious budget crunch in the supplemental program that pays private lawyers to represent poor defendants. That fund faces a $71 million shortfall in the current fiscal year.

The economic justification for some other social-welfare programs - "we can pay now, or we can pay more later" - isn't so plainly true of indigent defense. Yet the American sense of fairness recoils at the thought that a poor person can be charged with a crime without having at least one competent lawyer standing beside him to say to the government: "Prove it!"

Thirty years later, Gideon still nags at our conscience.

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