out at the first court appearance. When the misdemeanor associate was given a felony case, she saw a strong argument for suppressing the evidence from a warrantless search. But after she asked for more time to develop her client’s strong argument, she was fired for refusing to flush the case with a guilty plea.20
Like underfunding, overwork has long persisted and grown despite calls for change. In 1973, average caseloads already exceeded the professional standards just mentioned. They spiked in the 1980s and 1990s and remained excessive over the last two decades. The problem is a chronic one.21
Instead of thoroughly investigating, discussing, negotiating, and contesting guilt, busy defense lawyers dispose of cases as fast as they can. They rarely file motions or objections, let alone go to trial. They often meet their clients for the first time in courthouse holding cells and hurriedly converse for a few moments before having the client plead guilty and be sentenced. This common practice is known as “meet ’em, greet ’em, and plead ’em” (or just “meet ’em and plead ’em”). Thus, an Atlanta public defender may receive up to forty-five new cases at an arraignment, meet them all while they are chained together in a courthouse cell, and have many of them plead guilty and be sentenced right there.
Of New Orleans defender Rick Teissier’s 418 cases over seven months, dozens of which were serious felonies, he pleaded out nearly a third of them at arraignment, the first formal hearing on the criminal charge. A recent Florida study found that 70% of misdemeanor defendants pleaded guilty at arraignment; one third of them did so without a lawyer. These arraignments lasted, on average, for less than three minutes. A lawyer who has just met his client in a courthouse hallway or holding cell can do little to explore possible defenses or mitigating circumstances. He simply pushes the case along like another widget on the plea-bargaining assembly line.22
In many places, lawyers often are not appointed immediately or are too busy to meet with their clients right away, so their clients may languish in jail for months. By that time, a jailed defendant charged with loitering, prostitution, or public intoxication may already have served more time than the typical sentence for a minor charge. As a result, defendants plead guilty in exchange for time served, rather than fight it out.23
Ineffectiveness
Partly as a result of overfunding and overwork, appointed defense lawyers sometimes perform poorly. Lawyers who are overwhelmed with cases often do little or no investigation, consult no experts, file no motions, and settle for whatever plea and sentence the prosecutor chooses to offer initially. Flooded with cases, they also grow cynical and burn out.
But the effectiveness problem extends beyond lack of time and overwork. Appointed defense counsel receive paltry pay and endure poor working conditions, making it hard to attract talent and retain seasoned veterans. There are basically three types of lawyers who are willing to endure these conditions. First, some lawyers become public defenders out of a sense of mission or ideological commitment to the cause, which can inspire them to brave adversity and fight hard. Many young idealists eventually burn out, but in the meantime they bring energy to their mission. Second, some young lawyers take court appointments or public defender jobs long enough to try some cases, make names for themselves, and gain marketable experience. But once they have trial experience, they are more likely to use it on behalf of more lucrative paying clients. They may continue to take a few court appointments to fill spare time, but seldom specialize in them.24 Third are the leftover lawyers at the bottom of the market. Lawyers whom few private clients would hire may wind up with court-appointed cases instead, regardless of the stakes. There are few checks to ensure minimal talent and performance.
In this third category, there are many stories of defense lawyers who nap during parts of trials, alcoholics who are arrested for driving while intoxicated on their way to court, and defense lawyers who are mentally ill or use cocaine or amphetamines during trial. Yet courts sometimes do not replace these lawyers, remove them from appointment lists, or overturn resulting convictions. On the contrary, some judges discount these evident impairments, let these lawyers continue, and even praise their work. Judy Haney, for example, faced the death penalty for murdering her abusive husband. Though the stakes could not have been higher, the judge held her lawyer in contempt for showing up to trial visibly drunk at 9:30 a.m., and then let him finish out the trial the next day. If even napping, drunk, or drugged lawyers may pass muster, then garden-variety incompetence hardly raises eyebrows. The standard of competence is shockingly low and in hindsight convictions seem to have been inevitable, so there is no harm, no foul. As the vice president of the Georgia Trial Lawyers Association put it, “You put a mirror under the court-appointed lawyer’s nose, and if the mirror clouds up, that’s adequate counsel.”25
Even in capital cases, defendants fighting for their lives may be stuck with defense lawyers who do not take the most basic steps for their clients. They may not find alibi witnesses, medical records that corroborate a self-defense claim, or evidence that a client is mentally retarded or schizophrenic. Some defense lawyers may do nothing for their clients and even undermine their cases. At James Messer’s capital trial, his lawyer gave no opening statement, barely cross-examined the prosecution’s witnesses, presented no defense witnesses or evidence, made no objections, failed to develop obvious mitigating evidence, and repeatedly suggested that his own client deserved to die. As a result, Messer was executed. Other capital defense lawyers have referred to their own clients using racial slurs such as “nigger,” “wet back,” and “little old nigger boy.”26
The bottom line is grim. You get what you pay for, and we as a society are politically unwilling to pay for much. Limited defense funding cannot keep up with rising caseloads, let alone attract and retain enough good, experienced defense lawyers and support. America spends plenty to arrest and prosecute criminal cases, but will not level the playing field with equal funding for the defense. Other factors include the complexity of our legal system, the cost of support and overhead, and the substantial time needed to investigate and tailor each client’s defense. Underfunding breeds overwork, and together they lead to poor defense lawyering. The reality is much darker than Gideon’s shining ideal.
How 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