A civil Gideon?

50 years after Supreme Court gave criminal defendants the right to a public defender, lawyers advocate for a ‘civil Gideon’
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Today, 50 years after Gideon, poverty remains the greatest impediment to a fair trial. Many accused who need legal defense go without or wind up securing incompetent counsel because public defenders are spread too thin and worked too hard.

At present, it seems all public defender’s offices are understaffed and underfunded, leaving burnt-out public defenders with oversized workloads, less resources, and cases that are far more complex than those even the year before.
One result is that for many, the promise made by landmark Supreme Court case, Gideon v. Wainwright, remains an empty one. In the Gideon case, the Supreme Court unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorney. Now the famous 1963 decision which ruled on the need for public defenders is, itself, in need.
Today, 50 years after Gideon, poverty remains the greatest impediment to a fair trial. Many accused who need legal defense go without or wind up securing incompetent counsel because public defenders are spread too thin and worked too hard.
“Equal justice under law is not merely a caption on the façade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. … It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
The late U.S. Supreme Court Justice Lewis F. Powell Jr. said it; Pennsylvania Bar Association President Thomas G. Wilkinson, Jr. says heed it.
In his March-April 2013 column in The Pennsylvania Lawyer, the PBA member magazine delivered to PBA’s 28,000 members every other month, Wilkinson praises those who have given time and work in carrying Gideon and Powell’s torch.
Proponents of a civil Gideon initiative, he wrote, ask whether the due process clause of the Constitution also grants a right to appointed counsel where basic human needs are at stake, such as shelter, sustenance, safety, health or child custody, and, if no such right is guaranteed, can such a right be granted by state legislation?
In 2006, the American Bar Association House of Delegates passed a resolution urging states to provide free legal counsel to poor civil litigants when those basic human needs are in jeopardy. In other states, some pilot programs are under way.
In 2007, the PBA House of Delegates passed a
similar resolution.
Now there are “civil-Gideon” working groups in Pennsylvania and a number of educational programs have explored strategies to narrow the civil justice gap, wrote Wilkinson, adding that many people are turned away from civil legal-aid agencies due to cutbacks in funding, staff and a general increase in the number of people who financially qualify for assistance in this down economy.
“One commentator recently observed that we provide appointed counsel for those facing potential confinement for months or years while we do not do so for those facing eviction and homelessness for months or years,” wrote Wilkinson.
Despite the call for a “civil Gideon,” Wilkinson acknowledges the obstacles, “. . . chief among these being the question of where funding will come from when state and local governments’ budgets are strapped and contributions to legal aid agencies are stable at best.”
Atty. Bob J. Munley, president of Attorney Robert J. Munley & Associates, a practice that exclusively represents individuals charged in criminal matters throughout northeast Pennsylvania, finds that no NEPA county public defender’s office seems to be sufficiently staffed or funded.
Close to 80 percent of the people in the criminal justice system qualify and are using public defenders, according to Munley. “That’s a lot of people and they are usually poorer, are typically less educated, many have criminal records, and many have issues with drugs and alcohol, and — often times — mental health.”
Mr. Munley also points to a discrepancy he finds disturbing. “The government (meaning the district attorney) has many more resources than the public defender’s office, putting the public defender’s office at a disadvantage. I know that I’m in court just about every day and there are always public defenders — they are always there at court alongside me and I can see the amount of work that they have and the difficult cases that they have.”
There isn’t a politically popular solution to the problem, said Munley. However, if the question is one of parity, he says to take a look at the district attorney’s budget and then come up with a formula to fund the public defender’s office, proportionally-speaking, not necessarily dollar-for-dollar. Mr. Munley feels this approach would honor Constitutional principles. “The Bill of Rights guarantees people basic fundamental rights. That’s essentially who the public defender’s offices is, they protect the rights and represent people as best they can.”
“It’s not a politically popular thing to say, ‘Let’s give people accused of crimes more resources to defend themselves.’ But people who have a loved one who is in the justice system — they get to realize very quickly that they’re overmatched,” he adds.
Atty. Victoria A. Coyle and North Penn Legal Services are doing the best they can but are currently unable to provide some people with the legal services they need.
North Penn Legal Services was formed on Dec. 31, 2000 with the unification of Legal Services of Northeastern Pennsylvania Inc., Lehigh Valley Legal Services Inc., and Susquehanna Legal Services.
“Right now,” said Coyle, “we are understaffed and underfunded, and can’t provide legal services for those who need them, so I do struggle to see how we can expand the system and secure the funding for us to do what we need to do.
“I think we’re all concerned, myself included, that people have their basic human needs violated and we see people that can use a lawyer in a civil setting, and the system isn’t able to provide one. So regardless of whether it’s us doing it or it’s the civil Gideon expansion, I think my colleagues and I agree that more legal services must be made available to low-income people, helping them keep their home and increase their access to medical care.”
The legal aid network, said Coyle, has worked closely with the Supreme Court of Pennsylvania, which has been more than generous in finding creative funding sources to keep aid services alive in the last couple of years.
North Penn operates with a staff of 61, including 27 attorneys and 11 paralegals. Coyle said its services have suffered greatly because of the decline in interest rates, because Pennsylvania legal aid funding depends heavily on IOTA funds. (In 2002 the Access to Justice Act or AJA established a fund to provide civil legal aid assistance to the poor in the commonwealth through the imposition of a fee on various courthouse filings . . . these funds, among others, are distributed by the Pa. Interest on Lawyers Trust Account (IOLTA) board as grants to fund access to legal representation to low-income Pennsylvanians.)
Coyle believes there may be a fair segment of the private bar, including attorneys who provide pro bono service, who may see a civil Gideon as a threat because they see it as taking paying clients away. However, she says this is not the case.
“Our clients can’t come up with $500 to $1,000 dollars. That’s several months of rent, medical bills. I don’t think there’s a wide array of clients who would otherwise go to private lawyers if something like civil Gideon was enacted.”

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