Taking a look at public defenders
MARIETTA – Fifty years ago the United States Supreme Court unanimously handed down a ruling that the courts must provide a lawyer to those defendants too poor to afford one.
The landmark decision, Gideon v. Wainwright, established the present day public defender office, ensuring representation for indigent criminal clients.
But a half-century later, that representation is still not equal to that received by wealthy clients who can pay for a private attorney, said Janet Fogle McKim, who established the Washington County branch of the Ohio Public Defender Office and served as the Washington County Public Defender for 25 years.
“Rich people get more justice than poor people,” said McKim, who retired in 2006.
That was the case with Clarence Earl Gideon, a poor drifter, who spent his life in and out of the prison system.
When some money and alcohol came up missing from a Florida pool hall in 1961, a local resident told police he had seen Gideon, then 51, leaving the place with a bottle of wine and change in his pocket.
“He asked the court for a lawyer and they said no,” said McKim.
At the time, Florida only provided counsel for indigent criminals in capital cases.
He was sentenced to the maximum five years in jail, but Gideon felt the court had violated his Sixth and Fourteenth Amendment rights guaranteeing him a fair trial.
In prison, Gideon scrawled out a handwritten appeal to the U.S. Supreme Court and won the right to have his case retried, this time with a court-appointed lawyer.
The second time around, a jury found Gideon not guilty of the theft.
“The public has this perception that when the state charges someone with a crime, they got it right, but I can tell you they do get it wrong,” said Shawna Landaker, assistant Washington County public defender.
Giving those defendants the help they need to make sure they get fair representation is what makes the job rewarding, said Washington County Public Defender Ray Smith.
“I do enjoy helping people, especially people who without my help, they wouldn’t do well,” he said.
But the system faces some serious challenges when it comes to funding and manpower, said Smith.
“Everybody is stretched thin,” he said.
Last year, 70 percent of Ohio’s criminal cases were handled by a court-appointed attorney, said Amy Borror, public information officer for the Ohio Public Defender Office.
That percentage is a good representation of how many criminal cases are handled locally by the three full-time attorneys at the public defender office and the five other attorneys who are contracted to handle public defense cases on a part-time basis, said Smith.
To qualify as indigent, Ohio requires defendants fall at or below 187.5 percent of the poverty level, or $21,544 for a single person household.
In 2011, the most recent statistics available, the Washington County branch of the Public Defender Office closed 2,723 cases and still had 412 pending at the end of the year.
And those 3,000 plus cases are actually not a bad caseload compared to some bigger areas, said Washington County Assistant Public Defender Randall Jedlink, who worked as a public defense attorney in Toledo prior to coming to Washington County.
“In Toledo it was very, very overburdened. There were mornings where you’d handle dozens of cases. Here I think the public defender system is in much better shape,” said Jedlink.
Lucas County, which encompasses Toledo, closed 15,438 cases last year with another 5,122 still pending.
“A lot of times public defender offices have a bad reputation, many many many times deserved. They have way too many cases, not enough time,” said McKim.
A public defender trying to juggle too many cases can have negative impacts for their clients.
“A lawyer going into trial needs to really know about the case,” she said.
Where caseloads are staggering, it is not unheard of for a client and public defender to meet for the first time at their court appointment, said McKim.
“If you’re arrested and you sit in jail and no lawyer comes to talk to you, chances are you don’t feel like you’re getting good representation,” said Borror.
Overwhelming caseloads can also mean that attorneys have had no time to prepare for a case, she said.
Many counties, like Washington, contract with outside attorneys to handle some of the caseload.
But even when it comes to free representation, money still talks, said McKim.
That is why McKim hired the seasoned, albeit pricier, attorneys when she contracted out work for the office.
When the state public defender asked why she was hiring all those expensive attorneys, she replied “The constitution says you get a fair trial. If you have someone like (Washington County Prosecutor Jim) Schneider on one side and some wino out of college as defense, then that’s not a fair trial.”
Smith agreed, “If you want a level playing field you should have equal compensation.”
As an elected official, Schneider’s $115,703 salary is set by Ohio law.
Smith’s $69,617 salary is made up of 65 percent county funding and 35 percent state funding.
But compensation is just the start. Public defenders also have a hard time accessing the resources they need.
“I wish we had better access to experts, to DNA testing, to labs,” said Smith.
But where any extra money would come from is a challenge.
Politicians do not like asking voters for money for indigent defense, pointed out McKim.
“Who’s going to run for office saying they want to spend more money on criminal defense?” she asked.
Last year, $116 million was spent on indigent defense in Ohio, said Borror.
The Gideon decision, while significant legally, was handed out as an unfunded mandate, said McKim. The funding was left to the states who in turn have relied largely on the counties to fund and provide indigent defense, she said.
The result is a lack of consistency in the quality of indigent defense depending on what state and county you are in, said McKim.
In Ohio, counties handle indigent defense four ways. Washington County is one of 11 counties where the office is run through a contract with the state public defender.
Some counties, such as Lucas County, contract with a nonprofit corporation. Others have a self-governed county public defender office.
But in the vast majority of Ohio counties, the courts assign counsel to private local attorneys, who work the cases for free and are not always enthusiastic about indigent representation, said McKim.
“If they want better defense they need to find people that are enthusiastic about indigent defense,” she said.
The system still has a ways to go before indigent defendants truly have the same access representation and resources as their wealthier counterparts, said McKim.
“There are so many things working against a poor person in the system,” she added.
Still the system would be in a scary place without the Gideon decision, and not just for defendants, but for victims of crime and society in general, said Smith.
“Prisons today would be full tenfold of what they are now or people would get away with murder because we’d have no place left to put them,” he speculated.
Even with the public defense system sparing some of the Gideons of the criminal justice system from serving time, the nation’s prison system still touts both the highest per capita and total prison population in the world.
The ratio of the U.S. population behind bars is 716 of every 100,000 people.
For comparison, that ratio is 154 per 100,000 in the United Kingdom and 114 per 100,000 in Canada.
“There is something wrong with that,” said McKim. “We have thrown away people. It costs a fortune to house them there.”
Changes in the laws have helped somewhat, said Borror.
An Ohio law passed in 2011 cut back somewhat on the number of offenders who can be sent to prison for fourth- and fifth-degree felonies. It also raised the threshold for felony theft to $1,000 from $500, said Borror.
But more can be done legally to reduce the burden on the public defender office, said Smith.
“They can do away with the death penalty,” he said.
According to the state public defender office, the state reimbursed almost $1 million for defense in death penalty cases last year.
The state public defender office is looking at ways to increase reliable funding sources, said Borror.
“We’ve been trying to move away from general revenue funding. You never know from one budget to next what you’ll get. If you have dedicated funding, then it’s written into the law,” she explained.
The state gets some dedicated funding from fines and fees assessed in criminal cases, said Borror, but they have proposed additional dedicated funding revenue sources.
Recently, the public defender office proposed a 10 percent surcharge on liquor licenses, said Borror.
“We’ve seen there is a nexus between alcohol consumption and criminal cases,” she said.
But Ohio Gov. John Kasich did not include that proposal on his office’s most recent budget plan.
“We’d like to have more dedicated funding but we’re having a hard time finding a source legislators will agree on,” said Borror.
On a brighter note, more general revenue funding for the public defender office was approved this year, meaning the office could potentially bump reimbursement to counties from 35 to 40 percent, said Borror, but added, “We’re still a long way from where we need to be.”