Getting a law degree is expensive. Some who enter the law profession are paid very well. Most, however, are middle class. Here in Massachusetts, the median income for attorneys across the board is between $85k-$112k. That income pays not only for a high cost of living in a very expensive state, but also to repay college and law school loans. Anyone working in the public interest, particularly in criminal justice, can expect to earn less. Actually – in Massachusetts – the full-time public defenders make a higher than average salary (plus benefits); part time court-appointed counsel can also make well within, or even above, the average if they bill full-time hours but will not be able to avail themselves of state employee benefits.
This is all to say that all the hooha in Massachusetts regarding the “low pay” for court-appointed counsel is just that. No one who represents poor people is going to get rich. One hopes that the satisfaction of defending the United States and Massachusetts Constitutions and having a large amount of freedom in taking or refusing cases – with the option to have any other kind of income one chooses – would appease most lawyers. (Spoiler alert, it doesn’t; and we are not going to get into that here).
The purpose of becoming a prosecutor or a defense attorney is definitely not to make a lot of money. It is, instead, to uphold the highest values of fairness for everyone accused and convicted of crimes. Sometimes prosecutors become politicians (some even run for President). But, most don’t. Most are workaday trial and appellate lawyers who, hopefully, care about their work and manage, somehow, not to get burned out. Defense attorneys might have the opportunity to venture into high end white collar defense or manage to secure a sufficient number of wealthy people accused of crimes to increase their income. But, most don’t.
Everyone needs some money, but mostly lawyers working in criminal justice are driven by more than money. They have almost a vocational calling, a deep interest in righting wrongs, and a drive for improving the lives of the most vulnerable (no matter whether they end up prosecuting or defending cases). This makes it easy to lose the plot. It is essential to remember that the criminal defendant - along with his (or her or their) rights, as guaranteed by our governing documents - is the central player. How that person fares under a system of ordered liberty is paramount.
Seventy five years ago in Massachusetts, the state appointed counsel only in capital – read: death penalty – cases. For a tiny glimpse into that world, let’s revisit Allen v. Commonwealth, 354 Mass. 558 (1949). That case appears to be the equivalent of litigating for a new trial motion for lack of assigned counsel in a 1932 murder trial. Recall that there was a big sensation in 1931 when nine young, innocent Black men were accused of raping a white woman in Scottsboro, Alabama. All were convicted; eight sentenced to death for the crime.
The following year, their appeal made it up to the Supreme Court of the United States in the hallowed “guiding hand of counsel” case where the Court, led by Justice Sutherland, reversed the convictions. The defendants’ right to Due Process of law was violated when they were appointed counsel, but the lawyers failed to meet with them or prepare in any way. Due process requires more than functionally absent lawyers.
Just before Powell v. Alabama, 287 U.S. 45 (1932) was argued and decided, Mr. Allen, a 32-year-old Black man with an eighth-grade education, was indicted for murder on October 7, 1932. He had no money for a lawyer and the court would not appoint one. Mr. Allen did not face the death penalty as he was accused of second-degree murder which carried a term of life in prison. Had he been accused of first-degree murder, the court would have appointed counsel. But, under the circumstances, he was on his own. The trial judge promised to help him out during the trial, though. Set to the bar on October 25, 1932, he was convicted shortly thereafter.
Sixteen years later, advised by counsel, he explained to the Supreme Judicial Court that he was forced to represent himself at his murder trial. The SJC reviewed the statute authorizing the appointment of counsel – read no provision for crimes carrying a potential life sentence like rape, robbery, and second-degree murder - and found no fault in failing to appoint counsel. "There is no suggestion whatever of any unfairness at the trial. On the contrary, ‘During the trial the rights and privileges of the petitioner were fully and carefully explained to him by the judge.’” Id. at 563. Presumably, Mr. Allen (whose first name is lost to time) eventually died in prison as did so many other defendants who had insufficient funds to hire a lawyer.
The Supreme Court of the United States toyed with the problem of indigent defense over and over. In 1956, the Court decided Griffin v. Illinois, 351 U.S. 12 (1956) pertaining not so much to appointed counsel, but to attendant, and costly, issues related to indigent defense. Illinois permitted appeals of criminal cases, but the cost of transcripts was out of reach for most criminal defendants. The question to the Court was whether the state needed to bear the burden for the production of transcripts and the cost of a stenographer when the defendant could not afford to cover those costs. The Court concluded that it did. This opened the door to the opportunity to level the playing field when indigent defendants could not pay the cost for services vital to their defense or appeal.
As to appointment of counsel, the Court granted certiorari to a pro se filing by Clarence Gideon. This ultimately resulted in Gideon v. Wainwright, 372 U.S. 335 (1963) determining that the state must appoint counsel for all those who cannot afford one. The Court was unanimous. Both Griffin and Gideon were authored by Justice Black who had been a United States Senator from Alabama during the trials and tribulations of the defendants known as The Scottsboro Boys.
There followed a slew of cases – too numerous to mention – regarding just how far the state was required to go to pay for the prosecution of indigent defendants. Most, but not all, sided with the defendant.
By 1974, states across the nation were figuring out – to varying degrees – how to appoint lawyers for indigent defendants, how to pay for those attorneys unable to accept the cases pro bono, and how to pay for all of the attendant services required for an adequate defense. Courts in Massachusetts – who just 25 years prior saw no problem with the fairness of a trial for an unrepresented defendant - would change their tune considerably. Not only was counsel appointed in all felony matters, but also in misdemeanors which, at the time, were eligible for de novo trials.
In one such case, a defendant convicted of the misdemeanor charge of nonpayment of child support who sought a de novo trial moved for the state to pay for summons for witnesses he needed at trial and for a stenographer. A companion case consisted of a man convicted of misdemeanor heroin charges who moved for a stenographer in his de novo trial. These motions were denied in the trial court.
The Supreme Judicial Court took the issue up and ruled that defendants should be mindful of what they request, the court system should develop some kind of recording that is not as expensive as a stenographer, but the defendants were entitled to a recording of their case for the purpose of appeal. The denial of a stenographer was vacated with orders to the lower court to entertain the motions anew. Blazo v. Superior Court, 366 Mass. 141 (1974). So, in the span of 25 years, Massachusetts went from a state willing to deny counsel for a murder trial to one paying not only the lawyers, but also for myriad aspects of the defense in order to have a fair trial.
Beginning in 1963, the Court had placed unfunded mandates on the states to provide for counsel and the opportunity for a meaningful defense. Massachusetts has done its best – with hits and misses along the way – to meet these increasingly expensive and technical duties. Indeed, Massachusetts has a reputation as having one of the best bars for criminal defense anywhere in the country.
But, in the wake of Gideon and its progeny regarding the care and attention states would be required – under the Constitutional rights to due process, to the effective assistance of counsel, and to equal protection – to pay for both the prosecution and the defense of indigent defendants, many states could not manage. Heartbreakingly, the Court was often forgiving.
In Brescia v. New Jersey, 417 U.S. 921 (1974), the Court denied certiorari to an indigent defendant. The facts, according to Justice Marshall, who would have granted cert, are these; the defendant – charged with assault and battery on a police officer - was appointed counsel from the public defender’s office. On the morning of trial, the lawyer averred that he had insufficient time to prepare and that he had a personal relationship with the state’s key witness. He was allowed to withdraw. In his stead, the judge appointed another lawyer from the public defender's office who clearly did not want to be appointed. That lawyer requested a continuance which was denied. The trial began with a defense attorney who had absolutely no idea what the case was about. Each minute of the trial left him more exhausted and frantic. It was a horrendous experience for the lawyer, but even more so for the defendant who was convicted and sentenced to years in prison.
On appeal, he argued that he was forced to go to trial with counsel who was woefully unprepared. The New Jersey state courts reasoned that both lawyers – the initial attorney relieved of his duty and the attorney appointed minutes before trial – were both members of the public defender’s office. So, ya know, members of the same firm who prolly discussed all their cases at weekly strategy meetings and such. And it was the job of the public defender’s office to do all of the leg work (as though counsel were completely fungible). The courts faulted the public defender’s office, but the burden fell on the defendant. As it always does. Justices Marshall and Brennan would have granted certiorari and set the case for argument. But, seven members of the Court would not. Not sure how different those facts are from the facts in Powell v. Alabama, but apparently a majority of the members of the Supreme Court did. Because certiorari was denied, the Court gave tacit approval to the practice of punishing the indigent defendant when his lawyers annoyed the judge.
Indigent defendants need prepared counsel to represent them and they need the funds and services to mount a vigorous defense. Since these cases were decided, the practice of criminal law has become much more intense with a significant amount of specialization involved. So long as we have poor people accused of crimes we will need well-funded and well-prepared defenders. Courts can interpret the constitution to require all of that, but when states fail to live up to the reality, the courts will also cut them slack. The more things change the more they stay the same.
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