In 1963, the United States Supreme Court ruled in Gideon v. Wainwright, 372 U.S. 335, that the Constitution required the appointment of an attorney to represent any indigent person charged with a felony level offense. As the Court explained, “In our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crimes. . . . That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries” (372 U.S. at 344).
The Gideon case, while a landmark, merely extended the reasoning of Powell v. Alabama, 287 U.S. 45 (1932), which had earlier ruled that the Constitution required legal counsel be appointed or otherwise provided for indigents accused in capital cases. Later cases such as In re Gault, 387 U.S. 1 (1967), Argersinger v. Hamlin, 407 U.S. 24 (1972), and Ake v. Oklahoma 470 U.S. 68 (1985) continued to extend the right to counsel and provide additional protections for indigents accused in criminal matters. Today, there is little question that indigents accused of criminal offenses that carry a possible punishment of confinement are entitled to an attorney and the other material requisites for mounting a defense to those charges. What is questionable, however, is whether the current system of delivering legal services in Texas to indigent defendants fosters - - or even permits-- effective representation. Fundamentally, the right to have legal counsel is hollow unless it is effective legal counsel.
For the right to an attorney to be meaningful, the system of representing indigents should meet several criteria. First, legal counsel appointed to represent indigent clients in criminal matters should be competent and assigned in a fashion that encourages vigorous defense of their assigned clients. The assigned attorneys should, at all times, be seen as independent advocates for their clients and adhere to the highest ethical and professional standards. Moreover, the counsel should be assigned within a reasonable number of hours or days and not a matter of weeks or months after the arrest. Waiting until indictment to provide an attorney, which is not an uncommon occurrence in many jurisdictions, is not unlike waiting until the autopsy to provide a physician. Second, attorneys representing indigent clients should have the necessary incentives to provide their clients with their best defense. Third, legal counsel representing indigent clients should have access to the resources necessary to properly defend their clients. Fourth, indigent defendants should have access to the same quality of justice as defendants who retain their own counsel. Stated differently, judicial outcomes for similarly situated cases should not differ based on whether counsel is appointed or retained, that is, on the financial resources of the defendant. Finally, the system of representing indigent defendants should be void of political considerations. Political party preference, electoral considerations, and financial pressures should have no place in determining judicial outcomes.
In discussing indigent defense in Texas it must be realized that Texas is a large state with many cultural, economic and other differences. As a result of that diversity, any generalization about the state is fraught with danger. East Texas is known for its "southern style" of life, lush gardens and huge trees, while west Texas is characterized by "western culture," cactus and vast deserts. The metropolitan centers of Houston and Dallas have single apartment buildings with more residents than some rural Texas counties (Loving County on the New Mexico border has a 110 people in the entire county). The counties reflect vastly different cultures and heritages (Hispanics make up 81.6 percent of the population of Presidio County [along the Mexican border] while Afro-Americans constitute only one-tenth of one percent of that county--on the other hand, over 31 percent of the population of Jefferson County is Afro-American and 5.3 percent is Hispanic). There are counties identified with oil production, ranching or commerce and trade, and having fine schools and a solid tax base; other Texas counties are best described as "hard scrabble" with some of the poorest school districts in the nation and little in the way of a tax base.
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Muting Gideon’s Trumpet: The Crisis in Indigent Criminal Defense in Texas
