More on Gideon from the NYCLU…and me

The Spring 2013 edition of NYCLU News had a lot of stuff to read. Let me quote from Executive Director Donna Lieberman’s “Words,” a sort of prologue:

Just days before the NYCLU marked the 5 millionth stop-and-frisk, we marked another sad milestone. This spring was the 50th anniversary of Gideon v. Wainwright, the unanimous Supreme Court decision requiring states to provide a competent lawyer to a poor person accused of a crime. New York cannot really celebrate this anniversary because our state has abdicated this responsibility.

Every day in courtrooms in some parts of the state, New Yorkers appear for their initial hearings before judges without attorneys by their sides. Unrepresented, people accused of low-level misdemeanors like shoplifting or possessing small amount of marijuana often end up languishing in jail for weeks and even months because they can’t afford exorbitant bail. Or they plead guilty to crimes they didn’t commit because it’s easier and they can avoid jail time. Some meet their public defenders for the first time just moments before a court hearing. Justice cannot be served under these conditions.

But the NYCLU is determined to right this terrible injustice. Five years ago, the NYCLU and the law firm of Schulte, Roth & Zabel filed a class-action lawsuit challenging the state’s failure to provide a functioning public defense system. The case is slated to go to trial later this year. We’ll keep fighting until justice is served.

I didn’t know about this case. But aside from the information, there are several other important pieces of information that one can derive from Ms. Lieberman’s statement.

First, someone is doing something about the woeful lack of meaningful defense representation in criminal cases.

Second, a for-profit law firm is participating in a pro bono case with the NYCLU. I’m not surprised, although I think many people might be. Years ago, a partner in a major law firm told me, when I asked, that yes, his firm did have a pro bono office, in effect — lawyers, presumably young associates, who took on pro bono cases under the supervision of experienced lawyers.

But he asked me not to tell anybody about it, and asked me especially not to tell anybody that he had revealed this to me.

Understand how nutty this is? I have to guess that most major and even some smaller law firms take on pro bono cases, maybe in connection with civil rights organizations like the ACLU. That is, maybe they secretly maintain a pro bono practice but only get engaged in a case when they’re drawn in by a known pro bono organization.

So, here are major law firms keeping on the down low that they help indigent people. And the “down low” part begs the question: how do indigent people get help from law firms, if they don’t know that help is possible?

What is this, a semi-religious cult operating out of closets in big law firm’s glamorous offices? Here’s a radical idea: why don’t they advertise? Or at least list themselves with the attorney recommendation services of bar associations?

(Of course, the big caveat in having a high-priced big-name law firm take on your case pro bono is the awful recent example set by Sullivan and Cromwell.)

So what do people have to do to find a lawyer? Beg a law firm to help them? What a repulsive image! Or somehow find the civil rights organizations that apparently act as gate-keepers for the big law firms? A sort of client-filtering system?

Gideon established a rule for criminal defendants. Which apparently doesn’t work all that well.

We need a stronger Gideon and a Gideon for civil defendants who can’t afford lawyers.


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