William and Mary Law School

Study of Media Coverage Shows States' Indigent Defense Systems Need Reform

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”
U.S. Supreme Court Justice Hugo Black, Gideon v. Wainwright (1963)

In 2003, forty years after Justice Black spoke those words on behalf of the Supreme Court’s decision, the National Committee on the Right to Counsel aimed to find out just how effective indigent defendants’ right to counsel was actually being carried out – in all 50 states. To investigate, the National Committee sponsored several initiatives to study the legal and ethical requirements for adequate criminal defense representation, and to build a consensus of recommendations for reforms.

Haynes Professor of Law Paul Marcus, William & Mary Law School, and Mary Sue Backus, associate professor of law, University of Oklahoma, were asked to head the Committee’s Right to Counsel Project. Marcus and Backus, a 2001 law graduate of William & Mary and Marcus’s former student, teamed up as co-reporters for this important initiative which, through their efforts, canvassed practices in all 50 states on the right to counsel provided for indigent clients.

“Despite the fact that Gideon was decided more than 40 years ago,” Marcus said, “and, despite the fact that most polls show American citizens favor using tax dollars for legal representation for poor defendants, the criminal justice system in this country is in crisis. Prior to our national study, no one had studied the entire country for many years. Since a large number of states have not funded the public defenders’ offices sufficiently, we have found that, in many states, the ‘meet ‘em, greet ‘em, plead ‘em’ philosophy for lawyers defending poor people is still in full effect.”

With some notable exceptions, Marcus said, many states do not sufficiently fund defense attorneys for poor defendants and do not adequately train lawyers in defense techniques. The result has been that a higher proportion of poor defendants serve prison time and/or face executions in states that permit execution of criminals.

“It is our great hope,” Backus said, “that the committee’s work will generate real reform. The remarkable thing about this issue is that it is not news to anyone in the criminal justice system that poor criminal defendants are often denied competent representation. Reports from the last 40 years have shown that there has been no significant change in many states. The composition of the National Committee RTC– representing virtually every participant in the criminal justice system– and the national focus of the study give me hope that our call for reform will not be ignored this time."

“In addition,” Backus said, “the time is ripe for action on this issue as the public becomes increasingly aware that we are convicting, imprisoning and sometimes executing innocent people due to the failures of the system. As Americans we pride ourselves on our legal system being fair and just. I don’t believe the public will continue to ignore the evidence that we are not being fair or just to poor defendants.”

How these conclusions were reached is the direct result of the initiative overseen by Professors Marcus and Backus. A central feature of the Committee’s research, The Right to Counsel Media Project, was designed to collect, organize, summarize, and analyze a significant representative sample of media coverage of indigent defense issues nationwide during a 10-year period. The goal of the project was to compile a substantial sample that would fairly reflect the salient issues confronted by states in attempting to provide poor criminal defendants adequate legal representation. Twelve William & Mary Law School students were recruited in 2004 to conduct the media research. The 12 reviewed every major media [newspaper] article from 1994-2004, in all 50 states, the District of Columbia and Puerto Rico on the subject of the right to counsel. About 1,000 articles were reviewed, resulting in legal research and analysis. The students were led by Virginia Vile, William & Mary Law School Class of 2005, who coordinated all the media research conducted by the other students.

To hold costs to a minimum, Vile used both LexisNexis and Westlaw legal databases to search through newspaper databases. Free access to both databases is available to William & Mary students. She tested key search terms, like Gideon v. Wainwright, ‘public defender system’ or ‘right to counsel,’ and recorded all mentions of that term and instructions for further research. The other students, many of them volunteers from Marcus’ Criminal Procedures class, then spent innumerable hours searching for relevant articles based on the original set of key terms. Dividing their work by state, each student recorded and printed every article that matched the search terms.

“The creation of the database was an intense, but rewarding process,” Vile said. “I skimmed each article I received and then designed a general spreadsheet that would include specific information about each article we kept for review.” The spreadsheet included the newspaper’s name, the date and title of each article and a brief summary of the article. She was then able to provide a column on the spreadsheet that categorized the articles by subject matter. Many of the newspaper articles dealt with the lack of funding to the public defense system and case overloads, Vile said.

As Vile and Marcus wrote in the Executive Summary of the Media project which will be released in early 2007: “This wide- ranging collection reveals that there are overarching, common issues facing the states in meeting the constitutional obligation established by Gideon v. Wainwright and its progeny. And, while newspaper coverage is best viewed as a broad reflection of non-legal views from news reporters and the general public, the startling consistency of the media coverage across the nation suggests that there are well-known problems with the indigent defense system nationwide.”

The report continued: “Despite this support for the right to counsel for poor criminal defendants, the media coverage also reflects that continuing problems with the states' indigent criminal defense systems are undermining this fundamental right to counsel. Chronic problems include a disproportionate number of indigent defendants assigned to public defenders, the lack of training and supervision of indigent defense attorneys, poor quality representation given to indigent defendants by these attorneys, and case overloads that continue to plague the attorneys and exceed national standards. Ultimately, the newspaper coverage traces most, if not all, of these problems to a severe lack of funding and resources.”

In addition to Virginia Vile, who supervised the media project, the following William & Mary law students were involved in conducting the research: Kristine Wolfe, Class of 2005, who assisted Vile in this very large endeavor; and, researchers Jacqueline Chiang, Noelle Coates, Patrick During, Christina Eberhart, E. Ashleigh Schuller, J. T. Morris, Andrea Muse, Robert Pealo, and Danny Ramish, all Class of 2006, and Gordon Klugh, Class of 2005. Dana Otey of the William & Mary Law Faculty Support Center was also a key individual in assuring the project’s success.

Backus and Marcus will ensure that members of state legislatures and judiciaries receive a copy of their study and its implications for their states. They have already taken their message of reform to the second annual Summit on Indigent Defense hosted by the American Bar Association in spring 2006 and have addressed law students, lawyers, judges, and faculty members at Harvard, Houston, Oklahoma, Stanford, George Washington, Wake Forest and William & Mary law schools.

“Once the report is issued,” Backus said, “I suspect the national committee members will also be making presentations and seeking to educate policymakers about the imperative of reform.”

The National Committee on the Right to Counsel is part of The Constitution Project, based at Georgetown University's Public Policy Institute. The Project seeks consensus solutions to difficult legal and constitutional issues. It does this through constructive dialogue across ideological and partisan lines, and through scholarship, activism, and public education efforts. The National Committee is a bipartisan group chaired by former Vice President of the United States Walter Mondale and William T. Coleman, senior partner and senior counselor, O’Melveny & Myers LLP. Mondale, also a former U.S. Senator and as an Attorney General of Minnesota organized the amicus brief of 22 states in favor of Gideon, one of the principals in Gideon v. Wainwright.

The Constitution Project has earned wide-ranging respect for its expertise and reports, including practical material designed to make constitutional issues a part of ordinary political debate. The Constitution Project has seven active initiatives, each guided by a distinguished bipartisan, blue-ribbon committee. The initiatives have produced a number of reports and other resource material that serve as excellent education tools for experts and the general public.

The Right to Counsel Initiative, of which the Media Project was a part, in partnership with the National Legal Aid and Defender Association, marked the 40th anniversary of the U.S. Supreme Court's landmark ruling in Gideon v. Wainwright by establishing a national, bipartisan committee to review the indigent defense system throughout the nation, and to create consensus recommendations for any necessary reforms. The Initiative's results will be posted electronically on the web site of the Constitution Project at http://www.constitutionproject.org/.