Monthly Archives: March 1963

1963.03.15: Letwin, Judicial Remedies and Standards in the Wake of Baker v. Carr (LL.M., Harvard Law School)

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1963.03.00: The Representation of Indigents in Criminal Cases (MBA Gavel)

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The Representation of Indigents in Criminal Cases PAGE 6

•••••

The Official Publication of the Milwaukee Bar Association

Vol. 23 No. 4 March, 1963

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The Representation of Indigents in Criminal Cases*

e An Analysis of Present Policy in Wisconsin With Proposed Changes

Leon Letwint

There is apparent, on both state and national

level, an increasing concern with the task of providing

adequate legal representation for indigents

in criminal cases. Wisconsin has for years met the

problem by requiring appointment of counsel, at

county expense, for indigent defendants in certain

classes of cases.1 But the requirement is limited

to felonies. Furthermore, even in the most

serious felonies, the appointment is delayed until

after the preliminary hearing when the defendant

is first arraigned in Circuit Court.

It is probably true that even with these limited

provisions, Wisconsin’s protection for indigent defendants

compares more or less favorably to a

good number of states. Yet there is a perennial

current of doubt that the job is being done adequately.

The present system has been criticized or

questioned by newspapers, bar organizations and

courts. Perhaps the most eloquent “criticism” of

the statutory shortcomings is the very existence

of the Voluntary Defender system in Milwaukee

County organized jointly by the Milwaukee Junior

Bar Association and the Milwaukee Legal

Aid Society. Under this system, a different volunteer

attorney appears every day in one of the

Mil waukee County misdemeanor branches to represent

indigents accused of misdemeanors, or to

represent accused felons on preliminary hearing.

The Wisconsin Supreme Court recently had

occasion to comment on one aspect of the problem.

In State ex rel Offerdahl v. State/ an indigent

charged with a felony sought habeas corpm

on the ground that he had been denied the

right to separate counsel at his preliminary hearing.

The court held that he had neither statutory

nor constitutional right to appointed counsel prior

to arraignment. However,said the court,

“while not constitutionally necessary, the practice

of appointing counsel prior to the preliminary

hearing is to be encouraged.”3

If, therefore, there are difficulties with the present

system, they are not apparently of constitutional

dimension. The due process clause is satisfied

with less than what Wisconsin offers.4. Bur

this surely does nor end the inquiry; it merely

shifts its focus. For we ought not be-and are

not-satisfied to adhere to the minimum requirements

of the Constitution. Merely because a situ-

*This article is in large part based on a March, 1962,

report prepared by the author at the request of the

Milwaukee Junior Bar Association.

·j·LL.B., Unive rsity of Wisconsin ( 1952); Member of

Wisconsin Bar; presentl y, Fellow in Law T eaching at

ll arvard Law School.

6

arion is constitutionally tolerable does not mean it

is desirable or justifiable as a matter of policy.

The thrust of this article is therefore addressed

to consideration of p)licy: the reasons why the

system for representat .on of indigents ought to be

improved; some possible criteria for judging the

adequacy of such a system; and a brief review

of some possible alternative arrangements.

Reasons for Improvement

Our fundamental premise is that equal justice

cannot be attained wnere an accused is deprived

the right to counsel by reason of financial inability.

The necessity for ; tffording representation has

two aspects: the need of the individual and the

need of society.

“The need of th.~ individual may be summarized

by these basic points :

l. The procedure; of the criminal law are

not easily understood nor readily mastered.

2. Soon after am ~st and certainly not later

than the preliminary hearing following arrest,

the lawyer should be available to explain the

charge, to investigate the facts, to prevent unreasonable

detention and unjustified bail, to

probe sympathetically for possible explanations

and defenses, and to determine what course of

further acrion the accused should adopt.

3. As the judicial process continues, a lawyer

is needed co advise whether the accused

should go to trial or offer to plead guilty, perhaps

to a lesser charge, and, if the decision is

to go to trial on a plea of not guilty, to undertake

the complex of activities entailed in preparing

for and conducting the defense.

4. In case of conviction, a lawyer should assist

in connection with sentencing and advise

whether an appeal is justified under the circumstances.

. . .

Turning next co the need of society, … the

concern of the American community with the

requirement of fair trial is a reflection of its

interest in fundamental huinan rights … where

society does not afford the right to defense

counsel, judicial search for truth as we understand

it is in danger . . . treating the indigent

accused as fairly as any other group is essential

to the proper administration of criminal justice.

It should lead to greater respect for the administration

of justice and should increase the

chance of rehabilitating the guilty.”5

Note that neither of the above considerations

in any way depends on the innocence-presumed

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or real-of the defendant. Obviously, the possibility

of innocence underscores the need for counsel.

But I do not understand our system of criminal

justice to mean that guilt strips the defendant

of all legal rights. I think few in our profession

would question this. Yet public confusion as to

this may be the most impressive obstacle to rapid

improvement in this area. There is an attitudehow

wide-spread it is hard to say-that runs along

these lines: if a man is charged with a crime, presumptively,

he’s guilty; and if he’s guilty, he deserves

what he gets; and whatever he gets, it ought

not be public funds for an attorney to frustrate

justice” through technical defenses.

That these are points requiring detailed answers

is suggested by the fact that even judges, at times,

may lapse into similar views. One local judge,

we are told, in effect deprived a defendant before

him (charged with drunken driving) of the right

to counsel because it was obvious” that he was

guilty. A lawyer, consequently, would have been

of “no use.I do not dwell on the obvious and

monumental error that this involved a determination

of guilt without benefit of a trial. But

there is a somewhat more subJle point: assuming

the defendant were guilty, what about the possibility

that the evidence was illegally procured and

therefore suppressible; or that perhaps other technical”

defenses were available; or that even if

he were found guilty, there might be wide latitude

for legal services in bringing to light facts

in mitigation of sentence.

Criteria of Adequacy

An adequate system of defense should meet the

following standards :

1. The system should provide counsel for

every indigent person who faces the possibility

of the deprivation of his liberty or other serious

criminal sanction.

2. The system should afford representation

which is experienced, competent, and zealous.

3. The system should provide the investigatory

and other facilities necessary for a complete

defense.

4. The system should come into operation

at a sufficiently early stage of the proceedings

so that it can fully advise and protect and

should continue through appeal.

5. The system should assure undivided loyalty

by defense counsel to the indigent defendant.

6. The system should enlist community participation

and responsibility.0

Question could be raised as to whether representation

for indigent” defendants should be taken

to include misdemeanors. My view is that it should.

The possibilty of a one year sentence is more than

a minor inconvenience. Besides, there is the cumulative

effect of building up a record. It is

also possible to get consecutive sentences putting

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the punishment well into the range of a felony.

Most fundamentally though, the argument rests

on the proposition that if the reasoning above

as to need for representation is valid, there is no

logical basis-except one-for distinguishing between

felonies and misdemeanors. That one is

the cost.

It can be, and is, argued that we permit and

justify all sores of distinctions in our society based

on financial ability. We dont all eat as well or

live as comfortably or have the same quality of

shelter. So why anything like equality as to legal

defense? To what degree such differences of living

standards as exist are good or bad depends on

ones point of view. Bur the right to legal representation

falls into an altogether different category.

Our Constitution and democratic philosophy

do not speak of an equal standard of living; they

do speak of equality before the law. We can well

afford to pay what it costs to help insure that

the scales of justice do not tip according to the

size of one’s bank roll-regardless of whether the

charge is a misdemeanor or a felony.

Performance in Milwaukee

Doe.r ottr present system in Milwaukee Co unty

.whstantictlly conform to the standards emtmerated

abo1;e?

The answer, of course, is no.

a ) In misdemeanor cases.

I here attempt to evaluate the Voluntary Defender

system as it operates in Milwaukee County,

since it represents the only effort to meet the

problem for persons charged with misdemeanors.

One can only conclude that the system is grossly

inadequate with respect to the first three standards

enumerated above.

1) This system functions only in Milwaukee

County and only in one of its three misdemeanor

branches. It would be wholly unrealistic to think

of extending it significantly on a volunteer basis.

2) Many of the defenders lack the necessary

experience, competence and zeal. The three qualities

are closely related. From inexperience (some

defenders have no contact with criminal work except

through the defender program!) flows lack

of competence. I do not subscribe to the presumption

that possession of a law degree makes one

competent in all areas of law, nor to the view that

a great deal of experience in one area “rubs off”

in a completely unrelated area. It has been pointed

out that a high degree of competence in conveyancing,

let us say, does little to qualify one in

·the conduct of a criminal trial. Oft times too,

inexperience may undercut the zeal of the defender,

not through unconcern but through a natural

timidity resulting from unfamiliarity.

3) The Voluntary Defender system provides

neither the time nor the facilities for investigation

of facts. When one considers that a very large

number of criminal cases turn not on issues of

7

law, but of fact, this becomes a critical shortcoming.

Even to the extent that legal questions are

involved, how can anybody-and most particularly

an inexperienced defender-check the law under

the hectic conditions which prevail during his

service in misdemeanor court? Quite typically,

he may be asked to interview fifteen or more

defendants in less than three hours; and he may

find himself preparing for and trying perhaps half

that number of cases during the same time.

I hope no one will take these criticisms as

being too negative. There is nothing but praise

for those who generously give of their time and

energy without payment, solely as a matter of

professional responsibility. But the question is

not praise or blame; it is the adequacy of the defense

·and by this standard, the system can only

be said to be grossly inadequate.

b) In felony cases.

The assigned-counsel system which prevails in

felony cases is subject to some of the ~arne criticisms

as above and some additional ones as well.

1) In the present state of our knowledge it

would be unfair to charge-but perfectly reasonable

to question-whether the defense is sufficiently

zealous. To what degree can busy, capable

lawyers afford to put into a complicated criminal

case the necessary time and energy, in view of the

inadequate compensation? 7 Even if the lawyer

does not consciously so reason, isn’t it likely to

operate as a subconscious factor? . There may be

many cases where counsel nonetheless does an

excellent job. But one may suspect that there are

more than a few cases where the defense is made

on the fly and on a good deal more casual basis

than if there were adequate compensation available.

It is no answer to say that the lawyer should

do as energetic and resourceful a job as he can,

regardless of compensation. No doubt he should;

but what good does this do the defendant who

has to rely on an attorney who may in fact not

give substantially more, by way of time and energy,

than he is paid for?

In any event, the general level of competence

in assigned cases as compared to retained cases

would certainly bear scrutiny.

2) The assigned counsel system is almost completely

inadequate from the point of view of the

third standard mentioned above; To this extent

rhe same comments apply as were made in para~

graph number 3 under the Voluntary Defender

evaluation above.

3) Perhaps the most profound failure of this

system as it operates in Milwaukee County-a

failure which can only be characterized as dismal

-is that it comes into operation far too late and

rhus violates standard 4.8 The defendant’s urgent

need for counsel is at the time of his arrest and

8

shortly thereafter-not a month or six weeks later

after prolonged interrogation and investigation by

the state. The defendant needs sympathetic help

and investigation at once. He needs protection

against illegal imprisonment or excessive bail. He

needs investigation while the facts are fresh and

witnesses still available. In Milwaukee County he

gets this neither from assigned counsel nor from

the volunteer defender.

Alternative Solutions

The Voluntary Defender system, as it operates

in Milwaukee County, and the assigned-counsel

system provided for under Wisconsin Statute have

been discussed above and are not considered further

here, except for one comment: if appoint~

ment of counsel in felony cases were made prior

to the preliminary hearing, as suggested by the

court in Offerdahl, clearly this would go a long

way toward curing one of the principal defects

of the assigned-counsel system. If statutory amendment

is necessary to permit this, this could be

done immediately, as a stop gap measure, while

other more basic changes are considered.

Fortunately, in considering alternative schemes,

we have access to a rich fund of experience

throughout the nation over a period of many

years. Three main systems are worthy of consideration.

They are evaluated extensively elsewhere.9

The P11blic Defender System

“The public defender, like the public prosecutor,

is a public official. The former is retained

by the government to fulfill society’s duty to

see that all defendants, irrespective of means,

have equal protection under the law; the latter

is retained by the government to serve society’s

interest in law enforcement. Generally,

whenever there is a public-defender office, that

office represents all indigent defendants in those

courts in which the public defender regularly

appears.

Public-defender systems vary in size from

large offices such as those in Los Angeles County

and Alameda County, California, to a singlelawyer

office such as the public defender in the

New Haven District in Connecticut. Some, such

as certain offices in California, have facilities

for investigation; others have only limited funds

and facilities.

The staff of public-defender offices may be

selected through civil-service procedures, appointed

by the judiciary or the appropriate local

officials, or elected. On the whole, the legal

staffs of public-defender offices appear to be

relatively stable and in a number of instances

these staffs have develope9, the characteristics

of career services.

The larger public-defender offices receive

office facilities from the government.

The Vol11ntary Defender System

This system, as it is used elsewhere, resembles

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\

assigned-counsel system, as we know it, this is not

due to any inherent economy (quite the reverse),

but rather to the partial and inadequate coverage

now afforded.

The requirements of due process and decency

in criminal procedure are not static. The whole

trend of the law has been to demand increasing

protection for indigents. It is well worth the effort

–and cost-to insure that the dollar worth of a

defendant have as little as possible to do with

the outcome of a criminal case.

Footnotes

I. Wis. Stat. §957 .26.

2. 17 Wis. 2d 334, 116 N.W. 2d 809 (1962).

3. ! d . at 17 Wis. 2d 336, 11 6 N.W. 2d 810. The

co urt did not indicate on what aufi10rity this co uld

be done, absent statutory provision. Yet it is apparently

a fairly common practice in certain coun ties

bu t not Milwaukee. “Every court has power, if it

deems proper, to appoint counsel where that course

seems to be req uired in the interest of fairness.” Betts

v. Brady, 316 U.S. 455,471-472 (1942) (dictum);

see also Carpente1· v. Cou1~ty of Dcme, 9 Wis. 2 74

(1859).

4. See e.g. Betts v. Bmdy, 316 U.S. 45 5 ( 1942); cf.

Powell v . Alabama, 287 U.S. 4-3 (1932) where it

was held that in a capital case, “where the defendant

is unable to employ counsel, and is incapable of

making his own defense because of igno·rance, feeblemindedness,

illiteracy, or the l ike, it is the duty of the

court, whether requested to or not, to assign counsel

for him as a necessary r equisite of due process of

law

5. A Special Commtitee of the Association of the Bar

of th e City of New York, Eqzcal ] usl>iJce for the Acwsed

2 3-24 ( 19 59). This is an excellent and thorough

statement of the needs, the problems, the history

and the alternative methods for dealing with represen

tation fOl’ indigen t defendants.

6. Id at 26.

7. Prior to enactment of Chapter 500 in September,

1961 , amending Wis. Stat. §957.26 (1), the statute

provided for payment of counsel according to a

sched ule of fees whicn was varied from time to time,

and which was generally inadequate by going standa

rds. By the amendment, compensation is now to be

111ade pursuant to Wis. Stat. §25 6.4-9 which directs

the co urt to fix fees in such sums as the court “shall

deem proper, and which compensation shall be such

as is customarily charged by attorneys in this state

for comparable services.” Obviously, the court ~1as

ample power under this provision to pay adequate

fees . How the courts have in fact interpreted this

requirement, is not known to the writer. If compensation

is now generally paid according to the prevailing

rate, the objection being discussed at this

po int in the text has only historical interest and is

without validity as a present criticism of the assigned

co unsel system. See generally, Fellman, Tlte Right

to Coun-sel Under State Law, 1955 Wis. L. Rev. 281.

8. Except in those cases where appointment is made

prior to tne preliminary hearing, notwithstanding the

abse nce of statutory authority for such appointment.

See note 3, supra.

9. See note 5, supra.

I 0. Equal l ttstice at 51-52 (cited fully at note 5).

I I. !d. at 5 1.

12./d. at 52-53.

Enjoy Life!

BREWED ONLY

IN MILWAUKEE

NATURALLY!

10 GAVEL

the Milwaukee plan in name only. It is similar

in principle to the public defender plan in that

ic provides a professional defense unit, rather than

rotating the defense among a number of attorneys

as under the assigned-counsel system. The

major contrast with the public defender system

is that the voluntary defender office is not governmental;

it is privately controlled and supported.

“. · . . Financial support is sought either

through independent efforts to secure charitable

donations or through participation in cooperative

charitable efforts such as the Community

Chest ….

The voluntary-defender system may utilize

trained salaried investigators to assist its legal

staff. It may also be aided by volunteers from

private law offices or local law schools. The

continuity of experience which a voluntarydefender

office such as that of New York or

Philadelphia repcesents, permits representation

by veteran defense counsel even though the

compensation which can be paid is generally

less than that prevailing in private law offices

in the same area.”11

In short, this system is a “legal aid society”

operating in the criminal field.

The Mixed Private-Public System

This system prevails in Rochester, Buffalo and

New York City and in Puerto Rico.

“Rochester has had for some time a Legal

Aid Society which is active in civil cases. In

1954, pursuant to an enabling statute, the Legal

Aid Society requested and received from the

Board of Supervisors of Monroe County an

appropriation to establish a defender service to

function in the inferior criminal courts of the

county. A lawyer employed by the Society has

since performed this function.

Thus, Rochester furnishes counsel to the indigent

defendant in lower court criminal cases

within the organizational framework of a private

legal aid society and supports this system

by public funds . . . Puerto Rico has an extensive

criminal and civil legal aid system based

on the mixed private-public concept . . . Prior

to the organization of the (Legal Aid) society,

the only effective legal aid was_ supplied by five

full-time public defenders, paid by the government,

whose work was confined to the serious

criminal cases in the larger cities. After the

society was organized, these offices were abolished

and their personnel were employed by

the society.

The control and sources of funds of the Legal

Aid Society of Puerto Rico reflect partici- ·

pation of the government, the Bar Association,

and the public. The Board of Directors of the

Legal Aid Society of Puerto Rico is composed

of the Chief Justice, the Administrative Direc-

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tor of the courts, and the Attorney General

representing the government. The organized

Bar is represented by its President, the dean of

the Law School, and another member designated

by the President. Three laymen represent

the public.

The same groups which exercise control provide

the society’s operating funds: direct appropriations

are received from the Legislature;

funds and facilities are granted by the Bar

Association; and charitable contributions are

received from the public;12

It is not possible without a systematic professional

study to attempt an evaluation of the relative

merits of these systems (or any others) for

Wisconsin. This is a job which very much needs

doing.

The biggest objection that is generally made

to the public defender system is that it “routinizes”

the defense-that it deprives the attorney-client

relationship of its close personal character-that

in institutionalizing the defense, it makes more

likely deals between the ever-present prosecutor

and ever-present defender. Thus the defendant is

not assured the dedicated all-out defense he has,

presumably, with assigned-counsel.

The objections to the assigned-counsel system

have been mentioned above.

It is obvious that the problem is to select (or

keep) that system which has the least weaknesses.

Put more positively, the object should be to devise

a system which most closely approximates the

ideal of affording equal representation. There is

not the least doubt that any system devised will

be subject-and quite correctly so-to certain

criticisms. It is instructive that each of the above

systems has been enthusiastically endorsed in certain

localities.

Proposed Improvements

While fundamental alternatives to the present

Wisconsin system ought to be intensively studied, .

it is suggested that the following changes would

vastly improve the present system:

a) Have counsel appointed very early in any

felony case, and certainly not later than the time

the defendant first appears before the magistrate.

· b) Provide adequate compensation for assigned

counsel.

c) Provide funds and facilities for necessary

investigation.

d) Extend the coverage of assigned counsel

to indigents in misdemeanor cases. Perhaps, initially,

coverage could be limited to the more serious

misdemeanors.

These proposals, if adopted, w.ould of course

sharply increase the cost of the service and would

substantially cut down the disparity in cost between

the assigned-counsel system and any alternate

system. If there are any savings in the

9