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The Representation of Indigents in Criminal Cases PAGE 6
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The Official Publication of the Milwaukee Bar Association
Vol. 23 No. 4 March, 1963
GAVEL
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 don‘t 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
one‘s 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
Leon Letwin (1929-2015) 