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Acting Senior Counselor for the Access to Justice Initiative Deborah Leff Speaksat the Texas Commemoration of the 50th Anniversary of Gideon v. Wainwright


Austin, TX
United States

Good morning.

It is such an honor to be here with you today. I’d like to thank Texas State Senator Rodney Ellis, who has done so much over the years to improve indigent defense in Texas. I’d like to acknowledge the Honorable Sharon Keller, who chairs the Texas Indigent Defense Commission, and the Commission’s wonderful Executive Director, Jim Bethke. I know that many, many members of the defense bar – including Texas State Bar president Buck Files – are here with us today, and I thank you for all you do to fight for a more just Texas and a more just America. We have many judges and prosecutors with us, all of whom have a stake in making sure that justice is done. And if there was ever any doubt about the importance of having effective representation when one is accused of a crime, let me say how meaningful and emotional it is for me to be here today with 12 – 12! – Texas exonerees. For some of these people, the effective representation of counsel would have changed their lives. They know – and they demonstrate – the importance of today’s event.

At the time Clarence Earl Gideon challenged his conviction because he was too poor to hire an attorney, the President of the United States was John F. Kennedy. And John F. Kennedy once said one of my favorite quotes: “One person can make a difference, and everyone should try.”

Clarence Earl Gideon made a difference. Accused of a crime – breaking into the Bay Harbor Poolroom in Panama City, Florida to commit petty larceny – he had not – as journalist Tony Lewis wrote later in his remarkable book, Gideon’s Trumpet – lost his sense of injustice. Feeling wronged by the State of Florida, he had the passion, the energy, and the core belief in justice in America, to try to do something about it. He brought a case, saying as a poor person who could not afford a lawyer, he had a constitutional right to have a lawyer appointed for him. The State of Florida filed a brief and disagreed. Clarence Earl Gideon kept fighting. In his words:

“Petitioner [that’s Gideon] cannot make any pretense at being able to answer the learned Attorney General of Florida, because the petitioner is not attorney or versed in law, nor does not have the law books to copy down the decisions of this Court. But the Petitioner knows there is many of them.

“It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused.”

Mr. Gideon did not let go. He fought all the way to the U.S. Supreme Court, and today – exactly 50 years later to the day – we celebrate the unanimous – unanimous – decision of the Court giving him the right to have a lawyer paid for by the government. The Supreme Court ruled, “Any person haled 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.”

I suspect it’s an obvious truth to our 12 exonerees here. And I suspect it won’t surprise you that once Gideon did get that lawyer, he was retried and found not guilty.

One person can make a difference – and everyone should try.

This landmark Supreme Court decision – glorious though it is – is far from enough. For the reality, here in Texas and in so many states through the country, is that many poor people can’t get access to an attorney. We have fragmented public defense systems that often lack quality controls. Lawyers’ caseloads go unchecked and their work unsupervised. Those caseloads can be so immense – sometimes totaling more than 700 felony cases a year per attorney – that the pressure to get defendants to plead guilty and get off the court dockets is enormous. The salaries of appointed counsel and contract counsel – where the contract goes to the lowest bidder, the lawyer who offers to attempt to achieve “justice” at the lowest cost – are so meager that the result is assembly-line justice. There is great pressure to quickly plead out a case rather than investigate and evaluate the facts – for investigation and evaluation take time and money that just aren’t available. And that means for many poor people, “equal justice under law” is simply a slogan, not the underlying value so central to fairness in America.

At the Justice Department, my boss, Attorney General Eric Holder, has repeatedly spoken of this country’s indigent-defense crisis, noting that the basic rights guaranteed under Gideon have yet to be fully realized. Millions of Americans still struggle to access the legal services that they need and deserve – and to which they are constitutionally entitled. And far too many public defense systems lack the basic tools they need to function properly.

We’re working to address that. In fact, the office which I lead, the Access to Justice Initiative, was specifically established by the Attorney General in 2010 to work to ensure that everyone – including vulnerable populations and those who are poor – can access their fundamental rights.

We work closely with the Department of Justice’s Office of Justice Programs to support their work in making grants that advance indigent-defense efforts. One example of the several millions of dollars in federal grants directed to these efforts is underway right now in Texas. Last year, the Justice Department’s Bureau of Justice Assistance issued a grant solicitation entitled “Answering Gideon’s Call.” Those grants will strengthen indigent defense by testing different approaches to providing quality indigent-defense services, using the Ten Principles of a Public Defense Delivery System developed by the American Bar Association in 2002. The need to improve indigent defense throughout the country is so great and so well-recognized that we received dozens of high-quality applications – way more than the funding available. But I’m pleased that one of the four grants made was a $350,000 grant to the Harris County Public Defender’s office here in Texas, to implement the “Future Appointed Counsel Training Program.” That program will establish quality controls direly needed for a public defense system that is both accountable and effective for the clients it serves. There will be a training, mentoring, and supervision program for new private lawyers – lawyers who need training in criminal law to become the effective counsel fought for by Mr. Gideon and promised by the U.S. Constitution.

I am also delighted that the Governor’s Criminal Justice Division has allocated more than $230,000 to fund the Travis County Public Defender Office’s participation in a research and data initiative coordinated by the National Legal Aid and Defender Association. Staff from my office serve in an advisory capacity to this initiative, and we know well that there is a gap in the infrastructure of many indigent-defense systems that has led to indigent defense lagging behind other sectors of the criminal justice system in using data and research to develop policy. These critical funds will allow Travis County to become a leader in this area and to create replicable data-collection and -analysis models that will have an impact not just in Texas but across the nation.

I know that the Governor’s Criminal Justice Division has used state as well as Federal Byrne-JAG formula funds – the largest grant fund distributed by the Justice Department – to support other indigent defense projects. The inclusive criminal justice system planning demonstrated by the Governor’s Criminal Justice Division is a model that the Justice Department is encouraging for all Byrne/JAG recipients. Since 2010, indigent defense has been identified by the Justice Department as one of several key priority areas for maximizing the effectiveness of Byrne/JAG funding, and the Department has been working with the National Criminal Justice Association to identify and showcase strategies for integrating the indigent-defense and other functions into criminal justice resource planning.

Serious, dedicated, and important work is underway here in Texas to improve indigent defense. There is, of course, much that needs improvement. Per capita spending on indigent defense here in Texas was $7.89 in 2008. That ranks 48th among the 50 States. Until recently, Harris County was the most populous county in the nation without a public defender office.

The key words here are “until recently.” For there is good news in Texas, too. In this state, you have worked together to address the indigent-defense crisis. As evidenced by those here today, you have been extraordinarily collaborative and bipartisan. You have pushed throughout for better practices. You are doing important work to assemble data and use those data to create best practices. And the recent work in Harris County has found that establishing a public defender office strengthens the county’s indigent-defense system.

The passage of the Texas Fair Defense Act and the establishment of the Texas Indigent Defense Commission also have made for important changes here in Texas. You have increased the number of full-time public defender offices from seven to 19. You have increased the number of indigent people provided constitutionally-guaranteed defense representation by 45%. You have 79 new defense-related programs. And Commission-funded innocence projects at Texas’ public law schools have exonerated 10 people.

We stand here today, in the Texas State Capitol, a place made even prouder by the service of the extraordinary Texas State Senator and U.S. Congresswoman Barbara Jordan. Congresswoman Jordan said – and did – so many wonderful things, and she believed profoundly in justice and the promise of America. In her words – and I only wish that I had her bold and inspiring voice here – “ We have a positive vision of the future founded on the belief that the gap between the promise and reality of America can one day be finally closed. We believe that.

I believe that. So many of us here today believe that. Right after this event, we will walk into the Senate Chambers, and hear debate on a resolution about the importance of Gideon, the importance of closing the gap between Gideon’s promise and today’s disappointing reality, here and in so many jurisdictions across this country.

“One person can make a difference, and everyone should try.”

Clarence Earl Gideon made a difference. Now it is up to every one of us to make his vision – and the words of the U.S. Supreme Court in his case – a reality. You have started on that path here in Texas. There is much hard work ahead. But you have started, and things are better. I urge all of you – policymakers, defenders, prosecutors, members of the judiciary, citizens – to continue, to work even harder, to achieve the justice to which every person in America is entitled, and which helps make this country great.

Thank you very much.

Access to Justice
Updated April 28, 2016