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Monday, December 15, 2008

The Doubter Speaks Out on the Right to Counsel

On the December 11, 2008 Harrisburg Patriot Op-ed page . . .

AS I SEE IT
SPERO T. LAPPAS

In response to a recent article by Ashlee Shelton, director of Pennsylvania for Alternatives to the Death Penalty, criminal justice professor Samuel Morgan dismissed her concern about the American right to counsel. While Ms. Shelton feels that "no one wants to see a person's ability to afford a lawyer to determine if they live or die" and points out that 90 percent of Pennsylvania's death row prisoners were "too poor to afford an attorney," Mr. Morgan believes that "the ability to afford legal counsel is not an issue."

He points to the Miranda warnings that "are read to criminal defendants." This is an faulty conclusion based upon irrelevant evidence.

First, the Miranda vs. Arizona decision and the warnings that bear its name have nothing to do with the right of a defendant to have a lawyer at trial. Miranda simply said that a suspect must have a lawyer during some police interrogations. The case that insured defense lawyers at trials was Gideon vs. Wainwright, and its facts are worth remembering today.

Earl Gideon was convicted in 1961 of burglarizing the Bay Harbor Poolroom in Panama City, Fla., based largely on the testimony of one Henry Cook, who claimed that he saw Gideon inside the poolroom during the burglary. When Gideon's case was called for trial in Florida's 14th Circuit Court, Gideon said that he was not ready to proceed because he had no lawyer. The judge told him he was not entitled to have an appointed lawyer, so he went to trial by himself, was convicted and went to prison.

Gideon, again with no lawyer, sent a handwritten letter to the U.S. Supreme Court asking for a new trial because his right to counsel was violated. The problem with Gideon's argument was that in 1961 criminal defendants did not have an automatic right to counsel, even in felony cases. The Supreme Court took Gideon's case, assigned him one of America's best lawyers at the time, future Supreme Court Justice Abe Fortas, and changed that law.

At Gideon's new trial, his appointed defender, a talented local lawyer named Fred Turner, skillfully challenged Cook's testimony and demonstrated that Cook was himself a likely suspect for the burglary. The jury acquitted Gideon after deliberating only an hour.

The lesson of Gideon's case should inform today's debate. Without a lawyer he was convicted of a crime for which he was almost certainly innocent; with a competent lawyer he was exonerated.

Most professional studies are unanimous that violation of the guarantee of competent counsel is one of the main causes of wrongful convictions. The American Bar Association's study on Pennsylvania's death penalty concluded that "defense counsel competency is perhaps the most critical factor determining whether an individual will receive the death penalty."

However, public defender offices are usually overworked and understaffed. Recently, a Florida court has allowed public defenders to turn down cases because they are too busy. The New York Times calls this "a disturbing example of legal triage."

In 1948 the United Nations recognized that everyone charged with a crime has the right to "all the guarantees necessary for his defense" and former ABA President John Curtain has said that "a system that takes life must first give justice." This is a promise that implicates the most fundamental commitments that a democracy makes to its citizens. It would be nice if it were "not an issue" but it is.

Ms. Shelton is right. Accidents of wealth or circumstance should not condemn the innocent. It may be that sometimes the rain falls on the righteous as well as the wicked, but in an effective justice system the righteous should stay dry.

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The state of the law as a state of mind.

RECENT PUBLICATIONS BY THE REASONABLE DOUBTER
"The Embarrassment of Innocence" Innocence should be the only serious question for the criminal courts. We operate, after all, in a system which enforces a presumption in its favor and which allows any reasonable belief in its existence to preserve it. Innocence is the default state of blamelessness. Because fine and often exquisite distinctions between innocence and guilt carry with them disproportionate consequences — imprisonment, ruin, and death — the stakes are high for drawing these distinctions with accuracy. Public respect for criminal justice as a whole rests largely on the community’s belief that its guilt finding system has two characteristics: first, that it usually correctly divides guilt from innocence; and second, that when that usual result does not prevail, it fixes its own mistakes. The system is not only reliable but it is self-correcting. If it were not, the conventional wisdom holds, its claim to moral legitimacy would be far more tenuous. [click here to read the complete article]
"This Should Have Been a Simple Case: Dretke v. Haley and the Illusion of Actual Innocence" Criminal defense is an always difficult and often thankless job. Pursuing justice by vindicating our clients’ rights appears to many citizens — lawyers and non-lawyers alike — as mere hairsplitting to help criminals avoid the just desserts of their crimes. When we are asked how we can do it, we can talk about the lopsided power of the state, the Founding Fathers’ fear of tyranny or the need to champion individual liberty. But sometimes it is easier just to say that some defendants are actually innocent and therefore it is wrong for them to be punished. This, I have learned over the decades, is the one thing everyone agrees with. If you didn’t do “it,” whatever “it” is you should not be punished. Innocence may not be a presumption that many juries accept, but when some rare case presents an “unusually pristine” example of a defendant being unfairly punished no one should object to his exoneration. Courts and lawyers may contend over guilt and reasonable doubt, but innocence should be the one unbeatable trump to punishment. [click here to read the complete article]

Spero T. Lappas, J.D., Ph.D.

Spero T. Lappas, J.D., Ph.D., is an author, scholar, and lawyer headquartered Harrisburg, Pennsylvania. He has earned a PhD in American Studies from The Pennsylvania State University where he researched the relationship between the American law and culture and where he has taught courses in American Studies and Public Policy. He graduated with honors from Allegheny College (BA ‘74), where he was twice named an Alden Scholar, received Departmental Honors at graduation and the Muhlfinger Prize for his independent research and from the Dickinson School of Law (JD ‘77), where he was on the Editorial Board of the Dickinson Law Review, a member and faculty adviser of the National Trial Moot Court Team, and winner of two American Jurisprudence Awards. He was later named to Dickinson's Woolsack Society.

He is licensed to practice law before the Supreme Court of the United States, all Pennsylvania state courts, and several federal courts. He has served as lead counsel in hundreds of major civil, criminal, and civil rights cases, including some of Central Pennsylvania's most important criminal and civil trials. In the criminal courts he has defended several death penalty murder cases, federal drug felonies and conspiracies, federal sports bribery, state and federal crimes of violence, major fraud allegations, and most other varieties of cases in which citizens have been charged with serious state and federal crimes. In the civil rights arena he has represented plaintiffs in cases involving police misconduct, excessive force, wrongful arrest and prosecution, sex discrimination, disparate impact, disparate treatment, prisoners rights, students rights, age and race discrimination, wrongful death, freedom of speech and association, search and seizure, and whistle blowers rights.

He served as an inaugural member of the Pennsylvania Senate Advisory Committee to Study the Causes of Wrongful Convictions and the Pennsylvania Legislative Advisory Committee to study the Death Penalty.

His career achievements have been recognized in many leading volumes and publications about legal professionals. He was among the nation's youngest attorneys to be named in the first edition of The Best Lawyers in America. He has been listed in Who's Who in American Law, Who’s Who in the World, Who's Who in Finance and Industry, Who's Who in America, Who’s Who Among Emerging Leaders in America, America's Leading Lawyers and The Bar Register of Pre-Eminent Lawyers. He has an A rating -- the highest possible recognition -- from the Lexis/Nexus Peer Reviewed rating system.

He has been an adjunct professor at Widener University School of Law and Harrisburg Area Community College, a University Graduate Fellow at Penn State, and a member of the ACLU (where is on the board of directors for the local chapter), American Mensa, and the U.S.Fencing Association. His publications have appeared in the Dickinson Law Review, The Champion (the journal of the National Association of criminal Defense Lawyers), the Harrisburg Patriot-News, The Burg newspaper and the Pennsylvania Magazine of History and Biography.

He is a prize-winning photographer whose work has appeared in several galleries, one-artist shows, and personal and corporate collections, a tournament Scrabble champion, and a competitive three weapon fencer.

He frequently speaks to civic and community organizations about matters of public importance. To arrange an appearance, please contact Dr. Lappas at sperolappas.jd.phd@gmail.com.