June 11 2004


Equal Justice For All

By Marjorie Cohn

Clarence Earl Gideon was charged with breaking and entering a poolroom with the intent to commit petty larceny in 1961. Unable to afford counsel, Gideon asked the judge to appoint a lawyer to defend him but the judge refused. Gideon represented himself, got convicted and was sentenced to five years in prison.

In Gideon’s appeal, the Supreme Court rendered one of its most significant decisions. It held that the Sixth Amendment requires that indigent defendants be afforded counsel in all felony prosecutions. The Court said that lawyers in criminal courts are necessities, not luxuries, which should be available to all, not just the wealthy.

Thirty years later, Dale Akiki, who suffered from a rare genetic disorder that left him severely disfigured, was arrested for multiple counts of child molestation and kidnapping. His case became notorious. Nearly everyone in San Diego thought he was guilty. His two public defenders, both women with young children, worked 70 hours a week on his case. Akiki was acquitted after it became clear to the jury, and to the public, that the children who testified for the prosecution had been led by therapists into making absurd accusations against him.

One of Akiki’s lawyers, Kate Coyne, is convinced that the county had paid private lawyers to defend that complex case, the cost to taxpayers would have doubled. Yet she and Sue Clemens worked with no overtime or compensatory time. They even took a ten percent pay cut to solve the county’s budget crisis during their representation of Akiki in the early 90s.

Once again, California is faced with a budgetary crisis. Twenty percent of the public defenders’ staff is being laid off or demoted. Eighty-six lawyers and investigators out of a workforce of 400 employees will be affected. Yet, neither the District Attorney nor the Sheriff’s Department is facing the loss of staff; in fact, they will see promotions and additional hires. According to Coyne, “They always attempt to balance the budget on the backs of the public defender.”

Why is this so? “No politician runs on endorsements of the Public Defender,” says Joe Kownacki, a Felony Team Supervisor in the Public Defender’s office and member of the Board of Directors of the Public Defender’s Association. “They run on the coattails of law enforcement.”

Judges and prosecutors in San Diego realize the importance of fairly funding public defense. Presiding Superior Court Judge John S. Einhorn told me, “To protect the integrity of the criminal justice system, we need an even playing field. To the extent it becomes uneven because of cutbacks to the Public Defender and the Alternate Public Defender, everybody suffers.” Assistant District Attorney and former Superior Court Judge Jesus Rodriguez agrees. He said, “They’re vital partners in the criminal justice system. Without an efficient defense system, we really can’t function effectively.”

But the powers-that-be pander to what they perceive as the public’s distaste for those who represent the accused. They forget the admonition of Jesus to protect “the least of these,” including those in prison.

Many of the defenders being laid off are some of the youngest and most energetic talent in the public defender offices. Shawn Burroughs, Kahlil Greene and Jake Peavy, the newest Padres, would be the first to go in a like system of budgetary cutbacks in Major League Baseball.

The public defenders, already stretched thin with huge caseloads, cannot perform their duties with what will amount to “speedups” if these cutbacks go through. Some of the indigent defense will have to be farmed out to private attorneys, who could not provide effective representation as economically as the public defenders.

If the proposed cutbacks in the public defenders offices are adopted, we will all lose out. This week, the Board of Supervisors will be considering whether to approve the layoffs and demotions. The Public Defenders’ Association has made alternative proposals to save money. We should all support those who work so hard to make the Constitution’s promise of equality a reality.

Marjorie Cohn, a professor at Thomas Jefferson School of Law, teaches criminal law and procedure.

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