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Barry Scheck and Sarah L Tofte, Champion Magazine (National Association of Criminal Defence Lawyers), January / February 2003, “Gideon's Promise and the Innocent Defendant”, p38.

In America today you are better off being rich, white, and guilty than poor, black, and innocent. —Conventional wisdom, 2003.

On March 18, 1963 the Supreme Court in Gideon v. Wainwright promised the “guiding hand of counsel” for the poor as well as the rich, for people of color as well as those who are white, and for the guilty as well as the innocent. The holding was simple: Indigents in felony cases who cannot afford a lawyer must be provided one. The broad and powerful rationale supporting the decision went back to first principles. Effective counsel is a fundamental right because it ensures all the other rights the Constitution affords an individual dragged into the dock to face accusers and the awesome power of the state. It not only protects the innocent from wrongful conviction, but promotes the integrity and efficient operation of the entire system by making sure law enforcement cannot cheat or cut corners when prosecuting the guilty.

Gideon’s simple holding, the promise of a “guiding hand,” has not been fulfilled for an equally simple reason: No one wants to pay for it. The last 40 years have been marked by litigation protesting the knowing, persistent and perverse refusal of state and local governments to provide adequate funding for indigent defense counsel. There is no shortage of examples from which to choose, but to be fair about it, we will cite our own state. New York, including the City of New York with its notoriously high cost of living, pays court appointed counsel in felony cases $25 an hour out of court and $40 an hour in court. We rank 49th in the country. No responsible person in our legal system even pretends this level of compensation is fair or sensible. Our chief judge has recommended, based on a commission finding three years ago, the rates be raised to $75 an hour. The state has recently appealed a trial court ruling pegging the rate at $90 an hour. It is estimated such relief would cost $60 million a year of additional funding and there is no great optimism, in this era of ballooning deficits, that help is on the way soon.

What price is paid for such knowing neglect? One easy measure is conviction of the innocent. Nothing more surely guarantees the conviction of innocent defendants than an incompetent, underfunded, or ineffective lawyer. Newsday recently proved this point convincingly in a four-part series. The paper assigned a team of reporters to study a striking development: In the last two years, 13 New York defendants had their convictions for murder vacated after their innocence was proven by newly discovered evidence. Only one of these cases involved post-conviction DNA testing. But 10 of the 13 defendants had court appointed lawyers compensated at scandalously low rates, and two of those lawyers had been subsequently suspended for commingling client funds. New Yorkers are indeed fortunate that during the period these defendants were convicted New York did not have capital punishment. Illinois, as everyone knows, was not so lucky.

The sad figures that led Illinois Gov. George Ryan to declare a moratorium in 2000 on the death penalty and, ultimately, a commutation to life without parole for all on death row, were 17 innocent men sentenced to death versus 12 executed since the reinstatement of capital punishment, and the fact that a third of the lawyers for all death row inmates were subsequently suspended or disbarred. Whether or not one supports Gov. Ryan’s “blanket” commutation, whether or not one favors capital punishment, no one could plausibly quarrel with the Governor’s complaint that the “demon of error” had infected the capital punishment system in Illinois, error in the determination of guilt or innocence, error in the determining who gets life and who gets death. Gideon’s unfulfilled promise created that demon and undermined public confidence in the entire system.

When criminal defense lawyers cannot vigorously perform their critical function to put the state to its proof, especially when representing the guilty (which, if the constitutional requirement of probable cause is being respected, ought to be most of the time) it has, ironically enough, a corrosive effect on law enforcement — junk and fraudulent forensic science fester unexposed; police perjury, corruption, and brutality swell unchallenged; and prosecutorial misconduct spreads, uncontested and barely noticed. Inevitably, these effects of weak defense counsel severely impair the capability of law enforcement to apprehend the guilty, much less protect the innocent. Indeed, it must never be forgotten that every time an innocent person is arrested, convicted, or worst of all, sentenced to death, the real assailant is at liberty to commit more crimes.

No better body of proof can be found to support these contentions than the running tally kept by the Innocence Project of post-conviction DNA exonerations which currently stands at 123 (see the Website at http://www.innocenceproject.org for case histories and an updated total). Our most recent exonerations are instructive. Five teenagers gave false confessions to a vicious assault and rape in the “Central Park jogger” case when the attack was really committed by Matias Reyes, a serial offender who had committed a rape two days earlier, two blocks away from where the jogger was found, and who went on to commit three other rape/robberies and a rape/murder. The five teenagers were represented by court appointed counsel and a number of those lawyers simply did an abysmal job, thereby hurting all the defendants in both trials. Eddie Joe Lloyd was convicted of murder in Detroit after giving a false confession from a mental institution. His court-appointed lawyer took the case with only six days notice and complained publicly that Lloyd, who always maintained his innocence, would not go with an insanity defense. The trial judge, Leonard Townsend, told Lloyd when sentencing him to life, he regretted Michigan did not have a death penalty so Lloyd could be “terminated by extreme constriction,” or hanging. Even more chilling, the same judge and the same court-appointed lawyer were featured in an exposé issue 10 years ago by The American Lawyer magazine documenting the unfulfilled promise of Gideon.

But for a clear object lesson in the systemic costs society pays for shortchanging defense counsel, consider the matter of Jimmy Ray Bromgard, just released from prison in Montana in 2002 after fifteen hard years of imprisonment. On March 20, 1987, an intruder attacked an 8-year-old girl in her Billings, Montana home. She was raped vaginally, anally, and orally. The perpetrator fled after stealing a purse and jacket. The victim was examined the same day. Police collected her underwear, where semen was identified, and hairs were collected from bed sheets upon which the crime was committed. Based on the victim’s recollection, police produced a composite sketch of the intruder and an officer thought Bromgard, an 18-year-old who lived near the scene of the crime, resembled the composite sketch. The victim picked out Jimmy Ray as resembling her attacker but was not sure if he was the right man. She was subsequently shown videotaped footage of Bromgard, but was still just “60 percent, 65 percent sure.” When asked at trial to rate her confidence in the identification without percentages, she replied, “I am not too sure.” Nonetheless, she was allowed to identify Bromgard in court as her assailant, and Bromgard’s assigned counsel, not so affectionately known as “Jailhouse John” Adams, never objected to the in-court identification, never filed a motion to suppress, did no investigation, gave no opening statement, did not prepare a closing statement, and failed to file an appeal after Bromgard’s conviction. But it gets worse.

Semen found on the victim’s underwear did not yield usable serology results, so the whole case against Bromgard, given the extremely weak identification evidence, came down to the hairs found on the bed sheets. The state’s forensic expert, Arnold Melnikoff, who for a decade headed the Montana crime laboratory, testified that a scalp hair and a pubic hair found on the sheets were not just indistinguishable from Bromgard’s hair samples, but he gave numbers: Since there was a one in ten thousand (1/10,000) chance that the head hair did not belong to Bromgard, and a 1/10,000 chance the pubic hair didn’t belong to Bromgard, Melnikoff claimed the odds of both hairs not belonging to Bromgard were 1/100,000. These breathtakingly absurd statistics (there is no scientific basis for hair experts calculate frequencies much less such low frequencies that come from thin air) went uncontested. Jimmy Ray Bromgard was sentenced to 40 years in prison.

On October 1, 2002, Peter Neufeld walked Bromgard out of prison after post-conviction DNA testing on semen from the victim’s underwear, performed with the consent of the prosecution, exonerated him. More cases were then discovered where Melnikoff had testified to these bogus hair statistics, including matters approved by the Montana Supreme Court; one was a death penalty conviction. Montana’s current Attorney General Mike McGrath rightly recognized that failure to expose Melnikoff’s proclivity to engage in junk or fraudulent forensic science — by Melnikoff’s own estimate he had testified in more than 200 Montana cases — necessarily raised serious questions about all the work of the state crime laboratory produced for more than a decade. McGrath has ordered an audit of past cases, involving not just in hair comparisons, but other forensic disciplines, such as arson and toxicology. One can only hope that former Montana Governor and Attorney General Mark Racicot, now Chairman of the Republican National Committee, will share McGrath’s concerns, particularly since Racicot, by virtue of the offices he held, placed great reliance on Melnikoff’s testimony and professional competence. Before the Bromgard exoneration, Melnikoff had already moved on to a state crime laboratory in the State of Washington where it is estimated he has testified 180 times. An audit of his work in Washington is being planned by laboratory officials and professors from the Innocence Project Northwest at the University of Washington Law School.

When Jimmy Ray Bromgard was tried, the county in which the trial was held had a “contract” system for assigned counsel that failed to establish and enforce adequate standards of performance for the delivery of defense services. Judges tightly controlled money for investigators and experts. “Jailhouse John” Adams was paid a paltry fixed amount each month and he received the same compensation whether he expended 10 hours or 100 hours on a case. This payment structure provided little incentive for court appointed counsel to spend time on assigned cases as opposed to private practice.

Bromgard’s exoneration adds fuel to a lawsuit filed by the American Civil Liberties Union earlier this year against the state of Montana and seven counties. The suit alleges that Montana’s indigent defense services are constitutionally deficient and calls for an overhaul of the system that would set competency standards and provide greater resources for public defense attorneys. In the last few years, advocates in other states, including Connecticut, Pennsylvania, New York, Georgia, and Mississippi, have filed similar suits to remedy indigent defense deficiencies. While some of these suits are ongoing, at least two — Connecticut and Pennsylvania — have resulted in successful settlements, increasing the funding available for indigent defense and improving administration of indigent defense programs.

As NACDL tries to build constituencies for reform in individual states there is now a fairly powerful practical economic argument emerging: Which costs more, adequate funding for defense counsel or the audits, the civil suits, and the damage done to victims by assailants who were at large because of the shoddy work by the likes of Arnold Melnikoff and other forensic frauds?

Forty years after Gideon, and 123 post conviction DNA exonerations later, the role attorney incompetence played in the wrongful convictions of a majority of our clients, like Jimmy Bromgard, demands that we mark the anniversary of Gideon not with celebration, but with a renewed call for adequate funding and training for indigent defense lawyers. Only then will we be able to honestly say that Gideon has begun to fulfill its potential to protect both innocent defendants and the integrity of our criminal justice system from the devastating effects of wrongful convictions.

NACDL First Vice-President Barry Scheck and Sarah L. Tofte are principals in the Innocence Project. (212) 790-0368

E-mail: info@innocenceproject.org

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