President's Corner

by Patricia C. Hannigan, Esquire

I recall from my youth a beautiful passage in The Rubaiyat of Omar Khayyam about fate and time passing, which was something like: “The moving finger writes and, having writ, moves on. Not all your piety nor wit can call it back to cancel half a line, nor all your tears wash away a word of it.” (Incidentally, I recently looked for a copy of The Rubaiyat as a Valentine’s Day present for my husband, focusing on the “a loaf of bread, a jug of wine and thou by my side” language as appropriate to that holiday. The translation I found at Borders, instead of the elegant passage above on the topic of fate, contained something like “Time marches on.” The passage of time has not improved the art of translation, apparently.)

The whole principle of “stare decisis” is really a test of time, it seems to me. Legal scholars debate the significance of opinions for decades, sometimes centuries, reevaluating language as the societal context changes. When I was in graduate school, I took a wonderful class with then-Chief Judge A. Leon Higginbotham, Jr. of the Third Circuit Court of Appeals. He extolled the concept, borrowed from Benjamin Cardozo as I recall, of the “tendency of a principle to expand itself to the limit of its logic.” In other words, the original language was “all men are created equal.” The author actually meant “all white, property-owning men are created equal”, but over time the principle has expanded to mean “all people of any race, gender, etc. are equal.” Some argue it is still expanding.

As time passes and the law evolves, we do well to take advantage of the opportunity to reconsider and to celebrate anniversaries of important legal decisions. I mentioned in last month’s President’s Corner the 200th anniversary of Marbury v. Madison, in which the critical independence of the judiciary from the executive and legislative branches of government was established. This past month saw the fortieth anniversary of the opinion in Gideon v. Wainwright, to the effect that an indigent criminal accused is constitutionally entitled to the representation of a lawyer. The significance of that decision cannot be overstated.

Clarence Earl Gideon was arrested when he broke into a pool hall in Panama City, Florida in 1961. He asked the judge for a lawyer to represent him at trial. With apologies, the judge declined. Mr. Gideon, described by Anthony Lewis in Gideon’s Trumpet as “a perfectly harmless human being, rather likeable, but one tossed aside by life,” was convicted by the jury and sentenced to five years in prison. His hand-written pro se appellate papers made their way from his prison cell to the United States Supreme Court, where Mr. Gideon’s fortunes abruptly reversed themselves with the appointment of Abe Fortas to represent him. Justice Douglas later wrote that Mr. Fortas’ oral argument was “probably the best single legal argument” he heard in 36 years on the Court. The result, we now know, was a sea change in recognition of the rights of an accused. And, by the way, Mr. Gideon, who had served two years of his sentence, was acquitted at his retrial, silencing any suggestion that the presence of an attorney really doesn’t matter much.

In the forty years since the Gideon decision, we have seen the rise of public defender systems, contract attorneys for cases in which public defenders have a conflict, and other mechanisms of court appointed counsel. Over the same period, however, commentators have differed in their views of how meaningful the right to counsel is when the sovereign fails to provide adequate funding and other resources. The current issue of Champion, the magazine of the National Association of Criminal Defense Lawyers, is entirely devoted to Gideon v. Wainwright. The lead article, by Stephen B. Bright, begins, “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.” He writes: “In the absence of adequate funding to attract competent lawyers to defend the poor, some jurisdictions still conscript unwilling lawyers.... When their turn comes, the tax lawyer and the real estate lawyer are assigned a criminal case. This is much like assigning a dentist a patient who needs brain surgery.” Downstate members of our Bar will remember that very circumstance toward the end of the last fiscal year, when the State coffers that fund criminal conflict lawyers went dry. It is devoutly to be hoped that notwithstanding our current budgetary crisis, the General Assembly will nonetheless fully fund meaningful criminal defense for the indigent. We must remind the legislature and the public that our whole criminal justice system only stays in balance when both the prosecution and the defense are vigorous advocates armed with the necessary resources.

Not coincidentally in this economy, we simultaneously find ourselves beating every bush in sight looking for increased funding for civil legal services for the indigent, another concept for which Gideon was the springboard. Funding has fallen to a crisis level largely as a result of decreased interest on IOLTA accounts. The Bar Association’s Committee on Civil Legal Services for the Indigent (the “ILS Committee”), chaired by Steven Rothschild, is considering increased legislative appropriations, private foundation grants, increased lawyer contributions to the Combined Campaign for Justice, and increases in court filing fees, lawyer registration fees and/or DSBA dues. While all possible sources of additional funding must be explored, in the end it is the sovereign’s responsibility to ensure fair access to the court for the indigent. We have learned that the State of Delaware funds far less, pro rata, of the cost of civil legal services to the indigent than any of our surrounding states, and far less than the national average. The General Assembly must be persuaded to improve that record. In addition, Mr. Rothschild has recently written to the Delaware Supreme Court on behalf of the ILS Committee to ask the Court, also as sovereign, to allocate some portion of the revenues generated by the recent increase in pro hac vice fees “to avert drastic cutbacks in civil legal representation for the poor.”

I am reminded of a ditty from my childhood: “Ding, Dong, Dickie Bird, sittin’ on a fence; tryin’ to make a dollar out of fifteen cents.” It feels like that’s what we are trying to do now, make a dollar out of fifteen cents, simply to ensure the accessibility of both civil and criminal legal representation for our low income brethren. For our part individually, as members of the Delaware Bar, privileged to practice in this State, let’s remember to contribute to the Combined Campaign for Justice. Especially now, and especially for those of us who may have neglected to contribute in the past, let’s all do our part.

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Return to April 2003 Table of Contents.