Troy Davis was executed in Georgia a couple of weeks ago right after a flurry of attention that led to a brief stay ordered by the Supreme Court. I was one of many attorneys, judges and others -- including former FBI chief William Sessions, Pope Benedict XVI and former President Jimmy Carter -- who had urged the Georgia Board of Pardons and Paroles to reconsider his case because the evidence against him had become rife with doubt, including recanted testimony from seven of the nine witnesses who had originally fingered Davis as the killer, and because there was some questionable police behavior. Of course, I did not know and still do not know if Davis was, in fact, guilty of the 1991 murder for which he was convicted. But that is not the point. So long as our society continues to sentence people to death (a practice I have abhorred my entire life), it should only do so when there is no doubt as to the guilt of the convicted party. That was simply not the case here.
In the end, Davis's case received a lot of attention and the details were examined in depth. But now that his life has been taken and the narrative fades into yesterday's news, perhaps it is time to focus on less visible miscarriages of justice, particularly among those without means. For every Troy Davis there are a few dozen others in jail who may have been unfairly convicted, but because they were not given a sentence of death, their story goes untold.
In 1963, an indigent defendant named Clarence Gideon wrote a note by hand to the clerk of the Supreme Court. The note was his appeal to the Justices: hear my case as I was unjustly convicted. The charges against Gideon were relatively minor -- that he had broken into a pool hall, stolen some money out of the cash register and taken a beer on his way out -- but he had argued at his arraignment that he was too poor to hire an attorney and could not, therefore, be fairly defended. When he was nonetheless convicted and sentenced to prison, he wrote the Supreme Court asking the Justices to hear his appeal on the basis that the state should have provided him with legal representation. The court receives many such in forma pauperis -- literally, in the form of a pauper -- pleas. But Gideon's timing was spot-on. Chief Justice Earl Warren had long felt that the Sixth Amendment right to counsel implied that for those incapable of hiring their own attorney, the state must provide one. When the other eight Justices all joined him, siding with Gideon, it became one of the landmarks of constitutional law, one read by every law student and later glorified in a wonderful book by Anthony Lewis, Gideon's Trumpet.
If it were only so easy. While Gideon is the kind of case that makes many rightly feel proud of our system, the real test of these landmark Supreme Court cases is in how the story proceeds after the principle has been established, and in the pursuit of justice for the indigent the record is not pretty.
A few years ago, I was picked to co-chair the National Right to Counsel Committee, a group created by the Constitution Project to examine the delivery of legal services to the poor. You can read our 2009 report here, but the title sums up our findings: "Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel." The issues are insufficient funding, overburdened attorneys, a lack of standards and oversight, and inconsistencies between states.
When the Obama administration came to Washington, Attorney General Eric Holder announced the creation of a new "access to justice" initiative within the Department of Justice. Harvard Law School professor Laurence Tribe, who counts Barack Obama, John Roberts and Elena Kagan among his former HLS students, was the first Senior Counsellor to lead the initiative. Yet even his work was underfunded. The New York Times reported last year that Tribe felt neglected in his position, "with a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington." Earlier this year, Tribe returned to Cambridge and was replaced by Mark Childress, a former aide to Sen. Tom Daschle.
The aim of all this is simple: you should not have a better shot at justice, a better opportunity for adequate defense, depending on who arrests you in this country or where you were when you were arrested, or what court system you wind up in, or whether you can afford a competent lawyer. Competent defense is a basic constitutional right. Yet in a day and age when budgets are being examined with sharp knives, money to support the defense of the poor does not get much of a voice. Troy Davis was lucky, in a way. The attention of death penalty opponents brought out an impressive eleventh-hour legal defense team to plead his case on appeal; yet, ironically, had his defense been handled competently from the start, Davis might be alive today. Meanwhile, there are plenty of others in line behind him. The jails are filled with people who were the victims of overzealous police or prosecutors and of shoddy lawyering.
What would Gideon say?
This post first appeared on Constitution Daily, the blog of the National Constitution Center in Philadelphia.