A new tune for Gideon's trumpet: indigent criminal defendants need more than a lawyer

I have been reading about a number of cases over the last several years, and I see a common thread through many of them. Patricia Stallings was convicted of killing her infant son, yet the boy died of a genetic disease that was misdiagnosed as ethylene glycol poisoning (http://www.justicedenied.org/patriciastallings.htm). Laboratory tests that were unethically and incorrectly performed were the basis of her conviction, though the wrongdoing was later uncovered and she was released. Cameron Todd Willingham was executed for killing his children on the basis of since-discredited beliefs about the forensics of arson (http://www.chicagotribune.com/technology/chi-0412090169dec09,0,4934450.story). John Grisham’s nonfiction work, “The Innocent Man,” tells of a man on death row for a number of years when he should not even have been the prime suspect, partly due to errors made by his court-appointed lawyer, and partly due to faulty forensics. A list such as this could go on for a long time—too long.

In a number of ways, the Duke lacrosse case, a frequent subject of this blog, is different. The defendants faced an unethical prosecutor and a police force that repeatedly broke the rules. However, the defendants’ lawyers unmasked the prosecution’s attempt to bury exculpatory DNA evidence. Sadly, both the miscarriages of justice mentioned above and the Duke case illustrate a point made in Mr. Grisham’s book that I am paraphrasing: “In this country, you are innocent until proven broke.” There has been much ado over the wealth of these particular defendants’ families, but it is too infrequently noticed that these lawyers earned their paychecks the right way, by uncovering exculpatory evidence that the DA wished to hide. The shame is not that the Duke three came from wealthy families; rather, it is that we have tolerated a judicial system that sometimes cannot function unless the defendant is able to pay to play.

The sixth amendment to the constitution gives an accused the right to counsel. Given the great weight juries sometimes give forensic evidence, I liken putting a public defender in front of a jury without a meaningful ability to challenge possibly faulty evidence to sending a lacrosse player onto the field without gloves or a helmet. Therefore, I propose that for crimes that carry a sufficiently large maximum penalty, perhaps ten years in prison, that the public defender’s office should have available a sum of money. This money could be used to pay for DNA tests, clinical laboratory or other forensic tests, or a licensed private investigator. I propose a sum of $5,000 for most cases and $10,000 for capital cases.

It is vital to the success of this proposal that the judge trying the case be given as little authority as possible in directing the use of this money, possibly none at all. As indicated in “The Innocent Man,” a judge who approved public money on forensic tests could be tarred as being soft on crime. Voters might well punish someone who spent money on supposed criminals. However, I think that if we assent to the need of a public defender, we should also recognize the need to level the playing field between the prosecution and defense.

I have a strong hunch that this proposal could be considerably sharpened via amendments, particularly from those with more real-world exposure to the criminal justice system than I have. To that end, when I receive constructive comments, I will modify it accordingly. Therefore, comments are even more welcome than usual.

Update-1 (13 October 2009)
The 2009 Duke lacrosse book “Race to Injustice” has a chapter on the defense teams in that case. This author of this chapter, Rodney Uphoff, included a discussion of indigent defendants as the final section of his essay. His essay supports the general notion that indigent defendants often receive inadequate representation. I recommend his and a number of the other chapters. In the latter half of 2009, the case of Cameron Todd Willingham became national news, and I blogged twice in succession on this case (http://viewfromwilmington.blogspot.com/2009/09/more-on-willingham-case.html). I changed the word “stipend” to “sum” in the third paragraph.