Rosalie Wahl’s death on July 22 left Minnesota with immense shoes to fill. The 88-year-old pioneer was a public defender, a beloved law school professor and the first female member of the Minnesota Supreme Court, where she served for 17 years.
In every role, she championed the disadvantaged.
So it’s a pity she likely didn’t get to see an HBO film that aired throughout the month of her passing. “Gideon’s Army” follows three idealistic public defenders in the South, who face long hours, low pay and staggering caseloads that lead them to the breaking point. Fiction?
Fifty years after the Supreme Court’s landmark case, Gideon vs. Wainwright, we are a country — and a state — in a crisis that most of us, Wahl notwithstanding, know or care little about.
“We are how we treat the folks on the edge of society,” said 64-year-old Dan O’Brien, a respected lawyer preparing to retire after 33 years in the Hennepin County public defender office.
“The reason we are different from a lynch mob is that we have a system that entitles people to a fair trial and counsel,” O’Brien said. “Society is much better off if we can commit ourselves to making sure that everyone’s dignity is defended.”
O’Brien is well aware that that lofty goal is in danger. Caseloads have grown preposterously high as resources shrink. Training of young lawyers is limited and their work often is emotionally wrenching. But as the old joke goes, at least the money’s bad.
It’s not unusual for bright, altruistic graduates of the country’s best law schools to begin, and remain for years, in public defender jobs paying $40,000 or $50,000 a year. Some eventually jump ship to work for county prosecutors, whose salaries start higher and increase more regularly.
“I really was optimistic when we entered 2013 that we would finally live up to our highest ideals,” said Jonathan Rapping, president of Atlanta-based Gideon’s Promise, which he founded in 2007 to transform public defense.
“In fact, we’ve seen the opposite. State public defenders have really been disrespected. They’re fighting with one hand tied behind their back.”
Rapping, a former public defender in Washington, D.C., notes that when Clarence Earl Gideon penciled his plea to the Supreme Court for the right of the poor to competent counsel in 1963, there were 217,000 people in American prisons. Today, our prisons hold more than 2.4 million people.
About 80 percent of them cannot afford a private lawyer and must rely on court-appointed counsel. Nearly all of these defendants plead guilty, even if they’re not.
Kevin S. Burke, a Minneapolis trial judge since 1984 and champion of a reinvigorated right to counsel, noted that there have been more than 300 post-conviction DNA exonerations in the United States. He sees this “as dramatic proof that the ability of judges to determine the truth remains suspect.
“Many of these people had very good lawyers,” Burke said, “but too many did not. The cost of the court’s mistake is a stark reminder of just how weak we are in providing an adequate defense to people charged with the most serious crimes.”
This is why, 50 years ago, the Supreme Court ruled the way it did. “The court recognized that we cannot have equal justice unless poor people have the same kind of lawyers that you or I would pay for,” Rapping said.
“What the Supreme Court didn’t do is clearly outline what that meant,” he continued. “States have gotten the message that they need to give poor people a lawyer, but they don’t have to invest much in those lawyers.”
Although the American Bar Association’s standard for caseloads is 150 felonies per year per lawyer, public defenders often have three or four times that number, Rapping said.
“Even 150 is not reasonable,” Rapping said. A lawyer could work six days a week and take no vacation and still only get two days total with a client, sandwiching in interviews, investigations and court time.
Despite the challenges, Rapping had high praise for Minnesota. “You have leadership, really good public defenders and a good, statewide training program,” he said. “But public defenders in Minnesota also need more resources and relief.”
Hennepin County public defender Mary Moriarty, who trains young lawyers through Gideon’s Promise, agreed. Hennepin County, she said, is operating at about 54 percent of the recommended attorney staffing guidelines provided by the Minnesota State Board of Public Defense.
Gideon’s Promise hopes to change that state by state. Its three-year training program already is successfully grooming the next generation of public defenders, Rapping said, “to ensure that our system lives up to the ideals of justice and due process that make us quintessentially American.”
O’Brien, the father of four young adult children, is grateful that he could honor those ideals for more than three decades. “This is what I was called to do,” he said of the often gritty world that shaped his professional life.
O’Brien remembers a client, “a big, hulking guy,” who was charged with robbing houses. He and O’Brien stood as the verdict was read. Guilty. Guilty. Guilty. “He was convicted of everything,” O’Brien said. Then the man turned to O’Brien, shook O’Brien’s hand and said, “Thanks.”
“It’s the best job in the world,” O’Brien said, “and also the most humbling.”