"Potential Innocence": Making the Most of a Bleak Environment for Public Support of Indigent Defense

Table of ContentsI. The Future of the Right to Counsel 1346II. The Need for Excellent Lawyers to Represent the Truly Innocent Armed Only with Reasonable Doubt, Which Is Perceived Objectively as "Potential Innocence" 1350III. Defenders Think They Know Who Is Guilty, and They Do Much of the Time, but Not Necessarily When It Matters Most 1352IV. The Theoretically Easy Answer of Good Lawyers for All 1354V. The Harsh Present Reality Based in Fiscal and Empathy Limitations 1355VI. Those Who Care About Innocence Should Stick Together: The Argument that Public Defenders Protect Some of the Innocent May Be Inadequate, but It Is the Best Argument Available, and It Has the Benefit of Being True 1359A. Help Those Innocent Defendants We Can with Arguments for Innocence 1359?. Assist the Innocent with Organizational and Procedural Mechanisms that Engender Neutrality in Investigation and Charging and Augment Reliability 1360C. Open up the Information: Full Open-File Discovery 1360VII. Support Reforms that Reduce the Impact of Inadequate Counsel but Not Those that Diminish the Command for Excellent Counsel 1361VIII. Conclusion 1362I. The Future of the Right to CounselAn examination of Gideon v. Wainwright1 after fifty years involves both its past failures and accomplishments and its future impact. Gideon's legacy is enormously positive with the expansion of rights to so many indigent defendants in need of representation against criminal charges that could deny them life and liberty, but its inadequacies in fulfilling its full promise are glaring as well. These competing themes are reflected in many articles that are part of this symposium.2 I choose to focus principally on its future, which, of course, will likely be guided by its past.In this period of reflection on Gideon, I have had the opportunity to participate in three conferences examining this landmark decision. The first, which was held early in 2010,3 recognized the difficulties in fulfilling Gideon's promise of effective assistance to all those entitled to an attorney under the Sixth Amendment, but it differed from the latter two occurring in 2012 in its degree of (perhaps unrealistic) optimism. The latter two, including the wonderful symposium at Washington and Lee University School of Law,4 exhibit their share of optimism, but they contain many more voices suggesting reexamination of the dimensions of Gideon and its costs and suggesting alternatives to traditional attorney representation.For me, the obvious and sufficient explanation for the difference in focus is twofold. The first is the recognition of the magnitude of the economic downturn that was not yet fully appreciated in 2009. The second is the intervening mid-term election in 2010, which changed the conversation and the political landscape at the national, state, and local levels with respect to resources available for public purposes. While I wish we could address this new reality with traditional responses, I doubt that is possible and therefore applaud the new voices and proposals. They give us the chance to remake the system of representation of those charged with crime for the better and provide additional tools to meet the challenges of a much more difficult environment.In considering new critiques and proposals, however, I suggest limitations both on the criticism of Gideon and on the types of proposals that should be entertained. Gideon can hardly be criticized because it has led to excessive spending on unneeded services. I have not seen the evidence that either excessive spending has occurred or that defense services are unneeded, particularly in the modern world of growing complexity in criminal litigation. …