News
Gideon's Promise
December 28, 2013
By Tim Lockette
 
Ilham Askia was the person the courts usually don’t think about.
 
When Askia was a 5-year-old in Buffalo, New York, her father was convicted on an armed robbery charge and sent to prison, where he’d remain for most of her childhood.
 
She can’t help but think it would have been different with a better lawyer.
 
“If someone had just told his story,” she said. “He wouldn’t have been in Attica for ten years, and then in and out of prison for the rest of his life.”
 
These days, Askia is working to make sure that courts and juries do hear the stories of people who are accused of crimes. She’s executive director of Gideon’s Promise, an Atlanta-based nonprofit that recruits the promising young law school graduates from around the country to become public defenders in the South’s overloaded court systems.
 
“The only way we can have equal justice is if an indigent person has the kind of lawyer you or I would pay for,” said Askia’s husband, Jon Rapping, the president and founder of the group.
 
Created in 2007, Gideon’s Promise brings groups of young lawyers to Atlanta twice a year in hopes of training them to be dogged defenders of people too poor to pay for their own lawyers. The trainees — who could make far more money in other areas of law — pledge to work as public defenders for at least three years.
 
For Rapping, a professor at John Marshall Law School, the project is no less than the 21st-century equivalent of the civil rights marches of the 1960s. While the Supreme Court has long held that even the poorest people have the right to an attorney, Rapping says a dispirited and underpaid corps of indigent defense lawyers often isn’t able to give people the defense they deserve.
 
“We’ve lost sight of justice, because there’s so much pressure to simply move bodies through the system,” he said.
 
Broken promise

The battle over the right to an attorney was fought, largely, in the courtrooms of the South. When eight black Alabama teenagers — popularly known as the Scottsboro Boys —  were sentenced to death on a rape charge in 1931, one of them appealed on the grounds that they’d had limited contact with a lawyer. The Alabama Supreme Court ruled that Ozie Powell didn’t need access to a lawyer to have a fair trial. The U.S. Supreme Court ruled that, at least in capital cases, everyone did.
 
Three decades later, a man named Clarence Earl Gideon wrote his own legal appeal from a Florida prison, arguing that his burglary conviction should be thrown out because he didn’t have a lawyer at the trial. In the landmark case Gideon v. Wainwright, the Supreme Court agreed, and ordered that anyone accused of any crime should be appointed a lawyer, regardless of ability to pay.
 
But a growing number of lawyers are convinced that the promise of a court-appointed lawyer isn’t being fulfilled — and that the problem is at its worst in the Deep South.
 
Roughly eight in ten felony defendants are too poor to afford their own lawyer, according to statistics from the Department of Justice. DOJ statistics also show that while indigent defendants are about as likely to be convicted as defendants with their own attorneys, they’re more likely get prison time. Fifty-four percent of defendants with private attorneys wind up incarcerated, compared to 71 percent of those with public defenders.
 
In Alabama, a court-appointed attorney isn’t even necessarily free. The state charges indigent defendants a fee for legal services if they’re convicted. Some pay down the cost in installments; others have to prove again that they’re unable to pay.
 
Even Attorney General Eric Holder has said the indigent defense system is in a “state of crisis.”
 
“The promise of Gideon is not being met,” Holder said in a speech to the American Bar Association earlier this year.
 
A system of appeals
 
What worries Rapping most is the role of indigent defense attorneys themselves in the situation. Burdened with heavy caseloads, he said, lawyers for the defense can become part of a system that simply processes people through the courts to prison.
 
His goal is to teach would-be defense attorneys, while they’re young, how to truly fight for their clients.
 
“We try to get them before they develop bad habits,” he said. “Before they accept the status quo.”
 
Too many public defenders, Rapping says, fail to do investigations, or to do pre-trial motions to create a better situation for their clients.
 
Going to trial at all is increasingly rare. According to the American Bar Association, federal courts actually tried fewer cases per year in at the turn of the 21st century than in the 1960s, despite a doubling of the annual number of criminal cases.
 
Not everyone is convinced that the rise in plea deals is due to lackadaisical public defenders. Talitha Powers Bailey, who teaches criminal law at the University of Alabama, said the power of prosecutors to charge defendants with multiple, significant crimes has forced tough choices on defendants, who would often rather plead than lose in court.
 
“It has become a system of appeals, not a system of trials,” Bailey said.
 
Rapping wants lawyers to be tougher advocates of their clients at every stage. So far, roughly 200 lawyers from public defenders’ offices around the South have come to Gideon’s Promise for coaching on how to be that advocate.
 
True public defenders’ offices are rare in Alabama, with defendants often represented by attorneys working on a contract or appointed by judges on a case-by-case basis. When Jefferson County decided to create its own public defender’s office, officials in the office called on Gideon’s Promise to help prepare the new office’s lawyers.
 
“They came back so invigorated and so ready for the challenge that we have,” said Jefferson County Public Defender Kira Fonteneau, who heads a staff of 19 attorneys.
 
Fonteneau said Rapping teaches lawyers to hold themselves to a high standard in investigating cases to find everything possible to help a client. She said he also teaches them how to manage the other side of the job —  the emotional side.
 
“As attorneys who represent people in crisis, we tend to take on our clients’ problems,” he said.
 
Tuscaloosa Public Defender Joe Van Heest said eight of the fourteen lawyers in his office have been to Gideon’s Promise for training. Of the rest, three were new hires he hoped to send soon.
 
Van Heest was a private defense attorney for 19 years before being appointed as public defender. He said indigent defense lawyers face pressures — in particular, the volume of cases — that other lawyers don’t. Gideon’s Promise, he said, keeps his lawyers focused on the fact that “it is the client’s case.”
 
“It is not our job to decide what is in our client’s best interest and it is not our job to rush the client through the process without his or her having sufficient time to understand what is happening,” she  said. “Nowhere else have I seen the client-centered model of representation so well explained and ingrained in young attorneys than in this program.”
 
Struggle
 
There’s a reason Rapping chose Atlanta for this work. The South, he believes, is where the indigent defense system is most strained — and that strain is taking a disproportionate toll on the black community.
 
“Indigent defense is this generation’s civil rights struggle,” he said.
 
Rapping got his start as a defense attorney in Washington, D.C., where the public defender’s office — funded by the federal government — is widely recognized as one of the best-resourced in the nation. Even there, he says, the job was tough.
 
That job led to an invitation to become the training director for Georgia’s public defender system. Then Louisiana officials invited him to do the same work in New Orleans as the city rebuilt its public defender system after Hurricane Katrina.
 
Rapping said he became a public defender because he grew up in a household where he was encouraged to question authority.
 
“I got started in this work because I liked the idea of standing up to the government,” he said.
 
But he stayed in because of the defendants.
 
“I like being on the side of these folks, who have never really had a shot in life,” he said.
 
Askia left a job as a teacher to help Rapping set up Gideon’s Promise.
 
“Everyone who teaches will tell you it’s the hardest job in the world,” she said. “But to me, building a nonprofit from scratch is even harder.”
 
Askia sees the job as an outgrowth of her teaching career, which had her working in public schools in Atlanta and D.C. Toward the end of her seven years of teaching, she said, she began to see that students were often getting entangled in the justice system as young adults.
 
She now spends much of her time seeking financial support for the organization.
 
“Amazingly, it’s not hard to convince people, because so many people have been directly affected,” she said. “It’s very interesting. There are people almost everywhere who have a relative in the system.”
 
New name
 
The group’s fortunes got a boost recently with the release of “Gideon’s Army,” a documentary on public defenders that was recently featured on HBO. Rapping, Askia and others appear in the film as workers for the Southern Public Defender Training Center — the organization’s old name.
 
Rapping said the new name, Gideon’s Promise, grew out of a need to express the groups mission more simply.
 
Askia said the film has led to some public defenders stopping her to say “thank you.” It has also brought the group an influx of letters from people hoping Gideon’s Promise will represent their loved ones in court.
 
“That’s hard, because we don’t do direct representation,” she said.
 
Rapping, however, believes Gideon’s work could spread to court systems across the South eventually. Lawyers who come through the program, he says, won’t simply be public defenders in the here and now. Some will go on to become judges or legislators, able to effect change at higher levels in the system.
 
“We’re trying to change the culture of indigent defense,” he said. “We’re slowly rebuilding values that have been lost.”
 
Tim Lockette is state correspondent for The Anniston Star. Reach him at tlockette@annistonstar.com.
 
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