United States: Commemorating The Right To Counsel

This year, March 18 gives us an unusual reason to celebrate. On that date, 50 years ago, the U.S. Supreme Court decided Gideon vs. Wainright. You might not know this case by name, but you know its significance.

In this case, the court recognized that defendants in state criminal proceedings have the right to an attorney, even when they can't afford one.

The right to counsel - it seems like something that has always been. For Americans, this isn't an artifact tucked away in the dusty confines of a law library. It's such a part of who we are that it has found its way even into our popular culture.

How often have we watched our favorite fictional detective dramatically cuff a suspect while reading him his rights? The admonition always ends with: "You have the right to an attorney; if you cannot afford an attorney, one will be appointed to represent you."

But it has not always been so. We've understood the importance of this right in federal criminal proceedings since the earliest days of our country - the framers of our Constitution memorialized it in the Sixth Amendment. But it wasn't until Gideon in 1963 that the court said the federal guaranty also applies to state criminal proceedings.

The court recognized that a defendant's access to defense counsel is so central to our system of justice that, without it, a criminal proceeding wouldn't be, well, just. And that means a defendant's poverty must not deprive him of access to counsel.

This is not, and never has been, about helping criminals escape their just punishment or gaming the system. It is about accurately determining whether a given defendant is, in fact, guilty. Anything less would call into question the legitimacy of a conviction.

We all want safe neighborhoods, and we all want justice done for victims of criminal acts. But as it turns out, not all who are arrested are guilty. So when the full weight of the government comes down on a single person with the purpose of depriving him of his liberty, we honor our principles best when we demand a capable counter to that weight. That's where the state public defender's office comes in.

In our adversarial system of justice, truth is forged of the clash between talented and ethical advocates. Our prosecutors are fine individuals, but they necessarily take the state's side - their job is to identify those they believe have acted criminally and then convince a jury that it is so.

For the past 35 years, the state public defender's office has been a faithful presence on the other side of our courtrooms, professionally upholding constitutional requirements and giving Wisconsin's indigent defendants a clear and trustworthy voice.

This is not a glamorous job, and it is often thankless. But they deserve our recognition and gratitude. After all, their work benefits not just those charged with a crime. What they do in the courtroom protects our right to be free from unreasonable search or seizure, our privacy interests and prevents us from being mistakenly scooped up for something we've not done. They are building and protecting a bulwark for our liberty as well as that of the defendants they represent.

I neither prosecute nor defend criminal cases. But on the day after St. Patrick's Day, I'll be remembering to hoist a pint of Guinness in honor of those who give life and substance to the constitutional promise that no criminal defendant need stand alone before a judge or jury.

Previously published in Milwaukee Journal Sentinel

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