Here’s a phone number worth memorizing if you live in Chicago:
It sounds like marketing for some kind of cheesy lawyer, but it’s actually an 18-year old program that is supporting our Sixth Amendment right to counsel by filling in some of the gaps surrounding the Supreme Court’s decision in Gideon v. Wainwright, which was handed down 50 years ago today.
Gideon made it clear that the right to counsel in a criminal case didn’t just mean you had the right to bring a lawyer; it meant you had a positive right to have a lawyer. If you couldn’t afford one, the government had to provide one for you. This ruling created our public defender system.
(Public defenders are one of the few government programs that us libertarians can love. We may not be very fond of big government, but I can’t recall ever hearing a libertarian denounce the public defender system. If the government is going to spend money trying to screw us into the ground, they can damned well spend some money to defend our rights.)
However, as Jeff Gamso points out, Clarence Earl Gideon got his new trial, but the decision forever associated with his name doesn’t cover every situation in which a lawyer would be helpful:
Gideon had no lawyer to help him ask the Supreme Court to hear his case. The court’s decision didn’t change that. Nothing in the last 50 years has. The accused has a right to an appointed lawyer at trial and on a first appeal. If the state offers two levels of appeal (most do in most cases) he doesn’t have a right to a lawyer at the second. He doesn’t have a right to a lawyer to pursue a collateral attack on his conviction through state or federal habeas corpus procedings.
There’s a similar problem at the front end: The defendant’s right to have a lawyer under Gideon doesn’t start until he becomes a defendant. You have the right to counsel at any time, but the government doesn’t have to provide you with a lawyer until it decides that you’re too poor to afford one on your own. And that doesn’t happen until a judge says so, which means that from the time a police officer first looks at you funny until the time the deputies stand you up in the courtroom, you’re on your own.
As you might expect, the kinds of people who choose public defense as their life’s work are not the kind of people who are happy with the limitations of Gideon, and they try to work around them. The Bronx Defenders, for example, are well known for providing a wide range of legal services related to criminal matters, and they’ll talk to anyone about a criminal matter at any time. They maintain a 24/7 hotline for helping people handle police encounters. “The ability to find legal advice before the formal assignment of a public defender can make all the difference and influence whether someone is arrested at all,” says Executive Director Robin Steinberg.
One of the reasons the Bronx Defenders can do this is that they’re organized as a private firm that provides public defense services under a contract. This gives them the latitude to receive money from other sources, including government grants and private donations, which they can use to fund additional legal services.
Here in Chicago, the Law Office of the Public Defender is part of the Cook County government, and therefore the Illinois state government, which limits its ability to provide extra legal services (although it does provide some non-criminal legal representation). Illinois public defense lawyers can only provide representation after they are appointed by a judge at their client’s first court appearance. (Gideon informs me that pretty much the same is true in Connecticut.) They can’t even talk to you about your case until that happens. The problem is, by the time you’ve been arrested and charged, you’ve probably already passed up several opportunities where a lawyer could have helped you.
Matt Haiduk, a crimlaw blogger from nearby Kane County, suggests these three signs that you need a criminal defense lawyer:
1. The police want to talk to you at the station.
2. They are reading you your Miranda rights or telling you that you have a right to remain silent.
3. Things get weird. [I.e. the cops do something that makes you uneasy.]
In none of those situations will you be able to get a lawyer from the Cook County Public Defender’s office. In fact, even if you are under arrest, you still have to wait for your first court appearance before the Public Defender’s office can help you. So what are you supposed to do in those situations?
That’s where 1-800-LAW-REP-4 comes in. It’s the 24/7 hotline run by First Defense Legal Aid, a nonprofit organization that provides free advice and representation to people who are arrested or detained by the Chicago Police. In fact, the Cook County Public Defender’s office FAQ recommends that parents call the FDLA if one of their children is arrested.
(This support from the Public Defender’s office is not surprising; the former Chief Executive, Edwin Burnette, is on the FDLA board. So are several current and former assistant public defenders, a few law professors, and a bunch of other local lawyers, including author Scott Turow and both Terry MacCarthy and his successor, Carol A. Brook, from the Federal Defender Program.)
The Chicago Commons Association launched the FDLA in 1995 to provide legal advice and representation for people in police custody. In 2003, they emerged as a standalone 501(c)(3) nonprofit corporation. With a surprisingly small budget (about $166,000 in 2011 according to IRS filings) they staff their 24-hour hotline and provide other services using over 100 volunteer lawyers and law students.
According to their most recent annual report, a parent or other legal guardian is the most likely caller for an arrestee, followed by peers, professional advocates (social services, the PD’s office), siblings, and other relatives. Clients themselves call the FDLA only about 2% of the time. FDLA lawyers visited clients in police stations 277 time in 2011. About 30% of these clients (37% of juveniles) were released without charges.
Those lawyers face some legal hazards of their own. Two years ago this month, FDLA volunteer lawyer Sladjana Vuckovic was visiting with a client in a police interrogation room, and she let him use her cell phone. Other local criminal defense lawyers claim this is not unusual, but perhaps because her client was accused of killing a police officer, prosecutors charged her with the crime of bringing contraband into a penal institution. The case went to trial, and in November of last year she was found not guilty.
In addition to operating the hotline and providing representation to people in police custody, FDLA has an educational Street Law program that teaches people, mostly juveniles, how to protect themselves and their rights during encounters with the police. In 2011 FDLA volunteers gave 130 presentations, reaching 3200 people. (They have a handout for those who want the short version.) They also work with a lot of community organizations and schools to get the word out.
Personally, I’m glad I heard about the FDLA. I realize that as an educated, gainfully-employed, middle aged white guy with no criminal record, my chances of being picked up by the police are relatively slim. Yet for as long as I can remember, I’ve always had the feeling that someday I’ll get arrested. And if or when that happens, I’d like to have a plan.
I know I’m supposed to Lawyer Up and Shut Up, but I’ve always had a problem with the lawyering up part because, despite being involved with the legal blogging community for years, I have no idea who I’d hire if I got into trouble. And shackled to a desk in a police station is a hell of a place to try to figure it out.
Now I know I can just call 1-800-LAW-REP-4.
Of course, for the time being at least, I’m pretty far from being indigent, so I’d probably feel obligated to make a donation large enough to cover the cost. Oh, what the heck…In celebration of the 50th anniversary of Gideon v. Wainwright, I just made a small donation through my employer’s matching gifts program. If you want, you can donate through the FDLA front page.
(Now if I can just find a public defender to hug…)