"YOU HAVE THE right to a lawyer. If you cannot afford a lawyer, the court will appoint one for you." We have all heard those words so many times that they seem to be stating an obvious, undeniable truth. We take for granted that everyone – rich or poor, powerful or powerless – has the right to "equal justice under law." Yet, that has not always been the case.

For many years in this country, a person too poor to hire a lawyer could be convicted of a crime and sent to prison without representation. Prosecutors who were lawyers made the charges against the accused and judges who were lawyers decided what rules would apply, but the accused often stood alone. With no training in the law and no one to ask for legal advice, much less speak for him, the lone defendant was often helpless. It simply was not a fair fight and the promise of equal justice under law suffered.

One such citizen was Clarence Gideon, a homeless man with an eighth-grade education. Forty years ago, Mr. Gideon was convicted in Florida of breaking and entering. He asked for a court-appointed lawyer, but the trial judge refused. Mr. Gideon was sent to prison where he drafted a hand-written plea to the courts for help. In the first of an extraordinary series of legal events, the United States Supreme Court agreed to hear his case. Then the Supreme Court did what the trial court had not done: appointed a lawyer to represent Mr. Gideon. Fortunately for Mr. Gideon, that appointed lawyer was future Supreme Court Justice Abe Fortas. They won the case and the Supreme Court’s decision changed our criminal justice system forever.

The Supreme Court reversed Mr. Gideon’s conviction, holding that the Sixth Amendment of the United States Constitution required the trial court to appoint a lawyer since Gideon could not afford one. Justice Black explained the court’s reasoning:

Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. . . . Even the intelligent and educated layman has small and sometimes no skill in the science of law. He lacks both the skill and knowledge adequately to prepare his defense, even though he [may] have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

After the Supreme Court’s decision, Gideon got a new trial and a new lawyer to represent him at that trial. He was found not guilty.

As a result of Gideon v. Wainwright and other related cases, the "right to have a lawyer and to have a lawyer appointed if you cannot afford one" has become an accepted part of our criminal justice system. The principles of Gideon have even been incorporated into our state constitution. In 1966, the citizens of New Hampshire amended the state constitution to provide that "Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown . . . ."

Each year in New Hampshire, there are literally tens of thousands of criminal cases in which a defendant is entitled to appointed counsel. Providing skilled attorneys to represent the many indigent defendants is no small task. To solve the problem, our Legislature passed laws creating a process for the appointment of lawyers. A statewide public defender program – the New Hampshire Public Defender – was created as a cost-effective way to provide the lawyers in most of these cases. The Public Defender is a nonprofit organization of attorneys and staff who are dedicated to defending civil liberties. Today, the New Hampshire Public Defender provides representation in approximately 80 percent of all New Hampshire criminal cases where appointed counsel is needed.

Thanks to Gideon v. Wainwright, the attorneys of the New Hampshire Public Defender and other appointed attorneys are able to protect the rights of poor people who face prosecution by the state. That job is not always easy or popular, and it is not always the same. Sometimes protecting a person’s rights means representing an innocent person who is falsely accused. Sometimes it means representing a citizen who is guilty of something, but perhaps not everything charged. And sometimes our job is simply ensuring fair treatment, even for those who are guilty and will be punished. In essence, we serve as a check against the power of the state, insuring the truthfulness of its accusations, the fairness of its punishments and equal treatment of all who are accused.

As we commemorate the fortieth anniversary of Gideon v. Wainwright on March 18, we should remember that this landmark case demonstrates our nation’s commitment to individual liberty. Just as we provide for law enforcement to protect the public at large and judges to administer the law impartially, we also protect the rights of every individual who must stand up and face prosecution in court. By protecting the rights of those individuals, we protect the rights of everyone.

Richard Guerriero is director of litigation for the NH Public Defender program.

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