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In To Kill a Mockingbird, the Stateof Alabama appointed Atticus Finchto represent Tom Robinson because

Robinson was too poor to hire an attor-ney. An African-American man falselyaccused of raping a white woman in the Jim Crow South, Robinson sorelyneeded counsel. Finch was all that stoodbetween him and an angry lynch mob.Finch held fast, putting himself and hischildren in harm’s way to defendRobinson. He believed in the presump-tion of innocence, zealous advocacy,and a fair hearing. He rejected thenotion that race and economic statusshould play a role in determining guiltor innocence. For these reasons, Finchhas been embraced as a moral hero fornearly fifty years. Ironically, when Harper Lee penned the Pulitzer Prize–winning novel in 1960, states were notrequired to provide attorneys to poorpeople such as the fictional Robinson.Real people faced incarceration withoutthe benefit of counsel.

Although it has always been clear thatthe Sixth Amendment to the U.S. Con-stitution guarantees the right to appointedcounsel to people accused in federalcourt of committing a crime, until 1963,people accused in state court were notguaranteed this right. In 1963, in thelandmark case of Gideon v. Wainwright,the U.S. Supreme Court held that thestates must provide an attorney to everyindigent person accused in state court ofcommitting a felony.1 The right to coun-sel has since been extended to many

P O P U L A R G O V E R N M E N T

Delivering on Gideon’s Promise: North Carolina’s Efforts to Enhance Legal Representation for the PoorAlyson Grine

The author plans, administers, and teachesin continuing legal education programsfor North Carolina public defenders andappointed attorneys in her role as defendereducator at the School of Government.Contact her at agrine@sog.unc.edu.

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misdemeanor offenses and to all criticalstages of criminal proceedings.

This article reviews the cases leadingup to Gideon, Gideon itself, and sub-sequent cases related to the quality ofrepresentation. It then provides an over-view of the various systems in placeacross the states for representation ofindigent defendants, and it describesNorth Carolina’s system in that context.Next, it discusses the need for trainingof defenders, and it identifies guidelinesand standards that have been promul-gated in support of quality training. Thearticle concludes with a description of aunique collaboration in North Carolinato provide training for defenders.

The Right to Counsel

The Sixth Amendment to the U.S. Con-stitution provides, “In all criminal pro-secutions, the accused shall enjoy theright . . . to have the Assistance of Coun-sel for his defence.” The U.S. SupremeCourt initially interpreted this languageto mean that in federal courts, counselhad to be provided for people accusedof crimes who could not afford to hirean attorney.2 In 1942, in Betts v. Brady,the Court considered whether the guar-antee of counsel for indigent defendantsapplied to defendants in state courts un-der the Due Process Clause of the Four-teenth Amendment. The Court concludedthat “appointment of counsel is not afundamental right, essential to a fairtrial.”3 Therefore the Fourteenth Amend-ment did not require appointment ofcounsel in state court in the way thatthe Sixth Amendment required appoint-ment in federal court.4 Under Betts an in-digent defendant in a state criminal matterwas entitled to counsel only in specialcircumstances, such as in capital casesM

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(those in which the state was seeking thedeath penalty) in which the accused wasilliterate or mentally challenged.

Twenty-one years later, a handwrittenletter to the U.S. Supreme Court from aprisoner was the catalyst for topplingthe holding in Betts. In 1963 the Courtaccepted a petition written in pencil onprison stationery by a man who was toopoor to pay the court filing fee.Clarence Earl Gideon was serving timein a Florida penitentiary for breakinginto a pool hall and taking coins fromvending machines. At trial he asked thatcounsel be appointed to represent himbecause he could not afford to hire anattorney, and his request was denied.

The COURT: Mr. Gideon, I am sorry,but I cannot appoint Counsel torepresent you in this case. Under thelaws of the State of Florida, the onlytime the Court can appoint Counselto represent a Defendant is whenthat person is charged with a capitaloffense. I am sorry, but I will haveto deny your request to appointCounsel to defend you in this case.

The DEFENDANT: The United StatesSupreme Court says I am entitled tobe represented by Counsel.5

Forced to represent himself, Gideon, asemiliterate drifter, was quickly convictedand sentenced to prison for five years.

Reversing Betts, the U.S. SupremeCourt unanimously ruled in Gideon v.Wainwright that every person chargedwith a serious criminal offense is en-titled to counsel and that the state mustprovide an attorney to any person whocannot afford to hire one. Justice HugoBlack wrote for the majority:

That government hires lawyers toprosecute and defendants who havethe money hire lawyers to defendare the strongest indications of thewidespread belief that lawyers incriminal courts are necessities, notluxuries. The right of one chargedwith crime to counsel may not bedeemed fundamental and essentialto fair trials in some countries, butit is in ours. From the very begin-ning, our state and national consti-tutions and laws have laid greatemphasis on procedural and sub-

stantive safeguards designed toassure fair trials before impartialtribunals in which every defendantstands equal before the law. Thisnoble ideal cannot be realized if thepoor man charged with crime has toface his accusers without a lawyerto assist him.6

The Court vacated Gideon’s convic-tion and sent the case back to state court.Gideon was retried with the benefit ofappointed counsel, and acquitted.

The impact of Gideon was far-reaching. In its wake, the U.S. SupremeCourt has extended the right to counselto direct appeals, initial appearance,custodial police interrogation, criticalstages of preliminary proceedings, mis-demeanors in which imprisonment isimposed, and misdemeanors in which asuspended sentence of imprisonment isimposed.7 In the 1977 case of Massiah v.United States, the Court held that theSixth and Fourteenth amendmentsrequire counsel at all critical stages of acriminal prosecution.8 Further, theCourt has held that due process requiresappointment of counsel in noncriminalproceedings that involve loss of libertyor significant deprivations of rights,such as juvenile proceedings and, insome instances, proceedings for termi-nation of parental rights.9

North Carolina statutes also providea right to counsel for parents in abuse,neglect, or dependency proceedings;proceedings on termi-nation of parentalrights; and certainother proceedings.10

Additionally, the NorthCarolina SupremeCourt has recognizeda due process right tocounsel in civil con-tempt proceedings forfailure to pay child support when therespondent is facing incarceration.11

In today’s climate, the right to coun-sel is accepted as integral to the Ameri-can system of justice and is rarely calledinto question despite the multimillion-dollar cost to taxpayers each year. Robert F. Kennedy summarized theimpact of Gideon as follows:

If an obscure Florida convict namedClarence Earl Gideon had not sat

down in his prison cell . . . to writea letter to the Supreme Court, . . .the vast machinery of American lawwould have gone on functioningundisturbed.

But Gideon did write that letter, theCourt did look into his case[,] . . .and the whole course of Americanlegal history has been changed.12

The Constitutional Minimum for Quality Representation

Although Gideon triggered a monumen-tal change in the law, it did not instan-taneously create sound systems acrossthe country for providing representationfor indigent defendants. Media accountsof breakdowns since 1963 have at timesshocked the collective conscience: theman who languished in a Mississippijail for eight months before counsel wasappointed to represent him, the Texaslawyer who slept throughout his client’scapital murder case, the Alabama lawyerwho was so impaired during a capitaltrial that the trial had to be delayed fora day while he recovered in jail.13 “Gideonis of immense symbolic importance,”according to Abe Krash, one of the at-torneys who worked on the case, “butin practice there’s a great gap betweenthe promise and how it’s been real-ized.”14 Krash noted that the Court’sdecision did not address critical issues

such as what qualityof legal representationis required to protectthe constitutionalrights of indigentdefendants, what levelof funding is necessaryto ensure adequatelegal defense, whatsystem of defense is

best suited to ensuring quality represen-tation, and how such a system shouldbe managed.15

Although Gideon inspired hope thatevery person would receive capablerepresentation regardless of economicstatus, ensuring quality representationcontinues to be a challenge. In 1984 theU.S. Supreme Court handed down itsdecision in Strickland v. Washington,a case establishing the minimum con-stitutional requirements for attorney

The Strickland test of defensecounsel’s ineffectiveness: (1) demonstration of deficientperformance and (2) resultingprejudice of the outcome.

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performance.16 In setting out a test forwhether a conviction or a sentenceshould be set aside on the basis of inef-fective assistance of counsel, Stricklandset the bar low, presuming that theattorney acted reasonably under thecircumstances.

In Strickland, the defendant, DavidWashington, pled guilty to three capitalmurder charges. The judge told Wash-ington that he respected people whowere willing to admit responsibility, buthe made no promise about the sentencethat he would impose. Washington’slawyer presented no evidence during thesentencing hearing, merely assertingthat Washington’s life should be sparedbecause he had shown remorse, had nocriminal history, and had committed thecrimes under duress. The judge foundnumerous aggravating circumstancesand sentenced Washington to death onall three counts of murder.

On appeal, Washington submittedthat his attorney had been ineffective inthat the attorney did not (1) request add-itional time to prepare for the sentencinghearing, (2) request a psychiatric evalua-tion of Washington, (3) investigate and

present character witnesses, (4) seek apresentence investigation report, (5) pre-sent meaningful arguments to the sen-tencing judge, and (6) investigate themedical examiner’s report and cross-examine the State’s medical experts.17

The Supreme Court announced atwo-part test for determining whethercounsel was ineffective. First, to have aconviction or a death sentence set aside,the defendant had to demonstrate thatcounsel’s performance was deficient,falling below “an objective standard ofreasonableness.”18 Counsel must begiven wide latitude to make tacticaldecisions, the Court cautioned, and thedefendant must overcome the presump-tion that counsel was employing soundtrial strategy under the circumstances.19

Second, the defendant had to showthat counsel’s ineffectiveness substan-tially prejudiced the outcome of the case, by demonstrating “a reasonableprobability that, but for counsel’s un-professional errors, the result of the pro-ceeding would have been different.”20

In other words, the defendant had to es-tablish a reasonable probability that heor she would not have been convicted or,

in this case, sentenced to death, but forcounsel’s errors. Ultimately the Strick-land Court decided that Washington’sclaim failed both prongs of the test inthat his lawyer’s actions were not un-reasonable and he did not show preju-dice that would require setting asideWashington’s death sentences.

Between 1984 and 2000, the Strick-land standard for ineffectiveness wasapplied strictly to capital cases as wellas noncapital cases. James Messer wasexecuted in Georgia in 1988 after histrial attorney made no opening state-ment, presented no evidence, made noobjections to the State’s admission offifty-three items of physical evidence,cross-examined only nine of the State’stwenty-three witnesses, and presentedonly Messer’s mother at the sentencingphase.21 Keith Messiah was sentenced to death in Louisiana in 1988 followinga one-day trial and a twenty-minutesentencing hearing.22 Jesus Romero wasexecuted in Texas in 1992 after his trialattorney failed to present any evidenceat the sentencing phase and made a sin-gle closing argument to the jury: “You’vegot that man’s life in your hands. You

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can take it or not.”23

Larry Heath was exe-cuted in 1992 after hisappellate attorney wrotea one-page brief to theAlabama SupremeCourt, citing one caseand raising one claim,the quality of whichwas “unreasonablydeficient,” according to the federal courtthat reviewed the matter on appeal.24 Ineach of these cases, the courts foundthat counsel’s conduct did not violatethe standard established by Strickland.

In 2000, however,the U.S. Supreme Courtbegan to examine attor-ney performance in aslightly different light.In Williams v. Taylor, at-torney conduct was sim-ilar to that in Strickland:counsel failed to investi-gate the client’s back-

ground and prepare for the penalty phaseof a capital case.25 The Court found inWilliams that had counsel done adequateinvestigation, he would have uncoveredvoluminous circumstances that would

have mitigated the defendant’s conduct,such as evidence of physical abuse as achild and borderline mental retardation.

Williams was notable in that itlooked to the ABA Standards for Crim-inal Justice as a means of evaluatingcounsel’s performance. Although theStrickland Court had acknowledged thestandards, it had admonished that theydid not have sufficient authority tooverride the presumption that counselacted reasonably:

Prevailing norms of practice as re-flected in American Bar Association

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Nationally, the system of providing representation toindigent defendants is apatchwork. Even in the beststatewide systems, funding may not be adequate.

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on the ABA standard regarding coun-sel’s obligation to conduct a thoroughinvestigation of the defendant’s back-ground.27 Had counsel adhered to such astandard, the Court concluded, the de-fendant might not have been sentencedto die.

In 2003 the U.S. Supreme Courtechoed its holding in Williams, findingin two capital cases that attorneys hadbeen ineffective in failing to investigatetheir clients’ history. In both Wiggins v.Smith and Rompilla v. Beard, the Courtonce again cited the ABA standards as ameasure of attorney performance.28 InWiggins, the Court cited the ABA stan-dards for the proposition that counselmust discover all reasonably availablemitigating evidence, inform the prose-cutor of any mitigating circumstances,and argue them before the court atsentencing.29 Quoting Strickland, theWiggins Court characterized the ABAstandards as “guides to determiningwhat is reasonable,” but omitted theStrickland language regarding the limi-tations of such standards.30

In Rompilla, three justices dissentedfrom the majority’s conclusion thatcounsel was ineffective, complainingthat the majority had departed fromprecedent by giving the ABA standardstoo much weight:

For this reason, while we havereferred to the ABA Standards forCriminal Justice as a useful point ofreference, we have been careful tosay these standards “are only guides”and do not establish the constitu-tional baseline for effective assistanceof counsel. The majority, by parsingthe guidelines as if they were bindingstatutory text, ignores this admoni-tion. The majority’s analysis con-tains barely a mention of Stricklandand makes little effort to squaretoday’s holding with our traditionalreluctance to impose rigid require-ments on defense counsel.31

Despite the complaints of thedissenting justices, the Supreme Courthad begun to use national standards asan objective measure of effectiveness.The standards provided a means ofrebutting the Strickland presumptionthat counsel had acted reasonably. As a

result, counsel was subjected to greaterscrutiny, and the defendants who wereprejudiced by counsel’s deficiencies inWilliams, Wiggins, and Rompillaobtained relief.

The cases following 2000 might beread as implicitly recognizing that thepromise of Gideon is not realized by themere appointment of counsel. Zealousrepresentation is essential when a per-son of meager resources is pitted againstthe resources of the government andwhen the stakes include conviction, lossof liberty, and sometimes death.

Ultimately, however, the challengefalls to the states to deliver representa-tion beyond what is minimally tolerableunder the Constitution. Although relieffor ineffective assistance of counsel maybe more available under recent U.S. Su-preme Court cases than it was underStrickland, relief on a case-by-case basisdoes not ensure that all defendants arereceiving adequate representation. In-stead, the states bear the responsibility

Public Defenders andAppointed Attorneys inNorth Carolina• Public defenders: salaried

employees of a public defenderoffice who represent indigentclients exclusively. The head ofthe office is referred to as the“chief public defender,” and thestaff attorneys are referred toas “assistant public defenders.”

• Appointed attorneys, also called“private assigned counsel” or“PACs”: lawyers in private prac-tice who accept the cases ofindigent defendants and aretypically paid an hourly fee of$75 in exchange for their ser-vices. In districts where there isa public defender office, ap-pointed attorneys handle thecases that the public defendercannot accept because of aconflict of interest. In districtswithout a public defender office,appointed attorneys handle theentire caseload of indigentdefendants.

standards and the like, e.g., ABAStandards for Criminal Justice 4-1.1 to 4-8.6 (2d ed 1980) (“TheDefense Function”), are guides todetermining what is reasonable, butthey are only guides. No particularset of detailed rules for counsel’s con-duct can satisfactorily take accountof the variety of circumstances facedby defense counsel or the range oflegitimate decisions regarding howbest to represent a criminal defendant.26

The Williams Court, in contrast, usedno such qualifying language in relying

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of establishing sound systems of de-livering, overseeing, and enhancingrepresentation of indigent defendants.

The Importance of Systems and Oversight

The nation currently is made up of apatchwork of systems for providingrepresentation to indigent defendants.Nineteen states have statewide publicdefender systems, in which represen-tation is provided at state expense by salaried staff attorneys throughoutthe state.32 Of these, twelve also have an independent commission withauthority over representation state-wide.33 Duties of the commission mayinclude determining the method ormethods of delivering services for thestate, establishing appropriate com-pensation rates for appointed counsel,

and developing standards for perfor-mance. Six states do not have statewidepublic defender services, but do havecommissions.34 All six have some publicdefender offices, but the offices eitherdo not serve the greater part of the stateor accept limited types of cases, such asfelonies.35 In other states, either thecounty is responsible for funding anddelivering services, or the responsibilityis divided between local and stategovernments.36

Within the statesthat do not havecomprehensive publicdefender services, thesystem of providingrepresentation variesfrom one locale toanother. One judicialdistrict may have apublic defender officewith staff attorneys onsalary, whereas a neighboring districtmay appoint private attorneys to repre-sent indigent defendants (for a compar-ison of public defenders and appointedattorneys, see the sidebar on page 11).Private attorneys typically are appointedon a case-by-case basis and paid anhourly rate or a flat fee. Other districtswithin a given state may use a contractsystem under which private attorneys orfirms assume the responsibility for rep-resenting indigent defendants over alonger time span.37

Private appointed attorneys are animportant component of the system, evenwithin a public defender district. Theyhandle “conflict cases,” those that arisewhen multiple people are charged withcommitting a given crime. For example,if three men are charged with robbing astore, the public defender can representonly one of them because they may have incompatible defenses. That is, eachmay assert that the other two partici-pants forced him to participate in thecrime. Appointed attorneys also help byshouldering a portion of the caseloadwhen the public defender office is over-whelmed. In districts without publicdefender offices, some private attorneyshandle appointed cases exclusively, devoting themselves to representingindigent defendants just as public de-fenders do, but without the supportiveoffice setting.

The states with commissions have anadvantage in that a body is in place toevaluate the big picture and set the barfor attorney performance by adoptingguidelines or standards and employingvarious oversight mechanisms. Publicdefender systems also provide a level ofoversight in that within the publicdefender office, a supervisor, or chiefpublic defender, screens attorneys whoapply to work in the office and super-

vises attorneys onstaff. Public defenderoffices have the addi-tional advantage ofspecialization in a fewareas of law, typicallycriminal and juveniledelinquency. Forreasons such as these,there is a clear trendacross the countrytoward creating

statewide commissions and expandingpublic defender offices.38

The states that have succeeded increating statewide public defender ser-vices or commissions still face problems,particularly if those systems are notadequately funded.39 Without adequatefunding, systems can become overbur-dened. In public defender offices, attor-neys may carry daunting caseloads,representing hundreds of clients simul-taneously. In this climate, attorneys arehard-pressed to provide effective repre-sentation in the form of conducting athorough pretrial investigation, filingand litigating motions, retaining expertwitnesses, and regularly taking cases totrial. Instead, many public defendersencounter pressure from judges, prose-cutors, and sometimes their own officesto dispose of cases quickly. Before long,attorneys working in such an environ-ment may experience burnout, leadingto high turnover rates. Often, recent lawschool graduates step into the shoes ofdeparting public defenders, and theoffice loses the benefit of the departingattorneys’ accumulated knowledge andexperience.

Public defenders and private ap-pointed attorneys also may not be com-pensated adequately. The inadequatecompensation makes recruiting andretaining quality professionals to serveindigent defendants a continuing

Goals of the NorthCarolina Commissionon Indigent DefenseServices The goals of the North CarolinaCommission on Indigent DefenseServices are as follows:

• “[T]o recruit the best andbrightest North Carolina at-torneys to represent indigentdefendants;

• [T]o ensure that every attorneyrepresenting indigent defen-dants has the qualifications,training, support, resources,and consultation services [heor she] need[s] to be [an]effective advocate[];

• [T]o create a system that willeliminate the many recog-nized problems and conflictscaused by judges appointingand compensating defenseattorneys; and

• [T]o manage the state’s indigent defense fund in amore efficient and equitablemanner.”

Source: North Carolina Court System,Office of Indigent Defense Services,www.ncids.org.

Defenders of indigent clientsneed timely, comprehensive,continuing education of highquality. The ABA recommendsthat government fund suchtraining to protect the right to counsel.

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challenge. Appointed attorneys inNorth Carolina provide representationat a deeply discounted rate comparedwith the market rate for private legalservices. Currently, an attorney who isappointed to a noncapital case is paid$75 per hour, less than half the averagehourly rate that a private defense attor-ney would charge in most parts of thestate.40 For example, a private lawyerwould typically charge between $1,000and $3,000 to represent a client chargedwith driving while impaired. In contrast,appointed lawyers are paid an averageof $280 for handling such a case. Whenthe cost of operating a law practice isfactored in, attorneys who are ap-pointed to noncapital cases in NorthCarolina net $22 per hour, on average,for their professional services.41

The Organization of North Carolina’s System for Representing IndigentDefendants

North Carolina’s size, diversity, andrapid growth are strengths in manyrespects, but present challenges in pro-viding representation for indigent de-fendants. The Tar Heel State stretchesfive hundred miles from west to east, or“from Murphy to Manteo,” as thepopular saying goes. It is made up ofone hundred counties and divided intoforty-one judicial districts.42 With morethan 8.5 million people, North Carolinais the eleventh-most-populous state in

the nation. The state has experiencedrapid population growth in recent years,as well as a proliferation of cases in thecriminal justice system, and the numberof dispositions of cases involving indi-gent defendants has grown more than50 percent in the past five years.43

North Carolina has a mixed systemfor representation of indigent defendants,consisting of public defender offices,appointed counsel, and a small numberof contracts with private attorneys.44

Sixteen of the forty-one judicial districts

in North Carolina have public defenderoffices. Some of the public defenderdistricts encompass multiple counties,with the result that twenty-six countiesare covered by public defender offices(see Figure 1).45

In districts without public defenders,private attorneys are appointed on a case-by-case basis, or, in limited instances,they enter into contracts with the state’sOffice of Indigent Defence Services(IDS) to handle cases in their district onan ongoing basis. Overall, the number

Performance GuidelinesIn 2004 the North Carolina Commission on Indigent Defense Services (IDS Commission) adopted Performance Guidelines for Indigent DefenseRepresentation in Non-Capital Criminal Cases at the Trial Level. Theguidelines identify issues that may arise at each stage of a noncapitalcriminal proceeding, and recommend effective approaches to resolvingthose issues. They are designed to be a resource for defense counsel aswell as a training tool. Following is an excerpt from the guidelines:

Guideline 1.2 Role of Defense Counsel(a) The paramount obligations of criminal defense counsel are toprovide zealous and quality representation to their clients at all stagesof the criminal process, and to preserve, protect, and promote theirclients’ rights and interests throughout the criminal proceedings. Attor-neys also have an obligation to conduct themselves professionally,abide by the Revised Rules of Professional Conduct of the North Carolina State Bar and other ethical norms, and act in accordance with all rules of court.

Source: North Carolina Commission on Indigent Defense Services, PerformanceGuidelines for Indigent Defense Representation in Non-Capital Criminal Cases at the TrialLevel (Raleigh: North Carolina Commission on Indigent Defense Services, November2004), 1, www.ncids.org/ (click on IDS Rules and Procedures).

Figure 1. North Carolina Public Defender Offices by District, 2008

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of attorneys working in public defenderoffices is 213, and the number ofprivate attorneys appointed to representindigent defendants is about 2,800.

Each district is a unique culture. Carteret County, on the east coast, has asmall public defender office, consisting

of two attorneys and one support staff.Criminal offenses there often relate tothe county’s status as a tourist locale:impaired driving abounds in thewarmer months, and breaking andentering is frequent in the winter, whenvacation houses are left empty.

In contrast, the Mecklenburg Countyoffice, in the western part of the state, employs more than 50 attorneys, 7 in-vestigators, and numerous support staff.Mecklenburg County includes the QueenCity of North Carolina, Charlotte, andthus encounters more criminal offensesthat arise from urban problems such asgangs and firearms.

The District 1 public defender officecovers seven counties in the northeastpart of the state. Public defenders theretravel over bridges and waterways toappear in three courthouses.

In contrast, the District 14 officeserves only one county, Durham. Theoffice is located in the same high-risebuilding as the court.

All the public defender offices handleboth felony and misdemeanor cases atthe trial level. About half of them acceptjuvenile delinquency cases, and a fewrepresent parents in abuse, neglect, and dependency proceedings. Publicdefenders do not handle their cases on appeal to the North Carolina Courtof Appeals or Supreme Court. Thisfunction is housed in North Carolina’s Office of the Appellate Defender.

Each public defender office is super-vised by a chief public defender. Selectionof the chief is a local matter. The seniorresident superior court judge appointsthe chief after receiving recommenda-tions from the local bar association.

Overseeing this vast, complex systemis the IDS (for the goals of IDS, see thesidebar on page 12). Created by theNorth Carolina General Assembly in2000, IDS is charged with overseeingthe provision of legal representation topeople entitled to counsel at state ex-pense, and with managing the indigentdefense fund, which now totals $108.5million per year.46 IDS carries out itsstatutory mandate with a central staff of8 full-time employees, 3 part-time em-ployees, and a small financial servicesdivision. IDS is governed by the Com-mission on Indigent Defense Services,made up of thirteen members selected byvarious appointing authorities, includ-ing the governor, the chief justice of theNorth Carolina Supreme Court, thespeaker of the North Carolina House,the president pro tem of the NorthCarolina Senate, and various bar groupsin North Carolina.47

Selected Training Programs for Defenders of Indigent PeopleTraining programs offered through the School of Government and funded bythe Office of Indigent Defense Services include the following:

New Misdemeanor Defender ProgramThis annual introductory program provides training in substantive law andprocedure in criminal district court, where misdemeanor cases are primarilyheard. Participants develop client-counseling, negotiating, and bench-trialskills through role-play and small-group work, and they engage in a discus-sion with prison inmates about the role of counsel and attorney-clientrelationships.

New Felony Defender ProgramThis annual program is an introduction to representing clients charged withfelonies in superior court. It covers topics such as discovery, motionspractice, and preservation of the record for appeal. Clients work in smallgroups to prepare a mock case for trial.

North Carolina Defender Trial SchoolThis annual five-day program is designed to help defenders hone their crimi-nal trial skills. Participants practice opening statements, closing arguments,examination of witnesses, and other trial skills based on their own cases.

Juvenile Defender Training Programs• The New Juvenile Defender Program is an introductory program that

covers topics such as communicating with child and adolescent clientsand crafting appropriate dispositions for juveniles adjudicated delinquent.The program includes role-play and small-group work as well as a visit toa juvenile detention center.

• The Annual Juvenile Defender Conference covers topics of currentinterest, such as school-related offenses and the constitutional rightsafforded to juveniles.

Parent-Attorney ConferenceThis annual conference provides training for attorneys representing parentsin cases of abuse, neglect, and dependency and termination of parentalrights. The inaugural conference in 2007 was a nuts-and-bolts trainingevent on representing parents. Future programs will address current topicsof interest, such as representing chemically dependent parents.

Civil Commitment and Guardianship TrainingCivil commitment and guardianship programs alternate each year and focuson issues specific to those kinds of cases, such as determining capacity.

A full calendar of events is available at www.indigentdefense.unc.edu.

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Since it began operating in July2001, IDS has implemented a series ofreforms. For example, it has developedstatewide attorney rosters—lists of at-torneys who are qualified for appoint-ment in various practice areas such ascapital trials and cases on appeal. It hasraised the rate of compensation to $95per hour in cases that may result incapital punishment, and to $75 per hourin noncapital cases. Also,it has created perfor-mance guidelines for rep-resenting clients at eachstage of the proceedingsfor criminal cases; juve-nile delinquency cases;abuse, neglect, and depen-dency cases; and casesinvolving termination of parental rights(for an excerpt from the performanceguidelines, see the sidebar on page 13).

Further, IDS has created publicdefender offices to serve five additionaldistricts and is conducting an ongoingevaluation to determine whether morepublic defender offices would be cost-effective or are necessary because of ashortage of private attorneys availableto handle appointed cases.48

National Attention to Educationof Defenders

Training for defenders of indigent peo-ple is recognized as a critical part of en-suring high-quality legal representation.Law school alone cannot sufficientlyprepare a new attorney for the rigors ofa defender’s job because it must providea general, substantive education in a wide

array of civil andcriminal subjects inonly three academicyears. A recent lawschool graduate mayhave taken only afew courses germaneto his or her practicearea. Criminal de-

fense is a specialized area that requiresin-depth knowledge of crimes andsentencing guidelines as a starting point.Beyond that, practitioners must be wellversed in constitutional law to knowwhether their clients’ rights have beenviolated, perhaps by an unlawful searchor a coercive police interrogation. Theymust have a firm grasp of the evidentiaryrules that govern what is admissible attrial so that they can prevent unlawful

evidence from being introduced, andthey must have honed trial-advocacyskills to screen prospective jurors, ex-amine witnesses, and deliver persuasivearguments. Criminal attorneys also mustbe aware of collateral consequences,such as whether a conviction may resultin eviction from public housing or de-portation from the country. Defendersof indigent people in particular work ina fast-paced, high-pressure settingwhere an error may have devastatingconsequences for the client.

National standards and guidelineshave emphasized the importance oftimely, comprehensive, ongoing, qualityeducation. In its 1992 Standards, sub-titled Providing Defense Services, the ABAdeclared that defenders must receiveshould fund such training to protect theright to counsel for indigent people. Therelevant standard, 5-1.5, states,

The legal representation plan shouldprovide for the effective training,professional development and con-tinuing education of all counsel andstaff involved in providing defenseservices. Continuing educationprograms should be available, and

The collaboration between IDSand the School of Governmentplaces the training of defendersin a university. This is unique inthe nation.

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public funds should be provided to enable all counsel and staff to attend such programs.49

In 2002 the ABA went further in its TenPrinciples of a Public Defense DeliverySystem, a practical guide for creating,funding, and improving public defensedelivery systems.50 The ten principles rep-resent “the fundamental criteria necessaryto design a system that provides effective,efficient, high quality, ethical, conflict-free legal representation for defendantswho are unable to afford an attorney.”51

Included among them is Principle 9,which mandates all-inclusive training ona par with that offered to prosecutors:

Defense counsel is provided withand required to attend continuinglegal education. Counsel and staffproviding defense services shouldhave systematic and comprehensivetraining appropriate to their areasof practice and at least equal to thatreceived by prosecutors.52

The National Legal Aid and Defen-der Association, an organization oflawyers dedicated specifically to repre-senting indigent defendants, promul-gated the Defender Training and Devel-opment Standards as “another attemptto promote and improve quality andcompetence in the delivery of criminaldefense services to the poor.”53 Standard1.1, titled “Training is Essential,” states,“The defender organization must pro-vide training opportunities that insurethe delivery of zealous and qualityrepresentation to clients.”54 Standard1.3, “Adequate Financial Resources,”states, “Defender organizations musthave adequate governmental fundingfor the resources to provide high qualitytraining opportunities consistent withthese standards.”55

Although the necessity of training isrecognized, the means of providing edu-cation in representation of indigent de-fenders in different states is as varied asthe defense systems in place there. Somestates boast a sophisticated, statewidetraining system, whereas others have noorganized, state-supported training func-tion. The states with statewide publicdefender systems and/or commissions inplace are more likely than those withoutsuch structures to have developed com-prehensive, effective training for the state.

North Carolina’s Response to the Need for Education of Defenders

Recognizing the importance of educa-tion to providing quality representation,the North Carolina General Assemblyincluded among IDS’s statutorily enu-

merated duties the following proviso:“Conduct training programs for attor-neys and others involved in the legalrepresentation of persons subject to thisArticle.”56 To fulfill that responsibility,IDS has partnered with the School ofGovernment at the University of NorthCarolina at Chapel Hill to provide ed-

Indigent Defense Manual SeriesThe North Carolina Indigent Defense Manual Series, produced by the Schoolof Government and funded by the Office of Indigent Defense Services, cur-rently includes the following titles, in order of publication:

North Carolina Defender Manual (Criminal Law)This loose-leaf manual is a reference for public defenders and others whowork in the criminal courts. Volume 1, Pretrial, covers such topics as capacityto proceed, obtaining of experts, motions practice, and the right to counsel.Volume 2, Trial, is partially complete and includes chapters on guilty pleas,the right to a jury trial, and jury selection.

North Carolina Civil Commitment ManualDesigned to assist the attorney representing an adult or a minor in civilcommitment proceedings, this manual reviews North Carolina mentalhealth and substance abuse laws pertaining to inpatient and outpatientcommitments and admissions.

North Carolina Guardianship ManualThis manual discusses the role and the responsibilities of attorneys whoare appointed to represent allegedly incapacitated adults in adult guardian-ship proceedings. It summarizes and analyzes relevant provisions of NorthCarolina’s guardianship law and discusses the legal standards for determi-nation of incapacity, appointment of guardians, and other significantaspects of guardianship proceedings.

Immigration Consequences of a Criminal Conviction in North CarolinaUsing a step-by-step approach to the immigration consequences of acriminal conviction, this guide explains the different types of immigrationstatus and the various criminal convictions that trigger removal of a personfrom the country (deportation) in light of his or her immigration status.Included is a detailed chart of immigration consequences of various NorthCarolina offenses.

North Carolina Juvenile Defender ManualRelevant law and practice pointers are provided for attorneys representingjuveniles in delinquency proceedings. Topics include initiation of proceed-ings, custody hearings, probable cause and transfer hearings, discovery,motions to suppress, plea negotiations, adjudicatory hearings, dispositionalhearings, probation, commitment, appeals, and expunction of records.

All the manuals are available for personal use, at no charge, on the School’sindigent defense education website, www.indigentdefense.unc.edu. Theyalso are available for purchase at a nominal price on the School’s Publica-tions website, http://shopping.netsuite.com/s.nl/c.433425/sc.7/category.-107/.f.

f a l l 2 0 0 8 17

ucation for public defenders and otherattorneys representing indigent defend-ants in North Carolina. This collabo-ration is unique in the nation. In noother state is the training function forrepresentation of indigent defendantscentered in a university.

Established in 1931 as the Instituteof Government, the School has a longtradition of serving public officials andthe court system by providing advice,research, and education. More than12,000 public officials attend trainingprograms at the School each year. Housedwithin the School is a “courts group” ofscholars that promotes justice in NorthCarolina by providing education tojudges, magistrates, prosecutors, clerksof court, and other participants in thecourt system. The School is dedicated topractical scholarship and public service.Supporting IDS in its efforts to providequality legal representation for the pooris a natural outgrowth of the School’smission.

By availing itself of the resources ofNorth Carolina’s largest research or-ganization, IDS is able to improve thestate’s overall system of providing in-digent representation by offering a high

standard of training in an efficient, cost-effective way. The current cost to IDS oftraining defenders of indigent peoplethrough the School is approximately$300,000 per year, which represents lessthan one-third of one percent of IDS’soverall budget of $108.5 million. IDSfully funds training for public defendersout of its budget. Private appointedattorneys who attend programs at theSchool are charged only for the cost ofproviding the training; neither IDS northe School profits from registration fees.

The School meets the need for educa-tion of defenders in several ways. It pro-vides formal educational opportunities,such as training programs, reference man-uals, and online educational materials,and it assists IDS in developing internaltraining and identifying training opportu-nities that other organizations provide.57

The School sponsors about twelvetraining programs per year, with IDSfunding the development and the ad-ministration of the events. Many of theprograms are geared toward trial at-torneys defending clients accused ofcrimes. Introductory programs for de-fenders who are new to a given practicearea are followed by programs targeting

experienced defenders. For example, anew attorney may attend the NewMisdemeanor Defender Program in hisor her first year to develop bench-trialskills for district court, and graduate tothe New Felony Defender Program oncehe or she begins to handle proceedingsin superior court. Experienced trialattorneys typically return to the Schoolfor the Defender Trial School to honetheir advocacy skills for all stages of trial.

The School also has developed pro-grams in noncriminal practice areas for which there is a right to counsel, including appellate practice; juvenile delinquency; abuse, neglect, and depen-dency; and civil commitment. As withcriminal trial practice, a two-tier systemis used in these specialized practice areas.An attorney who has started practicingin delinquency court will attend theNew Juvenile Defender Program andthen the annual special-topic seminarfor more experienced juvenile defenders.

Management training is offered an-nually to leadership in the IDS office andpublic defender districts to develop skillssuch as giving feedback to employees.

Program structures vary from one-day seminars to a five-day workshop,

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and favor interactive methods of teach-ing to increase skill development. Al-though some programs are open only topublic defenders in order to controlclass size and maximize learning, manyare open to private appointed counsel aswell. Following each program, trainingmaterials are posted on the IDS website,indexed by subject matter and program.(For examples of training programs, seethe sidebar on page 14.)

With funding from IDS, the Schoolhas produced the North Carolina Indigent Defense Manual Series, acollection of reference-quality manualson law and practice in representation of indigent defendants in North Caro-lina, including criminal trials, civilcommitment, guardianship, and juveniledelinquency. (For more details about the manual series, see the sidebar onpage 16.) All the manuals are availableonline at no cost. In this way, appointedattorneys across the state, numberingabout 2,800, have on hand a synthesisof complex legal issues, even if they areunable to attend the training programs.

To meet the needs of such a large,diverse group, the School has begundeveloping online training in collabora-tion with organizations like the NorthCarolina Administrative Office of theCourts and the North Carolina Bar As-sociation. Further, IDS has forged con-nections with other organizations thatprovide training and reference materials.Currently, all public defenders are

entitled to the benefits of membership inthe North Carolina Academy of TrialLawyers and may attend one of thatorganization’s seminars free of chargeeach year. On request and when fundsare available, IDS sponsors defenders ofindigent persons to attend continuinglegal education programs offered by theNorth Carolina Bar Association andother organizations in the Southeast.

Conclusion

North Carolina has a more structuredsystem of providing and overseeing rep-resentation of indigent defendants thanmany states do. Such a system has dis-tinct advantages. Among other things, ithas led to collaboration between theSchool and IDS. This collaboration hashelped to fulfill the promise of counselarticulated in Gideon by supporting andenhancing quality legal representationthrough education, which is essential toensuring justice for all people regardlessof socioeconomic status.

Notes

1. Gideon v. Wainwright, 372 U.S. 335(1963).

2. Johnson v. Zerbst, 304 U.S. 458 (1938).3. Betts v. Brady, 316 U.S. 455, 471 (1942).4. Before Betts, the U.S. Supreme Court

held in Powell v. Alabama, 287 U.S. 45, 68 (1932), that the right to counsel was afundamental right. In overruling Betts, the

Gideon Court reasoned that the Court inBetts had “made an abrupt break with itsown well-considered precedents.” Gideon,372 U.S. at 344.

5. Gideon, 372 U.S. at 337.6. Id. at 344.7. Douglas v. California, 372 U.S. 353

(1963) (direct appeals); Rothgery v. GillespieCounty, Texas, 554 U.S. ___ (2008) (SlipOpinion No. 07-440, decided June 23, 2008)(right attaches at initial appearance); Miranda v. Arizona, 384 U.S. 436 (1966)(custodial police interrogation); Coleman v.Alabama, 399 U.S. 1 (1970) (critical stages of preliminary proceedings); Argersinger v.Hamlin, 407 U.S. 25 (1972) (misdemeanorsin which imprisonment is imposed); Shelton v.Alabama, 535 U.S. 654 (2002) (misdemean-ors in which suspended sentence of impris-onment is imposed).

8. Massiah v. United States, 377 U.S. 201(1977).

9. In re Gault, 387 U.S. 1 (1967) (juvenileproceedings). See Lassiter v. Department ofSocial Services, 452 U.S. 18 (1981) (failure toappoint counsel for indigent parents in termi-nation-of-parental-rights proceeding did notdeprive them of due process under the specificfacts of the cases, but appointment of counselwas wise policy not only in such cases, butalso in dependency and neglect proceedings).

10. N.C.G.S. § 7B-602(a) (abuse, neglect,or dependency proceedings) (hereinafter G.S.);G.S. 7B-1101.1 (proceedings on terminationof parental rights). See G.S. 7A-451 (scope ofentitlement of indigent person to counsel).

11. McBride v. McBride, 334 N.C. 124(1993).

12. Robert F. Kennedy, speech at the NewEngland Law Institute, November 1, 1963, asquoted in National Association of CriminalDefense Lawyers, Gideon at 40: Understand-

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ing the Right to Counsel (Washington, DC:National Association of Criminal DefenseLawyers, 2002), www.landmarkcases.org/gideon/pdf/gideon_lesson_plan.pdf.

13. Virginia E. Sloan et al., “Gideon’s Un-fulfilled Mandate: Time for a New Consensus,”Human Rights, Winter 2004, 3–4, 13,www.abanet.org/irr/hr/winter04/gideon.html;Stephen B. Bright, “Counsel for the Poor: TheDeath Sentence Not for the Worst Crime butfor the Worst Lawyer,” Yale Law Journal 103(1994): 1835–36.

14. Abe Krash, as quoted in DouglasMcCollam, “The Ghost of ‘Gideon,’” Law.com,www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005534390.

15. Sloan et al., “Gideon’s UnfulfilledMandate.”

16. Strickland v. Washington, 466 U.S. 668(1984).

17. Id. at 676.18. Id. at 688.19. Id. at 689.20. Id. at 694.21. Messer v. Kemp, 760 F.2d 1080

(1985), cert. denied, 474 U.S. 1088 (1986).22. State v. Messiah, 538 So.2d 175, 187

(La. 1988), cert. denied, 493 U.S. 1063 (1990).23. Romero v. Lynaugh, 884 F.2d 871, 875

(1989), cert. denied, 494 U.S. 1012 (1990).24. Heath v. Jones, 941 F.2d 1126, 1131

(1991) (holding that defendant failed to showhe was prejudiced by counsel’s deficient per-formance), cert. denied, 502 U.S. 1077 (1992).

25. Williams v. Taylor, 529 U.S. 362 (2000).26. Strickland v. Washington, 466 U.S.

668, 688–89 (1984). 27. Williams, 529 U.S. at 396 (citing

1 ABA Standards for Criminal Justice 4-4.1,commentary, p. 4-55 (2d ed., 1980)).

28. Wiggins v. Smith, 539 U.S. 510 (2003)(counsel failed to present evidence thatdefendant’s mother deprived him of food aschild, forced him to eat garbage, had sex withmen while he was in same bed, and put hishand on hot stove; counsel also failed touncover that defendant was raped while infoster care and was living on streets at agesixteen); Rompilla v. Beard, 545 U.S. 374(2003) (counsel failed to look at prosecutor’sfile, even though counsel knew it containedevidence of defendant’s prior convictions forrape and assault that State intended tointroduce, as well as mitigating evidence).

29. Wiggins, 539 U.S. at 524–25.30. Id. at 524 (citing Strickland, 466 U.S.

at 688).31. Rompilla, 545 U.S. at 400 (Kennedy,

J., dissenting, joined by C.J. Rehnquist, J. Scalia, and J. Thomas).

32. The nineteen are Alaska, Arkansas,Colorado, Connecticut, Delaware, Hawaii,Iowa, Kentucky, Maryland, Minnesota,Missouri, Montana, New Hampshire, NewJersey, New Mexico, Rhode Island, Vermont,

Wisconsin, and Wyoming. SpangenbergGroup, Statewide Indigent Defense Systems:2005 (West Newton, MA: the SpangenbergGroup, 2005), www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf.

33. Arkansas, Colorado, Connecticut,Hawaii, Iowa, Kentucky, Maryland, Minne-sota, Missouri, Montana, New Hampshire,and Wisconsin. Id.

34. Massachusetts, North Carolina,Oregon, Virginia, and West Virginia. Id. Sincethe Spangenberg Group’s report was issued,Louisiana has established a public defenderboard with authority over indigent defenseservices statewide. LA. REV. STAT. ANN.§§ 15-141 et seq. (West 2007).

35. Spangenberg Group, Statewide IndigentDefense Systems: 2005.

36. Id.37. Sloan et al., “Gideon’s Unfulfilled

Mandate.” 38. Spangenberg Group, Statewide Indi-

gent Defense Systems: 2005.39. In one dramatic example, the Missis-

sippi legislature passed a sweeping reform actin 1998 to create a statewide system forrepresenting indigent defendants, but wasforced to repeal the act because of inadequatefunding. Sloan et al., “Gideon’s UnfulfilledMandate.”

40. E-mail from Danielle Carman,Assistant Director of the Office of IndigentDefense Services, April 23, 2008.

41. Id.42. This number refers to administrative

districts.43. Between fiscal year 2001–2 and fiscal

year 2006–7, total dispositions by publicdefenders and appointed counsel grew from175,833 to 266,527, a 51.5 percent increase.Data provided by the North Carolina Officeof Indigent Defense Services, ResearchDepartment, from the March 2008 study,Distribution of Indigent Defense Cases byPAC and PD Offices.

44. North Carolina Office of IndigentDefense Services, The Challenge: EvaluatingIndigent Defense, Conference Report (Raleigh:North Carolina Office of Indigent DefenseServices, March 2005), 2. About twenty-eightappointed attorneys are currently undercontract, according to IDS.

45. Defender District 1, covering Camden,Chowan, Currituck, Dare, Gates, Pasquotank,and Perquimans counties; Defender District3A, covering Pitt County; Defender District3B, covering Carteret County; Defender District 5, covering New Hanover County;Defender District 10, covering Wake County;Defender District 12, covering CumberlandCounty; Defender District 14, covering Durham County; Defender District 15B,covering Chatham and Orange counties;Defender District 16A, covering Hoke and

Scotland counties; Defender District 16B,covering Robeson County; Defender District18, covering Guilford County; DefenderDistrict 21, covering Forsyth County;Defender District 26, covering MecklenburgCounty; Defender District 27A, coveringGaston County; Defender District 28,covering Buncombe County; and DefenderDistrict 29B, covering Henderson, Polk, andTransylvania counties.

46. Indigent Defense Services Act of 2000(S.L. 2000-144; G.S. 7A-498 et seq.).

47. Executive Summary, Report of theCommission on Indigent Defense Services,(Raleigh: Commission on Indigent DefenseServices, March 2008), 1, www.ncids.org/Reports%20&%20Data/Prior%20GA%20Reports/final%20legislature%20report%202008.pdf.

48. Id.49. American Bar Association, ABA

Standards for Criminal Justice: ProvidingDefense Services (3d ed. Washington, DC:American Bar Association, 1992), Standard 5-1.5, www.abanet.org/crimjust/standards/defsvcs_toc.html.

50. American Bar Association,Introduction, Ten Principles of a PublicDefense Delivery System (Washington, DC:American Bar Association, 2002), www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf.

51. Id.52. Id., Principle 9.53. National Legal Aid and Defender

Association, Preface, The Defender Trainingand Development Standards (Washington,DC: National Legal Aid and DefenderAssociation, n.d.), www.nlada.org/Defender/Defender_Standards/Defender_Training_Standards.

54. Id., Standard 1.1.55. Id., Standard 1.3. NLADA’s training

standards are to be read in conjunction withits previously published standards, such asGuideline 1.2 of Performance Guidelines forCriminal Defense Representation, “Education,Training and Experience of Defense Counsel”:“(a) To provide quality representation, counselmust be familiar with the substantive criminallaw and the law of criminal procedure and itsapplication in the particular jurisdiction.Counsel has a continuing obligation to stayabreast of changes and developments in thelaw. Where appropriate, counsel should alsobe informed of the practices of the specificjudge before whom a case is pending. (b) Priorto handling a criminal matter, counsel shouldhave sufficient experience or training to pro-vide quality representation.”

56. G.S. 7A-498.6(8).57. More information about resources

provided by the School is available on its indigent defense education website,www.indigentdefense.unc.edu.