Adnan may or may not have committed the murder, but we can have no confidence in his conviction because Gutierrez failed to put up a vigorous fight. Yet, to this day, he remains in prison. Today, a decade and a half later, the criminal justice system must wrestle again with whether to reopen Adnan’s conviction to make up for his shoddy defense.
Adnan’s case was not alone. About a dozen of Gutierrez’s other clients said they had paid her, and sometimes she had come back to them asking for more, but she had not filed their pleadings in court. Gutierrez stopped communicating with her clients and has also been accused of seeking publicity and failing to pass along plea-bargain offers.
Gutierrez’s dishonesty and uncommunicativeness were predictable and preventable. When she applied to become a lawyer, the Maryland bar authorities were warned that she had been convicted of shoplifting and apparently had lied about her surname to the police to hide that conviction. She had also omitted the conviction from her law school and job applications, yet Maryland’s highest court admitted her to the bar. As the dissenting judge put it, “Given this young woman’s prior record, how can we know that her demonstrated qualities of dishonesty, untruthfulness, and lack of candor will not again rise to the surface?”2 A year after Adnan’s conviction, after multiple clients had filed complaints with Maryland’s Attorney Grievance Commission, the Commission found that client money that Gutierrez should have safeguarded in a trust account was simply gone. Gutierrez agreed to her own disbarment rather than fighting the charges.3 The bar authorities failed in their mission to ensure justice by ensuring high-caliber lawyering.
Adnan’s case is extreme, but not unusual. Appointed criminal defense lawyers are often wildly overburdened and so plead their clients guilty as quickly as they can. Right now, somewhere in America, an innocent criminal defendant faces very serious criminal charges with almost no hope of a vigorous defense.
Readers with even a passing familiarity with the U.S. Constitution may find this fact puzzling. America is a nation founded on justice and the rule of law. We declared independence from England in part because King George III had repeatedly interfered with colonists’ legal rights and “the Administration of Justice.” Our Constitution is a legal as well as a political charter of liberties and limits on power, and the Pledge of Allegiance ends by affirming that our nation stands for “liberty and justice for all.” Carved on the east face of the Supreme Court building in Washington is the inscription “Justice, the Guardian of Liberty.” For more than five centuries, the statue of Lady Justice has been depicted blindfolded, to guarantee equal justice to rich and poor alike. Since 1963, Gideon v. Wainwright has guaranteed a free lawyer to any felony defendant who cannot afford to pay for one. But, all over the country, Gideon’s promise of justice for all is undercut by poorly funded indigent defense systems and overloaded defense counsel. Gideon is among America’s most famous and beloved Supreme Court cases, and rightfully so. It is virtually impossible to represent oneself properly on felony charges in an American court. Nevertheless, Gideon and the cases that have followed it have hardly eliminated fundamental unfairness in America’s criminal courts. Moreover, appointed criminal defense lawyers and legal aid are only for the truly poor—people below or close to the poverty line. But middle-class people are at least as likely to face legal problems, and to face them alone.
The situation in America’s civil courts may be worse. Mothers seeking child support, tenants fighting eviction, and laid-off workers claiming unemployment or disability benefits usually cannot afford lawyers. They routinely endure long delays and great difficulty navigating courts by themselves before they can receive justice. In many courts, pro se (without a lawyer) litigants face substantial challenges: confusing procedures, complicated laws, and hostile judges and clerks. In a 2010 American Bar Association survey of state court judges, 94% stated that unrepresented parties fail to present necessary evidence; 89% said they suffer from procedural errors; 85% said they fail to effectively examine witnesses; and 81% noted that they are unable to object to improper evidence offered by an opponent. A simple Google search for “pro se divorce nightmare” lists story after story of litigants proceeding pro se and encountering every sort of obstacle: hostile clerks, confusing procedures, bad paperwork, weird legal terminology, and angry judges. Pro se litigants are at a deep disadvantage when they must face off against represented opponents. A divorce case is naturally upsetting; feeling railroaded by an opposing lawyer and the judge compounds the stress and anguish of going through a divorce.
Both civil and criminal courts in America rely heavily upon lawyers to process cases. In criminal court, most defendants have lawyers (overburdened and underpaid, but lawyers familiar with the process nonetheless). In civil courts, the number of pro se matters (cases where one or both of the litigants does not have a lawyer) is staggering and on the rise.4 In Maine, 75% of family matters involve at least one pro se party, 88% of tenants are unrepresented in eviction actions, and 80% of all litigants in protective order cases are pro se. In New York City evictions, 88% of tenants are unrepresented and 98% of landlords are represented. In Washington, DC, 98% of tenants are pro se and 93% of landlords have lawyers.
In Milwaukee, 70% of family-law litigants resolve marital status, custody, and child-support issues without counsel each year. In Philadelphia, 89% of child custody litigants lack the assistance of counsel in proceedings that determine who will parent their children. In California, 80% of family law cases involve at least one party proceeding pro se.
The rate of pro se litigation was not always so high. In the 1970s, unrepresented parties were rare, appearing in fewer than 10% to 20% of cases. Between then and now, we have seen a dramatic and accelerating increase. The Chief Justice of the California Supreme Court cited a 35% rise in the number of pro se litigants in 2009 alone. The number of pro se bankruptcy petitions grew 187% from 2006 to 2011, more than twice the overall rate for bankruptcies.5
In 2014, the World Justice Project (“WJP”) ranked ninety-nine countries on access to civil justice and access to criminal justice. America finished twenty-seventh in civil justice (between Chile and Botswana) and twenty-second on criminal justice (between France and Botswana again).6 Nor is the WJP some international body that was created to embarrass the United States; it was founded by the American Bar Association and is headquartered in America.
Former Harvard President Derek Bok famously noted that “[t]here is far too much law for those who can afford it and far too little for those who cannot.”7 Our laws and procedures are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases, lacks a private investigator or other support, and immediately urges them to plead guilty. Civil litigants are worse off; usually, they get no help at all navigating the maze of technical procedures and rules. The same is true of those seeking legal advice, for instance in planning a will or negotiating an employment contract.
There is a paradox here. America has more lawyers than any country in the world, and law schools are graduating more new lawyers than there are jobs. Yet legal education and legal advice are horrifically expensive. Even a small firm’s legal help costs $150, $200, or more per hour. And in our adversarial system, having a good lawyer on your side matters a lot. But not many people can afford even a few hours’ help at those rates, and this problem extends beyond the poor to reach most Americans. If you need to get a divorce, file for bankruptcy, or defend yourself against a charge of driving under the influence, you will quickly learn how expensive legal help is.
This is not a well-functioning market: Lawyers and judges have written the rules in ways that make them expensive to navigate, sometimes out of a laudable desire for perfect fairness and sometimes to protect lawyers’ turf