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| Sidney Cobb - Class of 2019 |
The book Gideon’s Trumpet details the story of a poor Floridian who changed our country. Clarence Earl Gideon was no stranger to the court system. Therefore, it was of no surprise to see him standing before the court on August 4, 1961. The trial was not a long one. Gideon pled not guilty and then fumbled his way through his defense. After being found guilty, Gideon was sentenced to the maximum penalty for his crime: five years served in the state penitentiary. Not once was Gideon offered to talk to a lawyer; in fact, when Gideon requested representation, his appeal was denied (Lewis). This served as the norm for State trials at the time. Appointed Representation was left to those physically or mentally unable to represent themselves, such as the mute or severely mentally handicapped rather than for the poor.
As Americans, it is hard to believe that this atrocity happened on a daily basis only fifty years ago. Today, we enjoy the right to be represented, regardless of our pay check. However, there is still much progress to be made in the area of legal representation. For example, appointed representation currently is only given in trials where the accused face a serious possibility of imprisonment; this means only in criminal trials. Many other facets of law are excluded, an important one being family court trials. Through analysis of the benefits of professional representation, the opinions of those in the family court system, and the immense impact of family court proceedings on larger society it is apparent that the right to appointed legal representation should be offered to parties in family court proceedings in cases. However, this prodigious goal cannot be easily achieved without calling into question many crucial aspects of the judicial system.
Family court is a division of the judicial system dedicated to those legal disputes that happen within a family. Unlike criminal court, family court's "primary purpose is to stabilize and preserve families by solving practical problems, rather than to determine guilt” (Schoonmaker 2). However, this contrasting purpose does not lessen the parties need for zealous representation in family court. Many fail to realize that family court jurisdiction spans from divorce cases to heated custody battles, domestic violence trials, and the abuse and neglect of children. All of these issues are very serious and can have dangerous effects on the lives of those involved and to society as a whole if not properly resolved. Therefore, when the lives of people in the most basic familial aspects are uprooted, our country must have a comprehensive way to address the issues.
Family court is an intricate maze of documentation, forensic investigation, and courtroom appearances obfuscated with legal jargon and paperwork. Provda Law firm, a well-known group of lawyers on Wall Street commissioned this infographic to detail the difficult process in one component of family court: custody cases. The system in New York is comparable to those around the United States— a construction involving 23.4 million children under the age of 21 and $37.9 billion dollars in child support according to 2011 U.S. Census data. As one can see, the third step in the course of action is to hire a lawyer; however, what does one do when they can’t afford a lawyer? This can mean serving as a pro se litigator (being one’s own lawyer). The flowchart also points out that the child is appointed an attorney shortly after the trial begins. This, however, does not always happen and isn’t required in many states. Too often children are granted representation only in cases involving abuse and neglect, leaving the interests of many children unheard. The importance of representation is exaggerated in the case of children—they lack sufficient education and maturity to represent their position effectively—suggesting the dire need for representation in family court to be reevaluated.
Furthermore, pro se litigation has become more challenging as history has progressed. Just as the evolution of law in Gideon’s case called for free representation in criminal court, it has now come for that right to extend into the familial sphere. This begins with the consideration of what a lawyer in family court does: peruse the conventions of the law in order to present the client's interest clearly to the judge. This role relies on the conclusion that the family court system is too complex for the layperson to understand and apply effectively with no training. I can personally attest to this conclusion based on my own experience in observing multiple family court cases. After observing several cases during my first trip to family court, I had many questions regarding court mechanisms I was unfamiliar with such as emergency protective orders, CAC interviews, and mediation hearings.
As a person currently in a prelaw track, it is easily concluded that, if these proceedings were too complex for me to understand without performing further research, it would be too complex for the average person to understand, much less apply to further their case. If they cannot do this effectively for themselves then they need trained counsel to help them.
It is also necessary that the trained counsel be a lawyer that is present for the entire process. For example, according to a mediator, the person who works with families outside of the courtroom to resolve issues, I interviewed, “even I sometimes need clarification about complicated proceedings and cases” (Mikklavcic). This demonstrates how complicated the field is, even for people who work closely with the system. Lawyers, on the other hand, spend many years in vigorous preparation so that they can navigate these customs of family court to best represent their clients. With this knowledge gained in their schooling, lawyers can present their client’s case accurately to the judge, something that the client alone could not do, justifying the necessity of a lawyer in the attainment of a fair trial even in family court.
Having a lawyer is important for another, equally important fifth amendment reason as explicated in this political cartoon by Maddy and Stu Rees. It is pointed out in the conversation between the defendant and the judge that choosing to represent oneself makes you an “idiot” (Rees). Beyond the improved knowledge of the court systems, a lawyer also serves as an emotionally detached, non-participatory party in legal proceedings. For example, a supreme court ruling in Kay v Ehrler states that, “even a skilled lawyer who represents himself is at a disadvantage in contested litigation because ethical considerations may make it inappropriate for him to appear as a witness, and because he is deprived of the judgment of an independent third party during the litigation.” (Ehrler). Most lawyers hold this view, believing the old adage that “a lawyer that represents himself has a fool for a client”. They too recognize the benefit of having a separate, objective viewpoint. Additionally, it is no surprise that family court is often exceptionally emotional. I, for one, cannot imagine the apprehension and fear of a mother going in front of court to discuss who gets to raise her child. Trying to deal with this distress, as well as being thrown into a complicated system of law in which one lacks formal training, is something that no one should have to do. And, besides being overtly difficult it can also have large negative effects on family and society.
A dysfunctional court system, such as the one America holds now, is poisonous to familial life. I experienced the consequences of such a system first-hand as I spent a day observing proceedings in Franklin County’s family court. I distinctly remember sitting at the clerk’s table, taking notes, when an elderly couple approached the bench. They were poor, and thus were not accompanied by a lawyer. They approached the judge to ask for the custody of their grandchild, whose mother had recently passed. The father of the child had a history of drug abuse, and the grandparents feared desperately for the child’s wellbeing. To everyone in the court room, it was clear that this story was true, yet, in the judge’s own words, “his hands were tied” (Williams). Without the proper paperwork and filing of motions the judge could not act on the custody, leaving the child in a potentially unsafe, unhealthy environment. Had a lawyer been present in this case, the proper paperwork would have been filed and custody would most likely have been rewarded to the grandparents. This case, however, is not unusual. Everyday thousands of children and families face similar issues, all because lawyers were not there to help them navigate the complex family court system.
Beyond the sufferings borne by parties in family court, cases like these have dire societal consequences for the United States as a whole. For example, the Supreme Court has ruled repeatedly on the importance of creating the best possible lives for children such as in free education and countless programs to ensure that children’s basic needs are met. This right in education was even extended to children with status as illegal aliens in Plyler v Doe (Love). This inequity reveals the contradiction of family court: how can we care so deeply about our children and let them fall into potentially damaging home lives like the child previously mentioned? As a society, we must also recognize the larger consequences this tragedy has. A recent study by the National Bureau of Economic Research found that child maltreatment and abuse doubles the probability of engagement in crime, with sexual abuse having the greatest effect (Grall). By allowing these children the right to representation, crime rates can potentially drop, benefitting our nation socially, as crime is identified as a prominent social issue.
This crisis, however, cannot be fixed through the judiciary alone. In order to fix this immense issue all three branches, regardless of party, must come together. Many falsely blame the problem on insensitive judges and lawyers within the system, however, this is far from the truth. To properly resolve any case in family court, it is the duty of each party (or their lawyers) to fully explain the case and the precedents surrounding the issue at hand so that the judge can make the best possible decision. Judge Williams, a revered judge in the Franklin County family court, expressed his frustration with many cases, explaining that, “[he] can only judge the information in front of him”; therefore, a poor presentation of information can lead to a poor decision. (Williams). Of course, judges in family court will always do their best to come to the most appropriate and fair conclusion; however, they have little control over who—a lawyer or pro se litigator—stands before them. This is where a lawyer’s presence in trial proceedings becomes necessary.
Further complicating the resolution of the issue is the strain on resources already felt by public defenders and the judiciary system. As the graph depicts, public defenders are already limited in the amount of time they can dedicate to litigating a case to the best interest of the client. The average hours needed to efficiently argue a case exceeds the available time in every subsection. This means that public defenders hardly ever match up to their commissioned counterparts and are often censured for being ineffective—hardly better than self-litigating. Adding family court issues to this load would double the strain on this already crippled system.
Additionally, existing public defenders trained in criminal law would most likely be inadequate in perusing the world of family court that encompasses different protocols and philosophies. It has been previously determined that knowledge of court conventions, whether in family or criminal court, is crucial to the success of one's representation. Law professional Schoonmaker says of the issue, "Criminal law and family law serve different, incompatible purposes. Perhaps not surprisingly, few lawyers are proficient in both areas” (Schoonmaker). Because public defenders are trained in criminal law, it is implied that they will lack success in family law. I have experienced this in my shadow experience. I witnessed a case where the client was being held in contempt of court, a crime that holds possible jail time, therefore a public defender was appointed to represent her. This public defender muddled her way through the proceedings due to lack of knowledge in family court procedure, causing her to be ineffective in representing her client. Consequently, it seems that in order for representation to be effectively given in family court systems a separate public defense system would need to be established.
However, this does not negate the necessity of legal representation, nor does it suggest that the creation of such a public defense cabinet can not be achieved. This is only to say that this right, which should be enjoyed by all peoples, must be provided in innovative ways. First, we must address existing problems in our legal system. This could include restructuring of the public defense system, such as creating more requirements for law students and practicing lawyers to participate in public defense programs. Second, we must continue to care for and listen to the rights of all people, no matter how small. With more consideration about how lawyers are appointed to parties in court and to what standard these lawyers are held will help immensely in improving our judicial system and therefore our entire society, both in family court and beyond.
Professional opinions, the effects of representation both good and bad, and the impact of family court proceedings on society depict how crucial representation in family court is. Although achieving free counsel in family court won’t be easy, it can be done through reevaluation of some basics our society takes for granted in the way our judicial system is run. Gideon paved the road for appointed counsel in criminal law. Soon, the time for a Gideon in this generation will stand and call for the fulfillment of this right. I only hope that we, as Americans, can listen.
Works Cited
Custody Process NY. Digital image. Infographicsmania. Provda Law Firm, 23 Sept. 2013. Web. 8 Oct. 2015. .
Grall, Timothy S. Custodial Mothers and Fathers and Their Child Support: 2011. N.p.: US Department of Commerce, n.d. Census.gov. Oct. 2013. Web. 8 Oct. 2015. .
Hanlon, Steve. “Needed: A Cultural Revolution.” Human Rights 39.4 (2013): MasterFILE Premier. Web. 5 May 2014.
Kay v Ehrler. US Supreme Court. 16 Apr. 1991. Case Law. N.p., n.d. Web. 8 Oct. 2015. .
Lewis, Anthony. Gideon's Trumpet. New York: Random House, 1964. Print.
Love, Emily Wexler. "Plyler v. Doe." Encyclopedia of Education Law. Ed. Charles J. Russo. Thousand Oaks, CA: SAGE Publications, Inc., 2008. 646-54. SAGE knowledge. Web. 18 Oct. 2015.
Mikklavcic, Jennifer. E-mail interview. 15 Oct. 2015.
Recommendations vs Reality: Time a Public Defender Should Spend on Caseload Annually. Digital image. Motherjones. Bureau of Justice Statistics, 2007. Web. 08 Oct. 2015. .
Rees, Stu, and Maddy Rees. "Fifth Amendment Rights." Stu's Views N.p.: Maddy and Stu., n.d. Web. .
Schoonmaker, Samuel V. “Criminal Law or Family law: The Overlapping issues.” Family Law Quarterly 44.2 (2010): 155-167. Academic Search Premier. Web. 12 May 2014.
Williams, Squire. Personal Interview. April 16, 2014.
Sidney Cobb, of Frankfort, Ky., is a sophomore McConnell Scholar studying history and political science.