Department of Justice Files Amicus Brief in Idaho Right to Counsel Case

The Department of Justice filed an amicus curiae brief late yesterday in the Supreme Court of Idaho in Tracy Tucker et al. v. State of Idaho, et al.  The brief articulates the United States’ position that criminal defendants who cannot afford an attorney may bring a prospective civil lawsuit to prevent violations of their constitutional right to counsel under the Sixth Amendment rather than waiting to bring claims following a conviction that resulted from inadequate representation.

The department’s brief focuses on the importance of such prospective civil claims to uphold the right to counsel and to ensure that states comply with the Supreme Court’s ruling in Gideon v. Wainwright, which held that all persons are entitled to a lawyer even if they are too poor to pay for one.

“This country is dedicated to the idea that every single person is entitled to equal justice under the law, regardless of wealth or prominence,” said Attorney General Loretta E. Lynch.  “The right to adequate counsel is an essential safeguard of our commitment to equal justice – and it is the responsibility of the states to protect that right, to uphold that principle, and to ensure that every defendant has access to competent counsel.”

“Our country and our Constitution guarantee all people – regardless of their money or their means – equal access to justice,” said Deputy Assistant Attorney General Gregory Friel of the Civil Rights Division.  “Even today in the 21^st century, too many poor defendants find that, in reality, the promise of Gideon seems distant and out of reach as they try to navigate our legal system and secure their rights.”

“Indigent defendants must have the ability to bring prospective civil claims for the constructive denial of counsel,” said Director Lisa Foster of the Office for Access to Justice.  “Foreclosing this type of claim would prevent courts from effectively remedying systemic violations of Gideon.”

“The criminal justice system works well only when indigent defendants are adequately represented,” said U.S. Attorney Wendy Olson of the District of Idaho.  “The Constitution guarantees this right.  The purpose of this brief is to ensure that indigent defendants in Idaho have a meaningful legal tool to effectuate that constitutional right when the provision of public defense is failing on a system-wide level.”

In Tucker, plaintiffs allege that their Sixth Amendment right to counsel has been violated by the state’s failure to provide adequate resources to support effective defense services for poor defendants.  According to plaintiffs, due to insufficient oversight, training and funding, public defenders across the state are unable to engage in many of the basic functions of representation, including meeting with clients in a meaningful way prior to critical stages of their legal proceedings, conducting a significant investigation into their cases, filing substantive motions, retaining experts to challenge the prosecution’s allegations or devoting the time necessary to prepare for hearings and trials.  The plaintiffs claim that the conditions are systemic and widespread such that defendants in Idaho who cannot afford an attorney are constructively denied their right to counsel.

In its amicus brief, the department clarifies the distinction between filing a civil suit prior to conviction based on a state-wide constructive denial of counsel under Gideon, and a civil suit filed after conviction based on ineffective counsel in a particular instance under Strickland v. Washington.  The amicus brief explains that the plaintiffs’ complaint “is not with their individual lawyers’ competence” but with the state’s systemic failure to provide legal representation to defendants who cannot afford it, a fundamental right recognized by the court in Gideon.  The department’s brief also notes that there is no legal barrier to bringing such a civil suit prior to conviction, and moreover, that seeking prospective injunctive relief is the only way a court can identify and remedy system-wide noncompliance with Gideon.

The trial court ruled that plaintiffs could not bring a prospective civil claim for constructive denial of counsel.  The Idaho Supreme Court will now consider whether plaintiffs’ claim can proceed.

This brief represents the department’s second filing to address the right to counsel in a state’s highest court.  In September 2015, the department filed a similar brief in the Supreme Court of Pennsylvania in Adam Kuren, et al. v. Luzerne County et al.  The Pennsylvania Supreme Court has not yet ruled in that case. 

Tucker v. Idaho Amicus Brief