The Most Overworked, Underfunded 'Army' in American History

On Monday, HBO premiers the documentary Gideon's Army, a searing look at the ways courts fall short on the Sixth Amendment right to counsel.
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Dawn Porter/HBO/Vimeo

If you have a spare 95 minutes this week, or even if you don't, please find the time to watch Gideon's Army, a stomach-punch of a documentary that brings to life the Sixth Amendment by following the trials and tribulations, literally, of three young, overworked, underpaid public defenders in the South. Premiering Monday night on HBO, the film personifies the wide gulf that exists in America today not just between rich justice and poor justice but between the 50-year-old guarantee of a constitutional right to counsel and the grim reality that exists today for millions of indigent defendants.

In this sense, and many others, the film is a gift to the nation from a woman named Dawn Porter, a litigator who left her big law firm to highlight a problem of law and politics that impacts the lives of tens of millions of Americans each year. The story is a familiar one to anyone who follows our criminal justice system: the "right to counsel," guaranteed by the Supreme Court in Gideon v. Wainwright, is today often a hollow shell, more often recognized in the breach, the victim of inadequate funding for public defenders, the over-criminalization of American law, and an indifferent Supreme Court.

It is one thing to make such assertions. It is another thing to establish them with evidence. And it is altogether something more to give visual meaning to the proof. What do advocates mean when they say that millions of Americans today do not have a meaningful right to counsel? What do they mean when they say that every day in this country citizens are convicted after "meet-and-greet" plea deals? What about debtors' prisons? The genius of this film is that it brings the law to street level. There, the tragic flaws in our legal system are not theoretical; they are not mere words on a page of a treatise or a judge's decision; they are very, very real.

The Soldiers

Gideon's Army focuses upon three "soldiers" -- Travis Williams, Brandy Alexander, and June Hardwick -- who are, it is not unfair or unkind to say, swimming in very deep water. We see them overwhelmed not just with the physically exhausting core of their craft -- investigating allegations against their clients, writing briefs, appearing in court -- but with the emotional consequences of their work. They are the ones who have to tell a mother that her son has to stay in jail because there is no money to make bail. They are the ones who go to sleep every night knowing there weren't enough hours in the day to get done all that had to be done.

We see these young people, in other words, doing all they can, often just barely enough, for their clients. We see them moving from one case crisis to another -- always juggling too many pins in the air -- as they seek to defend their clients from the power of the state. They are not heroes. They are ordinary people, patriots really, who are forced into daily acts of heroism because of the demands of the broken justice system in which they serve. It's not complicated. "Public defenders NEED significantly smaller caseloads," Alexander told me last week. "Public Defender Offices need SIGNIFICANTLY more funding."

Alexander says she believes the film has begun to change public perceptions about public defenders. I hope that is true, but I fear it will not be enough. The crisis in indigent defense, the continuing daily violations of the rights of low-income defendants, will not ease until judges and prosecutors and lawmakers come to believe they have a moral duty to fulfill the mandate of Gideon. And I fear that will not occur until those policy makers come to understand we all lose when our fellow citizens are imprisoned for months without trial, or forced into plea deals, or convicted with a level of "due process" that would be laughable if it weren't so sad.

The Generals

As a narrative, it would be convenient if the supporting actors in the drama of Gideon's Army were unambiguously evil. But they are not. In the film, and in real life, not all judges are former prosecutors who are predisposed to making life difficult for defense attorneys and their clients. Not all district attorneys are willing to cheat defendants out of their constitutional rights. Not all witnesses are government snitches. What's so striking about the film is the sheer banality of the universal deprivation of rights. It is the machine itself, and not necessarily its individual cogs, which is manifestly unjust to indigent defendants.

If they have not yet been so moved, the "bad" actors in the system are unlikely to be moved by the film's message. But it is directed, at least it should be directed, toward the more numerous "good" actors within the nation's criminal justice systems. It is in their hearts and minds that this battle eventually will be won. The honorable judge who views this documentary should work harder afterward to better ensure the rights of indigent defendants. The honorable prosecutor should remember his or her oath of "doing justice" and not simply winning cases. The honorable lawmaker should pledge to better fund these defense lawyers.

I got angry watching Gideon's Army, and I got sad watching it, and its details confounded me. I write about these issues all the time -- I talk the talk -- but the protagonists of the film are the people who walk the walk. They do so in full knowledge of the enormity of their task and of the obstacles that have been placed before them by the law and by politics, and yet they wake up every day and try to do their best. America has had more famous armies. It has had more successful armies. It has had more powerful armies. But it has rarely fielded an army worthy of so much respect and admiration than the one that troops into our courtrooms every day. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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