The Color of Gideon

When people argue about putting more public defenders and civil rights lawyers, black or women, on the bench, I wonder whether they have any clue how courts work. Do people believe that the defendant is brought into court, looks up at the person in the black robe on the bench and gets to say, “Nope, you don’t look like me. Next!”? If you’re a man who gets a woman judge, tough luck. A black defendant with a white judge? Bummer. An ex-prosecutor judge? Sucks to be you. You don’t get to pick your judge.

There are judges we prefer and judges we don’t, and they don’t necessarily align with the simplistic assumption that color, gender or prior position means a judge will be more favorable. It’s the luck of the draw. Unless the prosecution has gamed the system to get a case moved to their judge of choice, a name is pulled from the wheel and that’s the judge you get. There are plenty of judges you believe would be better, more understanding, more accommodating, more similar in appearance, to you? So what? You get who you get. Nobody asks a defendant to approve.*

But what about the lawyer? The Sixth Amendment, per Gideon, requires that a lawyer be provided to indigent defendants. The lawyer should be capable of providing competent representation, a duty too often honored in the breach. But defendants don’t get to pick their lawyer. They get who they get.

Assuming the lawyer to be competent, or at least as capable of competence as any other lawyer to be assigned to defend them, is that as far as Gideon goes? Alexis Hoag makes a very provocative argument that it should go farther.

To help combat structural racism, representation matters. This applies to health services & education. I argue it applies to criminal defense as well.

My paper, "Black on Black Representation," is heading to @nyulawreview , Vol. 96, Nov. 2021. https://t.co/bdxIxkpQl1

— Alexis Hoag (@alexis_hoag) February 13, 2021

Before anyone jumps on either the title or the concept, consider the merits of her purpose.

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Putting aside the unfortunate limitation of making this only about race, and only about black defendants, there are a lot of assumptions baked into this notion that will make experienced defense lawyers cringe. But to be fair, if a defendant believes that his lawyer lacks the experience of the defendant’s life and world, and therefore either can’t relate to the client or fails to understand the forces that gave rise to the underlying conduct, is it not fair to say that a defendant will be denied effective assistance of counsel? A defendant who privately retains counsel can choose the lawyer he trusts. Is there a reason why indigent defendants should not be granted that trust that their lawyer “gets” them as well?

The law, as it stands, does not allow for such accommodation. While the lawyer assigned to an indigent defendant, whether by a public defenders office or through whatever indigent representation services the jurisdiction provides, might be sufficiently flexible to provide a defendant with their lawyer of choice as a matter of courtesy, it does not accommodate a defendant’s demand for a lawyer of a certain race. Indeed, it would be against the law to assign lawyers based on race. And what of hiring lawyers based on race so that there are enough lawyers to accommodate the demands of black defendants? Title VII, anyone?

Whether this contention raises a serious concern in the trenches, as opposed to the legal academy, is unclear. Having represented many black defendants, who came to me by choice (often ironically telling me they want a “Jew-lawyer”), experience suggests that defendants are less concerned about the race of their lawyer than the effectiveness. If you get them out, they love you. If you don’t, they don’t.

Then there’s the tactical choice. If a black guy is accused of raping a white woman, the smart tactical choice is a white woman to defend them. She may not share their black experience, but they create the best appearance for the jury.

Hispanic defendants, on the other hand, often choose an Hispanic lawyer, not so much because of culture as language. If they don’t speak English, or at least not very well, and the lawyer speaks Spanish, it makes communication infinitely easier. It makes sense, particularly since defendants tend to believe that lawyers are otherwise fungible.

To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust; factors that the American Bar Association identifies as integral to criminal defense. Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine. The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to poor people.

Whether this is what black defendants, or for the less race-obsessed, any defendant, wants of his or her criminal defense lawyer, there is nothing wrong with trying to accommodate the desires of defendants and facilitating trust between counsel and client. These are good things, even if zeal and competence might be more important than race or cultural competence. Then again, there’s no reason why black lawyers, or women lawyers, or trans lawyers, or Spanish-speaking lawyers, can’t be as zealous or competent as anyone else. Race doesn’t make one competent, but it doesn’t preclude it either.

• Some state jurisdiction allow parties to reject the first selected judge, but they then have to live with the second judge.