ILNews

Judge advocates expanding Gideon to provide lawyers in non-criminal cases

Marilyn Odendahl
July 31, 2013
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While some legal scholars lament the deterioration of Gideon v. Wainwright 50 years after the landmark Supreme Court of the United States decision, Marion Superior Judge David Dreyer is calling for an expansion of the principle to include civil litigants.

dreyercivil-15col.jpg Marion Superior Judge David Dreyer (IL Photo/ Aaron P. Bernstein)

He has put his ideas into an academic article and plans to continue his research for his dissertation work at the National Judicial College. The basic premise of his paper is that in almost every civil case, people should be assured of having access to legal advice and representation. Without that, the fairness of the judicial system becomes questionable.  

“What’s at stake to me is the rule of law because, to me, ensuring access to justice in civil cases for everyone is a basic tenant of national security and civil order,” Dreyer said. “If people felt like they had redress, which we say we do in America, then there would be less alienation.”

His paper, “Déjà vu All Over Again: Turner v. Rogers and the Civil Right to Counsel,” which is to be published in Drake Law Review, examines the history and court opinions on civil right to counsel. It also pays attention to the barriers to obtaining counsel and the consequences of not having representation.

Dreyer looks at the idea of civil right to counsel through the U.S. Supreme Court case Turner v. Rogers, 131 S. Ct. 2507 (2011).

In that case, a South Carolina man who was $5,728.76 behind in child support payments was jailed for 12 months after a civil contempt hearing. Both parties were unrepresented by counsel at trial.

Once the man was released, he argued the U.S. Constitution entitled him to counsel at his contempt hearing. The majority found that the Due Process Clause of the 14th Amendment does not require civil counsel be provided to indigent individuals at contempt hearings even if that individual’s liberty is at stake.

Dreyer believes the court accepted the case because it wanted to take a close look at the notion of civil right to counsel. In fact, he maintains, the justices really wanted to grant this right but, in the end, they couldn’t.

Some advocates for civil counsel see progress in the ruling, or at least read it as better than nothing. Dreyer understands that point of view but also agrees with the opposite interpretation that the decision is really the same decision that has been handed down by courts in years past.

Hence, he turned to baseball legend Yogi Berra to encapsulate what the Turner v. Rogers ruling is: “Déjà vu all over again.”

Dreyer asked: How can it be fair when people do not have access to advice and representation from lawyers because they do not have money? He, along with others, thinks that question has never been satisfactorily answered, and he is not convinced it could ever be fair.

“If you don’t have a lawyer, you’re not represented,” Dreyer said. “What we’re being pushed to is the acceptance of a system where people won’t have lawyers and that’s OK. And we shouldn’t be having that.”

Getting the data

Dreyer now wants to shift his focus to putting hard numbers to the debate over civil right to counsel. Currently, the arguments are all theoretical since no tangible, practical calculation exists.

Indeed, he noted, the idea that we cannot have due process in some situations without lawyers is not based on any hard data or empirical evidence.

Dreyer plans to compare the experiences and outcomes between those who are and are not represented by an attorney. He hopes to reach beyond Indiana and include other jurisdictions in the United States and, perhaps, abroad.

His tentative hypothesis reflects his concerns over fairness: “The data will show that a lack of access to advice and representation almost always, if not always, is a significant and substantial impediment,” he said. “It affects results. It affects justice. It affects the quality of people’s lives who are involved in the system.”

Mandatory access

Dreyer’s call for a civil right to counsel is an extension of his earlier push to change the legal profession’s thinking about pro bono. In his 2009 paper, “Culture, Structure, and Pro Bono Practice,” Dreyer advocated for the profession to help indigent clients by moving away from primarily relying on the attorneys’ personal preference to do pro bono and instead mandate lawyers to provide access to the courts, although he left open what that exactly means for attorneys.

Coining the term “mandatory access” to replace the “outdated ‘pro bono’ professional idea,” the Marion County judge wrote in 2009, “Instead of considering only what is preferred by the profession, we must focus on what is necessary to maintain the system.”

Four years later, Dreyer sees a real chance for creativity and ingenuity in determining how to provide civil litigants access. He is welcoming to all approaches that achieve that goal.

Some of the new ideas for providing civil representation, he said, might involve bolstering financial resources, possibly through higher filing fees. Another possibility is that money could be shifted within pro bono programs to pay attorneys, or a voucher system could be created where the indigent clients could pay with a voucher, which the lawyers could then cash.

Dreyer also suggested that resources could be diverted from poor relief into legal services. This, in turn, might eventually alleviate some of the need for government assistance like food stamps and unemployment benefits because the legal issue, which is often at the root of the problem, is resolved.

In the courtroom

Dreyer has regular interaction with pro se litigants in court. Some are individuals who prefer to represent themselves, but most are people who appear without a lawyer because they cannot afford one.

He leads the process, talking to the pro se litigants, explaining what will happen during the hearing, and asking for the evidence to be presented. If the opposing parties start arguing with each other, Dreyer will take over questioning the witnesses on the stand.

Unlike other judges, Dreyer said he does not hate having self-represented individuals in court, but he acknowledged the system works much better when attorneys handle the cases. Attorneys and judges can talk to each other in legal terms where sometimes with pro se litigants, judges will struggle to understand their argument.

Dreyer sees the reasons for not providing civil counsel as centering around the practical, political and financial rather than constitutional concerns. Overcoming those obstacles, he concedes, will take time.

“We didn’t get here overnight so it can’t be changed overnight,” Dreyer said. “But obviously what we’ve done hasn’t worked as well as it should and it has to be changed.”•

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  • UGHH
    IF JUDGES (WHO ARE LAWYERS) STOP MAKING BAD RULINGS (WASH MY BACK I'LL WASH YOURS) AND ARE FAIR WITH UNREPRESENTED LITIGANTS....THEN THE SYSTEM WOULD PROBABLY WORK BETTER. JUDGES GET TOO RULE THE WAY THEY FEEL REGARDLESS OF THE EVIDENCE.
  • working lawyers would bear the brunt
    Lofty pinciples! Without any real plan to implement. Its not enough that every dollar earned by working lawyers get chewed up by taxes including programs for the benefit of the poor (and their advocates and administrators). Now we have to expand free legal help which would dramatically expand the demand for "mandatory pro bono." Golf course lawyers sitting high on the hog in big law may applaud such lofty notions but the other 90% of lawyers out here who dont have time for golf, don't relish the idea of the increasing demands put on us by our capos. A wise old lawyer from down South told me once, "America-- the very rich and the poor against the middle." A middle that keeps getting narrower and narrower every year.
  • Access to Courts, Not Access to Expert
    Just because people are guaranteed access to the courts does not mean they are guaranteed access to an expert to assist them (i.e. an attorney). I have access to the roads, but I do not have the means to hire a professional driver to take me wherever I want to go. Perhaps it is time to force limo drivers to provide their services for free. It costs money, a lot of money, to become an attorney. Why shouldn't it cost money to hire one?

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  1. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  2. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  3. It's a capital offense...one for you Latin scholars..

  4. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  5. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

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