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The Champion

April 2013 , Page 53 

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A Lawyer’s Response To the Threat of His Client’s Loss of Counsel (Gideon’s Champions)

By William P. Wolf

Read more Gideon’s Champions columns.

One of the fundamental reasons that a Bill of Rights was pushed through and ratified to become part of the U.S. Constitution in 1791 was the fundamental belief that politicians would deprive unpopular people of their liberties when it became politically popular to do so. We never have to worry in our republican form of government about popular speech being suppressed. It is the unpopular speech that is the fundamental reason for that section of the First Amendment’s existence.

So it also goes with the Sixth Amendment’s right to counsel. The right to counsel is enshrined in the Bill of Rights to protect people charged with crimes who are unpopular or powerless. The poor in the United States have never exactly been either popular or powerful. Even with the right to counsel clearly stated in the Sixth Amendment, many poor people facing prison time were either poorly represented or not represented at all for generations until the U.S. Supreme Court decided Gideon v. Wainwright.1 

Repeated attempts to deny or limit counsel despite the clear holding of Gideon remind one of the adage that the more things change, the more they stay the same. Any reader of The Champion’sissues commemorating the 50th anniversary of this landmark decision could easily decipher a theme that unfortunately cuts across all of America; the promise of Gideon has never been completely fulfilled.

This fight to see the promise of Gideon fulfilled continues despite repeated attempts to continue to limit or deny counsel for the poor. NACDL Immediate Past President Lisa Wayne and Executive Director Norman Reimer wrote a 2012 article that contained an alarming prediction: a new front in the war on the indigent accused, Gideon, and its meaning would open up in the area of misdemeanor litigation.2 Their piece reported on evidence of an alarming number of uncounseled guilty pleas that have taken place all over the country.3 It seems really simple for prosecutors to get speedy dispositions in cases by promising no jail time on a plea, and therefore, not violate the Supreme Court’s dictates in Illinois v. Scott4 that Gideon’s promise of counsel does not apply in cases in which the defendant is not sentenced to imprisonment.5 

If it is still legal for a judge to accept an uncounseled guilty plea, then why can’t a prosecutor simply make a motion to strip the defendant of his court-appointed lawyer and force the defendant to proceed pro se in a jury trial if the State agreed to waive jail time as a penalty? This dangerous notion was litigated by the State of Illinois against a man represented by a champion of liberty in Illinois named Bradley Fuller.

Brad, age 30, lives in Stephenson County, a rural part of Northern Illinois that borders Wisconsin. Stephenson County was the center of an old manufacturing base that has hit upon really hard economic times. Brad refers to Freeport, the county seat, as a “ghost town” where there is a “little slice of the South Side of Chicago in the middle of the cornfields” due to the displacement of some Chicagoans when certain Public Housing Authority projects closed.6 

Brad graduated from Illinois State University, receiving his Bachelor’s Degree in Politics and Government, and then moved on to graduate from law school at Northern Illinois University in 2010. He has spent the last two years practicing in the Stephenson County Public Defender’s Office as an Assistant Public Defender. This small office, run by Stephenson County Public Defender Glenn Schorsch, is staffed by four full-time lawyers and one part-time lawyer.

The Stephenson County judicial system is likewise very small. Brad regularly practices in front of one judge who presides over misdemeanor matters and another who presides over felony matters. There is also one judge who regularly hears juvenile cases, and another judge who conducts proceedings when conflicts of interest prevent one of the other three from handling a case.

This small system provides many challenges that cannot be avoided. In metropolitan public defender offices, a lawyer can specialize. A large city can have assistant public defenders specialize in matters such as traffic, domestic violence, forensics, narcotics, and homicide. While large public defender offices can meet the challenges of huge caseloads in part by having its lawyers specialize in a specific practice area, this is impossible in small, rural areas. Brad’s challenges are a “tremendous caseload as well as tremendous caseload variety. I’m always researching,” he says.

This need for research was really apparent in one of Brad’s misdemeanor cases when a young prosecutor filed a “Motion for Discharge of the Public Defender.” The defendant was charged with Cruel Treatment towards a horse, a Class A misdemeanor under Illinois law that could carry up to 364 days in jail.7 The motion did not seek to reduce the charge in any way to a charge that carried no jail time, but simply indicated a commitment to agree to no jail time for the defendant after a conviction. The motion implied, without stating outright, that the sentencing court upon conviction would be bound to the State’s agreement not to sentence the defendant to any jail time. Thus, the prosecutor reasoned, Brad’s client was no longer entitled to appointed counsel since the only available punishment would be fines and fees.8 

Faced with this novel motion, Brad hit the books. Brad talked to other lawyers in face-to-face meetings, via telephone, and on listserves. Then he got down to the writing. Brad argued that the decision on which the State relied, Scott v. Illinois, was superseded by the holding of the U.S. Supreme Court in Alabama v. Shelton.9 Since Brad had a client who wanted to fight his case and risk jail time in so doing, Brad argued that as long as his client faced a possibility of jail time, by a sentencing judge either upon a verdict of guilty or upon a later finding of a violation of probation, that would trigger a new sentencing hearing.10 

During oral argument, the judge indicated he was also troubled by the State’s seeming ability to make the decision for him whether jail was an appropriate sentence for the defendant in advance of any proceedings. Invoking Illinois’ concept of Separation of Powers, the judge denied the State’s “Motion for Discharge of the Public Defender.”11  

The matter proceeded to a jury trial, with Brad leading his client’s defense. The jury found the defendant not guilty of Cruel Treatment, and found him guilty of a lesser offense called Owner’s Duties.12 Brad had a client who could have avoided any risk of jail by simply acquiescing to the State’s motion. He chose instead to fight. The client’s resilience, coupled with Brad’s skills in front of a jury, paid off for the client.

The lesson that can be drawn here, as in the Gideon case, is that having a lawyer matters.13 Notwithstanding the fact that a young prosecutor wanted to make his road to a conviction of Brad’s client easier by attempting to force the defendant to proceed pro se, the defendant received a chance to have a jury of his peers reach a just verdict by having a skilled lawyer at his side. One of the challenges Brad faces every day in a small town where everyone knows everyone is that “your decisions in your cases follow you wherever you go.” Brad’s decisions in this case not only assisted his client in a seemingly small case, but also implicated the broader cause of allowing everyone access to a fair system of justice.


  1. Gideon v. Wainwright, 372 U.S. 335 (1963).
  2. Lisa M. Wayne & Norman L. Reimer, Gideon’s Next Frontier: No Detention and No Conviction Without Counsel, The Champion, June 2012 at 5.
  3. Id. 
  4. Scott v. Illinois, 440 U.S. 367 (1979).
  5. Id. at 373-74.
  6. Political junkies may remember that Freeport was briefly a focal point of the 2012 presidential election based on allegations that Bain Capital was shutting a Freeport plant and moving the jobs overseas. See, e.g., http://www.examiner.com/article/mitt-romney-s-bain-capital-outsourcing-illinois-jobs-freeport-to-china.
  7. 510 ILCS 70/3.01. The statute states that a second or subsequent conviction is a felony offense. The punishment for Class A misdemeanors in Illinois can be found at 730 ILCS 5/5-4.5-55.
  8. The State relied in its pleadings on Scott v. Illinois, 440 U.S. 367 (1979) and People v. Easley, 288 Ill.App.3d 487 (3rd Dist. 1997).
  9. Alabama v. Shelton, 535 U.S. 654 (2002).
  10. Brad Fuller also argued that Illinois law extended the right to counsel further than the federal constitutional parameters of Scott v. Illinois. He cited Section 113-3(b) of the Illinois Code of Criminal Procedure of 1963: “In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.” See 725 ILCS 5/113-3(b) (West 2004). See also Illinois Supreme Court Rule 401(a) and People v. Campbell 224 Ill.2d 80, 862 N.E.2d 933 (2006).
  11. See Ill. Const. of 1970, art. II, § 1. “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.”
  12. 510 ILCS 70/3.
  13. Clarence Earl Gideon was acquitted in his retrial with counsel defending him. See Bruce R. Jacob, Remembering Gideon’s Lawyers, The Champion, June 2012 at 21.
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