Thursday, May 31, 2007

Appointed Counsel in Custody Proceedings

The Seattle Times today published a story about an upcoming Washington State Supreme Court case in which a woman claims that the Snohomish County Superior Court granted full custody to her ex-husband, as a result of her financial inability to secure legal counsel. Ever since Gideon v. Wainwright, in which the SCOTUS found that the right to counsel is part of the fundamental right to a fair trial, defendants who faced any amount of jail time were to be appointed legal representation paid for by the public (Federal, State, County governments).

This particular case is interesting. The two parties - Brenda Leone King and her ex-husband Michael King - are engaged in civil litigation, and in Washington State defendants are appointed public counsel in civil litigation only when the State is involved. When the conflict is between two private parties, appointment of counsel is not required. It makes sense for defendants against the state to be appointed counsel, as the resources which back up the AG's office far outweigh the resources most private citizens have at their disposal. And when civil cases are held between two high-profile parties, say, a single parent bringing suit against a large corporation, members of civil-society or private firms often offer pro bono counsel. Custody hearings, though, occur so often and are so private (indeed, they are fundamentally limited to the family unit) that such cases are unlikely to attract the aid of such organizations. However, the consequences of such hearings are critical; they determine, essentially, the quality of life of children.

I'm not a lawyer, nor am I legal scholar, but it seems as though the normative values that are inherent in Gideon v. Wainwright and public defender programs more generally are the same. The idea of appointing publicly funded counsel to poor defendants is rooted, normatively, in the idea that might does not make right. Clarence Earl Giddeon was convicted, originally, because he was poor. He was unable to successfully defend himself in the Bay County, Florida Circuit Court as he had no law training, and when competing against the formal training of the country prosecutor's office, the outcome was essentially a foregone conclusion.

While Brenda Leone King never faced the spectre of incarceration, it appears that there may be a chance that the outcome of her custody battle was rooted in her relative poverty. Her ex-husband was able to secure a lawyer, and with that lawyer came a slew of experience and legal resources. Perhaps the Snohomish County Superior Court's decision was, objectively, for the best, and Michael King is the best parent, but that cannot be known for sure as Michael King was at a distinct advantage in the proceedings. Let's say then that, objectively,Brenda Leone King is the best parent - she lost because she was poor. Her children are, potentially, living in sub-optimal conditions given the court's decision. The whole point of public counsel is to determine, as best as can be done, that which is objectively best, and when it comes to parenting and raising children, this is of fundamental importance.

Lucky for Brenda Leone King, lawyers from Perkins Coie, a well established and elite Seattle Law Firm, as taken up her case, pro bono, for the Supreme Court proceedings, and she has also found support from the Washington State Bar Association, and The National Coalition for a Civil Right to Counsel, based in Baltimore.