I am a 14-year criminal defense attorney in private practice primarily representing indigent clients in rural Franklin County.  At first, I joked that I was like Atticus Finch, I worked for hickory nuts.  This grinding job that puts you in touch with people’s most vulnerable moments eventually loses its literary romance.  You realize that fighting for justice is simply not economically sustainable.  Passion and zeal give way to children’s college tuition and funding retirement.  Yet I still feel the call to demand justice.

Our courts are in crisis. Private bar advocates are leaving the practice which pays them less than half of what neighboring states pay.  Equal justice under the law requires the poor and rich alike to be given the same access to legal representation.  For every Karen Read, there are hundreds of falsely accused people without means to hire counsel.  We had the same situation in 2004, having failed to permanently address the problem, we are repeating the lessons of history.

In the law, precedent is a powerful principle.  The landmark case of Gideon v. Wainright (1963), establishing the right to counsel, relied on precedent from Powell v. Alabama (1932).  In Powell, the court held that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Currently, thousands of indigent Massachusetts defendants are being charged with crimes and denied “the guiding hand of counsel” because the governor and state Legislature are unable to summon the political tools or will to act.  Judges are now scheduling incarcerated, sometimes dangerous, criminal defendants for release after seven days without an attorney, under the Lavallee protocols. 

Though the 18th century jurist Blackstone wrote "It is better that ten guilty persons escape than that one innocent suffer," Lavallee is a band-aid on the gaping wound of the court’s promise to provide “counsel at every step in the proceedings.”  Defendants denied an attorney at the earliest stage of their cases are denied justice, because the actions “to establish his [or her] innocence” are lost to time.  

Countless cases depend on video surveillance routinely overwritten after seven days. Without counsel, defendants don’t know how to secure such evidence. Innumerable cases hinge on car searches after bogus traffic stops based on alleged equipment violations.  Such searches are thrown out as unconstitutional when lawyers show law enforcement fabricated the equipment violation.  Without counsel, evidence from the car will not be preserved before police misconduct can be documented.  Other cases depend on statements from transient witnesses, hard to locate without quick actions from a lawyer.

Attorneys immediately inform clients that jail calls are recorded, listened to, used in court and misconstrued.  Absent warning, people routinely and unwittingly give up their right against self-incrimination.  Though not yet charged, witnesses and victims often commit related crimes and have 5th amendment rights of their own.  Without lawyers, no one makes sure they know their rights.  Worse, defendants informing them of these rights could be charged with felony witness intimidation.

Assuredly, justice delayed is justice denied.  Nowhere is this truer than in the right to counsel.  If we do not resolve this crisis quickly, though released initially after seven days, many innocent people without counsel will spend years behind bars because they do not have “the guiding hand of counsel at every step in the proceedings against him.” After all, if we know nothing else, we know the history of innocent people being incarcerated is not without precedent in Massachusetts.

Isaac Mass is a lawyer and businessman in Greenfield.