Getting the Feds to Pay

As the cost of living continues to rise, the price of a good lawyer continues to soar -- so much that equal justice is still an empty platitude for the 60% of criminal defendants who cannot afford even a bad counsel. State courts are now trying the remedy of paid public defendants. But federal courts are still without the means to pay even court-appointed lawyers. Last week a U.S. district judge in Oregon blasted this anomaly with a broad-gauged decision that may not only cost Washington a great deal of money, but may be the neatest constitutional argument of the year.

A U.S. Appeals Court in San Francisco ordered Judge William G. East in Portland to hear alleged Bank Robber Edward J. Dillon's claim that he had been sentenced to 18 years without benefit of a lawyer. Enthusiastically complying, last spring Judge East ordered crack Portland Lawyer Manley D. Strayer to represent Dillon, and the lawyer, toiling in Dillon's behalf, spent 108 hours of his usually high-priced time during a rehearing at which Dillon was resentenced. Federal rules being what they are, Strayer did not expect a penny.

Judge East had other ideas. Petition the Government for pay, he told the lawyer, and then ordered Attorney General Robert F. Kennedy to show cause why payment should not be proffered. No such cause having been shown--other than Congress' refusal to provide such funds--Judge East ordered the U.S. to pay Strayer $3,804. East's elegant reasoning: "The Fifth Amendment guarantees that private property shall not be taken for a public use without just compensation." In short, a lawyer's services are private property and cannot be commandeered without proper recompense. Result (if the decision stands up): a well-paid lawyer for a well-represented indigent.

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