THE PRACTICE: John Rabiej
and U.S. District Judge
Michael Baylson report on a
Duke Law School conference
on conflicts between U.S.
and E.U. laws on data
privacy. PAGE 12
GIDEON AT 50: A SPECIAL REPORT
In search of
A Muted Trumpet
typical hip
device case
Gideon’s guarantee of right to counsel remains unfulfilled.
Judge treats pending trial
as dry run for future ones.
BY AMANDA BRONSTAD
ABE KRASH: The retired
Arnold & Porter partner
recalls working as part of
team that helped legendary
lawyer Abe Fortas shape the
winning strategy. PAGE 5
DIEGO M. RADZINSCHI
S TEVEN BENJAMIN: “We’ve failed tragically to realize” Gideon’s promise due to inadequate funding.
BY JENNA GREENE
Fifty years ago on March 18, 1963, the U.S. Supreme Court issued its land-
mark decision Gideon v. Wainwright, establishing that people accused of crimes
have the right to a lawyer regardless of their ability to pay.
The ruling fundamentally transformed the criminal justice system in
America. But to lawyers who represent the poor, there’s little cause for cel-
ebration. “Sackcloth and ashes” is a more apt commemoration, said Stephen
Bright, president of the Southern Center for Human Rights, which represents
people facing the death penalty and advocates for indigent defense reform.
Within the criminal defense bar, there is widespread agreement that
Gideon’s lofty promise has gone unfulfilled. The high court in a unanimous
decision found that “lawyers in criminal courts are necessities, not luxu-
ries.” If a person facing a felony charge is too poor to hire a lawyer, the court
SEE GIDEON, PAGE 4
BRUCE JACOB: He argued
for the state of Florida
against Gideon in 1963, then
went on to devote much of
his career to the cause of
indigent defense. PAGE 6
TIMELINE: From 1932 to
the present, the evolution of
high court decisions on the
right to counsel. PAGE 6
GIDEON’S LEGACY: Clarence Gideon’s petition led to a landmark case. But Eve Primus sees many
problems with indigent defense, and Martha Davis argues for right to counsel in crucial civil cases. PAGE 26
The first courtroom test of liabil-
ity claims involving a particular DePuy
Orthopaedics Inc. hip replacement
device ended in more or less a split deci-
sion: The jury awarded plaintiff Loren
Kransky $8.3 million but rejected his
bid for punitive damages.
Unfortunately, attorneys on both sides
agree, the outcome tells precious little
about the prospects for the approximate-
ly 10,000 claims still pending against
the company over the device, known
as ASR XL. A more representative test
of the legal issues facing DePuy began
unfolding in a courtroom in Chicago on
March 11. Plaintiff Carol Strum had her
device implanted in 2008.
DIEGO M. RADZINSCHI
Kransky v. DePuy was rushed into the
courtroom because of the plaintiff’s ill
health and was “a bit of a diversion,”
said plaintiffs lawyer Matthew Davis of
San Francisco’s Walkup, Melodia, Kelly
& Schoenberger, whose firm colleague,
Michael Kelly, heads the plaintiffs
steering committee in the coordinated
ASR litigation in California state courts,
of which Kransky was a part. For one
thing, Kransky had his device implant-
ed in 2007, three years before DePuy
recalled the ASR XL, and his jury might
have concluded the company hadn’t
understood the danger. “Every case has
strengths and weaknesses on both sides,
but there were serious problems in lia-
bility and damages, we thought, in the
Kransky case,” Davis said.
By contrast, Cook County, Ill., Circuit
Judge Deborah Mary Dooling is treating
SEE HIP IMPLANT, PAGE 8
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