RICH JUSTICE, POOR JUSTICE

By ELIZABETH GLEICK

A peculiar scene is playing out in lawyers' offices around the country, reports Joseph Rem Jr., a defense attorney from Hackensack, New Jersey, who has been practicing criminal law for 20 years. These days the people who walk into his office expect an O.J. Simpson-style defense. "They want to contest all the scientific information against them," he says, and they talk about impaneling a mock jury, just as O.J. did. "They're now asking, 'What kind of jurors are you looking for?'" reports Rem, who has to break it to each new client, gently, that O.J. is different.

True, like everyone else in this country, Simpson is entitled to the best defense he can pay for. He just happens to be much richer than the average murder defendant -- hence the never-ending parade of big-name lawyers, sub-lawyers with DNA specialities, jury consultants, investigators and experts. Though exact figures are hard to come by, one person close to the case will reveal this much: Simpson has spent $100,000 on a jury consultant; Robert Shapiro's contract entitles him to $100,000 a month for 12 months; Johnnie Cochran Jr. is working for a large flat fee. Simpson, whose net worth was reported to be $10 million on the day of his arrest, has taken out a $3 million credit line on his Brentwood home, and according to one of his lawyers will have spent $5 million to $6 million by the end of the trial.

In the year since the murders of Nicole Brown Simpson and Ronald Goldman, the case has been transformed into a spectacle gone terribly awry. Prosecutor Christopher Darden recently spoke with disdain of "this supposed truth-seeking process." One thing is certain: if Simpson were poor and unknown, it all would have been over months ago. "If O.J. were [represented by a public defender] in Jones County, Mississippi,'' says Robert Spangenberg, co-author of a 1993 American Bar Association report on indigent defense, "it would be a two-day trial, an open-and-shut case.'' Instead, if the bulletins from dismissed jurors can be believed, the Simpson millions have so far succeeded in purchasing a reasonable doubt.

Yet the accelerating rate of jury attrition has raised the specter of a mistrial. It is unlikely that Simpson can afford to mount such an elaborate defense again (though a celebrity client will never lack for glory-seeking legal help), and that may well affect the outcome. For the Simpson case has demonstrated perhaps more starkly than ever before that in the American justice system, as in so much else in this country, money changes everything -- and huge amounts of money change things almost beyond recognition.

"The O.J. case is fantasy land,'' says Scott Wallace, special counsel to the National Legal Aid and Defender Association. "It's not real life in the criminal justice system." And it would be unfortunate if the public's avid consumption of this and other trials of the rich and famous -- the Menendez brothers, Claus von Bulow, William Kennedy Smith -- left the general impression that our criminal justice system routinely allows defendants a thorough and aggressive defense, in which no fact goes unchallenged or theory unexplored. In fact, the report that Spangenburg co-authored for the A.B.A. concluded that the indigent defense system was in "crisis" -- that far too many people are being tried, convicted and sentenced without even the rudimentary legal representation guaranteed by the Constitution. "There are two criminal justice systems in this country," says Paul Petterson, indigent defense coordinator for the National Association of Criminal Defense Lawyers. "There is a whole different system for poor people. It's in the same courthouse -- it's not separate -- but it's not equal."

Judy Haney sits on death row in Wetumpka, Alabama, convicted in 1988 of murdering her husband, who she says routinely beat her and her children. Women who kill an abusive spouse almost never receive the death penalty. But Haney's defense was not all it might have been: one of her attorneys, for instance, came to court so drunk that the judge halted the proceedings and sent the man to jail overnight. When the trial resumed the next day, Haney was convicted and sentenced to die.

Like 80% to 90% of all felony defendants in the U.S., Haney was too poor to hire her own lawyer and was represented by court-appointed attorneys. In the Supreme Court's landmark 1963 decision, Gideon v. Wainwright, the Justices cited the Sixth Amendment's guarantee of the right to counsel and declared that indigent defendants accused of felonies must be provided with attorneys because, wrote Justice Hugo Black, the "noble ideal" of a fair trial is impossible if the poor man must "face his accusers without a lawyer to assist him." In 1972 the High Court extended this rule to all crimes, including misdemeanors, that result in imprisonment for any length of time. But ensuring this right falls, ultimately, on local jurisdictions, which vary wildly from one place to the next. Alabama, for example, has a state cap of $1,000 for out-of-court fees for defending a death-penalty case, while in Indiana the average expenditure on capital cases is $53,000. In some states, including Minnesota, Connecticut, Mississippi, Illinois and Indiana, the indigent-defense system is so inadequate that the state has been sued.

In this lock-'em-up-and-throw-away-the-key era, however, it is hard to drum up sympathy for poor, often minority, often guilty defendants. "In the war on crime," says Nicholas Chiarkas, Wisconsin's state public defender, "many people think of public defenders as representing the enemy." John Holdridge, director of the Mississippi and Louisiana Capital Trial Assistance Project, agrees. "This is the most unpopular issue around," he says.

The Cage, located right in Courtroom D in the Connecticut Superior Court in Bridgeport, functions as a temporary jail cell for men who haven't made bond. The dozen men held inside, their hands shackled behind them, were arrested over the weekend and are awaiting arraignment; new detainees are herded in and out all day. In the midst of this noise and mayhem, some of the accused meet their lawyers for the last time before approaching the bench and confer hastily through the metal mesh about their pleas. Though the state affiliate of the A.C.L.U. has brought a class action against Connecticut's indigent-defense system, citing the Cage as one of many degrading and prejudicial conditions in the state, lawyers and defendants alike are accustomed to it. "I don't like the Cage," says John Forbes, a public defender for 23 years. "But it has some advantages-such as last-minute access to clients." Forbes firmly believes his clients get good representation, even though "I can't give them that one-on-one feeling that everyone would like to have.''

legal representation for the poor is usually provided in one of three ways: by a state or county public defender's office, by court-appointed counsel or by contract public defenders who have put in a bid to handle many cases in one jurisdiction. Whatever the system, budget cuts, funding caps and an increase in the number of prosecutions for lesser crimes have created crushing case loads in most jurisdictions and fostered a type of assembly-line justice that often is not justice at all. In Atlanta 25 men line up together to plead guilty and receive their sentences, according to Stephen Bright, a visiting lecturer at Yale Law School. "The legal system is greatly overestimated in its ability to sort out innocent from guilty," he says.

In Jones County, Mississippi, for instance, the public defender's office handles about 450 to 500 felony cases a year, including death-penalty cases. Two part-time lawyers share the whole load, even though the a.b.a. recommends that each public defender handle no more than 150 noncapital felonies a year. The office's entire annual budget -- and this includes lawyers' salaries and expenses -- is $32,000. Their courtroom opponents, the Jones County district attorney's office, work with a budget seven times as large, while their case load is only about 20% greater. David Ratcliff, one of the two part-time public defenders, explains that he has to do his own legwork, running down witnesses, even taking the photographs. "The danger is you are so worn out you just don't follow up on everything the way you should,'' he says.

In 1993 Antonio Melendez was arrested for attempted murder in Hidalgo County, Texas. Melendez remained in jail 1 1U2 years before the state brought him to trial. Then he was acquitted of attempted murder and convicted of a lesser charge, for which he was only sentenced to probation, meaning he should never have spent the 18 months in jail. He has since filed a lawsuit claiming his right to a speedy trial was denied, and the trial court found there were numerous other inmates in the county jail waiting long periods before trial, some even longer than Melendez.

Hidalgo County District Attorney Rene Guerra admits that in his impoverished, mostly Latino district, the "noble ideal'' of the Sixth Amendment is unrealistic in its fullest form because "the taxpayer is not going to pay for it.'' The quickest way out of jail here is often to plea bargain. "If everybody asked for a jury trial," says Guerra, "nobody would get any justice at all." In 1993-94, while 5,449 misdemeanor cases were plea bargained in the county, only 15 cases went to trial. Says David Hall, director of Texas Rural Legal Aid: "We don't have a system to determine who is guilty of crime in Texas." In fact, for minor crimes such as writing bad checks or shoplifting, poor defendants are often simply held in jail for about the period of time they would serve if they were actually convicted of the crime, trla lawyer Jerome Wesevich, says. Then they are in many cases simply brought before a judge and encouraged to plead guilty to a sentence of "time served." The practical effect of this system is that the prosecutor -- or sometimes even the arresting officer -- rather than the judge determines who will do time, and how much.

When they do go into court, public defenders are completely outgunned by police departments and prosecutors. Says public defender Christopher Johns, of Maricopa County, Arizona: "If the D.A. needs something investigated, they call the police department. If they need DNA analysis, they call the FBI or they send samples off to the state lab. They don't get charged for that. If I need investigation done, [it] gets charged to this office." Ask Johns whether he thinks jury consultants or mock juries make a difference, and he bursts out laughing: "Maybe the jury would at least deliberate longer," he says. "I'd like to get to the elevator, you know? I'm still packing up my briefcase when I hear, 'Jury's in!' I'd just like to get to the elevator."

Johns' experience is typical. In Indiana there are currently 120,000 indigent cases jamming the system, handled by a patchwork of court-appointed lawyers and salaried or contract public defenders. All told, the state spends $16 million a year on indigent defense -- which comes to $145 per person. "Lawyers don't get DNA testing because they want it," says Fran Hardy, chief of the public-defender's agency in Marion County, Indiana. "It has to be an appropriate use of our money."

InIllinois, where in 1993 $1 million was cut from the $6 million budget of the state appellate defender's office, the attorneys filed a class action charging that the cutbacks make it impossible for them to protect their clients' rights. About two months ago, Hennepin County district court ruled that the Minnesota statute that provides funds for the state's indigent- defense system is constitutionally inadequate. If the ruling stands, the state will embark on an extensive overhaul.

In a few states, reform has already begun. In the wake of a 1993 court ruling in Louisiana, last July the state supreme court established a Louisiana Indigent Defense Board, which is charged with setting standards for case loads, attorney-client relationships and distribution of state funds. "If you need a $50 blood test or a $2,500 DNA test, you ought to be able to get it," says Jean Faria, who heads the board.

As spotty as the indigent-defense system is, however, middle-income defendants who don't qualify for court-appointed counsel (the standards vary from state to state) can sometimes end up worse off than the poor. Carolyn Rader, a defense attorney in Indianapolis, says it is common for such clients to deplete their savings or go into debt if they face criminal charges.

Car-service dispatcher Chris Lampropoulos from Queens, New York, was charged with felonious assault on a taxi driver after a car accident. Lampropoulos, 24, claimed that he beat the guy up in self-defense, and that he used his fists -- not a metal pipe, as charged. His family got in touch with Harvey A. Kaminsky, a seasoned trial lawyer in White Plains, New York, and even though Kaminsky agreed to lower his fees, they had to scrape together family loans to pay off the $15,000 it cost to bring the case to trial. For Lampropoulos, the lawyer employed a $50 an hour investigator to find witnesses. Other extras were simply too expensive. "With more money, we would have ordered a helicopter for an aerial view to show how he was cut off,'' Kaminsky says. "Juries love visual aids." In the end, Lampropoulos was found guilty of a lesser charge and probably avoided prison time. At one point, says Kaminsky, Lampropoulos' father asked, "If it turns out my boy didn't do anything wrong, I get all this money back, right?''

Wrong. but at least he doesn't have to pay for another trial. Earlier this year, Indianapolis lawyer Rader represented a disabled factory worker in his 50s who had been charged with raping an eight-year-old girl. His household income was about $25,000 a year, and his life savings totaled $10,000. The man's defense was that he is impotent, and he underwent a medical test that bolstered that claim. The test cost about $2,000; deposition and expert fees cost another $2,000; Rader accepted $6,000 rather than her customary $10,000 for the case. The man and his wife, a clerical worker, sold their house and moved into a cheaper apartment so he could pay his legal bills. But the trial ended with a hung jury-which means he has to find the money for a new trial. "Sometimes," acknowledges Indiana criminal lawyer Dan Toomey, "not being indigent can work against you."

"In a murder case, practically every defendant is indigent," says Larry Hammond, a criminal lawyer in Phoenix, Arizona. "They may not have started that way, but for anyone other than the super-rich, they will be indigent before the case is over."

Virginia Depper was sitting in her bedroom on a quiet October evening near Tucson, Arizona, when two bullets shattered her window. As she was on the phone to 911, she began to scream in terror. She was being bludgeoned to death. What was she saying? The 911 tape is garbled, but it may have been, "No ... Dale ... don't!'' Twenty-four hours later, Depper's ex-husband, anesthesiologist Dale Bertsch, was arrested and charged with murder. Several prominent criminal lawyers he contacted quoted him fees in the $250,000 range. Instead, he used attorney Larry Hammond, who agreed to take the case for the sum total of Bertsch's liquidated assets, which came to about $160,000. Even with all that cash, here's what Hammond says his client could not afford: a pretrial evidentiary hearing, which would have required $50,000; mock-jury preparation for $30,000 (instead, they rehearsed the case for some local lawyers and "bought them lunch''); jury consultants, $50,000; computer support; and a thorough investigation of the crime. Although there was no physical evidence linking him to the murder, in August 1994, after a two-week trial, Bertsch was found guilty and sentenced to life imprisonment. Now 63, he sits in the Pima County Jail listening to the Simpson trial on a small radio. "I think you get all the justice you can afford," he says. "I'm not bitter, but the legal system is flawed."

Lawyers may also be following the Simpson case in dismay, but they are hard put to come up with any solutions. "What can you do?" asks Gerald Chaleff, past president of the L.A. County Bar Association. "Socialized lawyers? You can't bring everyone down to the lowest denominator." Perhaps the impetus for reform at the top of the heap, as well as at the bottom, will only come after cases such as O.J.'s demonstrate that too much money doesn't just subvert the justice system, it can stop it in its tracks.

--Reported by Adam Cohen/Edinburg and Andrea Sachs/ New York, Wendy Cole/Chicago, Elaine Lafferty/Los Angeles and Andrea Sachs/New York

With reporting by ADAM COHEN/EDINBURG AND ANDREA SACHS/NEW YORK, WENDY COLE/CHICAGO, ELAINE LAFFERTY/LOS ANGELES AND ANDREA SACHS/NEW YORK