Indigent Defense in the Wild West

August 16, 2013


Jon Mosher


Pleading The Sixth


In March 2013, the 6AC released its report Reclaiming Justice telling the story of how accused stagecoach robber, Shepherd L. Wixom, fought for the right to have an attorney to advocate on his behalf, and how the reaction of the Nevada legislature and state supreme court to secure a fair day in court for poor people far predates any federal action on the issue. Indeed, Nevada was the very first state in the union to authorize the appointment of attorneys in all criminal matters (in 1875), including misdemeanors, and the payment of attorneys for the services rendered (in 1879).

In preparation for an August 15, 2023, indigent defense legislative committee hearing, Idaho Supreme Court Chief Justice Roger Burdick and Idaho State Appellate Defender Sara Thomas did some significant historical research of their own and determined that Idaho may well have been the second state to do the same.

In the height of the Wild West, trial judges would ride a circuit around the state, hearing cases in one town one day and the next town when he could get there, and any cases that required the judge’s attention would simply have to wait until he next came to town.  There were also relatively few attorneys, and those few often rode circuits side-by-side along with judges.  So, when a criminal case came up, it was frequently fairly convenient to appoint an attorney rather than have a defendant try to defend his own interests.

Because of this, the right to counsel in Idaho pre-dated its own statehood (1890). The Idaho 1874 Territorial Criminal Practice Act § 3 conferred on defendants the “right to the aid of counsel in every stage of the proceedings and before any further proceedings are had.” The same Act continued that it is a defendant’s right to have counsel “before being arraigned.” As noted by Chief Justice Burdick, this meant that if the defendant wished an attorney, and one was not present in the courtroom, “the magistrate had to adjourn the examination and send a peace officer to take a message to the attorney within the township or city as the defendant may name.”

In 1887, Idaho Revised Statutes added a new wrinkle: “If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.” (emphasis added.)

There the right to counsel stood in Idaho until 1923, when the Idaho Supreme Court, in State v. Montroy37 Idaho 684 (1923), determined: “It is the policy of this state . . . to accord to every person accused of crime, not only a fair and impartial trial, but every reasonable opportunity to prepare his defense and to vindicate his innocence upon a trial. In a case of indigent persons accused of crimes, the court must assign counsel to the defense at public expense.”

Four years later, the Court overturned a 1st degree murder conviction and life sentenced based upon ineffective assistance of counsel claim in State v. Poglianich43 Idaho 409 (1927). Foreshadowing the case of Clarence Earl Gideon, Mr. Poglianich too was acquitted of all charges at a second trial six months later.

Chief Justice Burdick asked the legislative committee “are we in fact protecting and enhancing these statutory and constitutional responsibilities?” And, he challenged the committee to find a way to uphold the “ideals that were handed to us about 140 years ago.”