The Sixth Amendment to the U.S. Constitution guarantees the right to counsel for people accused of crimes, regardless of ability to pay for representation. North Dakota and many other states have changed the way they provide those services to try and ensure all defendants have an adequate defense.

The right of indigent defendants to have attorneys at public expense in state criminal cases was established by a 1963 Supreme Court decision, Gideon v. Wainwright. The case was later portrayed in a book by Anthony Lewis and a movie starring Henry Fonda, both called "Gideon's Trumpet."

"The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours," Justice Hugo Black wrote in the unanimous opinion. "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

In that case, former North Dakota Attorney General Leslie Burgum was one of 22 attorneys general to file a "friend of the court" brief in which he urged reversal of a previous Supreme Court ruling that declared defendants had limited rights to appointed counsel in state criminal cases.

Since the decision, states have developed different ways of making sure poor defendants have an equal footing in the justice system. Some have public defender offices, some contract with private attorneys to provide counsel, some assign area attorneys to cases and some use combinations of systems. In some states, responsibility for indigent defense services has been delegated to counties.

Robin Huseby, executive director of the North Dakota Commission on Legal Counsel for Indigents, said at one time, North Dakota counties paid for indigent defense. However, a high-profile murder case in a small county almost caused a county to go into bankruptcy, she said. After that, the state began looking into taking over the funding of indigent defense.

"It's gone through many twists and turns," Huseby said. "It was many years ago that the state has paid for indigent defense rather than county funds."

From the 1980s through 2005, indigent defense services were administered by the North Dakota Supreme Court. Judges assigned cases to attorneys and monitored contracts with attorneys, and the attorneys would submit their bills and expenses to district judges for approval.

"It used to be done kind of piecemeal," Huseby said.

In 2002, the American Civil Liberties Union sued the state of Montana, alleging the state had failed to provide adequate defense services for indigents. In the lawsuit, the ACLU said Montana's system lacked proper funding and oversight, without which attorneys were unable to provide adequate assistance.

The lawsuit alleged that poor defendants were not getting fair representation, because many appointed defense attorneys were overworked and lacked the investigatory and legal resources given to prosecutors. The lawsuit was filed on behalf of a woman who had been in jail seven months whose attorney had not initiated an investigation into her case and a woman who had not spoken to her appointed attorney after six weeks in jail.

Montana eventually passed legislation to change their indigent defense services as a settlement. The lawsuit also spurred North Dakota into action on similar issues to ones brought up in the ACLU lawsuit, which had been studied in the state for many years, such as inadequate funding and oversight compared to that given prosecutors, Huseby said.

"North Dakota wanted to be proactive," she said.

The North Dakota Commission on Legal Counsel for Indigents was established in 2005 to take charge of indigent defense services. Since Jan. 1, 2006, the commission has been in charge of contracting with attorneys and opening public defender offices in the state.

The move removes the possibility of conflict for judges, since judges no longer are responsible for determining whether to provide funding for indigent defense. For instance, appointed defense attorneys used to have to ask judges for permission to hire investigators or have evaluations completed. Now, they call Huseby's office in Valley City and ask permission, which removes the perception of bias on the part of a judge.

It also provides for oversight for the attorneys providing appointed defense services, whether they work on contract or in public defender offices.

The commission's budget comes out of state general funds and court administration fees collected from defendants who are convicted in court. The court administration fees are divided between the commission and a fund for court improvement projects.

(Reach reporter Jenny Michael at 250-8225 or jenny.michael.) @bismarcktribune.com