The Right to Counsel: A Brief Overview

"This thing you are wanting;
a 
'NON-CRIMINAL
FACTS-FINDING-HEARING
JUSTICE!'  
There's no mechanism for...
THIS!"
~(Ingrid McGaughey: Law Office of Public Defender DeKalb County)~

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The Right to Counsel: A Brief Overview

The overall quality of defense lawyers in state and federal court must certainly frame the discussion of lessons to be learned from the wrongful conviction cases. Sadly, the state of representation of indigent clients in the United States leaves much to be desired.

Fifty years ago in Gideon v. Wainwright (1963), the Supreme Court held that the Sixth Amendment guarantees a right to court- appointed counsel to defendants in serious criminal proceedings. While Gideon only established the right to counsel in felony cases, the Court extended its ruling in subsequent decisions to include a right to defense counsel in misdemeanor trials that result in incarceration (Argersinger v. Hamlin, 1972); juvenile delinquency proceedings (In re Gault, 1967); and at arraignments (Rothgerry v. Gillespie County, 2008). Today, the constitutional right to counsel is understood to attach as soon as formal charges are filed against the defendant, and this right remains in place until the trial proceedings and any direct appeals of the conviction or sentencing are resolved.5


4. As this chapter will explore in greater depth, while the expectation may be that a competent defense lawyer is able to expose or challenge such errors or misconduct, the current state of criminal prosecutions is such that highly effective lawyering is not always possible. Unfortunately, research on the contribution of “bad lawyering” to wrongful convictions is the least advanced in the analysis of this question so far and warrants further development.
5. While defendants are constitutionally guaranteed counsel through trial and direct appeal, the majority of states do not recognize a constitutional right to counsel for post- conviction proceedings — the stage at which most wrongful convictions are uncovered.



Gideon requires all states to ensure that indigent criminal defendants receive cost- free representation, regardless of the state’s resources — or political will — to provide them with counsel.6 In the five decades since Gideon, states have established various initiatives to comply with its mandate. Depending on the jurisdiction, an indigent defendant may obtain a lawyer through a state- run defender program, a court- appointed counsel program, or on an ad hoc basis. In some court- appointed attorney systems, lawyers may also represent private clients while handling indigent defendants’ criminal cases (Lefstein, 2010). Understandably, such systems run the risk of affording defendants distracted or insufficiently motivated attorneys.

Despite the letter of the law solemnized in Gideon, indigent criminal defense across the country is consistently described as an unfulfilled promise; many agree that it seemingly is in a state of perpetual crisis. Criminal defendants increasingly are indigent and thus unable to procure counsel independently. Until the 2013 “budget sequester,” the federal courts generally have provided adequately funded systems of defense representation, as have a few cities and states (Cohen, 2013). By and large, however, representation of indigents is shockingly inadequate. As the American Bar Association (ABA) has long decried: “the disturbing conclusion is that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases, the inclination to provide effective representation” (Bright & Sanneh, 2013, quoting American Bar Association, 2004). As Stephen Bright, President and Senior Counsel of the Southern Center for Human Rights, notes:

Most states, which are responsible for more than 95% of all criminal prosecutions, have treated the Gideon decision as an unfunded mandate to be resisted. They have little incentive to provide competent lawyers to represent the people they are trying to convict, fine, imprison or execute. Many focus on minimizing costs, awarding the defense of poor people to the lowest bidder, compensating lawyers at meager rates and underfunding public defender programs. This facilitates pleas, speeds up cases and heightens the chances of conviction for anyone accused of a crime. (Bright & Sanneh, 2013) 

Moreover, the law makes it difficult to reverse a conviction on grounds of constitutionally inadequate defense counsel even where a lawyer has provided little — if any — assistance to the client. Even where the defense lawyer is incompetent by any professional or legal standard, unless the defendant is able to show “prejudice”— that is, a reasonable probability that the outcome of the proceeding would have been different but for the defense attorney’s deficient performance — the case will not be reversed on appeal. This standard to reverse a conviction was established in Strickland v. Washington (1984), where the Supreme Court held that to succeed on a claim of ineffective assistance of counsel the defendant must show that the outcome of the case was “prejudiced” by the defense attorney’s performance. Prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable” (Strickland v. Washington, 1984, p. 687).

As the Court explained further, “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure


6. “Prisoners are not a sympathetic minority; certainly in this country, there are few places where a politician will win votes by standing up for the rights of prisoners. [ . . . ] Few prisoners have any substantial wealth with which to influence elections or even public policy debates, and their ability to communicate with their fellow citizens, the primary alternative means available to influence public policy, is obviously severely limited” (Kane v. Winn, 2004, pp. 175– 176).



that criminal defendants receive a fair trial” (Strickland v. Washington, 1984, p. 689, emphasis added). The Court defined effective representation as that which does not fall below “an objective standard of reasonableness,” noting that reviewing courts must afford significant deference to the judgment of defense attorneys at the time of trial (Strickland v. Washington, 1984, p. 688). A number of individuals who were eventually exonerated by DNA testing initially raised claims of ineffective assistance of counsel on direct and collateral appeals and lost (Garrett, 2011). In these cases, courts concluded that significant evidence of guilt precluded a finding of prejudice to the outcome. The sad irony is that a competent defense lawyer might have been able to bring evidence to light challenging the seemingly “overwhelming” evidence of guilt — but precisely because defense counsel was not competent in many of these cases, the evidence available to the appellate court upon review appeared to confirm the trial court’s verdict.

Thus, the Strickland standard, subject to longstanding and extensive criticism, rarely results in reversals of convictions, even in cases where the lawyer slept during trial or otherwise performed abysmally below any accepted understanding of competent counsel (Burns, 2012; Guggenheim, 2012; Hughes, 2013). “Strickland tolerat[es] systemic conditions that structurally preclude effective representation” (Dripps, 2013, p. 888). Moreover, the Supreme Court in Harrington v. Richter (2011) made it even more difficult to challenge effective assistance of counsel in habeas cases by “doubly deferring” to state court decisions even where the state court did not specify whether it denied the ineffective assistance of claim ( O’Brien, 2012). Since most challenges to effective assistance of counsel occur in habeas proceedings and not on direct appeal, reversal is highly unlikely even in instances of egregiously poor lawyering. Scholars’ arguments that the Court should adopt a standard that presumes prejudice for many ineffective assistance of counsel claims — given that it is nearly impossible to prove what should have been uncovered, but as a result of poor lawyering, was not — have fallen on mostly deaf ears (Parmeter, 2003).

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1930&context=faculty_scholarship

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"Well! 
Then that... IS ...our problem; 
isn't it!"
~(Simply Jim)~