Assignment: Roles in the Judicial System

7 Defense Attorneys

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Introduction Defense Attorney’s Role in the Criminal Justice System Historical Development of the Right to Counsel

Box: Comparative Perspective

Limits on the Right to Counsel At What Point in a Proceeding Is There a Right to an Attorney?

Indigent Defense Systems Assigned Counsel Programs Contract Attorney Programs Public Defender Programs Box: Current Controversy

Private Versus Appointed Counsel: Which Is Better? Effective Assistance of Counsel

Right to Self-Representation Box: Current Controversy Right to an Attorney of One’s Choosing

Ethics and Lawyer-Client Relationships Box: View From the Field

Realities of Being a Defense Attorney Box: Current Research Box: Movies and the Courts

Summary Discussion Questions Key Terms Internet Sites Student Study Site

Introduction The American court process is based on the adversarial system of justice. The cornerstone of an adversarial system is the presence of advocates representing opposing positions to the best of their ability. As we saw in the previous chapter, in the criminal court system, the government is represented by the prosecutor. On the flip side, as you know, a person accused of a crime is generally represented by a criminal defense attorney. The founding fathers recognized that for the adversarial system to function, persons accused of crimes needed to be represented by an advocate equally as skilled and educated as the opposing government prosecutor. To help ensure this balance, the Sixth Amendment to the Constitution provided that “in all criminal prosecutions the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”

In this chapter, we examine a number of aspects of this right. After we review the historical underpinnings of the right to counsel, we consider the philosophical basis for the right as well as limitations placed on it by the Supreme Court. We then see what the right to counsel entails, the roles and duties of defense attorneys, and how states and local courts provide counsel for the myriad of defendants in criminal cases who cannot afford to pay an attorney. This chapter considers the level of effectiveness an attorney’s performance must attain to provide constitutionally adequate assistance, the relationships

between attorney and client, and whether a defendant unhappy with his or her attorney has the right to demand a new lawyer or even proceed without counsel. In considering these items, we repeatedly consider the manner in which defense attorneys fit into the operation of the criminal court system and processes.

Defense Attorney’s Role in the Criminal Justice System Criminal defense attorneys have a special role in the American justice system. As with all attorneys, they are officers of the court and must adhere to significant ethical standards. At the same time, however, defense attorneys must do all they can to promote the interests and protect the rights of their clients. This is far different from the roles and responsibilities faced by prosecutors.

As you may recall from the preceding chapter, while prosecutors, as representatives of the state, have an obligation to seek the truth and attain justice outcomes, criminal defense attorneys have no such obligation. While a prosecutor may not seek to convict a person she or he believes to be innocent, a defense attorney has an ethical obligation to zealously defend a client she or he knows to be guilty. The reason for this duty is that for the American adversarial system of justice to work, it is necessary that actions and claims made by the government prosecutor be tested and challenged by a zealous advocate. If the prosecutor’s case and evidence can withstand such scrutiny and be accepted beyond a reasonable doubt by a judge or jury, the likelihood of an innocent person being convicted of a crime he or she did not commit is considered remote.

To effectively put the prosecutor’s case to the test, a defense attorney must be able to challenge the reliability of the evidence presented, cross-examine witnesses against the defendant, and raise matters involving violations of the defendant’s rights regardless of whether the defendant is in fact guilty as charged. In describing the difference between a defense attorney’s and a prosecutor’s role in the system, Supreme Court Justice Byron White wrote,

But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness,

even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. (United States v. Wade, 1967, pp. 257–259)

While not necessarily involving a search for the truth, defense attorneys play an important role in the search for justice. Beyond determining whether an individual committed a crime, the criminal court system operates to ensure that the government does not violate individual rights as guaranteed by the Constitution. The defense attorney’s role in this process is to continuously challenge the government to ensure that all people’s rights are honored; that suspects and defendants, regardless of who they may be, are treated equally under the law; and that a person is not convicted or punished until he or she pleads guilty before a judge or is proven to be guilty beyond a reasonable doubt before a jury.

Historical Development of the Right to Counsel As with many aspects of the American justice system, the role of counsel in criminal proceedings in 17th- and 18th-century England had a significant impact on the development of the right to counsel in the United States. Under English common law, a person charged with a crime was generally not allowed counsel in a prosecution for any felony or capital offense (Langbein, 1999; Tomkovicz, 2002). Not surprisingly, this practice was brought to the American colonies. During the colonial period, individuals were charged with crimes and tried before a court without the assistance of counsel. As discussed in the previous chapter, in the 1700s, the colonies moved increasingly toward the use of professional, state-funded prosecutors to prosecute criminal cases. Given the advantage a trained prosecutor had over a layperson defending himself, it became apparent that such a system was unfair to those charged with crimes. At the same time, more and more colonists were being prosecuted under British law without the rights and protections provided to English citizens. In light of these factors, individual colonies moved to provide defendants with the right to hire counsel to assist in their defense by

law and, after the Declaration of Independence, by state constitution (Tomkovicz, 2002).

Shortly after the ratification of the U.S. Constitution, the right to counsel was included in the Bill of Rights presented to the First Congress. Specifically, the Sixth Amendment provided that “in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” When the right to counsel was introduced and later adopted on the House and Senate floors during the First Congress, it was uncontroversial and adopted with little debate. In fact, the right to counsel generated minimal controversy until the 1930s.

The lack of controversy around the right to counsel was due to the limited scope of the right. Recall that in 18th-century England, defendants were not allowed to hire an attorney to represent them in most felony prosecutions. The Sixth Amendment’s guarantee that individuals facing criminal prosecution had the right to hire an attorney to defend them was seen as an important constitutional right. Prior to 1933, the right to counsel was assumed to simply permit defendants to hire and to be represented by an attorney. In 1932, the Supreme Court addressed whether defendants who could not afford to pay for an attorney had the right to be represented by counsel at the government’s expense.

In Powell v. Alabama (1932), the U.S. Supreme Court addressed for the first time whether indigent criminal defendants had a right to have an attorney provided to them at state expense. In Powell, nine African American youths, later known as the “Scottsboro boys,” were charged with the rape of two White girls in rural Alabama. Under Alabama law, this crime was punishable by death. The trial court did not appoint counsel to the defendants until the morning of trial. Moreover, the defendants were not asked whether they were able to employ counsel or if they wished to have counsel appointed. After a one-day trial, eight of the defendants were convicted and sentenced to death.

In vacating the convictions rather than finding the defendants’ right to counsel under the Sixth Amendment was violated, the Supreme Court ruled that the defendants were denied due process under the 14th Amendment. In the majority opinion, Justice Sutherland wrote,

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge and

convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. (pp. 68–69)

The Court concluded that given the seriousness of the charges and the special circumstances present, the lack of counsel denied the defendants due process under the law. Importantly, however, the Court emphasized a number of specific facts involved in the case, including that the case involved death sentences, as well as the age and “feeblemindedness” and ignorance of the defendants, in limiting the scope of its opinion. While Powell established a right to appointed counsel in capital cases, it did not require counsel be appointed in noncapital state prosecutions so long as the proceedings were not fundamentally unfair.

Six years later in Johnson v. Zerbst (1938), the Court expanded the reach of Powell in federal courts to include the right to counsel possessed by defendants who cannot afford to hire an attorney. The defendant in Zerbst was convicted without the assistance of counsel in federal court of “possessing and uttering” counterfeit money. The Court overturned his conviction, basing its decision on the Sixth Amendment’s guarantee of counsel “in all criminal prosecutions.” Justice Hugo Black, writing for the majority, stated the Sixth Amendment “withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty” unless he was represented by counsel at trial, or the right to counsel was waived by the defendant. The Court explicitly found that an indigent defendant appearing in court without an attorney suffers a marked disadvantage against the government. Moreover, the opinion stated that the right to counsel was “a constitutionally defined element of a criminal trial,” and it was therefore “the trial court’s affirmative obligation to see that the accused was given this right.”

Zerbst differed from Powell in several important aspects. Unlike Powell, Zerbst applied to all criminal defendants in federal court regardless of the particular circumstances of individual cases. Furthermore, the rights announced in Zerbst were based on the Sixth Amendment right to counsel instead of the due process clause. However, as Zerbst applied only to federal prosecutions, it did not alter Powell’s demands on the states. As such, states were still required to offer court-appointed counsel to indigent defendants only in capital cases or in particular situations that would offend all notions of due process.

In 1942, the Supreme Court considered whether the right to counsel as provided for in Zerbst should be applied to the state court prosecutions in Betts v. Brady (1942). Betts involved a robbery prosecution of a 43-year-old man of ordinary intelligence. Prior to trial, Betts requested counsel be appointed to aid in his defense. This request was denied, and he was subsequently found guilty by a jury and sentenced to prison.

In upholding the conviction, the Supreme Court held that the 14th Amendment’s due process clause did not mandate counsel for an indigent defendant charged with a felony offense in state court. As it had done in Powell, the Court focused on the particular facts involved in the case: The defendant was an adult, he was familiar with the criminal process, and he was “of ordinary intelligence.” On the basis of these facts, the Court found that Betts had the ability to adequately defend himself, and as such, the absence of counsel did not deprive him of a fair trial. In a broader sense, the holding in Betts meant that states were not required to provide indigent defendants with an attorney absent special circumstances such as those present in Powell.

In a passionate dissent, Justice Black found the Court’s ruling contrary to its prior holdings in Powell and Zerbst. He argued that depriving a defendant of counsel because of his indigent status is at odds with “common and fundamental ideas of fairness and right.” Justice Black’s dissenting opinion in Betts would lay the framework for the rejection of Betts two decades later.

On June 3, 1961, Clarence Gideon was arrested and charged with breaking and entering a poolroom with the intent to commit a misdemeanor, a felony under Florida law. Prior to his trial, Gideon, who was indigent, demanded that the state appoint him an attorney. The trial court judge refused, explaining that he “[could not] appoint Counsel to represent [Gideon] in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense” (Gideon v. Wainwright, 1963). Gideon was convicted at trial and sentenced to 5 years in prison.

From his prison cell, Gideon, who had no formal education, sharpened his pencil and handwrote a petition for habeas corpus for submission to the Supreme Court. While the Supreme Court receives thousands of pauper petitions annually, it agrees to consider the merits of very few requests. Fortunately for Gideon, the Court agreed to hear his case and appointed attorney Abe Fortas, who would later be appointed to the Supreme Court, to represent him before the Court.

A unanimous Supreme Court explicitly overruled Betts and held that indigent defendants charged with a felony in state courts must have counsel provided to them at state expense. In the majority opinion, Justice Black, who had dissented in Betts, held that

in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal cases are necessities, not luxuries. (p. 354)

The Court concluded that the right to counsel was essential to a fair trial and was therefore incorporated into the 14th Amendment’s due process clause and was binding on the states. As groundbreaking as the Gideon decision was, it left several questions unanswered. Specifically, the Court did not address whether there is a right to counsel in all criminal prosecutions, including prosecutions of petty offenses and misdemeanors; at what point in the court process the right to counsel attaches; and whether the right to counsel applies to postconviction proceedings, such as appeals, habeas corpus filings, and probation and parole violation hearings. As discussed below, the Court addressed each of the matters over the next several decades.

COMPARATIVE PERSPECTIVE The Right to Counsel in Germany

Criminal defendants in Germany have been guaranteed the right to assistance of counsel since 1877. The table below illustrates the differences between the right to counsel in the United States and Germany.

Limits on the Right to Counsel Read literally, this right would seem to apply equally to a person charged with murder and a person charged with littering. On the other hand, since Gideon involved a felony, it could be argued that the right to counsel applied only in cases involving felonies. Predictably, how individual states interpreted what constituted a criminal offense varied greatly. It wasn’t until 1972, nine years after Gideon was decided, that the Supreme Court clarified under what circumstances indigent defendants charged with crimes that were not felonies were entitled to counsel at state expense.

Jon Argersinger, an indigent, was charged with carrying a concealed weapon, a misdemeanor punishable by imprisonment up to 6 months, a $1,000 fine, or both. Despite his request for an attorney, he was not provided with counsel. He was subsequently found guilty by a judge at a nonjury trial and sentenced to serve 90 days in jail. Argersinger brought a habeas corpus action in the Florida Supreme Court, alleging that his 14th Amendment right to counsel as guaranteed in Gideon was violated. The Florida Supreme Court refused to provide relief, holding that a defendant has a right to counsel only if he is facing a potential period of incarceration longer than 6 months.

In an opinion written by Justice Douglas, the Supreme Court reversed (Argersinger v. Hamlin, 1972). The Court noted the vital role counsel plays in providing a defendant with a fair trial regardless of the seriousness of the charges being faced. Moreover, given the large number of misdemeanants prosecuted in local courts, the potential that indigent defendants in those courts face assembly-line justice is real. That being said, the Court acknowledged that this same large number of cases would make a requirement that all misdemeanants be provided with counsel largely unfeasible.

Facing these realities, the Court struck a balance, holding that absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he or she was represented by counsel at his or her trial. Because Argersinger was convicted and sentenced to jail without being appointed counsel, his conviction and sentence were vacated.

The standard laid out in Argersinger was clarified 7 years later in Scott v. Illinois (1979). The Supreme Court in Scott explicitly recognized that a defendant may not be sentenced to jail or prison unless that person was represented by an attorney or voluntarily waived his or her right to counsel. If you think this standard would be awkward to implement, you would be correct. It essentially requires the trial judge and prosecutor to decide at an early stage of a prosecution whether they believe a defendant charged with a misdemeanor is deserving of a jail sentence if convicted. If a defendant is not provided an attorney, he or she may not be imprisoned if ultimately found guilty.

This places the prosecutor and judge in a situation where they must balance the ability to incarcerate a defendant on conviction against the cost of providing low-level offenders with counsel. Given the thousands of indigent defendants charged with misdemeanors each week across the country, if states and local governments were required to provide counsel in each case, the expense would be overwhelming.

While the Supreme Court was unanimous in the finding that Argersinger’s rights had been violated, several justices disagreed with the standard set forth in the majority opinion. The primary concern was that the criminal justice system would be

overwhelmed with the new requirement for the appointment of counsel in thousands of new cases. These concerns have not come to fruition. As it tends to do, the criminal justice system adapted to this new requirement with minimal problems.

At What Point in a Proceeding Is There a Right to an Attorney? While Argersinger and Gideon laid out the types of cases in which a defendant has a right to counsel, they did not address the point in the prosecution process at which the right to an attorney attaches. The Supreme Court has held that the right to counsel for a defendant who would be entitled to an attorney under Gideon or Argersinger attaches at the initiation of formal adversarial proceedings. This occurs when a defendant is arrested and brought before a judge for an initial appearance or when the accused is indicted or formally charged with a crime by criminal complaint. Once the right to counsel has attached, a defendant has the right to an attorney at all critical stages in the court process. A critical stage is any stage of a criminal proceeding where substantial rights of a criminal accused may be affected. The basis for this definition centers on the fact that the core purpose behind the right to counsel was to provide assistance when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. For this reason, a defendant has a right to have a lawyer appear on his or her behalf at essentially all court proceedings following the commencement of a criminal prosecution. The Supreme Court has stated that a prosecution begins and the right to counsel attaches at a defendant’s first appearance before a judicial officer, at which point the defendant is informed of the charges against him or her and has restrictions imposed on his or her liberty (Rothgery v. Gillespie County, 2008). In addition to having a right to counsel at court appearances, following the filing of formal charges, prosecutors, police, and investigators may not contact the defendant, let alone interrogate him or her, in the absence of counsel. Table 7.1 lists a number of stages of the criminal adjudication process and whether they require the presence of a defendant’s lawyer.

The right to counsel does not end following the conviction and sentencing of a defendant. On the basis of the assumption that a defendant’s right to appeal can be effective only if counsel is provided, the Supreme Court has held that indigent defendants have the right to the assistance of court-appointed counsel for their first appeal. This right does not extend to subsequent appeals, habeas corpus petitions, or other postconviction proceedings. Although there is no right to counsel under the U.S. Constitution for multiple appeals or petitions to the state and U.S. supreme courts, a number of states do provide for the assistance of counsel on request for other postconviction proceedings.

Indigent Defense Systems Recall that Gideon and Argersinger mandated that states provide counsel to indigent criminal defendants charged with felonies and misdemeanors in which a defendant may be sentenced to jail or prison if convicted. Given the fact that nearly 90% of criminal defendants are indigent, the magnitude of the responsibility placed on states to provide attorneys for indigent defendants cannot be overstated. Consider Table 7.2, which contains the expenditures associated with indigent defense services in the United States during 2005. In that one year alone, states spent between $2 million and $572 million on indigent defense services.

Due in large part to these costs, state and local governments across the country work hard to provide counsel to indigent defendants as efficiently and inexpensively as possible. At

the same time, however, it is morally and constitutionally required that a defendant be provided with competent representation. The best means of providing effective representation at a reasonable cost is widely debated. There are three primary indigent defense systems: assigned counsel programs, contract systems, and public defender offices.

Assigned Counsel Programs Assigned counsel programs employ private attorneys to represent indigent defendants. Many attorneys, particularly those recently out of law school, welcome the opportunity to participate in an assigned counsel program because of the courtroom experience they can gain.

The most common type of assigned counsel system is the ad hoc assigned counsel program, under which the appointment of counsel is generally made by the court on an ad hoc basis; that is, lawyers are appointed to represent defendants on a case-by-case basis when necessary. Frequently, cases are assigned to whoever happens to be in the courtroom at a defendant’s first appearance or arraignment. Under these systems, attorneys are usually paid on an hourly basis, for example, $40 an hour for work out of court and $50 an hour for work in court. In some states, attorneys are provided a flat fee per case. In most jurisdictions, private, court-appointed counsel must petition the court for funds for investigative services, expert witnesses, and other necessary costs of litigation. The ad hoc assigned counsel method is the predominant indigent defense system used in the country. It works particularly well in smaller, rural counties that have limited demand for indigent defense services. Drawbacks of ad hoc appointment systems are the lack of control over the experience level and qualifications of the appointed attorneys as well as the potential for judges funneling work to preferred lawyers.

The second type of assigned counsel program is referred to as the coordinated assigned counsel system. Under this system, attorneys apply to be included on a list of counsel to be appointed on an as-needed, rotational basis. As with the ad hoc appointment method, attorneys are paid on an hourly or per-case basis.

The coordinated assigned counsel system provides several benefits not available in the ad hoc model. A primary benefit is that it allows the court or a governing body to require attorneys to meet minimal qualification standards to be accepted into the program. By limiting appointments to attorneys who are prequalified to handle the case, both in terms of ability and desire to receive such appointment, problems associated with unqualified or unwilling attorneys being appointed cases are reduced if not eliminated. In addition, since the appointing authority knows the background and level of experience of each attorney

eligible for appointment, experienced attorneys can be appointed to highly complex or serious cases, while less serious cases can be handled by less experienced lawyers. For these reasons, the coordinated assigned counsel model is generally recognized to be better than the ad hoc assigned counsel system.

Contract Attorney Programs The second category of indigent defense systems is known as contract attorney programs. In contract programs, a state or county government (or judicial district administration) enters into a contract with one or more private attorneys, law firms, or nonprofit organizations to provide representation to indigent defendants. Such contracts are normally designated for a specific purpose within the court system, such as felonies, misdemeanors, or all cases where the public defender has a conflict of interest. Jurisdictions using contract systems to provide indigent defense services will periodically advertise requests for proposals under which attorneys, law firms, and nonprofit organizations can bid for the contract. Such bids generally state how much the attorney or firm will charge to handle the specified services.

Contract programs operate using either fixed-price contracts or fixed-fee-per-case contracts. Under a fixed-price contract program, a contracting lawyer or law firm agrees to accept an unknown number of cases within the contract period, normally one year, for a single flat fee. The contracting attorneys are usually responsible for the cost of overhead, support services, investigation, and expert witnesses. Even if the caseload in the jurisdiction is higher than was projected, the attorney is responsible for providing representation in each case for the original price.

While the fixed-price contract program does provide a level of certainty for a governmental agency trying to budget for indigent defense services, this approach certainty comes with several negative components. The two largest problems are (a) the inherent incentive for the attorney to spend as little time and expense on each case as possible and, relatedly, (b) the lack of oversight of the competence of the attorney handling each case for a law firm that has entered into the contract. Under such contracts, law firms have been known to have their least experienced attorneys handle a majority of cases involving indigent defendants, to refrain from employing investigators or expert witnesses, and to take all steps possible to dispose of cases prior to trial. In short, the quality of representation provided to indigent defendants suffers under fixed-price contract systems. It is for these reasons that the use of fixed-price contracts has been condemned by the American Bar Association.

Under fixed-fee-per-case contract systems, the contract entered into by the attorney or

law firm and the local government entity agrees to a specific number of cases to be handled for a fixed fee per case. Typically, the contracting attorney or firm submits a monthly statement indicating the number of cases handled during the period. Once the predetermined number of cases has been reached, the option exists to renegotiate, extend, or terminate the contract.

The fixed-fee-per-case model is less common than the fixed-price model for jurisdictions that use a contract system for indigent defense. The main reason for this is that a number of jurisdictions have adopted the fixed-price contract model solely as a means to cut costs, often at the expense of the quality of the representation provided.

In recent years, the number of jurisdictions using contract programs has increased substantially. In most instances, contract programs have been introduced as an alternative to court-appointed attorneys handling conflict of interest cases in jurisdictions that have a public defender office. The primary appeal of contract systems to funding bodies is the ability to project costs for the upcoming year accurately by limiting the total amount of money that is contracted out. With an assigned counsel system, it is impossible to predict the total cost for the upcoming year. Variables affecting the cost of an assigned counsel system include the total number of cases assigned, whether any death penalty or complicated cases are filed, and whether there are drug sweeps resulting in multiple defendants for the same case. Counties and states using fixed-price contracts are not subject to these variables, so they can project with certainty what their indigent defense expenditures will be at the beginning of the year.

Public Defender Programs A public defender program is a public or nonprofit institution designated to provide representation to indigent defendants in criminal cases. The defining characteristic of a public defender office is that it directly employs staff attorneys whose sole job is to provide representation to indigent defendants. The director of most public defender offices is normally appointed by a governing body (generally a county commission or a state’s governor). Public defender offices employ full-time investigators and support staff and have budgets to hire expert witnesses as needed. Public defender offices are predominantly used in larger jurisdictions with a significant number of criminal prosecutions. Attorneys working in public defender offices range from those recently out of law school and admitted to the bar to veterans who have been public defenders for many years and even decades. Cases are usually assigned to individual public defenders based on the attorney’s experience and the seriousness and complexity of the charges facing the defendant. In addition, public defenders normally handle all aspects of a case, from arraignment through sentencing.

While public defenders and their offices are routinely thought to provide less effective representation than attorneys in the private sector, this is not necessarily the case. Though notoriously overworked, public defenders and their offices have the capacity to handle large numbers of cases efficiently because of the fact that criminal defense in a single jurisdiction is the sole focus of their work. Familiarity with procedures increases efficiency, and appearing before the same judges and with the same prosecutors on a daily basis also facilitates workgroup cohesion, which may lead to better outcomes for clients.

Another important benefit associated with being represented by a public defender is that public defender offices have investigators on staff and funds budgeted for expenses associated with expert witnesses. Generally, if a defendant being represented by a public defender needs investigatory work performed or would benefit from the testimony of an expert witness, these items will be accomplished as a matter of course. With assigned counsel or counsel appointed in a contract system, expenses for investigators and expert witnesses are either borne by the attorney as part of the contract or subject to court or administrative approval. Accordingly, an indigent defendant who is likely to need the testimony of an expert witness or further investigation beyond what is done by the police is probably better off being represented by a public defender than another type of appointed counsel.

CURRENT CONTROVERSY

Attorneys who work in an indigent defense system are notoriously overwhelmed by immense caseloads. While the American Bar Association and many states have explicit caseload limits of 150 felonies and 400 misdemeanors a year, these limits are routinely ignored, with attorneys actual caseloads ballooning up to 200% more than what is authorized. Historically, this is because the caseload standards are advisory and contain no mechanism for enforcement.

In 2012, the Washington State Supreme Court took a giant step toward putting teeth into caseload limits by amending court rules on the appointment of attorneys to represent indigent defendants. In addition to reaffirming the caseload limits noted above, the court also enacted several important yet often ignored items associated with indigent defense. The court rules require attorneys possess specific levels of experience (years of practice and completed jury trials) before they can be assigned to specific classes of cases. Additionally, attorneys in private practice who also represent indigent defendants must adjust the number of cases they can be assigned to account for the percentage of time they spend representing private, fee paying clients. Moreover, the court also mandated that indigent defense attorneys and public defender offices have access to office space, support staff, and investigative resources, to effectively represent their clients.

While these items are important the critical component of the standards involves how they are overseen and implemented. Rather than simply provide standards with no enforcement mechanism, the Washington Supreme Court requires attorneys to certify that they are in compliance with the standards four times a year (see Figure 7.1 for a sample certification form). These certifications must be filed with the courts in which they practice. What makes this system effective is its placing the burden of compliance on attorneys. Although the court has no rule making authority for cities and counties, it does have the authority to regulate attorneys who practice law in the state. As such, an attorney certifies his or her compliance with the guidelines when they are out of compliance may subjected to discipline by the state bar and supreme court. As such, an attorney whose practice exceeds the number of assigned cases permitted runs the risk of having his or her license to practice law in the state revoked.

Figure 7.1 Certification of Appointed Counsel of Compliance With Standards

The standards have been in effect for a little over a year. While it is too soon to tell what impact the new standards and procedures are having on the system, it appears cities, counties, at attorneys have effectively adapted to the new requirements imposed. For more information and updates visit the Washington Office of Public Defense at http://www.opd.wa.gov.

Private Versus Appointed Counsel: Which Is Better? While comparing the different forms of indigent defense systems is worthwhile, it is also important to consider whether defendants who are able to hire private attorneys at their

own expense receive better representation than defendants with court-appointed counsel. The answer to this question depends largely on whom you ask and how you measure quality of representation.

From the perspective of the client, there is an overwhelming belief that defendants represented by private attorneys receive better assistance than that provided to defendants with appointed counsel (Casper, 1978; Feeney & Jackson, 1991; Wice, 2005). There are several reasons for this belief. First, public defenders and appointed attorneys are widely viewed as lawyers working for the government, just like the prosecutor. As such, many defendants view their appointed attorney as being in cahoots with the prosecutor and not having their best interests in mind. Relatedly, it is believed that people get what they pay for, and if they are getting an attorney for free, he or she must not be very good. Otherwise, this thinking goes, they would have a “real job” (Casper, 1978).

While these perceptions are factually incorrect, research has shown that there are some differences in the way in which private and appointed attorneys do their jobs. One difference is the amount of time the different types of attorneys spend with their clients. Attorneys who are hired and paid by a defendant spend more time with their client than attorneys who are appointed to represent a defendant. This disparity is due to the large number of cases public defenders have and the number of clients they must see in a given day. Private attorneys, with smaller caseloads, are able to see their clients more frequently and respond to requests for meetings more expeditiously.

Research has also shown that private attorneys file more motions, attend more hearings, and meet with family members more than appointed counsel. Such items show the level of effort the attorney is putting into the case and serves to justify the fee she or he is being paid. These efforts also make clients feel that someone is fighting for them and is doing everything possible to obtain a positive outcome. For these reasons, private attorneys consistently receive superior ratings on the quality of representation provided than do court-appointed lawyers on the quality or representation provided.

In terms of case outcomes, however, research has consistently indicated that there is little variation in case outcomes between privately retained attorneys and assigned counsel (Hanson, Hewitt, Ostrom, & Lomvardias, 1992; Wice, 2005). There is no significant difference in the rate of case dismissals, convictions, and sentences following conviction for defendants represented by appointed counsel and retained attorneys. Moreover, any differences found in case outcomes are due to items other than type of attorney, particularly the race, income, criminal history, and pretrial release status of the defendant. While private attorneys generally file more motions and attend more hearings, these acts do not regularly generate better case outcomes. As discussed later in this chapter, while appointed attorneys fare just as well as retained counsel in the ultimate disposition of

cases, achieving a positive result absent vivid displays of effort and adversariness is frequently unappreciated and dismissed.

Effective Assistance of Counsel By the 1970s, the Supreme Court clarified under what circumstances indigent defendants were entitled to the assistance of counsel at state expense. Less clear was the level of competence and ability required of attorneys appointed to represent indigent defendants. In 1970, the Supreme Court explicitly held that the right to counsel included the right to the effective assistance of counsel. As summarized by the Supreme Court in McMann v. Richardson (1970), “If the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel.”

While the Court clearly established that a defendant has a right to effective assistance, it did not define what level of performance is sufficiently effective. Up until the mid-1980s, a number of varying definitions and standards for what constituted effective assistance of counsel were used in federal and state courts. Criteria used by courts included whether the attorney’s performance was “of such a kind as to shock the conscience of the court and make the proceedings a farce and mockery of justice,” “reasonably competent,” “[of] a minimum standard of professional representation,” or “[characterized by] customary skills and diligence.” As should be clear, these standards are so broad and ill defined as to be largely unusable.

In light of these varied measures, in the 1984 case of Strickland v. Washington, the Supreme Court set forth the standard to be used in evaluating ineffectiveness of counsel claims. Justice O’Connor, writing for a seven-member majority, noted that the standard for judging a claim of ineffectiveness is whether counsel’s performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. To determine whether this requirement was met, the Court established a two-pronged test.

1. Was the attorney’s performance deficient? and 2. If so, did the deficient performance injure (prejudice) the defendant?

In considering the first prong, the Court held that a court must evaluate whether, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” The majority went on to hold that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” It is important to note that decisions made by the attorney about strategy will not be second-guessed in hindsight.

If counsel’s performance is determined to have been below acceptable standards, a claim of ineffective assistance of counsel will not succeed unless it is also shown that counsel’s ineffectiveness prejudiced the defendant. This prong requires proof that there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court went on to explain that a reasonable probability is “a probability sufficient to undermine confidence in the outcome.”

The two-pronged standard established by the Court in Strickland has proven very difficult to meet. In particular, the prejudice prong of the test is difficult to pass. In most criminal trials, there is extensive evidence against the accused. In reviewing potential prejudice to a defendant caused by an attorney’s ineffectiveness, a court will consider whether a competent attorney would have made a difference in the outcome. Specifically, a defendant must demonstrate that counsel’s errors are so severe as to deny him or her of a trial whose outcome is fair or reliable, not merely that the result would have been different. In the vast majority of cases in which ineffective assistance of counsel is raised, courts have found either that the performance of counsel was reasonable or that the outcome of the trial would have been the same regardless of the substandard performance and have denied relief.

There is a class of cases, however, for which prejudice need not be proven. These are cases involving claims of ineffective assistance of counsel where a defendant was actually denied counsel during a critical stage of a prosecution or where the errors surrounding the representation “are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified” (United States v. Cronic, 1984). In Cronic, which was decided the same day as Strickland, the Supreme Court described such a circumstance: “If counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” For a presumption of prejudice to apply, it must be established that counsel failed to challenge any aspect of the prosecution’s case, not simply some aspects. As such instances are extremely rare, it is almost always necessary that a defendant be able to establish prejudice to prevail on an ineffective assistance of counsel claim.

Right to Self-Representation Gideon established that indigent defendants have the right to the assistance of counsel. It also gave rise to a new and related matter: Do criminal defendants have the right to represent themselves? The desire of a criminal defendant to proceed pro se, without counsel, raises several conflicting issues. As noted earlier in this chapter, the Supreme Court has found the assistance of an attorney to be critical to a person facing criminal

prosecution, going so far as to hold that denying counsel to an indigent defendant makes the prosecution fundamentally unfair. As such, it would seem to be folly to permit a defendant to facilitate an unfair prosecution by demanding to represent himself or herself. On the other hand, should the court force a criminal defendant to rely on an attorney when the defendant believes she or he can represent herself or himself more effectively than appointed counsel?

In Faretta v. California (1975), the Supreme Court held that the Sixth Amendment may not be used to prevent a competent defendant from self-representation. While noting that a lawyer who represents himself or herself has a fool for a client, so long as a defendant knowingly, intelligently, and voluntarily waives his or her right to counsel, that person will be entitled to proceed pro se. That being said, courts are not powerless in dealing with pro se defendants. Typically, judges provide defendants who insist on proceeding pro se with “standby counsel.” Standby counsel does not formally represent the defendant but acts as an adviser during the proceedings. This advice frequently involves procedural matters and issues involving rules of evidence that are unfamiliar to nonattorneys.

CURRENT CONTROVERSY In 2008, the Supreme Court considered whether a person who is mentally competent to stand trial (able to understand the proceedings and assist in his or her defense) may be prevented from criminal prosecution due to mental deficiencies (Indiana v. Edwards, 2008). Ahmad Edwards, diagnosed with schizophrenia, was charged with armed robbery and attempted murder. Prior to trial, he was found incompetent and ordered to be held in the state mental hospital for treatment to restore him to competency. After nearly a year, he was found competent to stand trial.

Prior to trial, he asked to fire his attorney and represent himself. The trial judge denied the request based on Edwards’s mental illness. Edwards proceeded to trial with counsel and was convicted.

The Supreme Court took up Edwards’s case to address the question of whether states may adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial.

Although the Court upheld the premise of Faretta v. California (1975) that there is a constitutional right to self-representation, the Court ruled against Edwards. The Court noted that one can be competent to stand trial but still lack the capacity to stand trial without the benefit of counsel. This is because mental illness is not a unitary concept but varies in degree and manifestations. As such, it would be inappropriate to mandate the use of a single competency standard. In addition, as the right to self-representation exists to affirm the dignity of a defendant who wants to proceed without counsel, a defendant suffering from mental illness may perform in such a manner that has the opposite effect and actually denies him or her a fair trial. The Court did not spell out what standard should be used to determine if a person is competent to represent himself or herself at trial. It simply ruled in this case, given Edwards’s long history of mental illness, the trial court did not err in denying the request to proceed pro se.

Right to an Attorney of One’s Choosing In the criminal justice system, the vast majority of defendants are indigent. Because they lack the means to hire an attorney, the government is required to provide one to indigent defendants. Not surprisingly, regardless of whether the defendant and the attorney like or trust each other, the experience level of the attorney, or the lawyer’s reputation for effectiveness in prior cases, an indigent defendant has no right to choose whom he or she wants as counsel. The Constitution guarantees that an indigent defendant be given effective counsel, not the counsel of his or her choosing.

What happens if a defendant has the money to hire an attorney? Can the court place limits or restrictions on the attorney who a defendant wants to hire with his or her own funds? If a nonindigent defendant is prevented from being represented by counsel of his or her choice and is forced to employ a different attorney, has the right to counsel been violated? Those questions were answered in United States v. Gonzalez-Lopez (2006).

Cuauhtemoc Gonzalez-Lopez was charged with conspiracy to distribute more than 100 kilograms of marijuana. His family hired attorney John Fahle to be his lawyer. Gonzalez- Lopez himself hired Joseph Low, a lawyer from California who had recently prevailed in a well-publicized drug sale case similar to the one facing Gonzalez-Lopez. At an evidentiary hearing shortly after arraignment, where Gonzalez-Lopez was represented by both attorneys, Low violated the court’s orders by passing notes to Fahle. A short time later, Gonzalez-Lopez stated he wanted Low to be his only attorney. Because of the note- passing incident and alleged unethical conduct in unrelated cases, the judge denied Low’s petition to represent Gonzalez-Lopez. The trial judge even refused Gonzalez-Lopez’s new lawyer’s request to let Low sit at counsel table during the trial; the judge made Low sit in the gallery and have no contact with Gonzalez-Lopez or his new attorney during the trial. The trial proceeded without Low’s involvement, and Gonzalez-Lopez was convicted.

After several postconviction hearings and appeals, the case was heard by the Supreme Court regarding whether Gonzalez-Lopez’s Sixth Amendment right to counsel was violated by the trial judge’s refusal to allow him to hire an attorney of his own choosing. Two important points were stipulated by both sides by the time the appeal had reached the Supreme Court. First, it was agreed that the district court judge had committed error in denying Low’s application to appear for the defendant. Second, it was agreed that Gonzalez-Lopez received a fair trial. Everyone agreed that the lawyer who represented Gonzalez-Lopez provided effective assistance of counsel.

With these stipulations in effect, the Supreme Court had to decide whether denying a defendant the counsel of his or her choice (this does not involve indigent defendants) is a

reversible error absent a showing of ineffective representation or harm to the defendant. The Court held that denying a nonindigent defendant counsel of his or her choice violates the Sixth Amendment right to counsel, a fundamental right regardless of whether a fair trial took place. According to the Court, depriving a person of the attorney of his or her choice affects the entire context in which the trial is held, making it a structural error rather than simply a procedural error. Writing for the five-member majority, Justice Scalia stated that the Sixth Amendment right to counsel of choice requires “not that a trial be fair but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best.” Moreover, the Court noted that the right at stake was the right to counsel of choice, not the right to a fair trial, and that right was violated because deprivation of counsel was erroneous. As such, no additional showing of prejudice was required to make the violation “complete.” The four dissenting justices argued, on the other hand, that it made no sense to ignore the quality of the representation actually provided the defendant before deciding that his or her rights were violated.

It is important to note that no one argued that Gonzalez-Lopez was denied effective assistance of counsel or that he did not receive a fair trial. Rather, once Low was not permitted to represent Gonzalez-Lopez, the constitutional violation was complete, and reversal was mandated under the view of the majority. This would be the case even if the defendant were represented by the best attorney in the country but was denied the right to be represented by his cousin just out of law school. Justice Scalia would respond that there are intangible qualities possessed by individuals and that the attorney-client relationship can’t and shouldn’t be quantified.

Ethics and Lawyer-Client Relationships Often a criminal defense attorney is the only thing standing between a criminal defendant and a criminal conviction and lengthy prison sentence. In serving as a client’s defender, a lawyer has a duty to provide diligent and competent representation for his or her client. This responsibility includes counseling the defendant, investigating items relevant to the case, pursuing a favorable disposition (plea bargain) prior to trial, zealously presenting the defendant’s case in court, challenging the prosecution’s evidence and cross-examining prosecution witnesses at trial, and, most of all, ensuring that the defendant’s rights are honored and protected.

In more general terms, when representing a client, criminal defense attorneys are required to “serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation” (American Bar Association, 1993, Standard 4– 1.2(b)). To facilitate the ability of an attorney to effectively represent a client, a number of ethical rules and standards regulate how a lawyer must relate to his or her clients.

Beyond maintaining the integrity of the legal system, the overarching theme throughout these rules is the importance of fostering a defendant’s trust in his or her attorney.

The most important component of building a client’s trust in her or his attorney is the assurance that what is said between attorney and client will be kept confidential. Without the assurance of confidentiality, there is no reason to expect defendants to be candid with their lawyers about events surrounding the charges they face. Without such candor, the ability for a lawyer to effectively represent a client is greatly diminished.

Beyond assuring the client that all communications between them will be kept confidential, an attorney can do several other things to generally foster a good working relationship between client and lawyer:

Meet with defendant as soon as practical following appointment or retention. Explain in detail the procedures that will take place as the case progresses. Promptly respond to the client’s questions or requests for information. Keep the client informed of developments in the case on a regular basis.

Despite the importance of having defendants trust their attorneys and regardless of an attorney’s efforts to build trust, research has shown that defendants are more often than not very distrustful of their lawyers. This distrust stems from (a) the environment and conditions under which a defendant is provided with an attorney, (b) the near autonomy with which the attorney makes strategic decisions on how to conduct the defendant’s trial, and (c) the advice and counseling the lawyer provides that are less positive than the client envisioned and may include an attorney refusing to partake in unethical behavior on behalf of the client.

It is rare for criminal defense attorneys to meet with their clients under positive conditions. In the best of circumstances, the meeting occurs in a law office with the client seeking help and advice in dealing with potential or actual criminal prosecution. Alternatively, attorneys frequently meet their clients for the first time at the local jail where the client is being held following arrest. In either case, the client is likely to be scared of what may lie ahead, confused by the process before him or her, and leery of the attorney sitting across the table. To make matters worse, in a vast majority of cases, the attorney has been assigned by a court to represent the defendant. Keep in mind, in such cases, the client has no input into who will be appointed to be his or her lawyer, has no information about the lawyer’s ability, and may well believe the court-appointed lawyer assigned to him or her is probably representing poor defendants because he or she is not capable enough to have a job as a “real” lawyer. To make matters worse, in the eyes of many indigent defendants, since the government is paying the salaries of both the prosecutor and the defense lawyer, the attorneys will be working together to get rid of the

defendant’s case as quickly as possible.

A second item that affects the amount of trust a client has in a lawyer involves the level of responsibility and autonomy given an attorney for strategic decisions made in defending a client. Once a criminal case reaches court, a defendant who is represented by an attorney has complete control over a limited number of basic, fundamental decisions about how his or her defense will proceed. Specifically, decisions that are reserved for the defendant to make include the following five items (see also Table 7.3):

Whether to plead guilty Whether to accept a plea agreement Whether to waive a jury trial Whether to testify Whether to appeal

As these items implicate specific constitutional protections, a defendant has the right to make the relevant decision. Decisions that must be made beyond these items are typically considered to be tactical or strategic in nature. These options commonly include the following:

Whether to call specific witnesses to testify How to cross-examine prosecution witnesses Whether an affirmative defense, such as self-defense or insanity, should be raised Whether potential jurors should be challenged for cause or removed with a peremptory challenge (these matters are discussed at length in Chapter 7) Whether to employ an expert witness Whether to give an opening statement or closing argument

Though an attorney should consult with a client before making tactical or strategic decisions, ultimately they are left to the attorney to make. The logic behind this is that only a trained expert has the ability to comprehend the importance and implications of tactical decisions. Moreover, as many choices during a trial must be made rapidly, it is not practical to have a client weigh in on each question, objection, or strategic decision. As such, it is left to the attorney to do what he or she deems best. As discussed earlier in this chapter, most decisions made by an attorney that hurt a defendant’s case will not be a sufficient basis for reversal due to grounds of ineffective assistance of counsel. Only those decisions that are considered professionally unreasonable and are found to have prejudiced the defendant are grounds for reversal. Such legal parsing is of little consolation to a defendant who was convicted at trial.

The third area giving rise to defendants’ distrust of their defense attorneys involves the counseling and advice conveyed from attorney to client. While a lawyer will counsel and advise clients on their best options, frequently an attorney must tell clients what they do not want to hear. This may include advising clients to enter into a plea bargain, telling them that their story of what occurred is unlikely to be believed by a judge or jury, and saying that, despite being willing to fight hard for the client’s interests, there are limits to what an attorney is ethically permitted to do.

Often, the distrust felt by defendants is compounded by the fact that defense attorneys frequently have different opinions than their clients on how to proceed with a case. As

discussed above, while the client has the right to make major, fundamental decisions regarding how to proceed with a case (plead guilty, testify), matters of strategy are left to the attorney. Moreover, an attorney has an overriding obligation to protect the integrity of the justice system. Though criminal defense lawyers must do all within their power to obtain favorable outcomes for their clients, lawyers must do so within the rules of the court and ethical standards laid out by state bar associations.

Above all else, while a defense attorney owes these (and other) duties to his or her client, a lawyer also has an obligation to be honest and candid with the court. An attorney cannot lie or misrepresent facts to the court or knowingly allow the admission of perjured testimony in a trial. These limitations apply even when the unethical or impermissible act is requested or demanded by a client.

In Nix v. Whiteside (1986), the U.S. Supreme Court considered how an attorney should handle a situation where he or she knows that a client intends to commit perjury while testifying in his or her own defense. In preparing for his trial on a murder charge, Emmanuel Whiteside consistently told his attorney, Gary Robinson, that he had not seen a gun in the victim’s hand when he stabbed the victim. However, during preparation for his testimony the week before the trial was to begin, Whiteside for the first time told Robinson that he had seen “something metallic” in the victim’s hand. When asked about this, Whiteside responded, “If I don’t say I saw a gun, I’m dead.” On Whiteside’s insistence that he would testify that he saw “something metallic,” Robinson told him that if Whiteside testified falsely, he would have to advise the court that he felt Whiteside was committing perjury. Whiteside ultimately testified truthfully, admitting on cross- examination that he had not actually seen a gun in the victim’s hand. A jury convicted him of second-degree murder, and he was sentenced to 40 years in prison.

After his conviction was affirmed on appeal, Whiteside filed a writ of habeas corpus in the U.S. District Court for the Southern District of Iowa, alleging denial of effective assistance of counsel because Robinson’s admonitions not to testify that he saw a gun or “something metallic” violated the Strickland standards. The district court ruled against Whiteside, but the Eighth Circuit Court of Appeals reversed. The eighth circuit found that while a criminal defendant’s right to testify does not include a right to commit perjury, Robinson’s warning that he would inform the court of the planned perjury constituted a threat to violate an attorney’s duty to preserve confidentiality and therefore violated the standards of effective representation as stated in Strickland v. Washington.

The Supreme Court thought otherwise and reversed. The Court unanimously held that Robinson’s actions fell “well within accepted standards of professional conduct … under Strickland.” The Court went on to state that whatever right a defendant has does not include the right to commit perjury. As such, his attorney acted appropriately given the

situation.

While all nine justices agreed that Whiteside’s rights were not violated and also agreed that defense counsel should do all that he or she can to dissuade a client from committing perjury, only five justices joined in the majority’s suggestions for dealing with potential client perjury. Chief Justice Burger wrote for the majority that an attorney faced with such a situation must reveal his or her client’s conduct to the court and, if necessary, withdraw his or her representation. Under no circumstances should the lawyer permit or assist his or her client in giving false testimony.

VIEW FROM THE FIELD Clay Conrad

Criminal Defense Attorney

Looney and Conrad, PC

Houston, Texas

How can you represent those people? Isn’t that the question everyone asks? People assume our clients are subhuman monsters. Some—a small proportion, actually—have done subhuman, monstrous things. Those folks tend to be highly damaged individuals—people with children, families, parents, but who have never been able to master their demons or compulsions and who, in a moment of weakness, acted horribly. Just like each of us, they deserve better than to be judged solely by the worst thing they’ve ever done. They deserve some sympathy—as horrible as their actions have been. As lawyers, we seek to understand our clients—and realize that behind their actions, behind their damage, lies their humanity and their pain.

The vast majority of our clients are good folks who messed up. They drove after one too many. They tried to make a quick buck selling a bag, or a truckful, of drugs. They got into a fight in a bar, or with their spouse, or took something that wasn’t theirs.

It is not difficult to seek the best possible outcome for them. The hard part is when you lose, and you see the damaging effect a conviction has on their ability to get employment, to care for their families, when you see their liberty taken away. Those moments are painful: Inevitably, the lawyer wonders if some shortcoming of his or her prevented the outcome from having been better for the client.

That is what drives good defense lawyers from the profession. It is not angst at representing “those people” but the pain and guilt of not having rescued “those people” when, at least theoretically, you might have done so. The better the lawyer is, the more the lawyer puts himself or herself into helping his or her clients, the harder that burden is to bear.

Realities of Being a Defense Attorney

Recent graduates of law school become criminal defense attorneys for a variety of reasons. The desire to help individuals in need, the determination to serve as a check on the government’s power, or simply the desire to gain extensive trial and courtroom experience are major reasons for working as a criminal defense attorney. While being a public defender or attorney who represents indigent defendants does provide the opportunity to accomplish each of these goals to a degree, new criminal defense attorneys learn in short order that the reality of their job is significantly different from what they envisioned.

The first aspect of the reality of criminal defense work is a lesson that newly minted criminal defense attorneys learn early on that, although they represent individual defendants, they operate within the confines of a courtroom workgroup. As such, rather than using their skills to defend people at trial, much of their time is spent meeting with clients, negotiating with prosecutors, and settling cases. While criminal defense attorneys do have the opportunity to conduct more trials than lawyers practicing civil law, the reality of the criminal court system is that nine out of 10 cases are settled by a plea bargain. As such, within the confines of the workgroup—where the prosecution decides who to charge and what types of plea bargains to offer, and judges are interested in seeing just results achieved quickly—the defense attorney finds that a primary part of his or her job is to convince clients to accept plea offers made by the prosecution. Because the decision to plead guilty or go to trial belongs to the defendant, the defense attorney serves only as an adviser and negotiator. However, from experience with case outcomes and sentencing practices, the defense attorney is in a good position to determine if a case is winnable, the value provided in a plea bargain, and what action is in the client’s best interest.

In fulfilling this role, the defense attorney is often viewed by his or her clients as a double agent who is lazy and does not want to do what is needed to have the client emerge from the system victorious. This perception is far from the truth. Because most criminal defendants are factually guilty of the offenses with which they are charged and will likely lose at trial and receive a sentence based on that crime, it is almost always in the client’s best interest to accept a plea bargain to a reduced charge and less extreme sentence.

While not very glamorous and seemingly antithetical, representing defendants at this stage in the process serves an important role in protecting their constitutional rights. By representing and advising the criminal defendant before trial, the attorney makes sure that the defendant’s rights are being honored and that she or he understands the ramifications of pleading guilty or going to trial. In this manner, defense attorneys are an important component of the court system.

A second aspect of the reality of being a criminal defense attorney is that success is

seldom clear and victories are infrequent. Since most criminal defendants are factually guilty and most trials result in convictions, success for criminal defense attorneys is relative. A successful outcome from their perspective is generally achieving as much of a reduction from the original charge and possible sentence as possible. Whether this involves a successful plea negotiation, the exclusion of some evidence, acquittals on the most serious charges a defendant faces, or a lower-than-expected sentence, determining whether an outcome is positive or negative is relative.

A third area where new criminal defense attorneys learn about the reality of their profession involves how people in the system and society as a whole view them. While criminal defense attorneys play a critical role in the criminal justice system, they are also vastly underappreciated. Their clients are likely to distrust them, to believe that they were sold out and coerced into entering into a disadvantageous plea bargain, or to believe that their attorneys were not sufficiently skilled or financed to present a winning defense. Prosecutors and police, while knowing the defense attorney has a job to do, resent being constantly and aggressively challenged and having their honesty questioned in the pursuit of a zealous defense. Judges may resent defense attorneys who file frequent legal motions, demand that time-consuming procedural rules be honored, and insist on lengthy and expensive jury trials for their clients. The general public views defense lawyers as obstacles to the truth who thrive on using their eloquence and flair to have factually guilty clients found not guilty and released back into society. Last, the vast majority of defense attorneys are paid significantly less than lawyers who practice in other areas, and public defenders are paid less than prosecutors with similar experience in the same jurisdiction.

Consider the following example posted on an online blog by a public defender under the heading “Why Public Defenders Have a Short Lifespan”:

I appeared with my client at a Jury Trial Management Hearing today. I told my client that the State agreed to dismiss the charges against him if he agreed to return ownership of a car to its original owner without contesting title (he was charged with buying a stolen car having reason to know it was stolen). My client asserted his innocence from the beginning, and I actually believe him, but the car would have gone back to the original owner anyway. If the case had gone to trial, he was facing 10–35 years.

My client agreed to the dismissal and to relinquish any claim to valid title. Then he told me that he had no respect for me or confidence in me because he disagreed with the way we investigated the case on his behalf.

I guess it wasn’t enough that our investigation raised enough doubt before trial

to eliminate his exposure to prison completely. A simple “thank you” would have sufficed; saying nothing would have sufficed, too. (Monday, November 17, 2008, AZ Public Defender at 5:17 PM, http://texansinaz.blogspot.com/2008/11/why-public-defenders-have-short.html)

Given this information about the realities of being a defense attorney, it is reasonable to ask why a lawyer would want to practice in the field of criminal defense. Despite and maybe in part because of the challenges, many defense attorneys enjoy their work. Compared to the work done by attorneys who never appear in court, criminal defense work is very exciting. It also provides attorneys with a chance to stand up for the little guy against the power of the state.

From a professional standpoint, criminal defense attorneys gain a large amount of courtroom and trial experience in a very short time. For young lawyers who want to be

high-level litigators in the future, trying criminal cases is probably the best and most efficient manner in which to gain experience, skills, and a reputation as a skilled litigator. Also, beginning a legal career in an area that presents so many challenges and so little appreciation provides young attorneys with opportunities to prove their fortitude and abilities under pressure.

From a personal standpoint, it is out of a sense that someone has to do it. Someone must stand up for individuals who have no means to defend themselves. Someone must use their training to ensure that the government does not trample over a citizen’s rights. Someone needs to ensure that innocent people have their day in court and guilty defendants are treated fairly under the law. For some criminal defense attorneys, knowing that they are doing this important work is its own reward. For others, the challenge of winning small victories in an uphill battle is invigorating. Still others view their job as a mission, with the objective of doing their little piece to improve society, promote equality, and serve as an obstacle to governmental oppression. Whatever their reason, defense lawyers are vital for the criminal justice system to work effectively.

CURRENT RESEARCH SOURCE: “Protecting Due Process in a Punitive Era: An Analysis of Changes in Providing Counsel to the Poor.” Alissa P. Worden and Andrew Davies. Law, Politics, and Society, 47, 71– 113, 2009.

In 2009, Alissa Worden and Andrew Davies examined the punitive shift in criminal justice policies that has occurred over the last 30 years and the impact it had on the development and funding of indigent defense systems across the United States. Specifically, they examined the

factors that influence states’ decisions on indigent defense during the period from 1975 to 2005. In so doing, they arrived at a number of interesting findings.

They found that the political ideology of the governor and state legislative leaders did impact the level of state support for indigent defense, with more conservative ideology being associated with leaving more responsibility for the funding on the local county governments. However, political ideology was not significantly associated with the total amount of expenditures.

They also found that the percentage of African Americans in the population and the degree of liberalism among the public were both significantly associated with the total amount of expenditures on indigent defense, with higher percentages of African Americans and more conservative attitudes among the public leading to lower levels of expenditures.

Overall, the findings show that a state’s capacity to provide funding and its demand for indigent defense services are consistently and significantly associated with the total amount of expenditures, with higher capacity and higher demand resulting in higher spending. However, the state’s capacity and demand were not associated with the level of state support.

MOVIES AND THE COURTS My Cousin Vinny (1992)

Defense attorneys are supposed to represent their clients zealously and to the best of their ability, regardless of their personal feelings. Defense attorneys in cases where the death penalty is a possible sentence are, in theory, expected to be experienced, competent trial lawyers. There are literally hundreds of real-life examples of defendants sentenced to death who were represented by attorneys with limited trial experience or who did a very poor job. This sad fact is treated with humor in My Cousin Vinny.

While driving through Beechum County, Alabama, New Yorkers Bill and his friend Stan Rothenstein are mistaken for the killers of a convenience store clerk. They cannot afford to hire an attorney, but there is an attorney in the family, Bill’s cousin, Vincent LaGuardia “Vinny”

Gambini. Unfortunately, although he is willing to take the case, Vinny is a former mechanic and inexperienced lawyer who has just passed the bar (after failing the bar exam 5 times).

Vinny displays his complete ignorance of court procedures and the rules of evidence in a series of hilarious scenes, only to eventually win the case by doing some investigation (with the help of his girlfriend, Mona Lisa Vito) and through effective cross-examination of the prosecution’s witnesses. Mona Lisa gets into the act, serving as an expert witness on automobile technology (she too is a mechanic). While the death penalty is itself no laughing matter, the film is a hilarious depiction of the importance of effective counsel for criminal defendants. Vinny wins this case, but few students would want him to represent them if they were charged with a crime!

SUMMARY The Sixth Amendment provides that in all criminal prosecutions, the accused has the right to the assistance of counsel for his or her defense. While this right is considered fundamental to the just operation of the criminal justice system, we have seen in this chapter that what is actually meant by the right to counsel is not as clear as one might think. In this chapter, we examined under what circumstances and at what point in a prosecution one is entitled to an attorney. We looked at whether a person has a right to represent herself or himself and to employ an attorney of her or his own choosing as well as at what point is an attorney’s performance so deficient as to violate the Sixth Amendment.

Beyond the right to counsel, the manner in which a lawyer is provided to an indigent defendant was also considered. We looked at the three primary systems of providing indigent defense services and discussed the relative benefits of each system as well as how having assigned counsel compares to employing a private attorney. We also looked at the ethical responsibilities faced by defense lawyers, how these affect the relationship between lawyer and client, and the difficult job faced by defense attorneys to balance the needs of their clients with the goals of the court system and the ethical rules they must abide by.

Don’t overlook the Student Study Site with its useful study aids, such as self-quizzes, eFlashcards, and other assists, to help you get more from the course and improve your grade.

DISCUSSION QUESTIONS 1. Do you think the rule announced in Scott, that a defendant may not be sentenced

to jail or prison unless he or she was represented by an attorney or voluntarily waived his or her right to counsel, is good for the judicial system, or is it too

difficult to implement? 2. Given that 90% of criminal defendants are indigent, do you think more of an

effort should be made to increase the money that is paid to counsel appointed to represent these people to ensure that they do actually receive competent representation?

3. What do you think of the ability of judges to choose the attorney who will represent an indigent defendant in the ad hoc assigned counsel system? Should there be some other method to ensure that judges don’t funnel work to preferred lawyers?

4. Which assigned counsel method do you find to be the better method for appointing lawyers?

5. Which contract attorney program, either fixed price or fixed fee, do you think is better? Can you think of any other way that a contract program could operate?

6. Which system do you think ensures that the best possible representation is provided to indigent defendants, assigned counsel, contract, or public defender?

7. Do you think more of an effort should be made to increase public perception of public defenders given the amount of criticism they receive?

8. Given that research shows that there is little difference in the outcome achieved when a client is represented by a private attorney as opposed to an appointed one, why would someone prefer to hire counsel? What advantages do you see between the two?

9. If you were a defense attorney and thought that your client was guilty, how would you weigh this against your duty to ethically represent him or her and safeguard this person’s rights?

10. Do you think the two-pronged test announced in Strickland creates too high of a standard by which to judge the effectiveness of assistance of counsel?

11. Given that indigent defendants have no right to choose the counsel that is appointed to them, what do you think should be the solution if they do not like the attorney appointed them or cannot work with them? Should new counsel be provided?

12. Should the court really be allowed to refuse to allow an attorney to represent someone?

13. Should clients be allowed to play more of a role in strategizing their case? What if you were an attorney and you knew that it would be better for your client to plea out but he or she insisted on bringing the case to trial, how would you balance your personal belief with your ethical obligation?

14. Do you think some form of counsel should be provided for every offense? For example, should it be required that an attorney be available for advice on how to proceed with a traffic infraction?

15. Do you think that if a client can afford representation, he or she should be forced

to hire private counsel to reduce the workload that public defenders face?

KEY TERMS Ad hoc assigned counsel Assigned counsel programs Contract attorney programs Coordinated assigned counsel Court-appointed counsel Fixed-fee-per-case contract Fixed-price contract program Public defender program Retained attorneys

INTERNET SITES American Bar Association Criminal Justice Section: http://www.abanet.org/crimjust/home.html

American Bar Association Standing Committee on Legal Aid and Indigent Defendants: http://www.abanet.org/legalservices/sclaid/defender/

Criminal Defense BlogSpot: http://criminaldefenseblog.blogspot.com/

National Association of Criminal Defense Lawyers (NACDL): http://www.nacdl.org/public.nsf/freeform/publicwelcome?opendocument

National Center for State Courts Indigent Defense Resource Guide: http://www.ncsconline.org/WC/CourTopics/ResourceGuide.asp?topic=IndDef

National Legal Aid & Defender Association: http://www.nlada.org/

Public Defender Stuff: http://pdstuff.apublicdefender.com/

Washington State Office of Public Defense: http://www.opd.wa.gov

STUDENT STUDY SITE Visit the open-access student study site at study.sagepub.com/hemmens3e to access

eFlashcards, web quizzes, selected SAGE journal articles, web resources, and video clips.