YOU HAVE THE RIGHT TO AN ATTORNEY. Kinda. Sorta. Not really.

Right to an attorney

Fifty years ago, the Supreme Court recognized that the Sixth Amendment right to counsel obligated state courts to provide counsel to felony defendants who could not afford to hire one.  (Gideon v. Wainright, 372 U.S. 355 (1963).)  Today, that right exists in name only for many criminally accused. 

As a private defense attorney, I have never worked for a public defender agency but I only have the utmost respect for the work that they do and the conditions they are compelled to endure.  When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are.  (Butler, 2013, para. 6.)  Those who never need the services of a defense attorney have little understanding of their importance in our justice system.  Crime drama shows falsely and unfairly portray the private ones as shady and the public ones as inept.  Many would be content if the defendant, assumed by most to be guilty of all charges despite the presumption to the contrary, received inadequate representation if that would assure that a conviction and retributive sentence would follow.  And this is why the inadequacies of the indigent defense system in the fifty states gets little attention and no public support.

In a companion piece, I address the contributions the media has made to the public misunderstanding of the role of the defense attorney.  In this article, I will address the how the implementation of this right at the state level has frustrated its purpose.

I often compare defense attorneys to dentists.  Both share similar unpopularity, except by those who need them most.  And while many cannot understand why I could defend criminals, I cannot understand why someone would want to put their hands in other people’s mouths.  The profession of defense counsel is not for everyone and those who pursue this career path usually do so because they are intrinsically motivated to defend the higher ideals of the Constitution against the overwhelming power of the government.

But imagine for a moment you need a dentist but your insurance plan does not permit you to select the dentist.  Instead, you are assigned a dentist.  You come to find out that you have been assigned to one of the best dentists in your area.  You are elated and relieved.  That is, until you try to make an appointment.  This particular dentist has been assigned so many patients, that the earliest appointment is not for several months.  You wait and wait in agonizing pain for months until your appointment.  And then, when it is finally your turn, you find out that the dentist has to see 50 patients a day, which means that each patient can only have 7 minutes of the dentist’s time.  This time barely allows the dentist to diagnose the problem, let alone do any significant work.  The result?  You leave the dentist’s office in just about the same condition you entered.  Did it matter that the dentist was one of the best?  Not when the dentist’s caseload is so overwhelming that the dentist is prevented from treating you effectively.

The Seven-Minute Attorney:  This is the plight of the indigent defender.  The court appoints cases to the public defender agency.  The court is not without a vested interest here.  This same agency is responsible for adding workload to the courts in motion and trial practice.  If the court assigns the public defender to an obscene number of cases, then the workload of the court will necessarily reduce.  The public defender will just not be able to attend to each case the way a retained attorney could.  While not representative of all public defender agencies, the National Association of Criminal Defense Lawyers has found that public defenders in Atlanta average only 1 hour per case, in Detroit they can spend only 32 minutes per case, and in New Orleans, clients average only 7 minutes of attorney-time.  (Levintova, Lee & Brownell, 2013.)

Seven minutes permits very little.  Seven minutes will not permit the attorney to review the discovery provided in its entirety nor request additional discovery that the client is entitled to receive.  Seven minutes will not permit the attorney to challenge constitutional irregularities that have occurred, such as an illegal search warrant or prosecutorial misconduct.  Seven minutes essentially only permits the attorney to stand at the client’s side while the client pleads guilty pursuant to a plea offer.  The attorney will have no basis upon which to recommend the plea offer be accepted or rejected, without the opportunity to meaningfully review the discovery, conduct further investigation and litigate appropriate issues.

The public defender agency is powerless to refuse the appointment.  Individual attorneys are powerless to object to the court or their agency that their caseload precludes their ability to effectively represent their assigned clients.  Those who have tried have found themselves without a job.  (Benjamin, 2013).  And the client also has no meaningful recourse.  The client will not be permitted to obtain another attorney on the claim that the appointed attorney has too many clients to effectively represent him or her. Instead, the client will have to wait until he or she is convicted and sentenced to appeal the decision.  And then, relief will still not be forthcoming.

Ninety-five percent of cases plead guilty.  (Durose & Langan, 2007.)  These individuals pleading guilty are hard-pressed to contest the inadequacies of their representation.  Many plea agreements require that the defendant waive his or her right to appeal.  Even without such a condition, the plea agreement itself precludes any challenge.  The defendant has admitted to the crime, under penalty of perjury, has waived his or her Constitutional rights in the process, and the courts are loathe to unwind a plea agreement a trial court has accepted. 

Effectiveness Standard of Review:  StricklandRealistically, this means only those that go to trial AND are convicted will be able to challenge the effectiveness of counsel.  And, just like the public does not expect or require much of defense attorneys, nor do appellate courts.  (Strickland v. Washington, 466 U.S. 668 (1984).)  The court has found no ineffectiveness where an attorney has slept through portions of the trial (Ex parte McFarland, 163 S.W.3d 743,748-49 (Tex. Crim. App. 2005)) or where the attorney had Alzheimer’s as yet undiagnosed during the trial (Dows v. Wood, 211 F.3d 480 (9th Cir. 2000).)  This is because the appellate court requires that the defendant prove that a different result would have likely been obtained with a different attorney.  Yet it is a logical fallacy, contrary-to-fact-hypothesis, to suggest that if something had been done differently, a different result would have occurred.  Such an argument requires a time machine to assess.  Anything else is pure speculation. 

Further, while the right to counsel is not just for those who are innocent or not guilty of the charges, the Strickland standard essentially denies the right of effective counsel to those who are guilty.  The court reasons where there is overwhelming evidence of guilt, that no other attorney would have achieved a better result, in order to deny any relief.  This is yet another logical fallacy:  that of begging the question.  Perhaps the evidence of guilt would NOT have been so overwhelming, had there been the opportunity to properly investigate and prepare the case for trial, and had the client been represented at the trial by a competent attorney with adequate time to attend to the client’s case.  “Justice Marshall was prophetic in his Strickland dissent, predicting that very few defendants would be able to satisfy the burden of proving prejudice.”  (Williams, 2009). 

Inadequacies in representation leave lingering questions.  Was the client really guilty?  Even if guilty of some charges is the person guilty of the charges for which they pled guilty?  Indeed, did a crime even occur?  The client, unfamiliar with the law and its requirements, is often unable to answer this question for themselves.  If the client is wrongfully convicted of a crime that did occur, this results in multiple injustices.  The state, at taxpayer expense, will incarcerate the innocent offender while the guilty offender(s) remains free and, having gotten away with this crime, is most likely to continue in his or her criminal enterprise.  And, should the unthinkable happen and you or someone you love is accused of a crime, will the existing system offer any meaningful representation? 

Attorney General Eric Holder Jr., recognizing a state of crisis in public defender systems nationwide has emphatically stated, “It’s time to reclaim Gideon’s petition — and resolve to confront the obstacles facing indigent defense providers. Most of all, it’s time to speak out — with one voice — to rally our peers and partners at every level of government and the private sector to this important cause.”  (Cohen, 2013, para. 7.)   The time is long overdue for the promise of Gideon to be realized. 

References:

Benjamin, M.  (2013, September 19).  Fresno County public defenders protest work conditions.  The Fresno Bee.  Retrieved on December 1, 2013 from:  http://www.fresnobee.com/2013/09/19/3507288/fresno-county-public-defenders.html

Butler, P.  (2013, March 17).  Gideon’s Muted Trumpet.  The New York Times:  Op-Ed.  Retrieved on December 1, 2013 from:  http://www.nytimes.com/2013/03/18/opinion/gideons-muted-trumpet.html

Cohen, A.  (2013, March 15).  Eric Holder:  A ‘state of crisis’ for the right to counsel.  The Atlantic.  Retrieved on December 1, 2013 from:  http://www.theatlantic.com/national/archive/2013/03/eric-holder-a-state-of-crisis-for-the-right-to-counsel/274074/

Durose, M.R.& Langan, P.A.  (2007, July 1).  Felony sentences in state court, 2004.  Bureau of Justice Statistics Bulletin.  Retrieved from:  http://www.bjs.gov/content/pub/pdf/fssc04.pdf

Levintova, H., Lee, J. & Brownell, B.  (2013, July 1).  Charts:  Why you’re in deep trouble if you can’t afford a lawyer.  Mother Earth.  Retrieved on December 1, 2013 from:  http://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-court-charts

Williams, K.  (2009, May).  Does Strickland prejudice defendants on death row? University of Richmond Law Review.  43(4).  Retrieved on December 1, 2013 from:            http://lawreview.richmond.edu/does-strickland-prejudice-defendants-on-death-row/#_ftn11

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About objkshn

mother ♦ defender of Constitution ♣ educator ♥ writer ♠ policy wonk ♦ literalist ♣ neuro-sensualist ♠ polyamorous ♦ sapio-sexual ♣ bisexual ♥ feminist ♦ ENTJ ♥

Posted on December 1, 2013, in 6th Amendment, Constitution, Criminal Justice, Criminal Procedures, Due Process, Economic Equality, Intellectual Curiosity, Logical Fallacies, Right to Counsel and tagged , , , , , , , . Bookmark the permalink. 1 Comment.

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