Chapter Seven: Defense Attorneys

Right to Counsel Gideon v. Wainwright (1963) In re Gault (1967) Indigent defendants have the right to court appointed counsel-- felony criminal proceedings In re Gault (1967) Extended to Juveniles Argersinger v. Hamlin (1972) Guaranteed counsel IF possible imprisonment Scott v. Illinois (1979) Narrowed Argersinger to cases that actually result in imprisonment

Right to Counsel “Critical Stages” Test Police Lineups Mempa v. Rhay (1967) Sentencing - required Brewer v. Williams (1977) begi n adversarial process - required Rothgery v. Gillespie County (2008) – initial appearance – required if critical stage Miranda v. Arizona (1966) – custodial interrogation - required Police Lineups U.S. v. Wade (1967) – post indictment -required Kirby v. Illinois (1972) – preindictment – not required Crit stages: dd is entitled to rep at every stage of pros where substantial rights of accused may be affected

Ineffective Assistance of Counsel Objective Standard of Reasonableness Strickland v. Washington (1974) Did counsel’s conduct undermine the proper function of the process? Did it render the outcome unfair? Few appellate court reversals on these grounds Appellate courts must reverse if proceedings were unfair and the outcome would have been different if counsel had not been ineffective

Self-Representation Defendants have a 6th Amendment right to self-representation Faretta v. California (1975) – cannot deny pro se just b/c defendant does not have expertise, but can for lack of capacity Limits Must show judge the ability to conduct the trial

The Criminal Bar Responsibilities Environment of Practice Advocates of the client’s case Cannot mislead or provide false evidence They cannot knowingly allow perjured testimony A win is knowing what is the best that can be done for the client Environment of Practice Low status/lower pay Difficulty in securing clients

Providing Indigents with Attorneys Appointed Counsel Indigents – those who are too poor to pay for an attorney and are entitled to one free Three Systems Assigned counsel: attorneys appointed by the judge on a case-by-case basis Contract systems: attorneys hired to provide services for a specified dollar amount Public defender: a salaried public official representing all indigent defendants

Providing Indigents with Attorneys Assigned counsel: attorneys appointed by the judge on a case-by-case basis Most common in small counties Criticisms Least qualified attorneys Inadequate pay

Providing Indigents with Attorneys Contract systems: attorneys hired to provide services for a specified dollar amount Most common in small counties Criticisms Lower standard of representation due to bidding Private bar no longer plays an important role in indigent defense Found unconstitutional in Arizona Appointed based on a list of available attorneys or Bidding by private attorneys to represent all indigent defendants during a term of a contract Attorneys who volunteer Often young lawyers seeking experience or those needing appointments to make a living No guarantees the lawyer provided can handle the case Pro bono or reduced compensation

Providing Indigents with Attorneys Public defender: a salaried public official representing all indigent defendants Today the public defender system represents approximately 70 percent of all indigents nationwide Proponents Devote more attention to clients More experienced, competent counsel Continuity and consistency Critics Tied too closely to the courtroom work group Public or private nonprofit organizations who represent indigents and are salaried Proponents recognize more time will be put in to a case, it provides more experienced and competent counsel, and assures continuity and consistency

Lawyers’ and Clients’ Views Frustration due to difficult clients Lack of trust Evasion Deception Frustration with attorneys Skeptical About Skill Worry About Whose Side Lawyer is On Suspicious Lack of One-to-One Contact

Defense Attorney Ethics Even the very unpopular have a right to a vigorous defense Zealous Advocacy Confidentiality Conflict of Interest