1 Defense Attorneys Chapter Seven

2 Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense.

3 The Right to Counsel Cases Powell v. Alabama: Indigent defendants in a capital case in state court have a right to court- appointed counsel. Johnson v. Zerbst: Indigent defendants in federal court are entitled to court-appointed counsel. Gideon v. Wainwright: Indigent defendants charged with a felony are entitled to the services of a lawyer paid for by the government. Douglas v. California: Indigents have a right to court-appointed counsel during the first appeal.

4 The Right to Counsel Cases Continued In re Gault: Extended Gideon to juveniles. Argersinger v. Hamlin: Limited the right of non- felony defendants to have court-appointed counsel. Alabama v. Shelton: Indigent entitled to a court- appointed attorney even if facing only a suspended jail term for a minor charge. Brewer v. Williams: defendants have a right to counsel once adversarial proceedings have begun.

5 Pre-Trial Stages Lawyer Required: Initial appearance Bail Preliminary hearing Arraignment Interrogation (post- indictment) Line-up (post- indictment) Plea bargaining No lawyer Required: Crime Arrest Charging Grand jury (no lawyer allowed) Line-up (pre- indictment)

6 Ineffective Counsel McMann v. Richardson: An indigent defendant has the right to effective counsel. Strickland v. Washington: Set objective standard of reasonableness of the effectiveness of counsel.

7 Self-Representation Faretta v. California: Defendants have the right to represent themselves. Pro Se: –Latin for “in his or her own behalf.” Must demonstrate to the court the ability to conduct their defense. McKaskle v. Wiggins: Court may appoint standby counsel to consult when the defendant chooses to represent himself.

8 The Defense Attorney Expected to be an advocate for the client’s case, arguing for legal innocence. Officer of the Court. Cannot deliberately mislead the court by providing false information. Cannot knowingly allow the use of perjured testimony.

9 Indigent Defense There are three basic methods for an indigent defendant to be appointed to an attorney: –Assigned Counsel –Contract System –Public Defenders

10 Assigned Counsel Appointment by the court of private attorneys from a list of available attorneys. Appointed by the judge on a case by case basis. Used in half of the U.S. Counties, but serves less than 1/3 of of the nation’s population. Predominates in small counties.

11 Contract System Bidding by private attorneys to represent all criminal defendants found indigent during the term of the contract in return for a fixed payment. Used in small counties. Criticisms of the contract system include that it will lead to a lower standard of representation and that the private bar will no longer play an important role in indigent defense.

12 Public Defender System Public or private non-profit organizations with full- or part-time salaried staff who represent indigents in criminal cases. Started in Los Angeles in Used in medium to large cities/counties Represents approximately 70% of all indigent defendants. Advantages include financial benefits, continuity, consistency, and an intimate knowledge of informal norms of the local court system.