Chapter Seven: Defense Attorneys

The RIGHT TO COUNSEL SIXTH AMENDMENT “In all criminal prosecutions the accused shall enjoy the right…..to have the assistance of counsel for his defense.” What does this mean?

Supreme Court Cases Concerning Right to Counsel

Right to Counsel Steps of Felony Criminal Procedure Steps Where Counsel Required Initial Appearance* Initial Appearance* Bail* Bail* Preliminary Hearing Preliminary Hearing Arraignment Arraignment Interrogation Interrogation Lineup Lineup Plea Bargaining Plea Bargaining Trial Trial Sentencing Sentencing 1 st Appeal 1 st Appeal * If a critical stage. Steps Where No Counsel Required Arrest Charging Grand Jury Lineup (pre-indictment) Discretionary Appeal Step Where Lawyer on Request Interrogation (pre-indictment) Steps Where Lawyer at Court’s Discretion Probation and Parole revocations

Right to Counsel during Steps of Felony Crime Procedure

The Role of Defense Attorneys in a Typical Felony Case

Defense Attorneys Defense attorneys are officers of the court. Defense attorneys are officers of the court. Defense attorneys are members of the courtroom workgroup. Generally, they have the least power. Defense attorneys are members of the courtroom workgroup. Generally, they have the least power. According to Skolnick, defense attorneys are divided into three categories: those attorneys who handle few cases, those attorneys who have criminal practices and are adversarial, and those attorneys who handle large numbers of clients, i.e., public defenders. According to Skolnick, defense attorneys are divided into three categories: those attorneys who handle few cases, those attorneys who have criminal practices and are adversarial, and those attorneys who handle large numbers of clients, i.e., public defenders. Defense attorneys utilize a reactive approach in response to their continual exposure to various “rewards and sanctions” deemed appropriate by other courtroom workgroup members. Defense attorneys utilize a reactive approach in response to their continual exposure to various “rewards and sanctions” deemed appropriate by other courtroom workgroup members.

Supreme Court Decisions Re: Right to Counsel and Indigents Powell v. Alabama (1932): Indigent defendants have a right to counsel in a capital case in state court. Powell v. Alabama (1932): Indigent defendants have a right to counsel in a capital case in state court. Johnson v. Zerbst (1938): Indigent defendants have a right to counsel in federal court. Johnson v. Zerbst (1938): Indigent defendants have a right to counsel in federal court. Gideon v. Wainwright (1963): Indigent defendants have a right to counsel in state court. Gideon v. Wainwright (1963): Indigent defendants have a right to counsel in state court. In re Gault (1967): Juveniles have a right to counsel in juvenile court proceedings. In re Gault (1967): Juveniles have a right to counsel in juvenile court proceedings. Mempa v. Rhay (1967): Indigent defendants have a right to counsel in all “critical stages” of the criminal justice process. Mempa v. Rhay (1967): Indigent defendants have a right to counsel in all “critical stages” of the criminal justice process.

Indigent Defense Systems Assigned Counsel: Involves the appointment by counsel by the court of private attorneys from a list of available attorneys. Assigned Counsel: Involves the appointment by counsel by the court of private attorneys from a list of available attorneys. Contract System: Involves bidding by private attorneys to represent all criminal defendants found indigent during the term of the contract. (Cost over Quality). Contract System: Involves bidding by private attorneys to represent all criminal defendants found indigent during the term of the contract. (Cost over Quality). Public Defenders: Public or private nonprofit organizations with full or part-time salaried staff who represent indigents in criminal cases in their jurisdiction. Public Defenders: Public or private nonprofit organizations with full or part-time salaried staff who represent indigents in criminal cases in their jurisdiction.

If you were arrested, which would you rather have, a private attorney or a public defender? (Stolen property or Embezzlement) Why?

Indigents Defendants who are too poor to pay a lawyer and therefore are entitled to a lawyer for free.

Merits of Public Defender System The PDS provides lawyers who are paid to represent indigents on a continuous basis and who devote more attention than those attorneys who receive minimal compensation. The PDS provides lawyers who are paid to represent indigents on a continuous basis and who devote more attention than those attorneys who receive minimal compensation. The PDS provides more experienced and competent counsel because their day-to-day courtroom workgroup exposure keeps them knowledgeable of both the criminal law and the informal norms of the court (the going rate). The PDS provides more experienced and competent counsel because their day-to-day courtroom workgroup exposure keeps them knowledgeable of both the criminal law and the informal norms of the court (the going rate).

Assessing the Merits of the Public Defender System Question: Is there a difference in outcomes between those defendants represented by privately retained counsel or by those defendants represented by public defenders?

Question: Although Crime Control and Due Process advocates agree that indigents should have counsel during the criminal process, the scope of this right is disputed. Crime control advocates are concerned that government spends too much on providing the poor with lawyers, whereas the due process advocates are concerned Are we spending too little or too much?

Views of Lawyers and Clients Lawyers View of Their Clients Lawyers advocate a counseling approach. Lawyers advocate a counseling approach. Lawyers must weigh the likelihood of conviction or acquittal. Lawyers must weigh the likelihood of conviction or acquittal. Lawyers must prepare clients for consequences and the possibility of conviction. Lawyers must prepare clients for consequences and the possibility of conviction. Lawyers are exposed to dishonesty and deception by their clients. Lawyers are exposed to dishonesty and deception by their clients. Clients View of Their Lawyers Clients are skeptical about the skills of their lawyers. PD’s are paid whether they win or not. A breakdown of trust between client and lawyer. Clients can become hostile due to lack of confidence – they feel the attorney should always win.

“…..most defense attorneys deal with a steady stream of defendants who are in fact guilty, and their representation focuses on plea bargaining.” QUESTION Do you feel this is an accurate statement? Why?