1. Chapter Seven: Defense Attorneys

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

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