Monday, February 2, 2009

There really is no right to counsel

According to the Sixth Amendment to our Federal Constitution, criminal defendants are entitled to be represented by counsel. Interestingly, in practice, this did not even mean you got a court appointed defense lawyer (guaranteed) until after the Gideon decision.

For all practical purposes, though, this "right" still means what it meant before Gideon. Namely, it means that if you could actually afford to hire a lawyer, you get to, but otherise, you are basically screwed. Because the amount of money paid to appointed counsel is usually ridiculously low, far below market price. Where there are public defenders, it is much better, but then they are just ridiculously short-staffed, so they have very little time to spend on an individual case. The net result is that indigent defendants, or even middle class defendants who don't have the excess cash needed to hire a lawyer, really don't get representation. They get something that might resemble a paper-mache version of representation, but if you look up close or touch it, it quickly crumbles.

Of course, on appeal, there is an up-close look at representation as part of an Ineffective Assistance of Counsel[1] claim. This would present a problem, because an honest look at the system and the effectiveness of appointed counsel would show it to be a sham. Even the good defenders are far too overworked and they are also hamstrung by laws and rules that give ridiculous power to the prosecution, moreso than even judges have (though with the recent rulings on the federal sentencing guidelines, maybe some of that power is going back to the judges). In order to deal with this, the system has innoculated itself with a long string of rulings about what makes effective counsel, setting the bar so low that basically if you are the absolute worst, barely competent, barely functional defense attorney and you spent even five minutes thinking about an issue, that is probably good enough to say counsel was effective and so appellate courts won't second-guess issues of "trial strategy"? What is "trial strategy?" Why, that is presumed to have been whatever it is the defense counsel did. And you can forget about trying to introduce evidence that it wasn't really a strategy, but was instead negligence. Judges don't want to hear it. Sure, there are fears of using this as a crutch to appeal every criminal conviction. But in practice, unless you win at trial, you are really screwed. Thus, the notion that throwing the trial in an effort to claim ineffective assistance of counsel is something we need to protect against is dubious, at best. (It is really just bullshit).

A right is meaningless if there is no mechanism in place to enact it. Sort of like how there really isn't much of the Fourth Amendment left anymore (which is a topic in itself). If everyone doesn't get truly competent counsel, counsel who can spend real time on the case, counsel who also get the resources (such as investigators and a lab) to work it just as well as the prosecution, then there really is no right to counsel. And that is the current state of things. My State, Michigan, is particularly pathetic on this score. No state really does well, so being at the bottom is, well, criminal. But hey, it gets prosecutors and judges elected, so that's what really counts.

As a final note, I just want to say that there are plenty of excellent defenders out there who do the best with that they have and so some indigent defendants really do get some excellent counsel. But this is a haphazzard thing, not something any defendant can count on, particularly in areas where there are no public defenders.

[1] - An ineffective assistance of counsel claim is a claim you can make on appeal after conviction. Essentially, the argument is that your attorney was so horribly bad that having his or her assistance was like having no assistance at all, depriving defendant of his right to counsel. A successful claim vacates the conviction, but just sends it back for a new trial with new counsel. The odds of actually winning using this issue are basically nil, given the ridiculously low standards for "effective" counsel. Also, you need to prove that you wouldn't have been convicted anyway, similar to the general "harmless error" rule - basically what often happens is the appeals judges look at the case, figure defendant is guilty, so would have been convicted regardless, and so let it stand. The courts are stacked with right-wing judges, part of a systematic effort by the GOP since the 1970s - an effort that the Dems have only very recently started to try and match (and really aren't doing much even now).


armagh444 said...

There isn't a right to remain silent either.

Heck, in my more bitter moments I think that the Fourth, Fifth, and Sixth Amendments are all dead letters.

DBB said...

You don't need to be bitter to realize that those three amendments are pretty much dead.

S said...

The absolute lack of any real IAC review is one of my biggest legal pet peeves these days. We just had a capital client (not sentenced to death ultimately, but still LWOP) who never even got a hearing on his IAC claim. At least in part the decision rested on the inadequacy of his pleading, which has to be more specific than any other king of pleading in a notice pleading state, and which can never be amended, even though the rules of civil procedure provide for amendment as a matter of right in every other civil case. But of course, though he had to satisfy these ridiculously stringent procedural hurdles just to qualify for a hearing, the defendant didn't have the assistance of counsel to help him prepare the pleading because defendants only get counsel appointed to help with IAC motions AFTER they've filed a motion! You know, the motion that has to be specific and can never ever be amended. It's a complete sham and renders the right to effective assistance of counsel absolutely meaningless.

DBB said...

S, sounds like a classic Catch-22. And doesn't surprise me. If you're a criminal defendant in our legal system (and you aren't rich) you are basically f**ked.