Right to Counsel
Development of Right to Counsel
A person accused of a crime has a number of specific rights that are protected under the Sixth Amendment to the United States Constitution. The rights attach only upon commencement of adversary judicial proceedings. One of these rights is the right to assistance of counsel for a defense in a criminal prosecution. At first, the Court limited the scope of the Sixth Amendment to indigent defendants in capital cases, and early cases dealt with effective assistance during the preparation and trial phases of the case (Powell v. Alabama, 287 U.S. 45, 71-72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942).
In Gideon v. Wainwright (372 U.S. 335 (1963), the Court held that the state court’s failure to provide legal counsel for the defendant in a non-capital criminal trial violated the defendant’s right to a fair trial under the Sixth Amendment and his right to due process under the Fourteenth Amendment. Justice Black wrote in his opinion that it was obvious that a poor defendant could not have a fair trial without the help of legal counsel. Gideon served to expand the right to counsel to include all criminal cases. Moreover, in McMann v. Richardson (397 U.S. 759, 771 n.14 (1970) the Court held that the right to counsel means hat the defendant has the right to the effective assistance of counsel.
In a recent ruling (Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court expanded the rights of criminal defendants under the Sixth Amendment even further. In Padilla the court ruled that incompetent advice by counsel violated the defendant’s right
Right to Counsel and Criminal Procedure
Right to counsel should also include the right to securing the services of defense
experts to examine evidence, to advise counsel, and to testify at trial for the defense, but this often fails. The prosecution enjoys a significant advantage over the defense, for prosecutors have the luxury of being able to “shop” for the right expert testimony and forensic laboratory results. That is, if the prosecution does not like the results of the first laboratory it can then engage the services of another laboratory that can produce the results the prosecution wants. For example, in the Roland Cruz (People v. Cruz, 88 CF 2230) trial, the prosecution sought a third laboratory to examine the evidence because the first two police crime laboratories did not match the boot print to the defendant. The third laboratory provided the match. People involved in the prosecution of Cruz resigned over what they saw as unfair practices. In the end, three prosecutors and four law enforcement officers involved with the prosecution of Cruz were indicted for obstruction of justice in this case. During the whole process, Cruz’s defense counsel failed to raise a proper defense. Cruz was tried three times before being acquitted 10 years after his first arrest. Cruz illustrates how criminal procedure favors the prosecution, especially when coupled with inefficient and underfunded counsel. This has led criminal felony defendants to turn their backs on court appointed counsel and seek to represent themselves in their criminal felony trials.
Right to Self-representation
In Faretta v California (422 U.S. 806 (1975) the Court held that a state can not enforce a counsel on an unwilling defendant and found support for self-representation in the Sixth Amendment. The Court held that “to force a lawyer on a defendant can only lead him to believe that the law contrives against him” (Hashimoto 2007). Therefore, an informed and intelligent defendant who wishes to represent himself in criminal proceeding has a right to do so. Nevertheless, it is generally thought that people who waive their right to counsel in favor of self-representation are either foolish or mentally ill, but this belief has been just that— a belief, and an assumption. Part of the problem is that high-profile self-representations that go terribly wrong receive a lot of publicity, for example, in the criminal trials of Dr. Jack Kevorkian and of Congressman James Traficant. Hashimoto conducted a study to evaluate the success of felony defenses that proceed pro se against those that proceed with appointed counsel. The results show that mental illness is present in only around 20% of felony pro se cases, and that felony defendants who choose to represent themselves do just as well as those who seek counsel, whether court-appointed counsel or privately procured counsel.
Hashimoto found that although defendants who represent themselves make different choices than those who are represented by counsel; for example, more choose to take their cases to trial, pro se defendants do not fare any worse in regards to outcome of the trial, and in fact tend to fare better when it comes to felony convictions. Hashimoto also found that the chief motivation for waiving court appointed counsel were serious concerns or disappointment over appointed counsel. Many of these concerns were legitimate and self-representation provided better protection of the defendant’s rights.
Attorneys and the Right to Counsel
The quality of legal representation is the factor with the strongest determinant on whether a defendant will receive the death penalty. Most defendants in capital cases cannot afford to pay for their own lawyers and the lawyers they get are overworked and lack trial experience (Barton and Bibas, 2012). Only high-profile cases have any hope of getting top legal representation, for these cases attract seasoned counsel. However, most court appointed lawyers have to struggle with ethical issues concerning the legal representation of their clients, and it is very difficult for them to withdraw from a case.
There are also some disturbing statistics connected with court appointed counsel in capital cases. In Washington State, 20% of the 84 inmates who were executed in the past two decades had been represented by lawyers who had been either disbarred, or suspended, or even arrested (Seattle Post-Intelligencer, Aug. 6-8, 2001). Statistics are worse for Texas, where one-third of the executed inmates had been represented by incompetent attorneys.
Nevertheless, many criminal felony defendants have been acquitted thanks to the advise of court appointed counsel and some of the worst legal transgressions are beginning to make their exit out of our courtrooms.
References
Barton, B. H. and Bibas, S., Triaging Appointed-Counsel Funding and
Pro Se Access to Justice (April 11, 2012). University of Pennsylvania Law
Review, Vol. 160, pp. 967, 2012; U of Penn Law School, Public Law Research
Paper No. 11-36; University of Tennessee Legal Studies Research Paper No. 157.
Available at SSRN: http://ssrn.com/abstract=1919534 or
http://dx.doi.org/10.2139/ssrn.1919534
Constitution of the United States. Official archives. Available at:
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Faretta v. California 422 U.S. 806 (1975)
Giannelli, P. C. , Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert,
Post-DNA World. Cornell Law Review, Vol. 89, No. 6, September 2004.
Available at SSRN: http://ssrn.com/abstract=529942
Gideon v. Wainwright, 372 U.S. 335 (1963).
Glasser v. United States, 315 U.S. 60, 70 (1942)
Hashimoto, E. J., Defending the Right to Self Representation: An Empirical Look at
the Pro Se Felony Defendant (2007). North Carolina Law Review, Vol. 85, No. 2,
pp. 423-487, January 2007; UGA Legal Studies Research Paper No. 06-002.
Available at SSRN: http://ssrn.com/abstract=901610
Love, M. C. & Chin, G. J., Padilla v. Kentucky: The Right to Counsel
and the Collateral Consequences of Conviction (April 16, 2010). The Champion,
May 2010; Arizona Legal Studies Discussion Paper No. 10-16. Available at
SSRN: http://ssrn.com/abstract=1591264
McMann v. Richardson, 397 U.S. 759 (1970)
Padilla v. Kentucky, 130 S. Ct. 1473 (2010)
People v. Cruz, 88 CF 2230
Powell v. Alabama, 287 U.S. 45, 71-72 (1932)
Seattle Post-Intelligencer (Aug. 6-8, 2001).
