Chapter 9 Defense Attorneys
| Jurisdiction | North Carolina |
After reading this chapter, you should be able to:
• List the three primary types of indigent defense systems.
• Understand that excessive caseloads in misdemeanor courts can lead to wrongful convictions.
• Understand what is meant by inadequate legal defense and appreciate its consequences for felony and capital defendants.
• Understand the scope and meaning of the right to counsel for criminal defendants under the Sixth and Fourteenth Amendments to the U.S. Constitution.
• Discuss the U.S. Supreme Court's framework for assessing ineffective assistance of counsel claims.
• Appreciate the importance of qualified expert testimony for defending against criminal charges.
• Discuss approaches to improving the quality of public defense, including increasing funding, more training, and statewide oversight.
Instead of telling one story, we begin this chapter by telling two, both of which share the common feature of poor defense lawyering. Leroy McGee was arrested for the robbery of a Florida gas station clerk when he was mistakenly identified by the victim (National Registry of Exonerations, n.d.). McGee's alibi was that he was at work when the robbery occurred and that his time-card would show it. In addition, he and a co-worker had been in regular contact during their shift. McGee shared this information with his defense attorney. During McGee's trial, his attorney failed to introduce his alibi evidence or to raise any objections. McGee was convicted and sentenced to four-and-a-half years in prison. After he served his sentence, McGee's conviction was eventually vacated on the grounds of his attorney's poor defense.
Now consider the following story:
Jerry White was sentenced to death for the murder of a customer during a convenience-store robbery. At trial his attorney's drinking problem was so evident that each morning the judge had the prosecutor check the attorney's breath. A defense investigator "said he had witnessed the attorney shoot up with cocaine during trial recesses and saw him using speed, Quaaludes, alcohol, morphine and marijuana after court," according to a law review article. On appeal, even the trial prosecutor filed an affidavit saying the defense attorney "appeared confused or fatigued." The Florida Supreme Court affirmed White's death sentence in 1995, and he was executed that year (Armstrong, 2014).
We are not suggesting that Jerry White was innocent of murder — we do not know. However, we raise the case to illustrate the contrast between an outrageous case of "bad lawyering" and the (likely) more common failures of McGee's defense attorney. One would expect that having a skilled, competent defense attorney at one's side would provide a shield against a wrongful conviction. As we will see from the research below, that can make an important difference. The research also shows that sometimes defense attorneys are unskilled, incompetent, understaffed, and/or overwhelmed by large caseloads, and can contribute to producing wrongful convictions.
Criminal defendants who are too poor (referred to as "indigent") to pay to hire a defense attorney may have a federal constitutional right to a court-appointed attorney at the government's expense. In addition, criminal defendants have the constitutional right to the effective assistance of their attorneys. We will discuss the legal landscape concerning these rights in the next section below. Our immediate task is to examine the standards against which defense attorneys are held and the empirical evidence that shows that they can fall short of these standards and contribute to wrongful convictions. We will begin with a very brief note on the manner in which public defense is delivered, which varies considerably in terms of structure, funding, and quality across the states. There are three general types of systems involving lawyers who represent poor defendants in criminal courts. Public defender offices are typically government-operated and focus exclusively on indigent defense. Assigned-counsel systems involve the ad-hoc appointment of private attorneys to represent poor defendants. Finally, under the contract system, attorneys contract with the government to accept a certain number of cases for a flat fee (Worden et al., 2010/2011). Collectively, these ways of providing legal representation in criminal cases to people who cannot afford to hire an attorney are referred to as indigent defense. It should also be kept in mind that defendants who can afford to do so, have the right to hire private attorneys.
The American Bar Association (ABA), a large and influential professional association of lawyers, develops standards of ethical conduct for attorneys. Rule 1.1 of their Model Rules of Professional Conduct states that, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation" (American Bar Association, 2016). In addition, Standard 4-1.2(b) of the ABA's Criminal Justice Standards for the Defense Function states, "Defense counsel have the difficult task of serving both as officers of the court and as loyal and zealous advocates for their clients. The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients' counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity" (American Bar Association, 2015). In general, the deficient contributions of defense attorneys may stem from incompetence, unethical conduct, lack of resources, or perhaps some combination thereof (Worden et al., 2014).
• One for Ten: Gary Drinkard (2013) — An online documentary by filmmakers Will Francome and Mark Pizzey, this short film demonstrates the importance of competent, experienced criminal defense attorneys. Watch as Gary Drinkard describes how his court-appointed lawyers—who specialized in bankruptcy and commercial law — represented him in his trial for capital murder.
• The Trials of Darryl Hunt (2006) — A gripping documentary from filmmakers Ricki Stern and Annie Sundberg chronicles the case of Darryl Hunt, who was convicted in North Carolina of raping and murdering a local newspaper editor. Hunt was appointed a defense attorney, Mark Rabil, who worked tirelessly on his behalf. However, Hunt was still convicted and sentenced to life in prison. Rabil worked on the case for two decades and eventually helped secure Hunt's exoneration through DNA testing in 2004.
Misdemeanor Defense
Although the majority of exonerations documented by the Innocence Project and the National Registry of Exonerations are from felony convictions, the majority of cases processed by the criminal justice system are for lower-level offenses, or misdemeanors. According to recent empirical estimates, over 13 million misdemeanor cases are filed in the United States each year (Stevenson & Mayson, 2018). In chapter 1, we addressed the difficulty in estimating the rate of wrongful convictions. This is especially the case with wrongful misdemeanor convictions. What we know about wrongful convictions stems primarily from felony exonerations. As of 2018, 4% of the exonerations in the National Registry were from misdemeanor convictions (Gross, 2018). That does not suggest, however, that wrongful misdemeanor convictions are rare. It is more likely that innocent people convicted of misdemeanors do not have a chance to pursue exoneration. As law professor Samuel Gross notes, "the scarce resources that are required to achieve an exoneration are generally allocated to innocent defendants with harsher punishments" (Gross, 2018, p. 1005).
As discussed in our legal section below, "petty" offenses are not petty in terms of their consequences. A few years ago, the National Association of Criminal Defense Lawyers (NACDL) conducted a comprehensive examination of misdemeanor courts in the United States. The study demonstrated several problems with misdemeanor defense practice (Boruchowitz et al., 2009). The research included an extensive review of the literature, interviews with criminal justice personnel, site visits in seven states across the country, an internet survey of criminal defense attorneys, and two conferences that collected input from criminal justice stakeholders. The study found that defense attorneys in misdemeanor courts carried yearly caseloads that far exceeded the national recommended maximum. For example, the report found that in three cities, defense attorneys carried loads of over 2,000 cases per year—well above the recommended maximum of 400 per year. The study estimated that a caseload of 2,000 per year would give a defense attorney about 70 minutes to spend on each case. Such exceedingly high caseloads make it difficult for defense attorneys to provide adequate representation for their clients, including having sufficient time to discuss cases with their clients, investigate and interview witnesses, conduct legal research, and more. As a result, "meet and plead" dispositions are common:
In many jurisdictions, cases are resolved at the first court hearing, with minimal or no preparation by the defense. Misdemeanor courtrooms often have so many cases on the docket that an attorney has mere minutes to handle each case. Because of the number of cases assigned to each defender, "legal advice" often amounts to a hasty conversation in the courtroom or hallway with the client. Frequently, this conversation begins with the defender informing the defendant of a plea offer. When the defendant's case is called, he or she simply enters a guilty...
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