Criminal procedure, justice, ethics, and zeal.

• Author: Brown, Darryl K.
• Position: Response to article by William J. Stuntz, Yale Law Review, v. 107, p. 1, 1997

William Stuntz's recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice,(1) offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz's article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts' goals. Specifically, legislatures have reacted by expanding substantive criminal law -- which the Court chose not to regulate under the Due Process Clause -- and by underfunding criminal defense (as well as prosecution offices). That reaction was especially strong because increased procedural regulation coincided with a dramatic increase in crime beginning in the 1960s, which further encouraged legislative reaction to antimajoritarian court decisions that favored defendants.

Prosecutors, for their part, may react to procedural rules that increase prosecution costs by shifting efforts away from prosecuting wealthier defendants -- who can afford to invoke the procedural rights as defense mechanisms -- and toward poorer ones, or by forgoing prosecutions of clearly guilty suspects with strong procedural arguments for those with weaker procedural claims. Neither basis relates to the defendant's factual guilt, so less guilty suspects may receive more attention than more guilty ones.(2) Comparably, defense attorneys may respond to funding cuts and to new procedural rights by allocating their limited time to procedural claims rather than factual investigation that goes to the substance of a client's defense. Stuntz's central point, as I take it, is to explain how, given a dynamic set of institutions, increased appellate court regulation of procedure has done little to improve criminal justice and thus merits rethinking.(3) Perversely, he notes, the response to procedural regulation poses special risks to poor and innocent defendants.

Stuntz's article illuminates the difficulty appellate courts face in regulating criminal justice through procedural devices because of their inability to anticipate and control reactions by other institutions. That inability stems in large part from the choice not to regulate criminal justice more directly by constraining crime definition, setting minimum funding levels, and enforcing a more rigorous definition of adequate representation. Within this discussion of institutional relationships, however, the article also has a lot to say - more than the article's emphasis may initially reveal -- about strategic attorney decisionmaking in a dynamic context of scarce resources. The analysis suggests the need for more attention to a broad array of contextual factors -- doctrinal, financial, political, and institutional -- that affect lawyers' strategic decisionmaking in ways insufficiently appreciated. I would like to draw out a few of the implications of Stuntz's analysis with regard to the tension between structural conditions of practice, notions of professionalism, and the ways we train lawyers with little attention to the context of practice. For brevity, I will focus on defense attorneys.

Recent discussions on the ethics of criminal defense recognize the scarcity of resources under which both sides work, particularly in state courts. William Simon and David Luban's exchange on this topic is especially notable.(4) Simon argues that defense lawyers should recognize and accept their ethical discretion to moderate tactics of "aggressive defense" when they know such tactics do not serve substantive justice -- that is, when they have more reliable information than the factfinder has that the client is guilty. Luban objects to this use of discretion and urges instead a categorical rule of aggressive defense for virtually all clients.(5) Both acknowledge that prosecutors and defenders work in a world of heavy case loads and limited resources that compel trade-offs between the degrees of zeal an attorney gives different cases. Yet Simon argues that aggressive defense for clients whom the attorney knows to be guilty forces more resources on both sides to that client's case, leaving fewer resources for cases in which the defendant's guilt is in some doubt -- precisely the cases that, in order to protect the innocent, need to be litigated more carefully.(6)

What is striking about this debate, in light of Stuntz's account, is the definition of aggressive defense that Simon and Luban share. Neither suggests that an attorney has discretion to forgo either a full litigation of procedural rights or a thorough factual investigation. The debate is restricted largely to whether attorneys should use tactics unconnected to truth determination or rights vindication in order to win. Simon argues only that lawyers should allow substantive justice to inform their discretionary decisions whether to delay litigation in hopes of exhausting state witnesses, present client perjury, impeach state testimony they know to be true, argue factual inferences they know to be false, or use "greymail" tactics of threatening to disclose information unrelated to the merits of the case but injurious or embarrassing to the state or its witnesses.(7) Neither addresses the sort of discretionary decisionmaking that Stuntz's description implies is a significant choice for defense attorneys and that my participatory observation of state court practice confirms. The choices defenders in fact make are often whether to allocate scarce resources to procedural claims or factual investigation, and how much of both to forgo in exchange for a plea bargain.(8)

The fact that indigent defense is often inadequate is hardly news. The reasons for consistently sub-par lawyering, however...