What a poor defense! Exploring the ineffectiveness of counsel for the poor and searching for a solution.

AuthorParker, Jo Anna Chancellor

"Laws are like spiders' webs: they catch the weak and the small, but the strong and the powerful break through them." (1)


Close your eyes and imagine you are a poor person accused of a crime and cannot afford to retain counsel to represent you at trial. Fortunately, you are appointed an attorney who has been schooled in the intricacies of the law and has your best interests at heart. He will defend you wholeheartedly and will exhaust all avenues to prove you are not guilty. He will research the law ad nauseam and will ferociously defend you until he either prevails or has proven that no other alternative exists but to accept the verdict as it is delivered. He will be your knight-in-shining armor; your savior; your hero.

Now wake up! Indigents in Alabama are represented by court-appointed counsels who are compensated at some of the lowest rates in the nation. (2) Poor people accused of crimes, even in death penalty cases, are appointed lawyers from the local bar who are often unprepared and always underpaid. (3) Without a state public defender system or resources to obtain adequate legal representation, poor people in Alabama are being sentenced to death at record levels. (4) Lawyers who lack the skills, resources, and commitment to handle such serious matters often defend poor people accused of capital crimes. (5) Many lawyers call no witnesses or fail to present any defense and most are reluctant and unwilling participants in a trial process that is adversarial in name only. (6)

A Harvard study of randomly selected capital cases showed that in more than one-half of Alabama's capital cases, the entire proceedings of the penalty phase--opening arguments, the presentation of evidence, and closing arguments--by both sides were completed in less than one hour. (7) The same study revealed that in only two of forty-two cases did the penalty phase of an Alabama capital trial last longer than half a day. (8) In nearly forty percent of cases, defense counsel called fewer than two witnesses during the penalty phase. (9) In the majority of those cases, the defendant's life history was not presented. (10)

Only recently have we even recognized that the lack of effective counsel inevitably deprives the poor of the right to a fair trial. For a number of years, the shameful truth was that only the rich could obtain counsel because only the rich could afford to pay counsel. (11)

Many attorneys who represent indigents, do so proficiently. It is not suggested that those attorneys who have been accused of ineffective counsel were at the bottom of the grading curve in law school. The gross acts of inadequate representation are generally at the hand of attorneys who lack the time and re sources to properly defend a capital case. Although a properly defended capital case should require a month or more to try, a study conducted in Alabama revealed that over three-quarters of the capital trials last less than a week. (12)

Alabama is not the worst state when it comes to trying capital cases in a speedy fashion. In Louisiana, the average length of a capital trial is three days, according to a random sample taken between 1978 to 1987. (13) A Tennessee survey showed that defense lawyers in that state frequently invest less than one hundred hours before trial preparing for a capital case. (14) It is a desperate state of affairs to know that a person's life is worth less than one hundred hours of preparation. When all is said and done, it does not come down to an indifference for human life. At the end of the day it's the same song and dance, it's all about the money.

In an effort to combat the inadequate representation of indigent defendants, the state of Alabama should consider funding a public defender's office. A person's right to assistance of counsel should include effective assistance of counsel. Perhaps the installation of a public office would ensure that the representation would be at minimum, fair and compensated.

This article will explore the history of the Sixth Amendment, the cases that have outlined the courts' application of the right to assistance of counsel, as well as the current statutory requirements for court-appointed counsel. Next, the article will explain the elements needed to prove ineffectiveness of counsel and cases outlining atrocious representation by court-appointed counsel. Finally, the article will explore the avenue of a public defender's office, what must occur to fund such an office, and what difference a public defender's office will make in our state.


In 1791, the Sixth Amendment was added to the United States Constitution. It states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. (15) The right to assistance of counsel does not clearly state that the counsel must be helpful or even sober, as future cases will outline in this article. In 1791, our forefathers could not predict that future counselors-at-law would be so disrespectful to the court that they would present themselves intoxicated or even sleep during crucial testimony. Sadly, our legal representatives are not always reputable, nor are they capable of counseling those in need. Often, such counselors need counseling themselves.

In an effort to assure counsel of indigent defendants, the case of Powell v. Alabama (16) expanded the scope of the Sixth Amendment. The blatant discrimination against the defendants in this case clearly highlighted the need for appointed counsel. In March 1931, during the Great Depression, a deputy sheriff and a posse of white men arrested a group of nine black teenagers in a small Alabama town, after some white youths complained that the black youths had thrown them off the train. (17) Allegations of rape by two white women resulted in the nine young men being tried and eight of them being sentenced to death by an all-white jury, although facts would later emerge that showed the allegations were fabricated. (18)

The defendants were nicknamed the "Scottsboro Boys," and unfortunately for them, they were from out-of-state and illiterate. (19) The "proceedings, from beginning to end, took place in an atmosphere of tense, hostile, and excited public sentiment" (20) and the boys barely escaped being publicly lynched prior to the trial. Although the defendants were represented at trial, the Court found no effective appointment of counsel had been made before trial, as the trial judge stated, "that he had appointed all members of the bar for the purpose of arraigning the defendants and then of course anticipated that the members of the bar would continue to help the defendants if no counsel appeared." (21)

The Court found that the defendants were denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial. (22) The Court held that under certain circumstances, the Fourteenth Amendment's due process clause required that an attorney be appointed for indigent capital defendants. The United States by statute, and every state in the Union by express provision of law or by determination of its courts, makes it the duty of the trial judge to appoint counsel for the accused who is unable to employ one. (23)

In most states the rule applies broadly to all criminal prosecutions, in others it is limited to the more serious crimes, and in a very limited number, only to capital cases. (24) A rule adopted with such unanimous accord reflects the right to have counsel appointed. (25) However, the Court limited its holding to the facts of the specific case, noting that it was only deciding that "in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like," (26) it is the duty of the trial court to appoint counsel.

In Gideon v. Wainwright, the Supreme Court held that the Sixth Amendment provides the accused in all criminal prosecutions the assistance of counsel for his defense. (27) Pursuant to the Fourteenth Amendment, this right to court-appointed counsel is extended to criminal defendants in state court. (28) Unfortunately, there is no requirement that the appointed counsel be competent in all areas of the law, especially criminal law.


According to Ala. Code [section] 15-12-21 (1975): If it appears to the trial court that a defendant is entitled to counsel, that the defendant does not expressly waive the right to assistance of counsel, and that the defendant is not able financially or otherwise to obtain the assistance of counsel, the court shall appoint counsel to represent and assist the defendant. It shall be...

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