ESSAY CONTENTS INTRODUCTION I. THE REGULATION OF DEFENDANT-DRIVEN ADVERSARINESS THROUGH GIDEON AND STRICKLAND A. The Court's General Preference for Nonadversarial Case Resolution B. The Court's Efforts To Regulate Defendant-Driven Adversariness at Trial II. DIRECT REGULATION OF DEFENDANT ADVERSARINESS OVER THE SIXTH AMENDMENT A. Direct Regulation: Relying on Counsel To Constrain the Invocation of "Tactical" Sixth Amendment Rights B. The Judicial Reliance on Gideon To Justify Direct Regulation of Defendants' Control over "Tactical" Sixth Amendment Rights III. INDIRECTLY REGULATING DEFENDANT-DRIVEN ADVERSARINESS BY APPLYING STRICKLAND TO DEPRIVATIONS OF FUNDAMENTAL RIGHTS IV. SOME OBSERVATIONS ABOUT THE CONSEQUENCES OF REGULATING DEFENDANT-DRIVEN ADVERSARINESS A. Gideon-Agency and Strickland Analysis Skew Behavior by Institutional Participants in the Criminal Justice System 1. Skewing the Behavior of Lawyers and Professional Witnesses 2. Skewing Judicial Behavior 3. Minimizing the Significance of Appellate Opinions B. Gideon-Agency and Strickland Review Produce Perverse Outcomes CONCLUSION INTRODUCTION
Fifty years ago Gideon v. Wainwright promised that an attorney would vindicate the constitutional rights of any accused too poor to afford one. (1) But Gideon also promised more; Gideon promised to promote our adversarial system of constitutional criminal procedure.
The vitality of our adversarial system of constitutional criminal procedure "depends for its enforcement on criminal defense counsel," (2) the vast majority of whom are appointed under Gideon's mandate. Criminal defendants and their attorneys act as the "attorneys general of the Fourth, Fifth, and Sixth Amendments," (3) and the guarantees of those Amendments can only be realized through "an adequate level of litigation by defendants, meaning in practice by defense counsel." (4) With an army of zealous public defenders, and an increasing recognition of the right to effective assistance of counsel, Gideon should have invigorated and sustained the adversarial core of our criminal justice system. Instead, our criminal justice system has become largely a system of settlement--not adversarial contest. And, even in those cases that proceed to trial, defendants have fewer and fewer opportunities to demand the full range of adversarial criminal procedures promised by the Constitution.
There are many reasons why Gideon failed to invigorate the adversarial system. Among them, I contend, is the Court's deep-seated fear of Gideon and of the full adversariness Gideon could bring to the criminal justice system. There are many ways that the Court has responded to this fear, but one is particularly tragic: it has used Gideon to cabin and restrict the full adversariness promised by the Sixth Amendment.
My focus in this Essay is on how the Supreme Court has used Gideon to decrease the protection of Sixth Amendment rights that constitute the core structures of the American adjudicatory process. When read as a restriction of defendant-directed adversariness, Gideon erodes the underlying architecture of American criminal procedure.
THE REGULATION OF DEFENDANT-DRIVEN ADVERSARINESS THROUGH GIDEON AND STRICKLAND
In this Essay, I argue that the Supreme Court is deeply afraid of the Sixth Amendment's true power. If "constitutional criminal procedure defines what the criminal process looks like, but is agnostic about how much of that process the system should have," (5) the same cannot be said of the American judiciary. (6) After all, imagine the consequences if a modern army of criminal defendants insisted upon the full exercise of their Sixth Amendment rights: no plea bargains; no stipulations to the admissibility of evidence, including to witness testimony; no waivers of cross-examination; and full presentation of all available defense witnesses. The Court's fear of Sixth Amendment adversariness is most apparent in its careful protection of plea bargaining; it is most hypocritical in the Court's deliberate effort to use Gideon to justify rules that make the ever-dwindling number of trials move more efficiently-and less adversarially--toward a verdict.
The Court's General Preference for Nonadversarial Case Resolution
Shortly after announcing Gideon's unfunded mandate, the Court began to regulate both guilty pleas generally (7) and guilty pleas obtained through plea bargaining. (8) Gideon informed the Court's willingness to endorse plea bargaining. (9) At that time, at least three-quarters of all criminal convictions resulted from guilty pleas, and the Court felt compelled to both recognize the criminal justice system's dependence upon guilty pleas, particularly those obtained through plea bargaining, (10) and to regulate the administration of those plea bargains. (11) Plea bargains were not merely "important components of this country's criminal justice system"; (12) they were "essential" and "highly desirable part[s]" of the criminal process that led to "prompt and largely final disposition of most criminal cases." (13)
Once it legitimized plea bargains, the Court attached heavy weight to the viability of the plea bargaining system when it considered questions of constitutional criminal procedure. (14) After all, "[i]f every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." (15)
Fifty years after Gideon, nearly ninety-five percent of all criminal convictions are the result of guilty pleas, (16) and the Supreme Court has a substantial commitment to constitutional rulemaking that upholds the primacy of the plea bargaining system. (17) Plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (18) Not surprisingly, then, the Court's criminal procedure jurisprudence reflects a fear that adversarial procedures must be restrained, or "our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt." (19) In this jurisprudence, the Court treats the plea bargaining system as a quiet "party-in-interest" to the litigation. Even as to the Great Writ of habeas corpus, the Court's emphasis on finality over fairness in habeas rulings reflects its concerns that, absent a prioritization of finality, the plea bargaining system would be unsustainable. (20)
The Court's Efforts To Regulate Defendant-Driven Adversariness at Trial
The Court's anxiety about adversariness is not limited to shoring up the viability of the plea bargaining system. Rather, this anxiety extends to adversarial constitutional criminal procedures in the trial process itself. (21) It is my contention that one of the Court's primary means of regulating trial adversariness has been to reduce defendant control over the invocation of Sixth Amendment adversarial procedures such as confrontation, compulsory process, and the right to testify. (22)
The Court believes (correctly perhaps) that allowing defendants to control the exercise of their Sixth Amendment rights will increase the degree of adversariness at trial. (23) Perhaps, like many of us who have been public defenders, the Court suspects that, if they were truly were captains of their ownships, defendants would insist upon more adversary procedures than do their lawyers. (24) Perhaps this belief reflects, in part, the high volume of ineffective assistance of counsel cases that come to the Court on a defendant's complaint about counsel's relinquishment of certain adversarial processes. Or, perhaps the Court recognizes that in a system dominated by institutional defenders, defendants fear that lawyers will "conserve" their adversariness and therefore advocate vigorously for scarce adversarial resources to be spent on their own cases.
The Court has cabined defendants' vigorous exercise of their adjudicatory rights by shifting control of Sixth Amendment rights from the accused to defense counsel. (25) The Court accomplishes this through both direct and indirect regulation of defendants' rights.
As a preliminary regulatory mechanism, the Court divides criminal procedure rights into two categories: some rights are fundamental; others are tactical or nonfundamental. (26) Fundamental criminal procedure rights are rights so personal to the accused that only the accused can waive them. (27) Accordingly, a defendant has ultimate authority to exercise his fundamental rights; the defendant alone can decide "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (28) A valid waiver of one of these fundamental rights requires the defendant's "intentional relinquishment or abandonment of a known right or privilege." (29) Counsel cannot waive a defendant's fundamental right unless counsel "both consult[ed] with the defendant and obtain[ed] consent" to the planned course of action. (30) When the validity of a waiver is in doubt, the Court requires that judges "'indulge every reasonable presumption against waiver' of fundamental constitutional rights and ... 'not presume [a defendant's] acquiescence in the loss of fundamental rights.'" (31)
In contrast, tactical or nonfundamental rights are strategic rights that can be waived by counsel without consultation with the defendant. (32) Counsel controls the exercise of these "tactical" constitutional rights, such as the right to confrontation (33) and the right to compulsory process. (34) Counsel also controls decisions such as which appellate claims to advance, (35) which trial objections to invoke or waive, (36) whether to waive statutory speedy trial rights, (37) and whether, in the federal system, to demand that an Article III judge conduct jury selection. (38) Thus at the trial level, the Court directly regulates defendant-driven adversariness by allocating control of Sixth Amendment "tactical" rights, such as compulsory process and...