Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer

JurisdictionUnited States,Federal
Publication year2018
CitationVol. 69 No. 3

Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer

Steven Zeidman

Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer

by Steven Zeidman*

In Ake v. Oklahoma,1 the Supreme Court of the United States held that an indigent defendant is entitled to the assistance of an expert in cases where it is established that mental health is at issue.2 Thirty-two years later, in McWilliams v. Dunn,3 the Court finally addressed whether an expert must be independent of the prosecution.4 During oral argument, counsel for McWilliams argued that Ake required that the expert must be part of the defense team and on the defendant's side.5 Justice Gorsuch, in only his second week on the Court, stated dubiously that if that were the case, then "surely it would also require a partisan lawyer."6 Although certainly not his intent, Justice Gorsuch's question should compel a reexamination of the contours of the right to counsel. Given the complexities and demanding nature of the work and the intricacies of the relationship between lawyer and client, the accused should indeed be entitled to a partisan lawyer.7

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This Article looks into the motivations of lawyers who represent poor people accused of crime. Poor criminal defendants must be entitled to unabashedly and unequivocally partisan lawyers, those fully devoted to the underlying causes of indigent criminal defense and the case of each individual client. This Article notes that many lawyers on assigned counsel plans are former prosecutors and argues that they should not be permitted to represent indigent defendants unless and until their attitudes and motivations are vigorously vetted.8

The phrase mass incarceration is now on radar screens across the country as we grapple with the incarceration explosion and the reality that 2.2 million people in the United States are currently behind bars.9 While there are myriad reasons posited to explain the jail and prison growth, there are certain undeniable truths about the 2.2 million—all were adjudicated, prosecuted, and, for the most part, defended.10 While power in the criminal legal system is vested in the hands of the judiciary and the prosecution, no one can gainsay that the defense bar had some role in the massive increase of incarcerated people. At a minimum, it is necessary to ask just how zealously those 2.2 million were represented.

Historically in New York City, those who are charged with a crime and are unable to afford counsel have been represented by attorneys from organizations contracted with the city to provide criminal defense services, and in cases presenting conflicts of interest, by individual attorneys from an assigned counsel panel.11 Several years ago, I served

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on the screening committee overseeing membership on the assigned counsel panel.12 Chief among our responsibilities was reviewing applications from attorneys seeking to be placed on the panel.13

Early on in my tenure, we reviewed the application of a person who had recently resigned from a local district attorney's office after three years as a prosecutor. He sailed through the process as everyone on the screening committee seemed to assume he had all the experience required to be on the panel. It was apparently of no moment that he had never advocated for anyone charged with a crime or counseled someone faced with the overwhelming decision of whether to accept a plea or go to trial, and no one asked him why he now suddenly wanted to defend.

As I looked deeper into the composition of the assigned counsel panel, I learned that it was populated by a majority of former prosecutors. That recognition led me to examine the contours of the right to counsel to try and ascertain what the accused was entitled to by way of his attorney's attitude toward him and toward indigent criminal defense in general.

Over fifty years ago, in Gideon v. Wainwright,14 the Supreme Court held that states must provide lawyers for indigent defendants accused of felonies.15 Almost ten years later, in Argersinger v. Hamlin,16 the Court expanded Gideon's reach to essentially require counsel for misdemeanors.17 However, while states were now required to provide

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attorneys for poor people accused of crimes, the Court did not speak directly to the quality of representation those lawyers needed to provide. While the physical presence of a defense attorney was now a necessary condition to most criminal prosecutions, the presence alone could not be sufficient to satisfy the Sixth Amendment.18

In the years after Gideon, the Court vacillated between phrases such as "reasonably competent,"19 "adequate,"20 and (merely) "competent"21 when describing the quality of lawyering owed to the accused. Then, in United States v. Cronic,22 the Court seemed to settle on the notion that the accused was entitled to the effective assistance of counsel.23

As the saying goes, the devil is in the details, and the appellate courts struggled trying to define effective, adequate, or even competent assistance.24 However, rather than affirmatively delineate the component parts of effective assistance, the Supreme Court addressed the issue by creating a two-pronged test for postconviction claims of ineffective assistance: the defendant must show that the attorney's performance "fell below an objective standard of reasonableness"25 and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."26 Specifically and clearly eschewing calls to articulate a comprehensive list of a defense lawyer's duties, the Court held that

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"specific guidelines are not appropriate. The Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance."27

In the years since Strickland v. Washington,28 defendants frequently raise ineffective assistance claims on appeal.29 While there is much scholarly support for the validity of those claims,30 the courts, whether finding that defense counsel performed reasonably or that the defendant failed to show prejudice, have generally been unreceptive.31

Still, most ineffective assistance claims have focused on trials—defense counsel's preparation for and performance at trial.32 What about other aspects of defense lawyering, such as counsel's attitude toward and relationship with the client?

In Morris v. Slappy,33 the defendant's public defender, who had represented him at a preliminary hearing and supervised extensive investigation, was hospitalized for emergency surgery shortly before trial. Another public defender was assigned six days before trial. The California Superior Court denied the defendant's request for a continuance, and the defendant was ultimately convicted. The United States Court of Appeals for the Ninth Circuit reversed the conviction, finding that the Sixth Amendment guarantees the accused a right to counsel with whom he has a meaningful attorney-client relationship and, more specifically, the Sixth Amendment would be without substance if it did not include such a right.34

The Supreme Court of the United States reinstated the conviction and sharply criticized the Ninth Circuit for creating what it referred to as "a new constitutional standard which is unsupported by any authority."35 The Court seemed to mock the Ninth Circuit's opinion by referring to it

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as a "novel idea" adding a "novel ingredient" to the Sixth Amendment, ultimately writing that "[n]o court could possibly guarantee that a defendant will develop the kind of rapport with his attorney—privately retained or provided by the public—that the Court of Appeals thought part of the Sixth Amendment."36

Courts have since embraced the notion that the nature and quality of the attorney-client relationship is irrelevant to considerations of effective assistance. Numerous courts have treated defense counsel as fungible and replaceable at any time during the pendency of the case. The defendant in Siers v. Ryan37 challenged the lack of continuity of counsel assigned to him by the Defender Association of Philadelphia. He argued that assigning him different attorneys at different stages of the litigation violated the Sixth Amendment.38 Relying on Slappy, the United States Court of Appeals for the Third Circuit held that the right to counsel did not include the corollary right to any special rapport or even confidence in appointed counsel.39 Instead, the court emphasized the right to counsel is no more than the right to competent counsel.40

In United States v. Griffiths,41 defense counsel suffered a stroke at the conclusion of the trial testimony, and rather than grant a continuance or a mistrial, the judge appointed new counsel to deliver the defense summation, even though that attorney had not been present to see any part of the trial.42 The United States Court of Appeals for the Second Circuit upheld the defendant's conviction, stating that the Sixth Amendment guarantees only an effective advocate, not the accused's preferred advocate (meaning, the lawyer with whom he had an established relationship).43

Prisoners' rights cases also raise questions regarding the nature of the relationship between client and lawyer. In Mann v. Reynolds,44 death-row and high-maximum-security prisoners challenged a prison policy prohibiting barrier-free visits with legal counsel.45 The plaintiffs argued that the restrictions on contact inhibited the formation of the relationship

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necessary for open and honest dialogue about sensitive matters.46 The United States Court of Appeals for the Tenth Circuit held that "[u]ntil it can be established as a general principle emotional bonding is required for the kind of counseling that meets constitutional muster, we are unwilling to find such a need within the confines of the Sixth Amendment."47

Perhaps no line of cases better expresses the courts' disdain for the claim that the accused is...

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