Download America`s Courts and the Criminal Justice System by David Neubauer

David W. Neubauer
Henry F. Fradella
www.cengage.com/cj/neubauer
Chapter Seven:
Defense Attorneys
Joe Morris • Northwestern State University, Natchitoches, LA
Cherly Gary • North Central Texas College, Corinth, TX
Right to Counsel
• Gideon v. Wainwright (1963)
• Indigent defendants have the right to court
appointed counsel-- felony criminal proceedings
• In re Gault (1967)
• Extended to Juveniles
• Argersinger v. Hamlin (1972)
• Guaranteed counsel IF possible imprisonment
• Scott v. Illinois (1979)
• Narrowed Argersinger to cases that actually result
in imprisonment
Right to Counsel
• “Critical Stages” Test
• Mempa v. Rhay (1967) Sentencing - required
• Brewer v. Williams (1977) begi n adversarial process
- required
• Rothgery v. Gillespie County (2008) – initial
appearance – required if critical stage
• Miranda v. Arizona (1966) – custodial interrogation required
• Police Lineups
• U.S. v. Wade (1967) – post indictment -required
• Kirby v. Illinois (1972) – preindictment – not required
Ineffective Assistance of Counsel
• Objective Standard of Reasonableness
• Strickland v. Washington (1974)
• Did counsel’s conduct undermine the proper
function of the process?
• Did it render the outcome unfair?
• Few appellate court reversals on these grounds
• Appellate courts must reverse if proceedings
were unfair and the outcome would have been
different if counsel had not been ineffective
Self-Representation
• Defendants have a 6th Amendment right to
self-representation
• Faretta v. California (1975) – cannot deny pro
se just b/c defendant does not have expertise,
but can for lack of capacity
• Limits
• Must show judge the ability to conduct the trial
The Criminal Bar
• Responsibilities
• Advocates of the client’s case
• Cannot mislead or provide false evidence
• They cannot knowingly allow perjured
testimony
• A win is knowing what is the best that can be
done for the client
• Environment of Practice
• Low status/lower pay
• Difficulty in securing clients
Providing Indigents with Attorneys
• Appointed Counsel
• Indigents – those who are too poor to pay for
an attorney and are entitled to one free
• Three Systems
• Assigned counsel: attorneys appointed by the
judge on a case-by-case basis
• Contract systems: attorneys hired to provide
services for a specified dollar amount
• Public defender: a salaried public official
representing all indigent defendants
Providing Indigents with Attorneys
• Assigned counsel: attorneys appointed by
the judge on a case-by-case basis
• Most common in small counties
• Criticisms
• Least qualified attorneys
• Inadequate pay
Providing Indigents with Attorneys
• Contract systems: attorneys hired to
provide services for a specified dollar
amount
• Most common in small counties
• Criticisms
• Lower standard of representation due to bidding
• Private bar no longer plays an important role in
indigent defense
• Found unconstitutional in Arizona
Providing Indigents with Attorneys
• Public defender: a salaried public official
representing all indigent defendants
• Today the public defender system represents
approximately 70 percent of all indigents
nationwide
• Proponents
• Devote more attention to clients
• More experienced, competent counsel
• Continuity and consistency
• Critics
• Tied too closely to the courtroom work group
Lawyers’ and Clients’ Views
• Frustration due to difficult clients
• Lack of trust
• Evasion
• Deception
• Frustration with attorneys
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Skeptical About Skill
Worry About Whose Side Lawyer is On
Suspicious
Lack of One-to-One Contact
Defense Attorney Ethics
• Even the very unpopular have a right to a
vigorous defense
• Zealous Advocacy
• Confidentiality
• Conflict of Interest