CP Lesson 11 – Right to Counsel/Right to Effective Assistance of Counsel

1. CP Lesson 11 – Right to Counsel/Right to Effective Assistance of Counsel • Development of Right • Right to Counsel on Appeal • Effective Representation • Confessions Reconsidered – the Right to Counsel and Confessions

2. Development of the Right To Counsel • Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have counsel for his defense. • Primarily a 20th Century development • Compared to other systems • Primarily focuses on indigent cases – when is the state required to furnish counsel for those who can’t afford an attorney?

3. Development of the Right to Counsel • Powell v. Alabama (1932) • Racially charged prosecution • What does it mean to meaningfully appoint counsel? • Capital case • Uneducated defendants • What does 14th Amendment Due Process require? • Holding narrowly tailored to facts

4. Further Development – Betts and Gideon cases • As noted, Powell holding tied closely to compelling facts • Betts v. Brady (1942) • Not capital case; not racially hostile, & competent defendant? • Not fundamental here – case by case analysis • Gideon v. Wainwright (1963) • No compelling circumstances; very literate defendant • Right to Counsel is Fundamental; at least in serious cases

5. Development of Right to Counsel • Argersinger v. Hamlin (1972) • What’s a serious case? • Threat of imprisonment important • Protects against assembly line justice • Scott v. Illinois (1979) • Argersinger forces judge to make pretrial determination • RTC only when sentence of confinement actually imposed in misdemeanor case

6. Right to Counsel - Appeals • General right to counsel on first appeal as of right • Douglas v. California (1963) • Draws on Equal Protection Clause of the 14th Amendment and Griffin v. Illinois (1956) • Discretionary Appeals – no RTC • Ross v. Moffitt (1974) • Discretionary review is not just error correction • Implications for EP and socioeconomic inequality in Criminal Justice system

7. Effective Representation and RTC • Waiving the RTC • Faretta v. California (1975) • Stand by Counsel – McKaskle v. Wiggins (1984) • To recap, a judge must: • Fully advise defendant of right to counsel • Make sure that defendant’s waiver is express, not implied • Make sure that defendant is competent to waive RTC

8. Effective Representation, cont. • Standard for Proving ineffective assistance of counsel • US v. Chronic (1984) – specific errors must be shown, no presumption from disadvantage • Strickland v. Washington (1984) – must show counsel’s performance was short of professional standards and that it prejudiced defense

9. Ineffective Counsel, cont. • Lockhart v. Fretwell (1993) • “To show prejudice under Strickland, a defendant must demonstrate that counsel’s errors are so serious as to deprive him of a trial whose result is fair or reliable, not merely that the outcome would have been different.” • Court willing to find ineffective counsel where inadequate preparation or investigation (Wiggins v. Smith 2003), but not to second guess attorneys’ trial strategies (Bell v. Cohen 2002).

10. Confessions Revisited – Confessions and the Right to Counsel • Right to Counsel after Indictment • Massiah v. US (1964) • Fellers v. US (2004) • Remember “jail house” cases, Kuhlman and Perkins. • Generally, the right to counsel applies in all critical stages of the CJ process – a stage is critical if the defendant is compelled to make a decision which may later be formally used against him

11. Parameters of Right to Counsel • Before Indictment – Escobedo v. IL (1964) • Waiver of counsel and confessions – Brewer v. Williams (1977) • Questioning on Different, but Related Offense – Texas v. Cobb (2001)

12. Differences Between Miranda Confession Rights and Right to Counsel Confession Rights