Chapter Seven: Defense Attorneys

1. Chapter Seven: Defense Attorneys

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. Lawyers’ and Clients’ Views • Frustration due to difficult clients • Lack of trust • Evasion • Deception • Frustration with attorneys • Skeptical About Skill • Worry About Whose Side Lawyer is On • Suspicious • Lack of One-to-One Contact

12. Defense Attorney Ethics • Even the very unpopular have a right to a vigorous defense • Zealous Advocacy • Confidentiality • Conflict of Interest