Access to Justice: The Right to Counsel

Examples

1. Sleeping Lawyer Burdine v. Texas Comparable to having no lawyer 2. Failure to note cultural differences Siripong v. Calderon "boon" and "baap" and "khwaan" Demeanor of defendant

Sixth Amendment Right to Counsel

1. The 6th Am. provides that "in all criminal prosecutions, the accused shall enjoy the right...to have Assistance of Counsel of his defense" 2. The importance of the 6th Amendment: a.) "the essence of due process" Having one's day in court b.) Fundamental human right

Gideon v. Wainwright (1963)

1. The Supremes overruled Betts v. Brady. Unanimous decision by Justice Black. 2. Sixth Amendment incorporated in 14th Amendment - thus guaranteeing an indigent person a right to appointed counsel in felony cases. 3. Gideon subsequently acquitted in second trial. he Supreme Court unanimously ruled that states are required under the Fourteenth Amendment to the U.S. Constitution to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by ruling that this right imposed those requirements upon the states as well.

Implications

1. Extended rt to misdemeanors In Argersinger v. Hamlin (1972) indigent defendants charged with misdemeanors facing a possible jail sentence. 2. Limits on the rt to counsel Not for criminal appeals Not for civil matters 3. Funding for expert witnesses? Not only Ake v. Oklahoma (1985) doesn't mean they're the best person for the job repeat players - know how to work the system "haves" one shot-ers -- caught upp in system once 4. Funding for transcript? 5. Gideon applied prospectively

Betts v. Brady (1942)

6th Amendment didn't apply to state trials Lack of appointed counsel didn't result in violation of due process or fundamental unfairness. denied counsel to indigent defendants when prosecuted by a state. It was famously overruled by Gideon v. Wainwright.

Cause Lawyering

ACLU vs. ACLJ Civil Rights - ex.s NAACP, MALDEF, Sikh Legal Defense Fund, DREDF Gender Equal Rights Advocates LGBTQ - Lamba Legal Defense Fund Religious liberty - ex. Rutherford Institute Environmental Protection - ex. Earth Justice

Role of Legal Profession

What should the role of lawyers be in a democracy? Should there be mandatory pro bono obligation? How would you change rules governing the legal profession?

Defining Public Interest

- How to determine what constitutes the public interes? - Beryl Buck case - cy pres doctrine (when can you reinterpret will when circumstances change, under what circumstances can you invoke that?) - Riggs v. Palmer --> killed gfather for inheritance, should they reinterpret bc he killed him? Barnes collection

Logic of Gideon

- Lawyers ensures defendant isn't coerced into making a confession - Potential success of in forma pauperis appeal - Gideon's argument -- failure to appoint counsel in felony cases constitutes a deprivation of due process - Abe Fortas statement about tendency to forget "the people downstairs"

Impact of Gideon

- extended rt to counsel for indigent defendants for all felony prosecutions - launched "due process revolution" - led to creation of Public Defender offices in virtually all states - Imposed uniform rule of criminal procedure in a fed system.

Types of Lawyers

Private practice - solo practitioner Private practice - Law firm practice Government attorneys Solicitor General Attorney General (U.S. and each state) In-house counsel Public interest law

Standard

Strickland v. Washington - how to judge ineffective assistance of counsel? Error and prejudice Was the counsel's performance so deficient as to offend the 6th Am.? Did it "prejudice" the defense?

Powell v. Alabama (1932)

capital crimes Issue whether the denial of counsel violated the state statute and/or the 14th Amendment due process clause. reversed the convictions of nine young black men for allegedly raping two white women on a freight train near Scottsboro, Alabama. The majority of the Court reasoned that the right to retain and be represented by a lawyer was fundamental to a fair trial and that at least in some circumstances, the trial judge must inform a defendant of this right. In addition, if the defendant cannot afford a lawyer, the court must appoint one sufficiently far in advance of trial to permit the lawyer to prepare adequately for the trial. Powell was the first time the Court had reversed a state criminal conviction for a violation of a criminal procedural provision of the United States Bill of Rights.[1] In effect, it held that the Fourteenth Amendment Due Process Clause included at least part of the right to counsel referred to in the Sixth Amendment, making that much of the Bill of Rights binding on the states as well as the federal government. Before Powell, the Court had reversed state criminal convictions only for racial discrimination in jury selection — a practice that violated the Equal Protection Clause of the Fourteenth Amendment.[1]