Thursday, August 18, 2022
Aug. 18, 2022

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Estrich: Right to counsel doesn’t guarantee good representation


The right to counsel in criminal cases is fundamental. Even schoolchildren can recite the famous warning: You have a right to be represented by counsel, and if you can’t afford a lawyer, one will be appointed to represent you.

But having a lawyer is not simply a formality, although sometimes — with overburdened public defenders who meet their clients at the arraignment — it seems that way. No one should face the power of the state and the risk of losing their liberty without a lawyer by their side doing more than just standing there.

The adversary system depends on strong defense lawyers. The government always starts with an advantage in criminal cases, notwithstanding the formal presumption of innocence. They represent the “People.” They speak for the victim. And most of the time, they have far more resources at their disposal than the mostly indigent defendants they prosecute.

The Constitution does not simply guarantee a right to counsel, however incompetent, lazy or overburdened the counsel may be. In theory, according to well-established doctrine, counsel must be “effective.” Therein lies the rub.

What happens if someone is sentenced to death after being represented ineffectively by counsel? Back in the day, when death cases were rare, top firms, well-known lawyers, famous professors and elite advocacy groups would take them on to ensure a vigorous defense. Now that executions are frighteningly routine, defendants get no better representation than others in the system, which is the problem.

“Would you rather be rich and guilty or poor and innocent?” I used to ask my students, and the results were a troubling indictment of the system.

The Supreme Court last week, in a 6-3 decision, held that federal courts could not conduct evidentiary hearings to determine if two prisoners sentenced to die had been denied their right to counsel. In the first case, the lawyer at trial utterly failed to investigate or present evidence as to the defendant’s impaired mental state, which would have provided a basis for the jury to mitigate his punishment to life in prison. In the second case, even more troubling, the defendant was sentenced to death for causing the death of his girlfriend’s daughter after his lawyer failed to investigate whether the injuries had been suffered while the baby was being cared for by someone else.

In that case, Justice Clarence Thomas expressed outrage that the lower court had conducted a seven-day hearing to try to determine if an innocent man was about to be executed. Such a waste, said Thomas.

But as Justice Sonia Sotomayor countered in dissent, the reason such an elaborate hearing was required was that the trial lawyers had done none of it. “The district court’s hearing was wide-ranging precisely because the breakdown of the adversarial system in Jones’s case was so egregious.”

The constitutionality of the death penalty depends on the ability of the system to get things right.

Proponents of the death penalty ought to be most troubled by last week’s decision because it raises the question of whether the criminal justice system can be trusted to administer the penalty fairly. Mistakes, it goes without saying, are not acceptable. A system fair enough to execute those found guilty must be one that fully adheres to the constitutional model.

Lousy and lazy lawyers are not good enough; investigative resources must be provided. Death penalty cases should show the system at its best, not its worst.

The Supreme Court’s decision, Sotomayor concluded, “will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”

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