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March 25, 2013

Is the right to counsel "violated every day ... in thousands of courtrooms across the nation"?

Kevin-s-burke-hedThe provocative question in the title of this post is prompted by this provocative commentary by Kevin Burke, who just happens to be a Minnesota trial judge on the Hennepin County District Court and the immediate past president of the American Judges Association. The commentary is headlined "Happy anniversary, Clarence Gideon," and here are just a few notable excerpts:

There are many legal scholars who point to Gideon v. Wainwright as the linchpin of a series of cases that reformed the American criminal justice system.  Miranda followed, requiring police to tell suspects of their right to remain silent and right to a lawyer. The obligation of prosecutors to disclose favorable evidence to the defendant followed the Gideon decision.  And then juveniles were granted due-process rights.

But today there are those who claim it is all a mirage.  The right to counsel they say is just “another lie we tell each other to hide the truth” about unequal justice in America.  Andrew Cohen wrote this week, “for all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today. We know today which path our legal and political leaders chose.  Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road.”...

Within a decade of the decision in Gideon the United States Supreme Court ruled that a defendant did not have a right to a meaningful relationship with a lawyer; appointing one the defendant hardly met was sufficient.  But the biggest blow to the right to counsel was Strickland v. Washington, a 1984 decision in which the United States Supreme Court established such a low legal standard for recognizing “effective assistance” of counsel that they effectively gutted Gideon....

At a symposium on Gideon in Washington, D.C., last week, Supreme Court Justice Elena Kagan said, "You see too many instances of ineffective assistance of counsel, too many instances where you think, 'Was this lawyer crazy?' "  She recounted a case from last term in which a lawyer advised his client to reject a plea deal with a seven-year prison term and go to trial.  The lawyer said prosecutors could not prove a charge of intent to murder because the victim had been shot below the waist.  The defendant was convicted and sentenced to 30 years in prison.

Justice Kagan was part of the 5-4 decision in the defendant's favor.  And that split illustrates why there is little hope for leadership to emanate from the United States Supreme Court on reinvigorating the right to counsel.  Leadership to make change must be driven by state leaders.  Leadership to make change must be driven by state Supreme Court justices and judges at every other level.  Bar leaders and ordinary citizens must speak out for fairness.

Every day in thousands of courtrooms across the nation, from trial courts that handle felony cases to limited jurisdiction justice of the peace courts, the right to counsel is violated.  Judges conduct hearings in which people accused of crimes and children accused of delinquency appear without lawyers.  Some are middle class and therefore not eligible for appointed lawyers.  Many plead guilty without lawyers.  Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before.  They are afraid and intimidated by the courts.  Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives.

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March 25, 2013 at 02:17 PM | Permalink


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Phooey! Prosecutors are our knights in shining armor. They only prosecute guilty people. Cops always tell the truth. What was the 9th Circuit thinking when it wrote this recent decision, claiming that a corrupt cop and prosecutor, with an assist from some hack judges, kept a likely innocent person in prison for 20+ years? http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/14/07-99001%20web%20-%20corrected.pdf

Posted by: Oscar Ortega | Mar 25, 2013 9:53:48 PM

" Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives."

It is already within the Rules of Conduct to require prosecutors to provide full disclosure of the collateral consequences of a guilty plea to a criminal charge, all 50,000. Hand a link to a searchable database.

Posted by: Supremacy Claus | Mar 26, 2013 9:50:11 AM

SC --

To the exact contrary, a prosecutor who offers legal advice to a defendant (the opposing party) is very close to, if not over, the ethical line. If a defendant wants to know about collateral consequences, he can ask his own lawyer, not expect the other side's lawyer to fill him in.

And ethics to one side, it would be a foolish prosecutor who would attempt such advice. Collateral consequences will often depend on circumstances the prosecutor won't know, and the defendant will be reluctant to disclose to him.

Posted by: Bill Otis | Mar 26, 2013 10:06:19 AM


I think SC was being sarcastic.

Posted by: Daniel | Mar 26, 2013 8:03:52 PM

Dan: I am never sarcastic.

The McDade Amendment made federal prosecutors subject to state ethics rules. I agree with Bill, the prosecutor may not give case specific legal advice to a defendant, due to the conflict of interest.

However, collateral consequences of a conviction should be considered as mitigating factors. The prosecutor owes an analysis of such, not just to the defendant, but to the judge. See 3.3 and 3.8.


The judge may wish to consider these despite the ruling of the Supreme Court they are regulatory and not punitive.

Posted by: Supremacy Claus | Mar 27, 2013 7:06:11 AM

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