“Rationing Legal Services” by I. Glenn Cohen is another thoughtful effort do deal realistically with the practical problem of under-funding and overloading in legal services offices. This goal is to be achieved by betraying the interests of some clients and focusing on the cases of others. What this does, fifty years after the beginning of the failure of Gideon v. Wainwright, is to maintain the illusion that indigent criminal defendants are receiving their rights to effective assistance of counsel under the Sixth Amendment.
In “An Ethical Manifesto for Public Defenders,” 39 Valparaiso L. Rev. 911 (2005), and in ULE 123-126 (4th ed., 2010), I have laid out the several ethical obligations that defenders regularly violate in these circumstances. Predictably, that plea for ethical, constitutional conduct has been generally ignored. The reason is that any public defender who acts in accordance with our country’s and our professions hypocritically stated ideals will likely suffer loss of employment.
So let me get practical, and reduce my plea to a single constitutional and ethical imperative. That obligation is summed up in ABA Standards for Criminal Justice, Std. 4-6.1: “Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.”
Whenever a defender stands beside a defendant who is entering a guilty plea, and the defender has not complied with Std. 4-6.1, the defender is engaging in dishonesty, fraud, deceit, or misrepresentation by putting on the record the false representation that the defendant is entering the plea with the requisite advice of counsel. Accordingly, the defender should put on the record that she has not been able to give the defendant effective assistance of counsel because overloading has prevented her from doing so.
That single act would establish compelling records of the extent to which the constitutional promise of Gideon is being broken. It would give individual clients grounds to attack their sentences directly and collaterally. It would establish the basis for class actions on behalf of their clients and other defendants who have similarly been denied the right to counsel. It would provide the news media with dramatic source material for informing the public about the failures of the administration of criminal justice. And it would make it more difficult for society and for the established bar to continue to deny ethical representation, due process, and the effective assistance of counsel to indigent criminal defendants.
Fifty years of constitutional and ethical hypocrisy is enough.
In “An Ethical Manifesto for Public Defenders,” 39 Valparaiso L. Rev. 911 (2005), and in ULE 123-126 (4th ed., 2010), I have laid out the several ethical obligations that defenders regularly violate in these circumstances. Predictably, that plea for ethical, constitutional conduct has been generally ignored. The reason is that any public defender who acts in accordance with our country’s and our professions hypocritically stated ideals will likely suffer loss of employment.
So let me get practical, and reduce my plea to a single constitutional and ethical imperative. That obligation is summed up in ABA Standards for Criminal Justice, Std. 4-6.1: “Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.”
Whenever a defender stands beside a defendant who is entering a guilty plea, and the defender has not complied with Std. 4-6.1, the defender is engaging in dishonesty, fraud, deceit, or misrepresentation by putting on the record the false representation that the defendant is entering the plea with the requisite advice of counsel. Accordingly, the defender should put on the record that she has not been able to give the defendant effective assistance of counsel because overloading has prevented her from doing so.
That single act would establish compelling records of the extent to which the constitutional promise of Gideon is being broken. It would give individual clients grounds to attack their sentences directly and collaterally. It would establish the basis for class actions on behalf of their clients and other defendants who have similarly been denied the right to counsel. It would provide the news media with dramatic source material for informing the public about the failures of the administration of criminal justice. And it would make it more difficult for society and for the established bar to continue to deny ethical representation, due process, and the effective assistance of counsel to indigent criminal defendants.
Fifty years of constitutional and ethical hypocrisy is enough.
Thank you sir for your submissions to the lawyers, many of whom couldn't care less about their clients, and for those who do. The truth has to be spoken. Everybody just goes along to get along while participating in injustices directly, or looking the other way when they witness it in court. I was a public defender for years before I was fired for refusing to plead my clients guilty and requesting jury trials, in a jurisdiction, Trenton, NJ, where a PD is supposed to do what they are told. Not what they are told by the client; but by the judges, prosecutors and the PD in charge of the office. So I know just what your talking about.
Posted by: C. Antonio Álvarez-Moreno | February 02, 2013 at 05:18 PM