Equalizing the Right to Counsel

Georgetown Journal of Legal Ethics, The, Summer 2005 by Kunkel, Rebecca

INTRODUCTION

The existing framework for assessing claims of ineffective assistance of counsel under the Sixth Amendment includes two distinct approaches. Under one approach, courts fashion per se rules which specify conditions under which counsel could not possibly have been "effective."1 This categorical approach is usually reserved for situations in which federal or state government has somehow interfered with a lawyer's conduct of the defense.2 Under the second approach, courts conduct a fact-specific assessment of how a defense was conducted.3 This assessment consists of an inquiry into whether the conduct of the defense was unreasonable, and if so, whether the defendant was prejudiced.4 This judgmental approach applies to the decisions made by the attorney.

No pertinent distinction between court-appointed and privately retained counsel corresponds to either approach.5 The reasons for failing to differentiate are clear if one accepts all of the premises of the framework for assessing ineffectiveness. First, the right to counsel ensures that an individual accused of a crime may obtain a lawyer, either by hiring a lawyer if he is financially able to do so or by having the court appoint a lawyer if he qualifies as indigent.6 second, after a lawyer is obtained using either method, only then does the right to effective assistance of counsel take over and prevent state interference with counsel's decisions regarding how to conduct the trial.7 The state interferes in a manner that is significant to the right to counsel when it prevents counsel from exercising, on the defendant's behalf, the traditional procedural devices required of a fair trial, such as oral argument, cross examination, and discovery.8 Third, the right to effective assistance of counsel specifies, at a minimum, what counsel must do in order to ensure that the defendant receives a fair trial.9 This minimum is defined by the standards employed in the judgmental approach. Thus, we are frequently reminded that the Sixth Amendment does not guarantee the best counsel, or even very good counsel.10 If indigent defendants with court appointed lawyers were to frequently receive worse representation than people with privately retained counsel, this state of affairs will not, except for in a few limited circumstances,11 implicate the Sixth Amendment right to counsel unless (1) counsel performs badly because of state interference, or (2) counsel performs so badly that minimum standards are not met.12

Problems with the failure to differentiate between court appointed and privately retained lawyers arise only when one attempts to justify the framework and the two approaches that this framework encompasses. Both approaches are supposed to be directed to the same purpose: that of determining if a lawyer fulfilled his function under the Sixth Amendment of ensuring that a defendant receives a fair trial. After examining the approaches in more detail, Part I of this Note argues that the only adequate justification for the approaches assumes a sharp distinction between state interference and decisions properly attributed to the attorney, which is untenable in the case of indigent defendants whose lawyers are hired and paid by the state.13 Part II examines some suggestions for altering Sixth Amendment doctrine which might have the effect of diffusing this problem, but it concludes that none of these suggestions yields a resolution that is both normatively appealing and internally consistent.14 Part III suggests that an adequate resolution would leave the categorical and judgmental approaches intact, but it would make this framework justifiable by promoting an alignment of interests between indigent defendants and court appointed lawyers.15

I. THE CURRENT FRAMEWORK

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence."16 The uncontroversial original understanding of this right is that it prevented the federal government from interfering with a defendant's efforts to hire a lawyer if he was financially able.17 When departing from this uncontroversial position, courts regularly invoked the same theme as justification: the right to counsel exists to safeguard the defendant's right to receive a fair trial.18 Thus, when the Supreme Court held that the right to counsel included the right of indigent defendants to receive court-appointed lawyers in state court proceedings, Justice Black remarked:

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.19