DAVID
CARROLL
Executive
Director
THE RIGHT TO COUNSEL IN
THE WESTERN STATES
Council of State Governments - West
May 20, 2016 – Salt Lake City, Utah
SIXTH
AMENDM ENT
CENTER
PO Box
15556
Boston, MA
02215
GIDEON V. WAINWRIGHT
“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.”
Gideon v. Wainwright (March 18, 1963)
GIDEON V WAINWRIGHT
“From the very beginning, our
state andnational constitutions
and laws have laid great
emphasis on procedural and
substantive safeguards designed
to ensure fair trials.””
Gideon v. Wainwright (March 18, 1963)
WHY IS THERE A SIXTH AMENDMENT?
“Even the intelligent and educated layman has small and
sometimes no skill in the science of law. … Without [counsel],
though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence.”
- Gideon v. Wainwright
Whereas it doth appeaere that any person . . . may on good
grounds, or through mallice or envie be indicted and accused for
matters criminal, wherein the person is so [accused] may be
innocent, and yett, may not be accomplished with soe much
wisdom and knowledge of the law to plead his own innocencye,
&c.
Rhode Island & Providence Plantations, 1660 Statute
JOHN
ADAMS
“Counsel
ought to be
the very last
thing an
accused
person
should [be
without] in a
free country.”
POP QUIZ
Which state was the first to codified the right
to counsel in all cases (including
misdemeanors) AND the payment of lawyers
for services, as early as 1877?
NEVADA
“a failure to
assign
professional
counsel for a
poor
defendant”
will “be
deemed a
fatal error on
appeal . “
In re WIxom
UTAH
GRANTSVILLE, UTAH
NO COUNSEL COURTS
THOUSANDS OF PEOPLE ARE
INCARCERATED EVERYDAY IN AMERCIA
WITHOUT EVER HAVEN SPOKEN TO AN
ATTORNEY
BREAKDOWN IN THE
ADVERSARIAL PROCESS
“The right to effective assistance of counsel
is thus the right of the accused to require the
prosecution’s case to survive the crucible of
meaningful adversarial testing … [I]f the
process loses its character as a confrontation
between adversaries, the constituional
guarantee is violated.”
United States v. Cronic, 466 U.S. 648 (1984)
UNITED STATES V. CRONIC
466 U.S. 648 (1984)
“While a criminal trial is not a game in which
the participants are expected to enter the
ring with a near match in skills, neither is it a
sacrifice of unarmed prisoners to gladiators.”
BREAKDOWN IN THE
ADVERSARIAL PROCESS
The Court then says that there are “certain
circumstances where the structure is so
deficient that any lawyer would fail to provide
effective assistance of counsel …...”
United States v. Cronic, 466 U.S. 648 (1984)
POWELL V. ALABAMA
287 U.S. 45 (1932)
POWELL V. ALABAMA
287 U.S. 45 (1932)
 Judge hand-picked attorneys
 Insufficient time to prepare a case
 Lawyers to qualified to handle the
complexity of the case
POWELL V. ALABAMA
287 U.S. 45 (1932)
“[H]ow can a judge, whose functions are purely
judicial, effectively discharge the obligations of
counsel for the accused? He can and should see
to it that, in the proceedings before the court,
the accused shall be dealt with justly and fairly.
He cannot investigate the facts, advise and
direct the defense, or participate in those
necessary conferences between counsel and
accused which sometimes partake of the
inviolable character of the confessional.”
INDEPENDENCE OF
THE DEFENSE FUNCTION
States have a “constitutional obligation to
respect the professional independence of
the public defenders whom it engages.” .”
Polk County v. Dodson, 454 U.S 312 (1981).
UTAH
COMPARISON
MISSISSIPPI (1990):
$34.86 (overhead) + “reasonable” fee ($25)
UTAH (2016):
$17.88 – all overhead and trial-related expenses
NEW MEXICO
November 6, 2012: the New Mexico electorate
passed a constitutional amendment requiring
the creation of an independent public defender
commission. (62%)
ABA TEN PRINCIPLES
1.
2.
3.
4.
5.
6.
7.
8.
Independence
State Funding/inclusion of Private Bar
Early Appointment of Counsel
Sufficient time
Caseload controls
Attorney Qualifications
Continuous Representation
Prosecution Parity/Bar Flat Fee
Contracts
9. Training
10.Supervision
Ten
Principles:
Principle 1:
“The public defense function, including the
selection, funding, and payment of defense
counsel, is independent.”
“The
fundamental
criteria
necessary to
design a
system that
provides
ef fective,
ef ficient,
high-quality,
ethical,
conflict free
legal
representation.”
UTAH
SB 155
IDAHO
HB 504
GIDEON V. WAINWRIGHT
“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.”
Gideon v. Wainwright (March 18, 1963)