THE RIGHT TO COUNSEL IN THE WESTERN STATES

Transcription

1 DAVID CARROLL Executive Director THE RIGHT TO COUNSEL IN THE WESTERN STATES SIXTH AMENDMENT CENTER PO Box Boston, MA Council of State Governments - West May 20, 2016 Salt Lake City, Utah

2 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)

3 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)

4 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

5 JOHN ADAMS Counsel ought to be the very last thing an accused person should [be without] in a free country.

6 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?

7 NEVADA a failure to assign professional counsel for a poor defendant will be deemed a fatal error on appeal. In re WIxom

8 UTAH

9 GRANTSVILLE, UTAH

10 NO COUNSEL COURTS THOUSANDS OF PEOPLE ARE INCARCERATED EVERYDAY IN AMERCIA WITHOUT EVER HAVEN SPOKEN TO AN ATTORNEY

11 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)

12 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.

13 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)

14 POWELL V. ALABAMA 287 U.S. 45 (1932)

15 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

16 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.

17 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).

18 UTAH

19 COMPARISON MISSISSIPPI (1990): $34.86 (overhead) + reasonable fee ($25) UTAH (2016): $17.88 all overhead and trial-related expenses

20 NEW MEXICO November 6, 2012: the New Mexico electorate passed a constitutional amendment requiring the creation of an independent public defender commission. (62%)

21 ABA TEN PRINCIPLES 1. Independence 2. State Funding/inclusion of Private Bar 3. Early Appointment of Counsel 4. Sufficient time 5. Caseload controls 6. Attorney Qualifications 7. Continuous Representation 8. Prosecution Parity/Bar Flat Fee Contracts 9. Training 10.Supervision

22 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 effective, efficient, high-quality, ethical, conflict free legal representation.

23 UTAH SB 155

24 IDAHO HB 504

25 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)