Chapter Seven:Chapter Seven:

Defense AttorneysDefense Attorneys

The RIGHT TO COUNSELThe RIGHT TO COUNSEL

SIXTH AMENDMENTSIXTH AMENDMENT

““In all criminal prosecutions the accused shall In all criminal prosecutions the accused shall enjoy the right…..to have enjoy the right…..to have

the assistance of counsel for his defense.”the assistance of counsel for his defense.”

What does this mean?What does this mean?

Supreme Court Cases Supreme Court Cases Concerning Right to CounselConcerning Right to Counsel

Supreme Court Cases Supreme Court Cases Concerning Right to CounselConcerning Right to Counsel

Right to Counsel Right to Counsel Steps of Felony Criminal ProcedureSteps of Felony Criminal Procedure

Steps Where Counsel RequiredSteps Where Counsel Required

Initial Appearance*Initial Appearance* Bail*Bail* Preliminary HearingPreliminary Hearing ArraignmentArraignment InterrogationInterrogation LineupLineup Plea BargainingPlea Bargaining TrialTrial SentencingSentencing 11stst Appeal Appeal

* * If a critical stage.If a critical stage.

Steps Where No Counsel Steps Where No Counsel RequiredRequired

ArrestArrest ChargingCharging Grand JuryGrand Jury Lineup (pre-indictment)Lineup (pre-indictment) Discretionary AppealDiscretionary Appeal

Step Where Lawyer on RequestStep Where Lawyer on Request

Interrogation (pre-indictment)Interrogation (pre-indictment)

Steps Where Lawyer Steps Where Lawyer at Court’s Discretionat Court’s Discretion

Probation and Parole Probation and Parole revocationsrevocations

Right to Counsel during Steps of Right to Counsel during Steps of Felony Crime ProcedureFelony Crime Procedure

The Role of Defense Attorneys The Role of Defense Attorneys in a Typical Felony Casein a Typical Felony Case

Defense AttorneysDefense Attorneys

Defense attorneys are Defense attorneys are officers of the courtofficers of the court..

Defense attorneys are Defense attorneys are members members of the of the courtroomcourtroom workgroupworkgroup. Generally, they have the least power.. Generally, they have the least power.

According to Skolnick, defense attorneys are divided According to Skolnick, defense attorneys are divided into into three categoriesthree categories: those attorneys who handle : those attorneys who handle few cases, those attorneys who have criminal few cases, those attorneys who have criminal practices and are adversarial, and those attorneys practices and are adversarial, and those attorneys who handle large numbers of clients, i.e., public who handle large numbers of clients, i.e., public defenders.defenders.

Defense attorneys utilize Defense attorneys utilize a reactive approacha reactive approach in in response to their continual exposure to various response to their continual exposure to various “rewards“rewards and sanctions”and sanctions” deemed appropriate by deemed appropriate by other courtroom workgroup members.other courtroom workgroup members.

Supreme Court DecisionsSupreme Court DecisionsRe: Right to Counsel and IndigentsRe: Right to Counsel and Indigents

Powell v. AlabamaPowell v. Alabama (1932): Indigent defendants have (1932): Indigent defendants have a right to counsel in a a right to counsel in a capital casecapital case in in state courtstate court..

Johnson v. ZerbstJohnson v. Zerbst (1938): Indigent defendants have a (1938): Indigent defendants have a right to counsel in right to counsel in federal courtfederal court..

Gideon v. Wainwright Gideon v. Wainwright (1963): Indigent defendants (1963): Indigent defendants have a right to counsel in have a right to counsel in state courtstate court..

In re GaultIn re Gault (1967): Juveniles have a right to counsel (1967): Juveniles have a right to counsel in in juvenilejuvenile courtcourt proceedings.proceedings.

Mempa v. RhayMempa v. Rhay (1967): Indigent defendants have a (1967): Indigent defendants have a right to counsel in all “right to counsel in all “critical stagescritical stages” of the criminal ” of the criminal justice process.justice process.

Indigent Defense SystemsIndigent Defense Systems

Assigned CounselAssigned Counsel: Involves the : Involves the appointmentappointment by by counsel by the court of private attorneys from a list counsel by the court of private attorneys from a list of available attorneys.of available attorneys.

Contract SystemContract System: Involves : Involves biddingbidding by private by private attorneys to represent all criminal defendants found attorneys to represent all criminal defendants found indigent during the term of the contract. (Cost over indigent during the term of the contract. (Cost over Quality).Quality).

Public DefendersPublic Defenders: : Public or privatePublic or private nonprofit nonprofit organizations with full or part-time organizations with full or part-time salaried staffsalaried staff who represent indigents in criminal cases in their who represent indigents in criminal cases in their jurisdiction.jurisdiction.

If you were arrested, If you were arrested,

which would you rather have,which would you rather have,

a private attorney or a public defender?a private attorney or a public defender?

(Stolen property or Embezzlement)(Stolen property or Embezzlement)

Why?Why?

IndigentsIndigents

Defendants who are too poor Defendants who are too poor

to pay a lawyer and thereforeto pay a lawyer and therefore

are entitled to a lawyer for free.are entitled to a lawyer for free.

Merits of Public Defender SystemMerits of Public Defender System

The PDS provides lawyers who are paid to The PDS provides lawyers who are paid to represent indigents on a continuous basis and represent indigents on a continuous basis and who devote more attention than those who devote more attention than those attorneys who receive minimal compensation.attorneys who receive minimal compensation.

The PDS provides more experienced and The PDS provides more experienced and competent counsel because their day-to-day competent counsel because their day-to-day courtroom workgroup exposure keeps them courtroom workgroup exposure keeps them knowledgeable of both the criminal law and knowledgeable of both the criminal law and the informal norms of the court (the informal norms of the court (the going the going raterate).).

Assessing the Merits of the Assessing the Merits of the Public Defender SystemPublic Defender System

Question:Question:

Is there a difference in outcomes Is there a difference in outcomes

between those defendants represented between those defendants represented

by privately retained counsel by privately retained counsel

or by or by

those defendants represented those defendants represented

by public defenders?by public defenders?

QuestionQuestion::

Although Crime Control and Due Process Although Crime Control and Due Process advocates agree that indigents should advocates agree that indigents should

have counsel during the criminal have counsel during the criminal process, process,

the scope of this right is disputed.the scope of this right is disputed.

Crime control advocates are concerned Crime control advocates are concerned that government spends too much on that government spends too much on

providing the poor with lawyers, whereas providing the poor with lawyers, whereas the due process advocates are concerned the due process advocates are concerned

Are we spending too little or too much?Are we spending too little or too much?

ViewsViews of of LawyersLawyers and and ClientsClients

Lawyers View of Their Lawyers View of Their ClientsClients

Lawyers advocate a Lawyers advocate a counseling approach.counseling approach.

Lawyers must weigh the Lawyers must weigh the likelihood of conviction or likelihood of conviction or acquittal.acquittal.

Lawyers must prepare Lawyers must prepare clients for consequences clients for consequences and the possibility of and the possibility of conviction.conviction.

Lawyers are exposed to Lawyers are exposed to dishonesty and deception dishonesty and deception by their clients.by their clients.

Clients View of Their Clients View of Their LawyersLawyers

Clients are skeptical about Clients are skeptical about the skills of their lawyers.the skills of their lawyers.

PD’s are paid whether PD’s are paid whether they win or not.they win or not.

A breakdown of trust A breakdown of trust between client and lawyer.between client and lawyer.

Clients can become hostile Clients can become hostile due to lack of confidence – due to lack of confidence – they feel the attorney they feel the attorney should always win.should always win.

“…“…..most defense attorneys ..most defense attorneys deal with a steady stream of deal with a steady stream of

defendantsdefendantswho are in fact guilty, who are in fact guilty,

and their representation focuses onand their representation focuses onplea bargaining.”plea bargaining.”

QUESTIONQUESTION

Do you feel this is an accurate Do you feel this is an accurate statement? Why?statement? Why?