Class 7: Counsel for the Defense

The Sixth Amendment to the United States Constitution guarantees a poor person accused of a crime the right to a lawyer. But as we see in this class session, that guarantee is not always upheld. For many years, only those who could afford to pay for lawyers were represented in the cases against them. The Supreme Court recognized a right to counsel in capital cases in 1932, and in cases prosecuted in the federal courts in 1938. But it was not until 1963, in the case of Gideon v. Wainwright, that the Supreme Court held that the states were required to provide lawyers in felony cases for those who could not afford them. Yet in practice many defendants receive extremely poor legal representation. Here we take up the question of what kind of a lawyer one is entitled to. We look at the right to “effective” assistance of counsel, the need for expert assistance, and the burdens that face defendants trying to prove that the lawyers assigned to represent them were incompetent and ineffective. We also examine the right of defendants to lawyers after they have been convicted. The class includes interviews two people who have been involved with reforming the public defender system in New Orleans. Derwyn Bunton, the Chief District Defender for Orleans Parish, discusses some of the challenges public defenders face in providing representation, especially in capital cases, due to limited funding. Stephen Singer, who was involved in a major restructuring of public defense in New Orleans after Hurricane Katrina, discusses efforts to improve representation and the resistance to it by some judges.

A. The Sixth Amendment, Equal Protection and Due Process

This session examines the right of an accused to a transcript based on the equal protection and due process clauses of the Fourteenth Amendment and the right to counsel guaranteed by the Sixth Amendment. It examines the Supreme Court’s landmark decision on the right to counsel in Gideon v.Wainwright and the different approaches the federal, state and local governments have taken to implementing the right to counsel.

Readings:

Sixth Amendment (PDF), including:

  • Griffin v. Illinois, 351 U.S. 12 (1956)
  • Johnson v. Zerbst, 304 U.S. 458 (1938)
  • Note on Betts v. Brady, 316 U.S. 455 (1942)
  • Petition of Clarence Earl Gideon for a Writ of Certiorari, Supreme Court of the United States, October Term, 1961
  • Gideon v. Wainwright, 372 U.S. 355 (1963)
  • Gideon’s Retrial
  • Statement by Attorney General Robert F. Kennedy
  • Note on Douglas v. California, 372 U.S. 353 (1963)

Implementing the Right to Counsel (PDF), including:

  • Systems for Providing Representation
  • When and at What Proceedings an Accused is Entitled to CounselThe Attorney-Client Relationship; Continuity of Representation
  • Note on Morris v. Slappy, 461 U.S. 1 (1983)
  • Note on Wheat v. United States, 489 U.S. 153 (1988)
  • Note on United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)
  • The Right to Self-Representation
  • Adequacy of Funding
  • Availability and Quality of Representation
  • Workload and Ethical Considerations
Recommended Reading:
Lecture: 

 

B. Effective Assistance of Counsel

This segment examines the quality of legal representation for poor people accused of capital or other crimes, as well as the right of a defendant to a lawyer who is not representing defendants with conflicting interests.

Readings: 

Effective Assistance (PDF), including:

  • Conflicts of Interest
    • Note on Glasser v. United States, 315 U.S. 60, 92 (1942), Holloway v. Arkansas, 435 U.S. 475 (1978), Cuyler v. Sullivan, 446 U.S. 335 (1980), Wood v. Georgia, 450 U.S. 261 (1981), and Wheat v. United States, 486 U.S. 153 (1988)
    • Burger v. Kemp, 483 U.S. 776 (1987)
    • Note – Mickens v. Taylor, 535 U.S. 162 (2002)
    • Note – People v. Doolin, 198 P.3d 11 (Cal. 2009)
  • The Right to “Effective” Counsel 
    • Strickland v. Washington, 466 U.S. 688 (1984)
    • Justice Marshall and the Commentators on Strickland
  • Can Prejudice be Presumed?
    • United States v. Cronic, 466 U.S. 648 (1984)
    • Further Developments in Cronic
    • Bell v. Cone, 535 U.S. 685 (2002), and Florida v. Nixon, 543 U.S. 175 (2004)
    • Sleeping Counsel – Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc), McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996), Ex Parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005)
  • Plea Bargaining
    • Note on Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010); Hill v. Lockhart, 474 U.S. 52 (1985)
  • Application of Strickland in Other Cases
    • Williams (Terry) v. Taylor, 529 U.S. 362 (2000)
    • Other Decisions on Ineffective Counsel
    • Review of Ineffectiveness Claims Under AEDPA
    • Harrington v. Richter, 131 S.Ct. 770 (2011)
Lecture:

 

C. Experts and Counsel in Post-Conviction Review

Readings:

Experts and Post-Conviction (PDF), including:

  • The right to expert and investigative assistance
    • Ake v. Oklahoma, 470 U.S. 68 (1985)
  • No Right to Counsel in Appellate and Post-conviction Proceedings
    • Murray v. Giarratano, 492 U.S. 1 (1989)
    • Facing Death Without a Lawyer: Gibson v. Turpin, Superior Court of Butts County, Georgia, Sept. 12, 1996
    • Ex parte Graves, 70 S.W.3d 103 (Tex. Cr. App. 2002)
    • Ex parte Rojas, 2003 WL 1825617 (Tex. Cr. App. 2003)
    • Note – Ruiz v. Dretke, 2005 WL 2620193 (W.D.Tex., 2005)
Recommended Reading:
Lecture:

 

D. Indigent Defense in New Orleans

Recommended Reading:
Interview of Derwyn Bunton:

Derwyn Bunton, the Chief District Defender for Orleans Parish, discusses some of the challenges public defenders face in providing representation, especially in capital cases, due to limited funding.

Interview of Steven Singer:

Steven Singer, who was involved in a major restructuring of public defense in New Orleans after Hurricane Katrina, discusses efforts to improve representation and the resistance to it by some judges.

Previous Session                                                                                            Next Session