Chapter Seven:

Defense Attorneys

The RIGHT TO COUNSEL

SIXTH AMENDMENT

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

the assistance of counsel for his defense.”

What does this mean?

Supreme Court Cases Concerning Right to Counsel

Supreme Court Cases Concerning Right to Counsel

Right to Counsel Steps of Felony Criminal Procedure

Steps Where Counsel Required

Initial Appearance* Bail* Preliminary Hearing Arraignment Interrogation Lineup Plea Bargaining Trial Sentencing 1st Appeal

* If a critical stage.

Steps Where No Counsel Required

Arrest Charging Grand Jury Lineup (pre-indictment) Discretionary Appeal

Step Where Lawyer on Request

Interrogation (pre-indictment)

Steps Where Lawyer at Court’s Discretion

Probation and Parole revocations

Right to Counsel during Steps of Felony Crime Procedure

The Role of Defense Attorneys in a Typical Felony Case

Defense Attorneys

Defense attorneys are officers of the court.

Defense attorneys are members of the courtroom workgroup. Generally, they have the least power.

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

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

Supreme Court DecisionsRe: Right to Counsel and Indigents

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

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

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

In re Gault (1967): Juveniles have a right to counsel in juvenile court proceedings.

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

Indigent Defense Systems

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

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

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

If you were arrested, which would you rather have,

a private attorney or a public defender?(Stolen property or Embezzlement)

Why?

Indigents

Defendants who are too poor to pay a lawyer and therefore

are entitled to a lawyer for free.

Merits of Public Defender System

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

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

Assessing the Merits of the Public Defender System

Question:

Is there a difference in outcomes between those defendants represented

by privately retained counsel or by

those defendants represented by public defenders?

Question:

Although Crime Control and Due Process advocates agree that

indigents should have counsel during the criminal process,

the scope of this right is disputed.

Crime control advocates are concerned that government spends too much on

providing the poor with lawyers, whereas the due process advocates

are concerned

Are we spending too little or too much?

Views of Lawyers and Clients

Lawyers View of Their Clients

Lawyers advocate a counseling approach.

Lawyers must weigh the likelihood of conviction or acquittal.

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

Lawyers are exposed to dishonesty and deception by their clients.

Clients View of Their Lawyers

Clients are skeptical about the skills of their lawyers.

PD’s are paid whether they win or not.

A breakdown of trust between client and lawyer.

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

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

defendantswho are in fact guilty,

and their representation focuses onplea bargaining.”

QUESTION

Do you feel this is an accurate statement? Why?