Inadequate Legal Representation Hurts the Innocent Most of All

By Hans Sherrer

Justice:Denied magazine, Issue 26, page 11

In 1963 the U.S. Supreme Court recognized the right to counsel is so important that it unanimously ruled in Gideon v. Wainwright that a person charged with an imprisonable crime is constitutionally entitled to court appointed counsel. However there have been problems with meaningful implementation of the principle enunciated in that decision. Consequently, 41 years after Gideon there is substantial evidence that across the length and breadth of this country a defendant unable to afford private counsel is generally provided with inadequate legal representation.

An obvious, but largely ignored question related to deficient representation by a court appointed lawyer is not why it so pervasive - because the problem has been widely known within the legal system for decades. The question is: Why is it tolerated as the status quo? A clue to that question’s answer may be found by reading between the lines of the article accompanying this that reports on the widespread failure of Washington State judges to inform defendants of their panoply of due process rights - including their right to a court appointed lawyer - and what rights they are waiving by pleading guilty. That judicial attitude toward a defendant indicates a belief by the judge involved that the defendant doesn’t need to know his or her rights. Why? Because the defendant doesn’t need to exercise those rights. Why? Because the judge considers the defendant to be guilty! If a person is guilty then there is no need for him or her to exercise their “right” to a trial or be provided with a publicly paid lawyer, since a guilty plea is the correct outcome for their prosecution. Judges sharing that attitude consider a trial as a way a guilty person may escape punishment by the “legal technicality” of an acquittal. Moreover the failure of judges to be meaningfully sanctioned for treating a defendant as presumed to be guilty, indicates the degree to which that idea is shared within the judicial community.

Furthermore, that attitude isn’t isolated to state judges. Several years ago an experienced defense lawyer told me there are federal judges who believe only guilty people are indicted. However instead of openly failing to recognize a defendant’s due process rights, a state or federal judge with that mind-set generally provides the bare minimum of what is required: Which includes appointing a lawyer who may be sincere, but is typically overworked, underpaid, and has available a fraction of the prosecution’s investigative resources. The title of a 1971 legal article aptly describes today’s situation, Did You Have A Lawyer When You Went to Court? No, I Had A Public Defender. 1 It is not accidental, but by design, that 96% of convictions nationwide are by a guilty plea that is typically brokered by a court appointed lawyer.

However each issue of Justice:Denied spotlights the fundamental flaw in the thinking of judges and others who believe skipping meaningful due process is acceptable: A significant number of the people accused of criminal wrongdoing are innocent. Prosecutors invariably file charges based on a public agencies report(s). The practical purpose of a defendant’s due process rights is to put the veracity of those allegations to a public (courtroom) test. Thus the only way an innocent person without substantial financial resources can be protected from a false allegation is for the public that lavishly finances his or her prosecution, to adequately finance the person’s defense. Otherwise an innocent person faces the grave danger of being convicted. The following four articles hint at how inadequate court appointed legal counsel can be. That deficiency is a significant reason why the innocent are systematically being wrongly convicted in state and federal courts throughout this country. Hans Sherrer

1. Did You Have a Lawyer When You Went to Court? No, I Had a Public Defender, Jonathan D. Casper, Yale Review of Law and Social Action 1:4-9 (1971).