Sixth Amendment in Crisis: Right to Competent Counsel at Risk

The House Judiciary Subcommittee on Crime, Terrorism and Homeland Security had a recent hearing on problems with criminal representation that far too many indigent defendants are facing in this country.

In some jurisdictions, inadequate legal representation has reached a crisis level.

I say this not just as a lawyer who has done criminal representation, but also as a former assistant prosecutor. I know full well the value of having evidence and procedure tested. If you are a good state’s attorney, you want well-qualified opposing counsel making you prove your case.

Or, at least, you should, because that is how justice is best served.

When the jury hears all sides, weighs them against one another, and reaches a true and just verdict based on well-tested evidence, facts and law, we all win.

An unjust process, especially one in which opposing counsel fails to make even basic objections, is improper and unfair to the defendant and to constitutional obligations under the Sixth Amendment.

One of the witnesses at the hearing was a prosecutor from Michigan, who had this to say:

Any other day of the week, Nancy Diehl, who represented the Prosecuting Attorney in the County of Wayne, Michigan, before lawmakers, might have an adversarial relationship with most defense lawyers in court. However, at this hearing, Diehl echoed NLADA’s position and quoted from their June 2008 report, A Race to the Bottom (PDF):

When there is an inadequate defense, bad things can happen. If the defense is ineffective, evidence may be admitted that should not have been. If proper preparation and cross-examination are lacking, an innocent person may be convicted. If the wrong person is convicted, a guilty person remains free to continue to commit crimes. An unskilled defense attorney puts an additional burden on an already too burdened prosecutor. It means that the prosecutor must try to watch out for the rights of an accused. Ineffective representation also burdens the appellate process. Cases are drawn out over long periods of time. Cases are reversed based on ineffective assistance of counsel. Prisoners remain incarcerated for crimes they did not commit. New trials are granted. There is no closure for victims and their families. Their wounds are reopened. Memories fade and justice is less likely to be served.

The ACLU and ABA have done quite a bit of work on this issue the past few years — the ABA’s ABA Ten Principles of a Public Defense System (PowerPoint) has been a standard for evaluating floor-level representation. It is great they got time to publicly argue the need for more federal grant monies for cash-poor states, as well as the need for Sixth Amendment renewal across the country.

Our nation’s justice system is best served when "justice" is at the forefront of everyone’s mind. Not just in the courtroom, but in society as a whole.

Sixth Amendment In Crisis: Right To Competent Counsel At Risk

The House Judiciary Subcommittee on Crime, Terrorism and Homeland Security had a recent hearing on problems with criminal representation that far too many indigent defendants are facing in this country.

In some jurisdictions, inadequate legal representation has reached a crisis level. 

I say this not just as a lawyer who has done criminal representation, but also as a former assistant prosecutor.  I know full well the value of having evidence and procedure tested.  If you are a good state’s attorney, you want well-qualified opposing counsel making you prove your case.

Or, at least, you should, because that is how justice is best served.

When the jury hears all sides, weighs them against one another, and reaches a true and just verdict based on well-tested evidence, facts and law, we all win.

An unjust process, especially one in which opposing counsel fails to make even basic objections, is improper and unfair to the defendant and to constitutional obligations under the Sixth Amendment

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