CHAPTER 7: DEFENSE ATTORNEYS © 2017 Cengage Learning. All Rights Reserved.

Learning Objectives Interpret the four major legal issues surrounding the right to counsel Discuss how the courtroom work group affects how defense attorneys represent their clients Explain why most lawyers do not represent criminal defendants Compare and contrast the three systems of providing indigents with court-appointed attorneys Recognize possible tensions between lawyers and clients Analyze the importance of legal ethics to the defense of criminal defendants. © 2017 Cengage Learning. All Rights Reserved.

Gideon v. Wainwright (1963)  Clarence Earl Gideon Requested a court appointed attorney and was refused Unrepresented by counsel Supreme Court sided with Gideon  Indigent defendants have the right to court appointed counsel Applies in felony criminal proceedings Decision sent shock waves through the criminal justice system © 2017 Cengage Learning. All Rights Reserved.

Right to Counsel 6 th Amendment Extended to Juveniles In re Gault (1967) Issues of right to counsel with: Nonfelony criminal prosecutions Stages of the criminal process Ineffective assistance to counsel Self-representation © 2017 Cengage Learning. All Rights Reserved.

Right to Counsel Non-Felony Prosecutions Argersinger v. Hamlin (1972) Scott v. Illinois (1979) Alabama v. Shelton (2002) © 2017 Cengage Learning. All Rights Reserved.

Thinking Point  Research Justice Anthony Scalia and his rulings/discussions regarding juvenile court proceedings. Are the issues fair and partial? How do they relate to the adult system? What cases are most current? Discuss these cases and their issues. © 2017 Cengage Learning. All Rights Reserved.

Right to Counsel Stages of the Criminal Process: 6th amendment applies to all criminal prosecutions, thus coined the “Critical Stages” Test Mempa v. Rhay (1967) Miranda v. Arizona (1966) Kirby v. Illinois (1972) © 2017 Cengage Learning. All Rights Reserved.

Right to Counsel Once Adversary Proceedings Have Begun Brewer v. Williams (1977) Rothgery v. Gillespie County (2008) Missouri v. Frye (2012) Lafler v. Cooper (2012) © 2017 Cengage Learning. All Rights Reserved.

Right to Counsel Stages of the Criminal Process: Custodial Interrogations Miranda v. Arizona (1966) Police Lineups U.S. v. Wade (1967) Kirby v. Illinois (1972) © 2017 Cengage Learning. All Rights Reserved.

Right to Counsel During Steps in Felony Prosecutions © 2017 Cengage Learning. All Rights Reserved.

Thinking Point  techniques-three-key-memos-now html;_ylt=A2KLOzGfbvdPhVIAHivQtDMD techniques-three-key-memos-now html;_ylt=A2KLOzGfbvdPhVIAHivQtDMD Review the CIA’s interrogation techniques Discuss if this is a violation of Miranda v. Arizona  What are your thoughts on these techniques in relation to a person’s right to counsel?  What should be done about these techniques and the defendants’ lack of counsel? © 2017 Cengage Learning. All Rights Reserved.

Ineffective Assistance of Counsel Objective Standard of Reasonableness : Strickland v. Washington (1974) Did counsel’s conduct undermine the proper function of the process? Did it render the outcome unfair? Appellate courts must reverse if proceedings were unfair and the outcome would have been different if counsel had not been ineffective Few appellate court reversals on these grounds © 2017 Cengage Learning. All Rights Reserved.

Self-Representation Defendants have a 6th Amendment right to self-representation Pro se Missouri v. Frye (2012) Lafler v. Cooper (2012) Faretta v. California (1975) Limits Must show judge the ability to conduct the trial Standby council is available during the trial © 2017 Cengage Learning. All Rights Reserved.

Thinking Point  You have just been arrested for armed robbery of a bank. You decide you will represent yourself. Come up with a defense to your actions. Present this to your class. Allow the class to ask questions. Discuss your overall experience and why you want to defend yourself. © 2017 Cengage Learning. All Rights Reserved.

Defense Attorneys and The Courtroom Workgroup How do we define winning? Winning is doing the best they possibly can for a client Probation, accepting a plea to a misdemeanor (assuming client is guilty), etc. © 2017 Cengage Learning. All Rights Reserved.

Defense Attorneys and The Courtroom Workgroup Cooperative Attorneys Rewards Access to police reports, witnesses… Sanctions Indirect: poor scheduling, dragging out of trials… Direct: criticism, lack of assignment of some cases… Tougher plea bargaining © 2017 Cengage Learning. All Rights Reserved.

Defense Attorneys and The Courtroom Workgroup Variations in Cooperation Inexperienced attorneys “Gamblers” Public defenders Private attorneys with large numbers of defendants An Assessment Co-Opted? Or Cooperative? © 2017 Cengage Learning. All Rights Reserved.

The Criminal Bar Diversity and Stratification of the Legal Profession Environment of Practice Low status Difficulty in securing clients Low fees © 2017 Cengage Learning. All Rights Reserved.

Providing Indigents with Attorneys Appointed Counsel Indigents Those who are too poor to pay for an attorney and are entitled to have one provided for them for free ¾ of state prison inmates have a court-appointed lawyer In urban courthouses, 82% of felony defendants are too poor to hire their own lawyer It is up to counties to determine what type of system they will utilize © 2017 Cengage Learning. All Rights Reserved.

Providing Indigents with Attorneys Three Systems ① Assigned counsel: Attorneys appointed by the judge on a case-by- case basis ② Contract systems: Attorneys hired to provide services for a specified dollar amount ③ Public defender: A salaried public official representing all indigent defendants © 2017 Cengage Learning. All Rights Reserved.

Providing Indigents with Attorneys Assigned counsel Most common in small counties Criticisms: Least qualified attorneys Inadequate pay Contract Systems Most common in small counties Criticisms : Lower standard of representation due to bidding Private bar no longer plays an important role in indigent defense Found unconstitutional in Arizona © 2017 Cengage Learning. All Rights Reserved.

Providing Indigents with Attorneys Public defender: Los Angeles County, 1914 Today the public defender system represents approximately 70% of all indigents nationwide Public or private nonprofit organizations representing indigents Funding occurs at the state or local level © 2017 Cengage Learning. All Rights Reserved.

Providing Indigents with Attorneys Public defender: Proponents Devote more attention to clients More experienced, competent counsel Continuity and consistency Critics Tied too closely to the courtroom work group © 2017 Cengage Learning. All Rights Reserved.

Lawyers and Clients Lawyer acts as advocate and counselor Privileged Communication Lawyers’ views on their clients Frustration due to difficult clients Lack of trust Evasion Deception Failure to take advice Defendants’ views on their lawyers Skeptical About Skill Worry about whose side their lawyer is on Suspicious Lack of One-to-One Contact © 2017 Cengage Learning. All Rights Reserved.

Defense Attorney Ethics Model Rules of Professional Conduct: Duty of candor to the tribunal Refrain from making any out-of-court statements Zealous representation Abiding by client’s decision Act with reasonable diligence Confidentiality Avoid conflict of interest © 2017 Cengage Learning. All Rights Reserved.

Thinking Point  Research the Model Rules of Professional Conduct adopted by the American Bar Association Are the rules substantial? Do they apply directly to all courtroom actors? What are the advantages and disadvantages to this ethical model? Would you change any of the rules? © 2017 Cengage Learning. All Rights Reserved.