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.

30 Responses to "Sixth Amendment In Crisis: Right To Competent Counsel At Risk"
foothillsmike | Tuesday March 31, 2009 05:52 am 1

When my ex was an AUSA she primarily served as Janet Reno’s liason with the Tribes in SD but she also prosecuted numerous felonies. There was considerable concern with the strengthening of the public defenders office. Then Ashcroft took over and the perception became that the concern at DOJ shifted to daily prayer meetings.

slide | Tuesday March 31, 2009 06:08 am 2

There are numerous and systemic problems with the system of justice, one of them which you have identified. But, even though there might be a problem with ineffective defense counsel don’t lighten up on the judges who have a responsibility to see that all litigants have a fair trial. There are as many incompetent judges in the system as there are incompetent attorneys. The justice system is broken and needs a complete overhaul.

Christy Hardin Smith | Tuesday March 31, 2009 06:09 am 3

Morning all — how is everyone this morning?

foothillsmike | Tuesday March 31, 2009 06:24 am 4
In response to slide @ 2

Are you seeing the problem with state or federal judges or both? Here in CO judges retention is on the ballot. One, was voted off the bench last Nov. On the Federal level I see the sentencing guidelines as a big problem.

jayt | Tuesday March 31, 2009 06:49 am 5

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.

Are there states which still either require all lawyers to do pro bono work, even if a given case is outside their area of expertise?

I seem to recall stories (not sure of veracity) of lawyers who had never seen the inside of a criminal court being appointed to do up to, and including, death-penalty cases.

oldgold | Tuesday March 31, 2009 06:50 am 6

As with most things, a lot of the problem has to do with money.
When state budgets are pinched, money to defend folks accused
of crimes loses out to other things. The unfortunate truth is that
get what you pay for.

slide | Tuesday March 31, 2009 06:55 am 7
In response to foothillsmike @ 4

Both state and federal judges. Of course not all judges are incompentent or corrupt. But, for at least 20 years or more, for the most part, judges want to be judges either because they cannot make it in the real world or they are power hungry. Why would any decent lawyer want to be a judge and make $75,000 – $125,000 per yr. when most rookie attorneys make that much or more? Even some attorneys who were second rate deputy attorney generals and now practice privately make much more.

jayt | Tuesday March 31, 2009 07:04 am 8
In response to slide @ 7

I really don’t think that anyone becomes a judge for the money; more out of a sense of duty, a feeling of being the best person for the job, or possibly just because it’s an ultimate power trip.

But since you bring up incompetence, I can’t help but quote Dougie Feith, on the issue of the Spanish case being made against him:

Feith fired back in an interview Sunday, saying, “the charges as related to me make no sense.”

“They criticize me for promoting a controversial position that I never advocated,” Feith added.

And as we all know, “promoting” is an entirely diffferent matter altogether from “advocating”.

Or something.

Tommy Franks had it right.

foothillsmike | Tuesday March 31, 2009 07:05 am 9
In response to slide @ 7

I think criminal law is not as well payed as other areas of law.

billybugs | Tuesday March 31, 2009 07:07 am 10

As recently as 2 years ago public defenders received 35 per hr for defending indigent people .
There weren’t many lawyers willing to work for that amount
It’s strange though ,states always seem to have enough to build new jails

foothillsmike | Tuesday March 31, 2009 07:12 am 11
In response to billybugs @ 10

Hard to pay off those mega student loans @ $35/ hr

billybugs | Tuesday March 31, 2009 07:16 am 12
In response to foothillsmike @ 11

The State bumped the rate up to about 60 per hr
How hard are you gonna work for 60 per hr ,poor people still get 2nd rate representation and make up the majority of convicts in our jails

oldgold | Tuesday March 31, 2009 07:17 am 13
In response to slide @ 7

Most rookie attorneys do not make $75K to $125K.
Actually, state district court judges are pretty well compensated.
In addition to good salaries, the benefits are excellent.

Where the compensation is out of whack is the money paid to the
defending attorneys.

billybugs | Tuesday March 31, 2009 07:24 am 14

I know that many folks become lawyers out of a desire to help people
It’s just awful hard to be true to your ideals when you have a $120,000 student loan hanging over your head

Christy Hardin Smith | Tuesday March 31, 2009 07:24 am 15

Had a meeting at The Peanut’s school this morning and then had to run my FIL to the doctor. Sorry to miss the thread, gang.

Pay is definitely a huge factor here in WV for criminal appointments. The hourly rate is much less than what you could make doing other types of private practice. But the work is definitely steady — although the state pays in a haphazard manner at times, they at least do pay which is more than you could say for some of private pay clients who rack up bills and then don’t make adequate payment.

It’s always been that way from what I could tell. But in some areas of the country, it’s a much more pervasive problem than simply cost issues. In Texas, for example, a lot of the death penalty appointments in some areas were found to be appointed to less than qualified attorneys any number of times that presiding judges did nothing about. And on and on…

It’s part and parcel with the “do we serve justice or retribution” argument in a lot of places, I think. I would argue that we are all better served with justice, but it’s not something on which everyone agrees. Clearly.

foothillsmike | Tuesday March 31, 2009 07:41 am 16
In response to billybugs @ 14

Some people view their job performance as a route to advancement as well as an obligation. It doesn’t all hinge on money. At $60 if they are also getting expenses that comes to $125K if they are busy.

oldgold | Tuesday March 31, 2009 07:52 am 17
In response to foothillsmike @ 16

With all due respect, I don’t think you understand law office economics.
Have you considered clerical staff, employee benefits, rent, liability insurance, property insurance, copiers, computers, stationery, rent, phones, heat, electricity, water and on and on? To multiply the hourly rate times 2000 and think that is what the lawyer makes is not the way it works.

demi | Tuesday March 31, 2009 07:54 am 18
In response to foothillsmike @ 1

I really appreciate your comments here, Mike. Not that I “judge” the veracity of what people say here, but over time I have developed a pretty good handle on who to trust. Level of thoughtfulness, truthiness as it were, and basic BS level. How much salt needs to be added.
Prayer meetings you say? I read through the comments, and then went back to your #1. Am thinking about just how much influence the religious right (what a load that is) has had on our country. By the way, any lazy nut can mail away for a little piece of paper that ordains them to be a minister. Not so with a legal degree. Am I correct? Hmmmmmm.

foothillsmike | Tuesday March 31, 2009 07:57 am 19
In response to oldgold @ 17

I qualified my remark with the plus expenses. Are staff billable at 1/2 etc. Small offices might not be that high especially if shared.

foothillsmike | Tuesday March 31, 2009 08:06 am 20
In response to demi @ 18

The word through the USA offices was that Ashcroft was starting each day with prayer mtgs with immediate staff. Many of these were repub leaning. I found it scary. I also find it scary that there are secretive religious meetings attended by several congressional insiders. The Brownback crew scares the hell out of me.

oldgold | Tuesday March 31, 2009 08:11 am 21
In response to foothillsmike @ 19

The problem is the only expenses you get representing indigent defendants are the direct out of pockets. You don’t get reimbursed for tthe overhead expenses.
At $60/hour plus direct out of pockets, you are not making much, if anything.

demi | Tuesday March 31, 2009 08:13 am 22
In response to foothillsmike @ 20

Can’t they pray on their own time? Like, on the way to work? My view is that prayer should be a personal thing. I certainly wouldn’t tell people not to pray, but if they put so much “faith” in prayer, why did the government spend so much money on an unjustified war and surveillance? Couldn’t they just pray us to safety?
Uh oh. I’m getting snarky and I try not to do that.

foothillsmike | Tuesday March 31, 2009 08:41 am 23

My fear is that this reliance gives a sense of infallibility to decisions that are made. Kind of like an old guy wearing white dresses that tells the world that condoms are ineffective.

demi | Tuesday March 31, 2009 08:50 am 24
In response to foothillsmike @ 23

Yes. You saw what Jon Stewart had to say about that? Yeah, ’cause you know, the pope knows so much about sex.
Yes also to the reliance giving them a sense of infallibility on decisions. Unfortunately, the way I see it, many who rely on prayer are somewhat lacking in the critical thinking aspect of life/governance.
Who could have predicted? You silly people, had you actually been paying attention.

WVAPA | Tuesday March 31, 2009 09:18 am 25

Christy–I agree with everything you’ve said about the reasons indigents deserve justice and, most certainly, competent representation. Let me add one more reason, a purely practical reason, for why I want the people I prosecute to have fair trials, with skilled defense attorneys: I only want to have to try a case one time. I hate habeas proceedings. Here in WV they tend to drag on for years. In the meantime, police officers retire or are transferred, witnesses move or die, and any other number of problems can arise which can turn out to be impediments to justice. By the way, I didn’t decide to be a career prosecutor because I couldn’t make it in a civil practice. I simply believe it would be a waste of my life to spend it, as civil attorneys often do, either protecting other people’s money or getting money for them. That’s just not the kind of lawyering I want to do, although there’s nothing wrong with a business or civil practice.

timr | Tuesday March 31, 2009 09:58 am 26

Strictly as a layman, but having served on 4 federal juries as well as having watched many trials over the last 35 years I think that I can say from my place as a juror that neither side does a very good job in presenting their case. I have found that(big gasp of surprise here) police almost always lie and very rarely do defense attys catch them at it-poor prep?, poor lawyer?-I look at the number of those on death row who have been found innocent as an example of both poor lawyering and very bad police work.
Further, I have noticed that people with lots of money very rarely get convicted of anything
It is very hard not to see that we have 2 justice systems in the US. One for the rich or politically powerful and the other for the rest of us who can not afford the $500 an hour cost of a half way decent lawyer. One sees civil lawyers looking for deep pockets rather than who is actually guilty. Suing a DR. who did nothing wrong when delivering a baby, yet being sued for a genetic problem that the child has. Suing Mickey Ds when a lady spills hot coffe on herself. I can go on forever. Products that are good and do what they are designed to do are taken off the shelf because some fool did something that any person with a little common sense would know should not be done and then suing the manufacturer. That is not to say that poor products come out that should have owners of that product suing the manufacturer. But even there, the manufacturer can get off scott free by manipulating both the law and the courts.(products from China anyone?)
Then there are the judges. Some of whome, liberal or conservative, vote their ideology and not the law. I can think of 3 SCOTUS justices who do exactly that.
People-ordinary, working stiffs-are starting to come to the conclusion that the courts , judges and lawyers are not to be trusted to follow the law. Several examples from the bush DoJ feed this. As more and more people get the idea that they can not get justice-it really does not matter if you win or lose, as long as the system is seen to be impartial-Except the system is not impartial any more. Cops and prosecutors lie, put innocent people in jail or on death row. Defense attys sleep thru the trial or come to court drunk and yet the judge feels that the defense was fine even tho the defendent was railroaded.
Judges give juries instructions that they can not follow. Juries judge cases that they are technically unqualified to hear. The OJ Simpson trial was an excellent example of an ignorant jury. Not jury nullification, just jury ignorance. Some juries have no idea what evidence actually means. Others who watch CSI or Law and Order get a very skewed idea about what is or is not evidence. Don’t even get me started on how prosecutors rely on “eyewitness” accounts to send someone either to jail or death row. Too many experiments have proven the total unreliabilty of eyewitnesses, yet they are sometimes the only thing that the case has. Eyewitnesses lie, are mistaken, or to put it simply, no 2 people see exactly the same thing. It has been proven that expert witnesses lie. That crime labs-Houston and the FBI lab come to mind-screw up evidence, that some evidence isn’t, yet the “expert” says-under oath-that it is.
In the end both the criminal and civil justice systems donot work very well. In fact it really only works for the expert witnesses and the lawyers. The poor innocent schlub who is in jail knows this and now some of us who are being called to serv in juries are begining to understand this also.
So, the justice system is skewed towards the rich and powerful. What are you doing to ensure that the system treats everyone, from the homeless man arrested for murder to the multi millionaire who is also arrested for murder, equally?

dyuhas | Tuesday March 31, 2009 10:10 am 27

If you are a good state’s attorney, you want well-qualified opposing counsel making you prove your case.

Since when? Prosecutors want to win. If justice accompanies the win, fine. If not, next case.

WVAPA | Tuesday March 31, 2009 11:01 am 28
In response to dyuhas @ 27

I have been a prosecutor for 19 years and never in that time have a I thought that winning is the only thing. I have known dozens of prosecutors over the years and the vast majority don’t want to win if it means an innocent person gets screwed. Prosecutors have great discretion in determining which cases get before juries. The evaluation begins with the preliminary hearing. If a case is bs on its face, I don’t want it to go any farther. If there is any merit, however, I want it to go forward to the grand jury for its’ consideration. If the grand jury decides there may be merit, the case is set down for trial. Even then, I still have responsibility to decide whether a case proceeds. By the time a case reaches this stage I have talked with the officer in charge of the case and the victim, a least. I probably have talked with all of the witnesses and I have some idea of whether a defendant is guilty and if I can make my case at trial. But no two cases are ever exactly the same. I may decide to try to negotiate a plea, especially if my evidence is weak, if a victim is reluctant to go to trial, or if there are some extenuating circumstance that would justify a lesser punishment for the defendant. (Note that a prosecutor has a duty of fair play to the defendant, as well as to the victim.) I only go to trial if a negotiated settlement cannot be reached, if the evidence is strong, or when the evidence may be mixed, but the crime so serious that only a jury should decide the defendant’s fate. While it’s true that some prosecutors may use their “wins” to build their resumes, but on the whole the point of the win for the prosecutor is not self-aggrandizement, but rather to enjoy the feeling of having brought some measure of justice to the victim and the defendant. Listen, trials are hard work and they can be messy. Nobody wants to do a trial, if any other reasonable option is available.

Skilly | Tuesday March 31, 2009 01:45 pm 29

I too am a former prosecutor, but from my experience, the public defenders were, for the most part well trained and competent. But, they faced a different ethical standard than the prosecutor. The prosecutor in my state must “seek the truth.” The defense counsel has no such burden. The defense counsel could argue jury nullification raise Batson, objections without a pattern of strikes, and any other number of dilatory objections. But, My experience was that in MANY cases, if the best chance for the defendant was a good appeal, then playing “incompetent” was a legitimate option. I saw very rational defense attorney raise some off the wall arguments for the purpose of creating an issue for appeal. In my state, the public will be paying for that defense too, so why not give that PD and additional issue?

tejanarusa | Tuesday March 31, 2009 04:45 pm 30

Well, here’s another of my buttons being pushed – the idea people have that all lawyers make lots of money and that court-appointed lawyers make out like bandits.

foothils mike – maybe you were thinking of federal appointment pay rates, which have always been much more generous than most state rates.

I did a quick search just now, found an ABA 2003 report comparing appointed counsel rates and methods of setting rates among the states. Very interesting.

Pennsylvaniahas different methods; Philadelphia, according to this pays $1133 for preparation if disposed of before trial, and $1700 for disposition at trial. A full day in court maxes out at $400 flat fee. The report omits to say whether this is just for felonies – I’m guessing so, but dunno.
In Allegheny Co. (Pittsburgh) the rate is $50/hr + (and this is the only instance I know of) office expenses! They can opt for a $500 flat fee for a whole day in court.

Texas now has a sort of floor, guidelines set by the Texas Fair Defense Act of 2001. But counties’ district judges still set the actual rates. Pay rates can range from $50/hr and a flat fee for major felonies of $750, to $1000/day for felony trial. (? That’s from a newspaper clip-hard for me to believe. Capital trial, maybe?)

I’m finding it amazingly difficult to find local info on appointed attorney’s fee rates. NOt sure why–last time I needed it it was online, easy to find. It’s obvious that it varies hugely around the state.
And no, outside of that one PA guideline, nobody pays for office overhead, there are no payments for secretarial or paralegal work, and fees for investigators and expert witnesses are sharply limited. I did find an order in Bexar Co. (San Antonio) requiring attys to request special permission to bill more than 100 hours — in a CAPITAL murder case!
Okay, off my soap box. Just understand, please, folks — nobody but nobody gets rich doing court appointments. All too often, lawyers lose money, and that’s when they take their names off the lists, and that applies especially to the most experienced lawyers, who are earning far more from private clients and get sick of being underpaid. This isn’t good for anyone in the system.

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