Responses to The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases

Introduction

In order to put the issue of effective assistance of counsel in perspective, I will present an overview of the relevant Supreme Court deci-sions. This overview will also provide a context for the Court’s recent decisions on effective assistance in Strickland v. Washington¬†and United States v. Cronic, and help explain why it was so terribly important that the SupremeCourt address the issue. I agree with Professor Goodpaster that the Court essentially bobbled the issue.

In the 1960s and early 1970s, a series of cases established the bedrock right to counsel. The Supreme Court established the right to appointed counsel for indigents in any felony case, in any misdemeanor case involving imprisonment and for a defendant’s first appeal as of right. Perhaps most importantly, the Court recognized the right to effective assistance of counsel. The great expansion of procedural and substantive rights of criminal defend-ants, with respect to the fourth, fifth, and sixth amendments, meant not only that counsel would be present in a greater number of criminal cases, but also that in order to represent a defendant competently, those attorneys were going to have to do more in each case. There were more rights to assert, and because there was more to get right, there was also more to get wrong.

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