This Colloquium goes to the heart of what our legal system is all about; that our society is not ready to address such crucial issues is troublesome, and very damning.
I think the law schools are a good place to formulate different models because they are less subject to the pressures of the private bar and large institutional defenders.
The ultimate questions are who is going to be employed in these defender agencies and what is their commitment to the individuals and the necessary lawyering tasks.
If lawyers love to try cases, why don't they try them? One reason is that the system attaches enormous consequences to a defend-ant's decision to stand trial.
The grim reception given to Jim Neuhard's idea that the state should assume all defense costs indicates how far even the experts have moved away from the concept that an adequate defense is a critically important part of any real
If effective assistance of counsel standards are going to change, they will probably change first in capital cases because the stakes are so high.
The argument that the Court should provide standards for the benefit of attorneys is an argument for a prophylactic approach to constitutional law, an approach that is difficult to defend.
How would you distinguish between overzealous representation, and collaboration with the court and the district attorney, which dilutes the quality of ethical representation?
A lawyer's ability to invoke discretion is one of the things she offers her client, as well as one of the sources of the problem we're talking about today.
Motivated by our concern about these problems, the Review of Law & Social Change sponsored a colloquium on March 23, 1985 to examine a variety of issues involving the effective assistance of counsel for the indigent criminal defendant.
We should take little comfort in devising rules and institutions that purport to protect defendants as long as punishment remains our overriding goal.
However, when the resources provide dare not adequate to allow the system to fulfill its constitutional obligation to provide competent representation, the government's desire to economize, no matter how understandable, must be constrained.
Even if the judiciary were willing to intervene in the manner suggested by the authors, which I seriously question, improvement in the delivery of defense services will not occur until the profession, through legal education and the process of certification,
A survey of cases such as Cronic, Strickland, and Cooper demonstrating the system-wide burdens on public defenders.
The American system of criminal justice is distinctive in three respects. First, it makes the kind of justice that a defendant receives more dependent on the quality of counsel than any other legal system in the world.
Argument that courts must approach the failure to fund public defenders at the systemic level rather than on a case-by-case basis.
Only when the general public believes that they themselves may rely on as-signed counsel will they be concerned about the quality and availability of legal assistance.
The institutional lawyer's already hectic life of high caseloads and constant emergencies will be complicated further by lengthy discussions with clients about conflicts and potential consequences of such conflicts.
Thus, even under conditions of assembly line justice, a system of public trials is bound to produce more accurate, better informed determinations of guilt than a system of plea bargaining.
Unless criminal defense lawyers are adequately compensated and are able to function effectively, the capacity of government to overreach will not be challenged, and the great protections of the Bill of Rights will not be realized by all citizens.
As over-worked as the institutional lawyer may be, very often she is the best person to represent the accused.
However, it is critical to move away from a focus on individual cases of injustice towards a system-wide view.
The ultimate catalyst for change, however, should be a statewide public defense commission comprised of attorneys and laypersons who have demonstrated an interest in public defense services, as well as representatives of impoverished and low-income communities throughout New York State.
These bench tri-als may have their place, and attorneys may effectively represent particulardefendants at these trials; but this admission is a far cry from a convincing argument that bench trials are both realistic and desirable alternatives to the possibility of
More generally, I think the most important lesson to be drawn from Schulhofer's study of Philadelphia is that vigorous advocacy is not as dependent upon the form or forum of decision making as it is upon the quality of representation
If we really wish to ensure effective assistance of counsel, we must create rigorous advocacy-based standards of defense counsel competency, provide adequate teaching and support systems for the provision of criminal justice defense services, and depend less on after-the-fact judicial
Other Issues in this Volume
- The Use of the State Constitutional Right to Privacy to Defeat State Sodomy Laws
- Brief Amicus Curiae, Bowers v. Hardwick
- Articles Index
- In the Supreme Court of the United States, October Term 1985, Michael J. Bowers, Petitioner, v. Michael Hardwick, et al., Respondents--Brief Amicus Curiae for the Lesbian Rights Project, Women's Legal Defense Fund, Equal Rights Advocates, Inc., and the National Women's Law Center