Mythologies of State and Monopoly Power. Michael Tigar
In short, the right to effective counsel is ignored in the cases where the stakes are highest and error rates demonstrably high.32 The idea that a capital case can be well tried in one or two days is laughable. In the Oklahoma City bombing trial of Terry Nichols, jury selection alone took five weeks in order to get a panel that was willing to swear it could overcome the media barrage. The trial itself took nearly three months. The defense called more than a hundred witnesses. The jury acquitted Nichols of murder, finding him guilty of lesser charges, and voted not to impose a death penalty.
In non-capital cases, the counsel situation is every bit as bleak. In April 2001 the New York Times published the results of its investigation into the New York City–appointed counsel system. It found that appointed counsel are paid at rates that actively discourage them from spending enough time on cases. The only way to make the appointed practice pay is by taking on hundreds of cases per year and spending as little time as possible on each one. The Times “poster lawyer” was one Sean Sullivan. He handled 1,600 cases per year and earned more than $125,000 in 2000 for his efforts. The “representation” he provides was worse than minimal. He did not confer with clients, did not return client phone calls, did not prepare needed legal motions, and contented himself with working out quick plea bargains on an assembly-line basis.
More recent data appears in a New York Times article about the excessive caseloads in the Missouri public defender system.33 A defender assigned to a felony prosecution has only nine hours to work on the case, compared with the forty-seven hours that the study finds is necessary to do an adequate job. Many juveniles are sent off to incarceration with no lawyer at all.34
A 2010 study of cases in which the defendant was exonerated after being convicted and being sent to prison found that defense counsel was constitutionally ineffective in 21 percent of the cases. Deficiencies in performance ranged from failure to seek available exculpatory evidence to being drunk at trial, to sleeping through the trial.35
The case of Texas v. Cobb36 illustrates the Supreme Court’s attitude toward the role of counsel. The Court held 5 to 4 that when an indigent has counsel appointed to represent him for one crime, that representation bargain does not extend to other related offenses. Therefore the state can treat the accused as being without counsel for any offense beyond that with which he is formally charged. Suppose, for example, that an indigent is found with an unlicensed weapon, and arrested on that charge. Counsel is appointed, and the accused is held in jail. The police suspect that this defendant might have committed another crime, such as using the weapon in a robbery. Even though the accused has counsel, and even though the lawyer has told the police that counsel should be present during questioning, and even though the police have agreed to that condition, the Supreme Court’s decision means that the accused may be questioned without counsel being present. The Court’s reasoning is that the contract of representation, as defined by and in the interest of the state, does not extend to protecting the accused’s liberty generally, but rather only to defending the specific charge.
In sharp contrast, a defendant with means to hire a private attorney will benefit from a true bargain, and not a fake one grudgingly given by the state. That defendant’s lawyer will be considered by the rules of legal ethics to be counsel for all related matters.
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