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Is the Right to Counsel for Criminal Defendants a Myth?

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Fifty years after the landmark decision in Gideon v. Wainwright, the right to counsel for persons charged with crimes apparently exists in principle but not in practice. According to an article about to be published in the Yale Law Journal, by Stephen B. Bright, one of the country's most respected and experienced lawyers (President and Senior Counsel, Southern Center for Human Rights and Visiting Law Lecturer at Yale Law School) and Sia M. Sanneh (Senior Liman Fellow in Residence, Yale Law School) that sacred right is ignored and violated every day, everywhere in this country.

The article demonstrates how persons accused of crimes often have either no lawyer or one that spends about as much time in preparation as it takes to send a text message. The lawyers that do provide representation are frequently overworked, underpaid and often unqualified or incompetent. The system works for the rich; it usually fails the poor. The authors describe the "meet and plead" philosophy under which virtually every case is resolved with a plea bargain -- frequently for the innocent as well. (I commented on this practice in an earlier post: http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html). Most states fail to provide adequate funding for defense counsel to meet the immense resources of the prosecution. As a result prosecutors, more often than judges, decide what the punishment shall be because they possess unbridled discretion in charging and offering pleas.

The article points out that even the Supreme Court has opted for a standard of "effective counsel" rather than "competent counsel" -- a standard which has allowed convictions to survive when lawyers were drunk, asleep, inexperienced, mentally ill or under the influence of drugs. It has decreed a presumption of "adequate assistance" and has made it virtually impossible to overcome that presumption. As a result we have: "Over 2.2 million people -- a grossly disproportionate number of African Americans and Latinos -- in prisons and jails at a cost of $75 billion a year."

Likewise the Supreme Court has added another layer by requiring judges to be exceptionally deferential to the decisions of state court judges in habeas corpus proceedings. I had personal experience with this standard in a murder case and reluctantly denied a writ initially and then granted it nonetheless afterwards. The defendant was retried and acquitted of all charges. (James Landano). The article concludes with stating the obvious: there is no real constituency for criminals or persons charged with crimes. The authors' plea is -- not for a bargain -- but for fulfillment of the promise of Gideon -- a promise the nation has failed to keep.