Lawyer Competence and the Constitutional Right to Counsel

[magickyleo101]

So in the hope that we can get off the incessant topics of race/Israel/BNP/etc., I propose a new topic of conversation:

Given that the US Constitution guarantees defendants charged with serious crimes the right to an attorney, how competent should the state provided attorney need to be?

Since the competence of a state appointed attorney directly bears on the fact-finding accuracy of a criminal trial (i.e. if your attorney sucks the court is more likely to come to an inaccurate result), the issue here is actually best looked at as a species of a more general problem: How accurate does a legal system need to be before it can justifiably expose citizens to the risk of imprisonment?

For the purpose of having some good hypotheticals, the following fairly cases provide good examples:

Lawyer screws up deadline in death penalty case.
Lawyer fails to make argument that client is mentally retarded.
Lawyer lets client get convicted of a non-crime.
Lawyer gives a really bad closing argument.
Lawyer fails to tell client pleading guilty means deportation.

The issue here is an interesting one because it essentially asks you to balance two pretty compelling considerations. On the one hand you have a worry that without requiring good lawyers innocent defendants will be convicted of things that they don't deserve to be convicted of. At the same time, however, both the judicial system and society have finite resources. A lot of attorney incompetence is the direct result of being over worked, and if you require the state to work the public defenders less you have to pay more money for more attorneys.

So the issue is at its heart a policy one (which makes it unfortunate that it's usually viewed as a constitutional one): You have to balance the inconsistent goals of having an accurate criminal justice system with keeping adjudicative costs low.

There's no obvious answer here, but I'm tempted to say that keeping costs low is really the more important goal. The only case that I can really see overturning because of what the lawyer did is the death penalty one about deadlines.

In any case, thoughts?

[YuriVII]

What's going on magikyle?
Go to your law school forums, I don't think many around here have opinion to that.

I think where the death penalty one is concerned, the lawyer showed gross incompetence.

In the one where the nurse got a felony for smuggling pot to her husband in jail is also incompetence. Advising a client to plead guilty as a felony to a crime that is not? That is pretty dumb on his part and he should have informed her on such a simple case. She was also trying for a misdemeanor deal. That didn't come up in plea negotiations? I would be interested about what occurred during plea bargaining. Also, according to the article he had a history of negligence and just being a depressed alcoholic on fudging up his work. Not relevant to this case in particular, but casts light on the ability of that lawyer.

Regarding policy part of your post. How much does the State of Texas put into it? I am aware of what Virginia does, and it doesn't seem to be a big part of the budget. Alteast not as wasteful as other things. Depends on state finances and if Texas could cut waste off of something else. Having a competant public defender program is healthy for justice and should be given more attention in many places. In Fairfax County Virgina, where I live, our Public Defenders are the worst in the State, which is a shame considering our County is the second richest county in the country, even though we still have a lot of poor people who cant afford lawyers.

The one about the guy who didn't know he would be deported is legitimate because as they say "Ignorance of the law does not excuse you from the law" kind of applies here. If he was an immigrant and being charged with a felony, deportation should have immediately crossed his mind.

[the Black Prince]

Well, I do, and I can answer with experience too.

In England, the legal aid system we have here pays for lawyers in private practice to defend those who cannot afford to defend themselves. Any criminal lawyer who wants to undertake publicly funded criminal defence work has to have a contract with the government body that provides the funds.

One of the terms of that contract is that all lawyers have to maintain certain standards of quality. There's a wide variety of quality criteria about how the minimum standards of care you can expect from a publicly funded defence lawyer.

On top of that, all solicitors and barristers in England have to be members of the governing professional bodies, the Law Society or the Bar Council. Each of these requires all its member to be of certain standards of competence and complaints of incompetence and misconduct are vigourously investigated.

Finally, alleging lawyer incompetence is a potential ground for appeal in any case. Failing to advance a mental health argument would certainly give rise to an appeal if it can clearly be shown to the appeal court that the client has relevant mental health issues

[bushbush]

Well, I do, and I can answer with experience too.

In England, the legal aid system we have here pays for lawyers in private practice to defend those who cannot afford to defend themselves. Any criminal lawyer who wants to undertake publicly funded criminal defence work has to have a contract with the government body that provides the funds.

One of the terms of that contract is that all lawyers have to maintain certain standards of quality. There's a wide variety of quality criteria about how the minimum standards of care you can expect from a publicly funded defence lawyer.

On top of that, all solicitors and barristers in England have to be members of the governing professional bodies, the Law Society or the Bar Council. Each of these requires all its member to be of certain standards of competence and complaints of incompetence and misconduct are vigourously investigated.

Finally, alleging lawyer incompetence is a potential ground for appeal in any case. Failing to advance a mental health argument would certainly give rise to an appeal if it can clearly be shown to the appeal court that the client has relevant mental health issues

i dont know if it is true or not in britain. but in north america, generally speaking criminal lawyers are not the best lawyers in the profession because the money is in other areas like corporate law. Not to mention the best and brightest criminal defense lawyer is not really interested in doing legal aid either; defending celebrities is way more profitable. To an extent, the rich with better lawyers does have an unfair advantage in the legal system.

[Banana Jelly]

Don't mind the others who say not to post law type topics. Im happy you bought this up, as I was also thinking about this, all the time I followed law.

The right to a competent council is almost non-existent. Sure some public defenders are very good, and even much better then some private attorneys, but the fact that State defenders are underpaid and have a heavy case load is a worry, since there are plenty of slips and cracks that they can face. The state funding for county type Public Defenders Office are underpaid. Do you know that some counties offices didn't even get paid from the state, even when they got the money to? The fact that they have a heavy case load is such a worry, because they do not have time to individually find the facts and weaknesses of a trial. They usually have around 100 cases at any given time. They are paid 40,000 at average a year. Not that much compared to a private or government appointed prosecutors. So State appointed lawyers are at average more lazy and discouraged.

People have filed lawsuits, against the state regarding this issue. That the Public Defenders office is underpaid. That they are not as effective as prosecutors and that is not a competent council. Heres the news of the case, it was named after someones in-competent council signed her client to a felony, even though her client could have gone after a misdemeanor. The defender was cut off the bar.
http://www.nytimes.com/2010/03/16/ny...defenders.html

The fact that government appointed prosecutors have unlimited recourses at there expense, while state appointed defenders have limited recourses, is a violation to due process. I dont know why anyone haven't argued this in Supreme Court. It bars the defendant from a fair trial. So that means you are facing the countries best lawyers against a underpaid, heavy case-loaded and sometimes in-competent lawyer.

The government federal defenders, or federal public defenders, though are a different thing. They have the same pay as the US Attorney gets. But most cases aren't and dont go to the government level, unless they break federal law, which most cases aren't about. The federal public defenders have much more recourses (though not as much as prosecutors), such as investigators, crew of other attorneys, where a state defender has nothing to his/her disposal. They have much less case-load also. At average they have 35-50 cases, which is significantly less.

I would approve any bill aimed at reforming this, because criminal justice system right now is a joke. It's a disgrace to the good name of America. Britain has one the best justice systems, and America should follow UK's lead on this one.

For these reasons, having a cheap lawyer would most likely have the outcome of a cheap and bad trial or outcome. A celebrity for murder, wouldn't even get 20 years, because of there high paid lawyer, while a poor person would get life, with parole after 30-50 years for 2nd degree murder. Or not even...

The disparity is horrible and I want it to end.


Edit: Flaws of appointed attorneys

http://www.time.com/time/magazine/ar...8105-1,00.html

[Marie Louise von Preussen]

Anyway, lawyer disparage is part of traditional social inequality. There is no way to abolish it, unless private practice is abolished altogether.

What can be done, is to set regulatory standards for public attorneys. That won't prevent the celeb dream team from unbalancing the whole thing, though.