Not Your Typical Criminal DefendantNot Your Typical Criminal Defendant

The Sixth AmendmentThe Sixth Amendment

““In all criminal prosecutions, the accused shall enjoy the In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ofright to a speedy and public trial, by an impartial jury ofthe State and district wherein the crime shall have beenthe State and district wherein the crime shall have beencommitted, which district shall have been previouslycommitted, which district shall have been previouslyascertained by law, and to be informed of the nature andascertained by law, and to be informed of the nature andcause of the accusation; to be confronted with thecause of the accusation; to be confronted with thewitnesses against him; to have compulsory process forwitnesses against him; to have compulsory process forobtaining witnesses in his favor, and to obtaining witnesses in his favor, and to have the Assistancehave the Assistanceof Counsel for his defense.”of Counsel for his defense.”

Gideon’s Muted TrumpetGideon’s Muted Trumpet

Guaranteeing the Right to an Attorney

The Failure to Realize Gideon v. Wainwright

No right to meaningful counsel at any phase of the criminal legal process

No constitutional obligation that the government must pay

Gideon’s Muted Trumpet cont.Gideon’s Muted Trumpet cont.

The Supreme Court and “effectiveness of counsel”

Problems with Indigent DefenseLack of proper trainingLack of proper training

Fewer ResourcesFewer Resources

Imbalance in salaries Imbalance in salaries

Why politics matters?Why politics matters?

Focus on “tough on crime” over equal Focus on “tough on crime” over equal justicejustice $97.5 Billion spent annually on criminal $97.5 Billion spent annually on criminal

justicejustice Half of these funds go to police & prosecutorsHalf of these funds go to police & prosecutors Only 1.3% of annual federal funds and only 2% Only 1.3% of annual federal funds and only 2%

of combined federal and state funds go to of combined federal and state funds go to Indigent Defense.Indigent Defense.

Kentucky’s Indigent Defense SystemKentucky’s Indigent Defense System

In 1990, the state spent In 1990, the state spent $162 per indigent $162 per indigent criminalcriminal case = $11.4 million annually case = $11.4 million annually

1/1000 of the state budget, and a full 1/1000 of the state budget, and a full 4 million 4 million lessless than the University of Kentucky’s athletic than the University of Kentucky’s athletic budget.budget.

What happened to the right?What happened to the right?

The Rehnquist Court

Right to counsel not guaranteed before adversary proceedings

Right to counsel ends after 1 appeal, even in death penalty cases

Sixth amendment not designed to “improve the quality of legal representation”

Ineffective counsel claims rarely succeed in the courts

The Warren Court

Right to counsel guaranteed at all critical stages of the criminal justice process

““Defaulting” the RightDefaulting” the Right

Procedural Default

Blame-the indigent defendant approach

Wrongful convictions and sentences

The Case of Anthony PorterThe Case of Anthony Porter

50 hours away from execution when he won a reprieve from the Illinois Supreme Court in late 1998.

Anthony Porter was granted a reprieve NOT because of ineffective counsel but because of the fact that he was determined to be mentally retarded.

On February 3, 1999, Alstory Simon confessed on videotape to the murder of Jerry Hillard and the accidental shooting of Marilyn Green.

In Chicago's Cook County, court-appointed counsel get an in-court hourly rate of $40 and $30 out-of-court.

Since 1976, 13 poor, typically non-white defendants in Illinois were found factually innocent of crimes that they were wrongfully sentenced to death for.

Congress’s ActionsCongress’s Actions

In 1996, Congress cut funding for the nations In 1996, Congress cut funding for the nations 20 death penalty resource centers, 20 death penalty resource centers, eliminating major resources for indigent eliminating major resources for indigent defendants. defendants.

Now, only about a dozen of the 38 states with Now, only about a dozen of the 38 states with the death penalty have state-organized the death penalty have state-organized public defender programs that handle capital public defender programs that handle capital cases.cases.

Only 8 states have specialized death penalty Only 8 states have specialized death penalty units that serve all or part of units that serve all or part of the state. the state.

Bad Lawyering is System-Wide in Bad Lawyering is System-Wide in Capital CasesCapital Cases

Liebman national study of error in Liebman national study of error in capital cases (1976-2002)capital cases (1976-2002) The overall rate of serious errors The overall rate of serious errors

involving a capital defendant’s guilt in involving a capital defendant’s guilt in Illinois is less than the national average Illinois is less than the national average (66% v. 68%).(66% v. 68%).

Why is the rate of serious error so high?Why is the rate of serious error so high? defense lawyers’ incompetencedefense lawyers’ incompetence prosecutor misconductprosecutor misconduct

InnocenceInnocence

Since 1973, there has been an Since 1973, there has been an average of 3 exonerations per yearaverage of 3 exonerations per year

62 of 123 persons exonerated were 62 of 123 persons exonerated were African-AmericanAfrican-American

DetailsDetails

Bad Lawyering is System-Wide in Bad Lawyering is System-Wide in Capital CasesCapital Cases

Since 1973, there have been 123 Since 1973, there have been 123 exonerations: 63 have involved exonerations: 63 have involved African-American defendants. African-American defendants.

RemediesRemediesFundingFunding

““Competent to try a criminal Competent to try a criminal case of the complexity case of the complexity

involved”involved”