CRM JST 275 1st Edition Lecture 12Ch. 6 – Defense AttorneysI. Role in the CJ Systema. Goal: protect rights of clients and their interests within adversarial systemb. Must even defend those they know are guiltyc. Must be able to challenge reliability of case presented by prosecutor (e.g. evidence)II. Historical Developmenta. Common lawi. Defendant not allowed counselb. American Coloniesi. State prosecutor and lay defendantsii. Concern about fairness without a lawyerc. Right to attorney: 6th Amendmenti. Changing definitions on what this meansii. Initially only at federal-levelIII. Cases Interpreting 6th Amendmenta. Powel v Alabama (1932)*i. Right in state capital cases, indigencyb. Johnson v Zerbst (1938)*i. Federal felony casesc. Gideon v Wainwright (1963)i. State felony casesd. Argersinger v Hamlin (1972)i. Misdemeanor cases with jail timee. Scott v Illinois (1979)i. Clarification on misdemeanorsRight: Counsel  effective, trial, witnessStages (critical to have a lawyer): arraignment, questioning, plea, trial, appealEffective: competent (criminal law), experience, diligenceIV. Right to a (provided) Attorney? (see chart on D2L)V. Indigent Defense Systemsa. Approx. 90% of defendants are indigentb. Three forms of assigned counsel:i. Assigned Counsel Programsii. Contract Attorney Programsiii. Public Defender ProgramsVI. Assigned Counsela. Private attorneys hired by the State for defendantb. Two types:i. Ad hoc assigned counsel1. Case-by-case basis, typically in courtroomii. Coordinated assigned counsel1. Volunteers placed on list, rotate down listc. Issues:i. Qualification in criminal lawii. Experienceiii. Money – concerns with representationVII. Contract Attorney Programsa. State contracts with private attorneys or law firmsi. State advertises, firms bid for contractii. Set time or number of cases, can renegotiateb. Two types of contracts:i. Fixed-price contract programs**disfavored by the American bar assoc.ii. Fixed-fee per case contractsc. Issues:i. Oversight on competencyii. Less time spent on cases/clientsiii. Costs billed to attorneyVIII. Public Defendersa. Public/non-profit agency, sole jobb. Mainly in larger jurisdictionsc. Pros:i. Have own budget for expensesii. Range of experience levelsiii. Part of Courtroom Workgroupd. Cons/Stereotypes:i. Overworked, less qualityii. Yet…IX. Public vs. Private Debatea. Private attorneysi. Spend more time with their clientii. File more motions, attend more hearingsiii. Clients rate them higherb. Public defendersi. Larger number clients seen per dayii. Operate within CWG (Courtroom Workgroup)c. Evidence/Researchi. Little difference in case outcomes (e.g. dismissal, conviction, sentencing)X. Effective Counsela. McMann v Richardson (1970)i. Established right to “effective counsel”ii. Doesn’t define what it is though…b. Strickland v Washington (1984)i. Established two-pronged test:1. Was the attorney’s performance deficient?2. Did the deficient performance injure the defendant?ii. Defendant must demonstrate (difficult)1. Extra scrutiny: capital cases, plea negotiationsXI. Self-Representationa. Pro sei. Must be competentii. Knowingly, voluntarily waive right to counseliii. Standby Counsel may be appointed by judgeb. Right to an Attorney of One’s Choosingi. No right to choose if court-appointedii. Can request typically 1 change, not revolving doorXII. Ethics and Lawyer-Client Relationshipa. Must perform certain duties (e.g. investigation, advise, challenge prosecution’s case)b. Confidentialityc. Must operate within the law (e.g. follow procedural law)XIII. Defense Attorney Dutiesa. In general:i. Investigate, counsel defendant on options & process, come to court, file motions, plea negotiations, prepare for trialb. Tactical Decisions:i. Who should testify, what questions to ask, what objections to raise, type of defense used, any expert witnesses/challenging prosecution’s caseXIV. Ethical Considerationsa. Rights of Defendanti. To plead or not, to accept a plea deal or not, to testify or not, to appeal or not, to be informed of the process and strategiesb. Strategies and Misconduct:i. Up to defense attorney what tactics to use, cannot knowingly condone perjury, cannot fabricate evidence, cannot make inflammatory statements, cannot tamper with witnessesXV. Realitiesa. See most cases as not “winnable”b. Strike many plea bargainsi. Goal – best deal possiblec. Success means a small sentence, not an