The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel
70 Pages Posted: 7 Nov 2013
Date Written: 1986
Abstract
The sixth amendment right to counsel does not merely supplement other constitutional rights. Counsel serves to insure the operation of procedural and constitutional protections guaranteed to a criminal defendant. As the Supreme Court has stated, “There is no right more essential than the right to assistance of counsel. . . .” The right to counsel is a precondition of a fair trial; the active participation of defense counsel in the entire criminal process is crucial for the functioning and fairness of the adversary system. If the criminal process loses its adversarial character, the constitutional guarantee is violated.
This Article details how the severity of the underfunding of those agencies providing defense counsel to the indigent seriously endangers the sixth amendment guarantee to effective assistance of counsel. The resulting threat to the integrity of the adversary system is so serious, and the likelihood of additional funding from public sources so dim, that the legal profession itself must act to provide supplemental revenues for the defense of the indigent accused.
Keywords: indigent, defendant, effective assistance of counsel, Strickland, Cronic, Morris, Model Code of Professional Responsibility, caseload
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