It is not enough for states to merely provide what some have referred to as a warm body with a bar card to stand beside an indigent person. Instead, the U.S. Supreme Court has held that the lawyer provided to represent an indigent person must also be effective.
Two principal U.S. Supreme Court cases, decided on the same day, describe the tests employed to determine the constitutional effectiveness of right to counsel services. United States v. Cronic and Strickland v. Washington together describe a continuum of representation. Strickland is backward-looking and it is used after a case is final to decide whether the lawyer provided effective assistance of counsel in a particular case, setting out a two-pronged test that asks whether the appointed lawyer’s actions were unreasonable and prejudiced the outcome of the case. Cronic is forward-looking and states that, if certain systemic factors are present (or necessary factors are absent) at the outset of a case, then a court should presume that ineffective assistance of counsel will occur. Hallmarks of a structurally sound indigent defense system under Cronic include the early appointment of qualified and trained attorneys with sufficient time and resources to provide competent representation under independent supervision. The absence of any of these factors can show that a system is presumptively providing ineffective assistance of counsel.
Presence of counsel at critical stages. The first factor that triggers a presumption of ineffectiveness is the absence of counsel for the accused at the “critical stages” of a case. Arraignments, plea negotiations, and sentencing hearings, for example, are all critical stages of a case. If counsel is not present at every one of these critical stages, an actual denial of counsel occurs.
Attorney qualifications, training, and resources. Next, the U.S. Supreme Court explains in Cronic that there are systemic deficiencies that make any lawyer – even the best attorney – perform in a non-adversarial way. As opposed to the “actual” denial of counsel of Cronic notes that the “fair fight” standard does not necessitate one-for-one parity between the prosecution and the defense. Rather, the adversarial process requires states to ensure that both functions have the resources they need at a level their respective roles demand. As the U.S. Supreme Court notes: “While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.”
Cronic’s necessity of a fair fight requires that the defense attorney put the prosecution’s case to the “crucible of meaningful adversarial testing.” If a defense attorney is either incapable of challenging the state’s case or barred from doing so because of a structural impediment, a constructive denial of counsel occurs.
In Cronic, the Court points to the deficient representation received by the defendants known as the “Scottsboro Boys” and detailed in the U.S. Supreme Court case of Powell v. Alabama as demonstrating constructive denial of counsel. The trial judge overseeing the Scottsboro Boys’ case appointed a real estate lawyer from Chattanooga, who was not licensed in Alabama and was admittedly unfamiliar with the state’s rules of criminal procedure. The Powell Court concluded that defendants require the “guiding hand” of counsel – i.e., attorneys must be qualified and trained to help the defendants advocate for their stated interests.
Sufficient time. Having been assigned unqualified counsel, the Scottsboro Boys’ trials proceeded immediately that same day. Powell notes that the lack of “sufficient time” to consult with counsel and to prepare an adequate defense was one of the primary reasons for finding that the Scottsboro Boys were constructively denied counsel, commenting that impeding counsel’s time “is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.” Insufficient time is, therefore, a marker of constructive denial of counsel, and the inadequate time may itself be caused by any number of things, including but not limited to excessive workloads or contractual arrangements that create monetary incentives for lawyers to dispose of cases as quickly as possible rather than in the manner most effective for defendants.
Independence of the defense function. Perhaps the most noted critique of the Scottsboro Boys’ defense was that it lacked independence from governmental interference, specifically from the judge presiding over the case. As noted in Strickland, “independence of counsel” is “constitutionally protected,” and “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” In specific relation to judicial interference, the Powell Court stated:
[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.
In other words, it is never possible for a judge presiding over a case to properly assess the quality of a defense lawyer’s representation, because the judge can never, for example, read the case file, question the defendant as to his stated interests, follow the attorney to the crime scene, or sit in on witness interviews. That is not to say a judge cannot provide sound feedback on an attorney’s in-court performance – the appropriate defender supervisors indeed should actively seek to learn a judge’s opinion on attorney performance. And, in some extreme circumstances, a judge can determine that counsel is ineffective, for example, if the lawyer is sleeping through the proceedings. It is just that the judge’s in-court observations of a defense attorney cannot comprise the totality of supervision.
While Cronic and Powell focus on independence of counsel from judicial interference, other U.S. Supreme Court decisions extend the independence standard to political interference as well. In the 1979 case of Ferri v. Ackerman, the United States Supreme Court stated that “independence” of appointed counsel to act as an adversary is an “indispensible element” of “effective representation.” Two years later, the Court observed in Polk County v. Dodson that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Commenting that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Court notes in Polk County that a “public defender is not amenable to administrative direction in the same sense as other state employees.” The Cronic Court clearly advises that governmental interference that infringes on a lawyer’s independence to act in the stated interests of defendants or places the lawyer in a conflict of interest causes a constructive denial of counsel.
Cronic determined that, when a public lawyer works within a system where factors are present that constructively deny the right to counsel, then the public lawyer is presumptively ineffective. The government bears the burden of overcoming that presumption. The government may argue that, despite such conflicts, the defense lawyer in a specific case was not ineffective, but it is the government’s burden to establish this. As the Seventh Circuit Court of Appeals noted in Wahlberg v. Israel, “if the state is not a passive spectator of an inept defense, but a cause of the inept defense, the burden of showing prejudice [under Strickland] is lifted. It is not right that the state should be able to say, ‘sure we impeded your defense – now prove it made a difference.’” Only after the system within which public attorneys work is found to be structurally sound, as defined and prospectively determined by a Cronic and Powell analysis, can Strickland’s two-prong test be used to retrospectively measure the effectiveness of specific attorneys who work within those structurally sound indigent defense systems.