Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct
Sarah M. Buel
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Harvard Women's Law Journal, Vol. 26, No. 217, 2003
The Gideon decision is a solid precedent, hailed from all corners of legal philosophy. The current Supreme Court, even while narrowing other rights of criminal defendants, has described the right to counsel as fundamental. There is just one trouble. In the real world, the promise of Gideon is not being kept. Poor men and women in large numbers go to trial in this country with lawyers who are so incompetent, drunk, inexperienced or uninterested that the defendant’s right to counsel is a bad joke. These women had not had an opportunity in trials [to tell]... about the harsh and brutal facts that, in my judgment, led to them sometimes defending themselves in very extreme and regrettable ways. That so many battered women defendants receive ineffective legal assistance ought to compel introspection and remedial action within thelegal profession. A review of cases in which courts found the conduct of counsel unacceptable reveals an astonishing degree of incompetence, with catastrophic consequences for battered defendants. The problem is characterized by attorneys’ failure to present defense theories linked to the abuse endured by battered women defendants and is further compounded
by judges who refuse to apply the law.5 A battered woman defendant’s case outcome is not so much predicated on the specific facts of her situation as on whom she draws for judge and counsel, as well as her race and socioeconomic status. This Article offers a prescriptive reform framework for lawyers and judges handling these cases. Specifically, Part II examines the conundrum of race and class distinctions, and ways in which the Powell, Gideon, and Strickland cases are relevant to the theoretical and practical proposals.
Part III addresses the gap between theory and practice, applying the lenses of race and class as pertinent issues. Due to particularly negative and rigid portrayals, battered women of color often suffer a disproportionate, adverse impact when Battered Woman’s Syndrome (BWS) is applied.
The gap between theory and practice necessitates focusing on myriad aspects of effective representation, and as such, defense options are analyzed. This Part concludes with a review of post-trial remedies, including appeal, parole, commutation, clemency, and pardon. Part IV argues that the judiciary, organized bar, and individual lawyers contribute to the intransigence of abysmal representation for battered defendants when proffering excuses in lieu of remedial action. Part V proposes an increased role for law schools, bar examiners, advanced certification programs, and continuing legal education (CLE) seminars. Finally, Part VI posits that at least some outcomes associated with battered women on trial can be anticipated and prevented, while others may not be as ominous as initial consideration might indicate. Throughout the Article, I incorporate practitioners’ observations that I have accumulated over my twenty-five years of working with thousands of battered clients in six states. In the interest of client confidentiality, most of my arguments are generalized from their experiences
Number of Pages in PDF File: 134
Keywords: battered woman, counsel, legal assistanceAccepted Paper Series
Date posted: July 24, 2010
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