The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California

110 Pages Posted: 19 Sep 2009

Date Written: September, 18 2009


This article details the findings from legal and empirical research conducted by the author pursuant to a grant from the California Commission on the Fair Administration of Justice to investigate the causes of ineffective assistance of counsel (IAC). Over 2,500 appellate decisions were examined to determine the types and frequency of attorney errors. In addition, data from 76% of California’s 58 counties was obtained from written questionnaires answered by criminal justice participants. These actors included judges, institutional public defenders, contract defenders, assigned counsel administrators and certified criminal defense specialists in private practice in California.

The most frequent deficiency in attorney performance was the failure to conduct an adequate investigation with respect to guilt or innocence. Contributing to this and other IAC failures, however, were systemic factors that obstructed effective representation and a glaring disparity between funding for the prosecution and indigent defense system in most California counties.

Our study revealed that the overwhelming majority of felony defendants (85%) in California are unable to afford a lawyer and must rely upon a public system for providing indigent defense services that is organized and funded at the county level. Yet for every dollar spent on prosecution, California counties spend on average statewide only .53 cents on indigent defense. Indeed one rural county spent more on its county fair than on indigent defense. This lack of parity between the prosecution and defense functions has created a gap in resources that continues to widen, and questions the assumption that such a system can provide equal justice.

Our adversary system of criminal justice is premised upon the principle that each accused is presumed innocent. Where the system for delivering indigent defense services is funded and controlled at the county level, however, there is a fundamental disconnect between theory and practice. This occurs because local politicians, who must allocate finite taxpayer dollars among competing demands, appear to operate under a presumption of guilt, which views defendants as simply cases to be processed at the least possible cost. Significant findings: The system for delivering indigent defense services is facing a crisis in many counties due to: • Excessive attorney caseloads • Excessive defense investigator caseloads • Inability to interview prosecution witnesses • Failure of prosecutors to turn over favorable (Brady) evidence • Difficulty obtaining DNA testing • Difficulty in obtaining expert assistance • Judicial pressure to expedite cases • County board pressure to keep costs down • Lack of independence

The article makes a number of specific recommendations regarding: 1) the determination of adequate attorney and investigator workloads 2) statutory changes to improve indigent defense representation and 3) mechanisms for finding cost savings that can be used to fund indigent defense services. The article also has a section containing comments by public defenders and criminal defense specialists, and an appendix summarizing decisions finding ineffective assistance of counsel.

Keywords: Ineffective Assistance of Counsel, indigent defense, right to counsel

JEL Classification: J78, H41, K14, K41, L32, L33

Suggested Citation

Benner, Laurence A., The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California (September, 18 2009). California Western Law Review, Vol. 45, No. 263, 2009, Available at SSRN:

Laurence A. Benner (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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