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Validating the Right to Counsel

34 Pages Posted: 26 Mar 2013 Last revised: 12 Apr 2013

Brandon L. Garrett

University of Virginia School of Law

Date Written: March 25, 2013

Abstract

This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the constitutional test is shot through with a prejudice analysis, as well as with a set of strong substantive blinders: judgments that only certain types of failures by counsel will be regulated. Second, I ask whether the approach towards judging effectiveness of defense counsel could be “validated” by social science evidence, or at least be better informed by it. The bar has increasingly engaged with science and social science to provide improved standards for effective defense representation. In turn, social scientists might more closely study the effectiveness of defense lawyering across stages of the criminal process. Over time, this work may help to validate the right to counsel.

Suggested Citation

Garrett, Brandon L., Validating the Right to Counsel (March 25, 2013). Washington and Lee Law Review, Vol. 70, 2013; Virginia Public Law and Legal Theory Research Paper No. 2013-02. Available at SSRN: https://ssrn.com/abstract=2239289

Brandon L. Garrett (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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