Fear of Adversariness: Using Gideon to Restrict Defendants' Invocation of Adversary Procedures

29 Pages Posted: 19 Jun 2013

See all articles by Pamela Metzger

Pamela Metzger

Southern Methodist University - Dedman School of Law

Date Written: 2013

Abstract

Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon’’s broken promise to our poor; this Essay is about Gideon’’s broken promise to our system.

With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant’’s de facto relinquishment of important Sixth Amendment rights. As a result, counsel –– not client –– controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant’’s exclusive control, Strickland eviscerates a defendant’’s capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo –– a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights.

Keywords: Gideon v Wainwright, Sixth Amendment, adversary right, Strickland v Washington, Taylor v Illinois, defendant autonomy, fundamental rights

Suggested Citation

Metzger, Pamela, Fear of Adversariness: Using Gideon to Restrict Defendants' Invocation of Adversary Procedures (2013). 122 Yale Law Journal 2550 (2013); Tulane Public Law Research Paper No. 13-13. Available at SSRN: https://ssrn.com/abstract=2279178

Pamela Metzger (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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