Download this Paper Open PDF in Browser

Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?

23 Pages Posted: 21 Jun 2013  

Bruce A. Green

Fordham University School of Law

Date Written: June 20, 2013

Abstract

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.

Suggested Citation

Green, Bruce A., Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused? (June 20, 2013). Yale Law Journal, Vol. 122, No. 2336, 2013; Fordham Law Legal Studies Research Paper No. 2282600. Available at SSRN: https://ssrn.com/abstract=2282600

Bruce A. Green (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

Paper statistics

Downloads
149
Rank
167,004
Abstract Views
797