Gideon and the Effective Assistance of Counsel: The Rhetoric and the Reality

Abstract

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to provide adequate remedial measures to ensure that appointed counsel have the time and resources necessary to meet their constitutional obligations.

I propose a litigation strategy as a means of confronting the issues of funding and resources that incorporates both Sixth Amendment and professional responsibility standards to enable courts to order structural relief in cases of systemic deficiencies. The Supreme Courts of Florida and Missouri have recently applied these principles in permitting public defenders to withdraw from cases where excessive caseloads and under-funding have interfered with their ethical obligations to their clients. Recognizing that the Strickland post-conviction test was not the sole means of enforcing Sixth Amendment rights, these courts permitted pre-trial challenges that did not depend on a showing of sub-standard performance or actual prejudice in an individual case. Other courts have permitted pre-trial challenges as well and the United States Supreme Court has recognized the significance of a lawyer’s professional judgments and obligations in fulfilling their ethical and constitutional duties.

The article concludes by discussing three cases from Pennsylvania that show both the promise and the difficulties of litigation in achieving systemic reform.

Keywords: criminal procedure, effective assistance of counsel, legal ethics, professional responsibility, Gideon v. Wainwright, Sixth Amendment, adversary right, Strickland v. Washington standard, indigent, defendant, pretrial challenges, Pennsylvania v. McGarrell, Flora v. Luzerne County