A Judge's Duty to Do Justice: Assuring the Accused's Right to the Effective Assistance of Counsel

32 Pages Posted: 13 Feb 2018  

Peter A. Joy

Washington University in St. Louis - School of Law

Date Written: February 7, 2018

Abstract

Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice.

I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads and inadequate resources for state public defenders and other publicly provided defense lawyers. Instead of continuing to pigeon-hole ineffective assistance of counsel claims as a post-trial inquiry, there are some circumstances when a trial judge’s duty to do justice requires an inquiry into whether defense counsel is providing effective assistance of counsel at the trial level. In this article, I begin by analyzing resistance to recognizing ineffective assistance of counsel at the trial level and in post-conviction proceedings. Next, I examine the crises in public defense and how case overloads and funding practices for public defense create disincentives to effective assistance of counsel. I then analyze how the rights of the accused differ when the accused has a publicly provided lawyer compared to privately retained counsel. In the next part of the article, I describe the situations that trigger a trial judge’s duty to conduct an effective assistance of counsel hearing, and I proceed to recommend both the type of hearing and the standard the judge should apply in evaluating counsel’s effectiveness. I conclude by arguing that to do justice a trial judge must ensure the accused’s right to the effective assistance of counsel.

Keywords: justice, ethics, professional responsibility, judicial ethics, judicial conduct, assistance of counsel, 6th Amendment, due process

JEL Classification: K14, K19, K42, K42, K39

Suggested Citation

Joy, Peter A., A Judge's Duty to Do Justice: Assuring the Accused's Right to the Effective Assistance of Counsel (February 7, 2018). Washington University in St. Louis Legal Studies Research Paper No. 18-02-01; Hofstra Law Review, Vol. 46, No. 139, 2017. Available at SSRN: https://ssrn.com/abstract=3119971 or http://dx.doi.org/10.2139/ssrn.3119971

Peter A. Joy (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
313-935-6445 (Phone)

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