BY SUSAN ESTRICH
If you were charged with a crime, would you rather be rich and guilty or poor and innocent?
Every year, when I ask my students that question, rich and guilty wins by a mile. And who am I to say they are wrong? After all, over the years, I’ve had my share of success in securing reversals of the convictions of many criminal defendants a jury had found to be guilty. While I try to do my share of pro bono work, the truth is that most of my clients can afford me. And the ones who can’t are generally people I take on precisely because they were so poorly represented in the first place.
Anyone who watches television knows that if you’re facing possible imprisonment, you have a right to a lawyer, and that if you can’t afford to pay, a lawyer will be appointed to represent you. But there is a difference between a lawyer and a good lawyer.
Look at all the idiots who pass the Bar, I remind my students every year, as they fret about their chances of passing. It’s true. And while the market is hardly a perfect judge of talent, and while there are many public defenders offices around the country staffed by capable and dedicated lawyers, there is a definite correlation between competence and cost.
The lawyers who make their livings by taking appointments to represent those who can’t afford counsel are not the lawyers you would hire if you had the resources to choose. And the reimbursement rates paid to those lawyers create powerful incentives not to investigate or prepare [you get more for court time than prep time] and not to take a case to trial [you are limited on total hours, even in court]. Unfortunately, the old saw that you get what you pay for holds true much more often than it should.
The consequences of bad representation can be every bit as serious as the consequences of bad medicine. There are horror stories of appointed counsel doing no investigation even in capital cases; giving terrible advice to clients that results in sentences of 20 years instead of two; and falling asleep in murder trials and failing to even present exculpatory evidence.
And what do courts do when these problems are brought to their attention? Usually, nothing.
To be sure, the Constitution guarantees more than the right to have someone with a Bar card by your side when you lose your liberty. It’s not just the assistance of counsel, but the “effective” assistance that is required by due process. Traditionally, though, “effective” doesn’t necessarily mean awake, alert or informed.
That is why this week’s decision by the United States Supreme Court is so important. The Court held that a legal resident who pleaded guilty after his lawyer advised him – wrongly – that doing so would not result in his automatic deportation had been denied effective assistance of counsel. For the thousands of legal immigrants who are charged with minor crimes every year, the real punishment is not measured in terms of prison time [usually, they plead guilty because they are promised no prison time or very little], but in the laws that now provide for automatic deportation.
In the case before the Supreme Court, a man who had lived in this country legally for 40 years was faced with a marijuana charge. He pleaded guilty and accepted a much-reduced sentence only after his lawyer assured him that it would have no impact on his immigration status.
Even a cursory review of the applicable law would have told her she was wrong. But like too many lawyers, she didn’t bother to review the law before offering advice. By a 7-2 vote, the Supreme Court concluded that he had been denied effective assistance.
Immigrants’ rights advocates are hailing the decision as a major victory. To me, the Court’s decision is less about the rights of immigrants than the responsibilities of lawyers. We can’t guarantee that every defendant will receive the same quality of representation that O.J. Simpson got. But raising the floor of what counts as “effective” is not only right as a matter of fairness. It is also critical to public faith in the criminal justice system, and to the willingness of individuals [and jurors] to trust that system, to cooperate with police and prosecutors, and to return a verdict.
– Susan Estrich’s columns appear regularly in The Oklahoma Observer