07 January 2013

The Right to Counsel

One of the great fictions of our time is that each of us if ensnared in the criminal justice system has the constitutional right to competent legal counsel. After all this is embedded in the Constitution of the United States, 6th Amendment; in Iowa, we find it in Section 10, Article I of the Constitution of the State of Iowa. The courts have uniformly held that counsel means competent counsel. An attorney's Code of Ethics requires that an attorney represent a client diligently and energetically. With all this in mind, one would think that the average citizen brought before the court on a criminal charge would have at his disposal competent legal assistance. Our law schools do their best to provide us with competent and professional lawyers; it is not an easy matter to be admitted to law school or do the work required while there. With all this in mind, one would think that the average citizen would be adequately represented when indicted for a crime. Unfortunately this is not so; and, it is not necessarily the fault of the lawyer. The criminal justice system is just what it purports to be-a system. The list of occupations and professions involved are almost too numerous to mention, but an attenuated list would include the following: law enforcement, lawyers, judges, clerks, jailers and prison guards, probation and parole officers, court administration personnel, pathologists, handwriting experts, DNA technicians, finger print analysts, investigators, and the hangers-on such as drug and alcohol addiction counselors, sex abuse counselors, social workers, psychologists, psychiatrists, victim advocates, all of whom are paid better than the attorney representing the defendant. Court appointed attorneys in Iowa are paid from $60 to $70 per hour to represent a criminal defendant. To someone never having been employed anywhere but Subway, this seems a significant reimbursement. It is not. The legislature is not interested in criminal defendants; they as the general public, believe them generally to be nuisances who must be dealt with as expeditiously and cheaply as possible. Most criminal defendants do not vote, especially if they are felons. Most criminal defendants are indigent. Sure there are those that have money but the general run do not. Consequently, the majority of those brought before the court on charges serious or not rely on what we in the business call "court appointed attorneys" or those hired by and working for the State Public Defender's office. In order for an attorney to make a living at representing criminal defendants, he or she must work his or her butt off. Those working for the State Public Defender's office have more cases than they can properly handle. In either case, the time, effort, and attention an attorney representing criminal defendants can reasonably spend on one client is not necessarily the amount of time, energy, and attention required to aggressively represent. There is no solution. Of all the aforementioned occupations and professions, the criminal defense attorney is the one who does not pass judgment upon the defendant and whose job it is to help the defendant to escape the clutches of all the others-a difficult and demanding job even for the best. The defendant is usually snared somewhere in the system, somewhere in the system someone has grab him to either punish him or rehabilitate him. The unfortunate part of this is that for many defense attorneys this is a perfectly acceptable disposition. Ok, the defendant escapes conviction, but is subject to supervision for two years by a person who decides where he is to live, with whom he can associate, where he can go, and what he can't drink. All the defendant wants is to be left alone. When the defense attorney joins the crowd, which happens daily, and believes that his client should be rehabilitated by therapy, counseling, or supervision, the defense attorney has become part of the system and is representing that system not the defendant.