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.

Self-help

Occasionally as a criminal defense attorney you have a client who gives every appearance of being a person who can not be helped. In order to have even an interest in helping someone escape prison or jail, that person should show some small inclination in helping themselves. There are those who have very little, if any, socially redeeming value-they merely exist on the planet wandering about without the minutest contribution to anyone's well-being. True, as they do not produce anything, they consume very little-just enough to keep themselves alive. These people actually improve their prospects by being placed in jail or prison. They have food, warmth, and a bed to sleep in. These are items that may or may not be available to them regularly outside of jail. In these cases, their attorney should make little effort to have them released as early as possible contrary to their protestations. After all they have things to do, places to go, and people to see or so they say. Attorneys have ethical rules they must follow. These rules go to the idea that attorneys exist to assist their clients when dealing with legal problems, especially those of a criminal nature. The client comes first. However, clients come along whose reality is significantly different from the common. This can be the result of mental imbalance, stupidity, or simple ignorance. Ignorance can often be cured, but not the other two disabilities mentioned. There is no help for stupidity and little for the mentally deranged. We have a vast array of therapeutic placements for those hovering around the criminal justice system. Unfortunately little distinction is made between a person who is schizophrenic and one who has an IQ of 75 or one who simply doesn't give a rat's ass. We have apparently come to the conclusion, here in the U.S.A., that all can be helped, all can be productive members of society, all can learn to do what they are told. This is nonsense. To rehabilitate implies that a person at one point in his life did not need rehabilitated; the person exemplified the qualities most desired in a citizen. This premise is incorrect. We have a difficult time accepting the fact that there are those who simply can not or will not function as the society would have them function. I suppose we could take them out and shoot them like the Nazis did. We forget that the Nazis were killing their lunatics, schizophrenics, malformed long before they were gassing the Jews and gypsies. Theirs was an attempt to strengthen the race; a replacement for natural selection or a form of it. Since most societies have rejected this method of maintaining themselves, other solutions must be found. One thing we do have in common, however, is that these people should not be allowed to decide for themselves what is best for them. Someone else must do the deciding. It is certain, we will not leave them alone. They are far too obnoxious and annoying to be allowed to roam about at will. It may cost a great deal, but if they are incarcerated they will not bother the general public with their numerous needs; they will no longer be inconvenient and we can safely ignore them if they have been disappeared.

Trial by Jury

Court service days are those days in court where defendants appear for matters that take little time such as arraignments, pretrial conferences, uncontested motions, etc. These terms are not self-explanatory, but attorneys practicing criminal law will understand the process. The courtrooms are full of defendants and attorneys waiting to plead guilty, plead not guilty, negotiate a reasonable disposition of the case, or to take care of other matters that may present themselves none of which take more than a few minutes. What becomes obvious with only a few minutes observation is that the vast majority of defendants plead guilty to something--either the original charge or some lesser included offense. This observation is reinforced when discussing a new charge with a new client and asking about his previous criminal history and if ever he has gone to trial on anything. The answer, with very few exceptions, is the person has never gone to trial but always plead guilty to the original charge or some lesser included offense. Most often the reason is to be released from jail since bond could not be made. Often times it is simply to get it over with. Criminal charges are disruptive, anxiety producing, and expensive even for those with unlimited leisure. The criminal justice system is a factory production. It produces compliance and revenue; the perfect combination. What is apparent, however, is that this system operates only because of the cooperation of defense attorneys and defendants. We as a group are complicit in this organized assault on our clients. If, on one day, on one court service day, each and every defendant said "I'm not pleading, I want a trial", the criminal justice system would implode. No court could withstand the onslaught of trials; they simply could not be scheduled. Prosecutors would be incapable of rational thought wandering about the halls asking themselves what to do. Court attendants and clerks would be staring about in wonderment. Law enforcement would be spending their vacations and off duty times waiting endless hours at the courthouse to testify. It is amazing just to think about. The chances that this vision would ever become reality borders on zero. There is no economic impetus for a trial. Defense attorneys lose money going to trial. Defendants incur costs they cannot afford. Family, friends, and associates called to testify grumble over the imposition. It is all very disadvantageous. From observing the run-of-the-mill defense attorneys there is little interest in trying any case unless the defendant actually insists on a trial. In a county such as Jasper, where you may have one jury trial a quarter but hundreds of criminal charges, something is askew.