Pleading the Sixth

Chandra Bozelko
Thu, 18 Apr 2019 16:12:55 -0700
Opinion

I laugh when gun rights advocates say we need the Second Amendment to protect the means of resisting a tyrannical central government. No one has needed to take up arms against the feds in my lifetime.

However, the government turns its power against its own citizens every day in criminal courtrooms, and the amendment that's supposed to arm them there — the Sixth Amendment right to counsel — hardly exists anymore. It's been eroded through court decisions that say a defendant is entitled to a lawyer but not necessarily to a defense.
Updated: Fri Apr 19, 2019

I laugh when gun rights advocates say we need the Second Amendment to protect the means of resisting a tyrannical central government. No one has needed to take up arms against the feds in my lifetime.

However, the government turns its power against its own citizens every day in criminal courtrooms, and the amendment that's supposed to arm them there — the Sixth Amendment right to counsel — hardly exists anymore. It's been eroded through court decisions that say a defendant is entitled to a lawyer but not necessarily to a defense.

It seems axiomatic that the Sixth Amendment, the right to counsel, includes a right to effective assistance, but even top jurists don't think so. In his dissent in Garza v. Idaho, Supreme Court Justice Clarence Thomas recently held that it doesn't. He conceded that defendants have a right to an attorney but that no one had a "substantive right to a particular level of reliability," meaning that the representation doesn't have to be good or even help a defendant.

In the Garza case, the majority upheld the Sixth Amendment right to effective assistance of counsel, but lower court decisions tend to reflect Thomas' view.

In one of my trials, my defense attorney advised the jury that "there (was) no reasonable doubt" three times, essentially directing them to convict her client, and admitted to the judge on the record that she hadn't read police reports in my file. The Connecticut Supreme Court held that her representation wasn't ineffective.

I'm not alone. Adnan Syed, the subject of the hit podcast "Serial" and an HBO documentary series, was denied another trial last month despite the Maryland Court of Appeals' finding that his counsel's performance was "deficient." The court said that even though his trial attorney failed to interview and present testimony from an alibi witness, the other evidence against him was sufficient to convict him.

Syed's jury might have weighed the evidence differently once Asia McClain, the alibi witness, had testified, but that doesn't matter to the highest court in Maryland. They agreed that Syed had a screwup for a lawyer — one who set a record for the number of complaints filed against her — but she just wasn't bad enough ... because they think he's guilty anyway. If they thought Syed was innocent, she might have been incompetent enough for them to care.

Courts have approved the performances of attorneys who have slept through portions of a trial or were arrested for drunken driving on the way to court. Clearly, what passes for competent lawyering has reached comic levels.

Because we have lowered the standards of representation so far, zealous and effective representation has become misconduct, a liability for lawyers.

In 2016, a public defender in Las Vegas was handcuffed when she continued to argue that her client shouldn't be incarcerated for a violation of probation. In Wisconsin, a defense lawyer who reminded the court during a bail hearing that his client was still innocent was taken into custody for contempt.

A judge in Galveston, Texas, snatched the appointment to represent indigent defendants from Drew Willey, a local criminal defense lawyer, because Willey was investigating defenses and highlighting inconsistencies in police reports — honoring his constitutional duty. Willey was replaced by other attorneys because he spent too much time on each client.

Usually, we chalk up lackluster defense performances to underfunding or overburdening of counsel. From my case to Syed's to the people represented by court-appointed public defenders, no one can blame a lack of resources for compromising attorney performance. It was a judge who either prevented zealous representation or rewarded its absence, and people were convicted as a result, some of them factually innocent. That burly Sixth Amendment we posted on the courtroom door is no protection from the threat within.

I don't know what will cure the American antipathy toward the presumption of innocence that we don't want to admit afflicts us. We think defense is most warranted to protect innocence and that guilt can't or shouldn't be defended.

But guilt cannot exist until the defense is done. The only thing capable of being defended is legal innocence, at least at the trial level. These appellate court decisions tell us that we're not defending innocence at all.

The base of criminal proceedings — the presumption of innocence — is broken. We need to be wary of any results produced by a system that has abandoned bedrock principles the way our courts have.