The constitutional responsibility of a criminal defense lawyer
is simply defined: It is to render “[a]ssistance of [c]ounsel.”‘ Unfortunately,
the Constitution went no further in defining the responsibilities,
and thus it fell on the shoulders of the United States
Supreme Court to outline the duties of the defense counsel.
The plain truth is that the United States Supreme Court has
been ineffective in defining what constitutes assistance of counsel-although
admittedly, defining it might be an impossible task.
The difficulty in defining the responsibilities may lie in the simple,
and not surprising fact, that none of the current members of the
United States Supreme 2 Court can boast of having been a criminal
defense attorney. Hence, having the United States Supreme
Court write guidelines or set standards may be analogous to asking
a podiatrist to define competent heart transplant procedures.
To define the responsibility of a criminal defense attorney,
you must have experienced the task. You must have stood next to
an accused at a presentment and made a bail argument; counseled
your client in both the cellblock behind the courtroom and the jail;
tried to pull discovery from the unwilling prosecutor; investigated
the case with usually no money; argued the law to the judge and
the facts to the jury; and last, but not least, begged for mercy for
your client. While doing this, you usually have suffered the criticism
of a client who is sure you are not doing enough or who may
not even be talking to you. Further, you have suffered at the
hands of a community who thinks you are a fiend.
In its effort to define the constitutional responsibilities of a
criminal defense attorney, the Supreme Court held that assistance
of counsel must be effective.3 But, as you might guess, gauging the
effective assistance of counsel is much like critiquing beauty. It is
in the “eyes of the beholder.”
Different groups define effective counsel differently. The
courts who want to uphold convictions at almost all costs typically
define effective assistance of counsel vastly different from how
criminal defense lawyers define what is effective. Similarly, how
criminal defense attorneys define effective assistance of counsel is
vastly different from still another group-the convicted prisoners.
The convicted prisoners’ standard for effective assistance of
counsel is usually equal to a miracle worker-in other words, a
standard that cannot be met by mere mortals, let alone lawyers
without resources. Clients have been known to demand that their
lawyers make a silk purse out of a sow’s ear.
It also may not surprise you that a person may define effective
assistance of counsel one way on one day and then suddenly after
being indicted, convicted, and sent to prison, will define it differently
than before. You encounter this frequently from politicians
who have been convicted of a crime. This shift is akin to the adage
that a conservative becomes a liberal once indicted.
One thing we all agree upon is that a warm body with a bar
number is not enough. However, to make a point, it would not
surprise me if a court said that a warm body with a bar number,
which is able to stand up when the clerk bellows “all rise,” is
enough. That is not enough for me and should not be for you.
But, for those judges who feel the pressure of community clamor,
it tragically may be enough. Community pressure and hatred of
crime should never be factors in defining the responsibilities of a
criminal defense attorney, but it happens often-too often. One
component of the responsibility is the ability to be immune to
those community pressures.
In the Supreme Court’s effort to define effective assistance of
counsel, it defined the opposite: “ineffective assistance of counsel.”,4
In Strickland v. Washington, Justice Sandra Day O’Connor
wrote: “The benchmark for judging any claim of ineffectiveness
must be whether [the] counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.”5 The Court went on to
state that the defense lawyer must “perform reasonably”6 and must
act like a “reasonably competent attorney.” 7
At first glance, the United States Supreme Court’s definition
might seem appropriate. “Just results” ought to be the ultimate
goal and lawyers should act “reasonably.” However, in reality, this
definition says nothing and offers no guidance. How do you measure
whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied upon
as having produced a just result?
The Supreme Court’s failure is that its definition is so vague
that it merely enables courts to do as they please, whether it is to
rarely declare a lawyer ineffective or commonly declare the lawyer
effective. Armed with this definition, a fact finder-a judge–can
render, with justification, virtually any finding of effectiveness.
The definition is so imprecise, or so fluid, that it allows courts to
achieve the agenda of choice-whether the court wants to declare
a lawyer ineffective or effective. Usually, the court finds the lawyer
to be effective since few judges want to incur the wrath of the
community by giving a defendant a new trial. That doesn’t seem
right. The law should be more precise.
To say that the system should “work” is to say that trials
should be fair and that the accused should have an effective lawyer.
I am not saying that the guilty should go free-only that the
system be fair and that an accused have an effective lawyer, one
who takes seriously the responsibility of a criminal defense attorney
and who can actually perform the tasks required.
So what is the responsibility of a criminal defense lawyer?
The answer is to do all that you can, consistent with the Constitution,
the law, and the codes of professional responsibility,” to defeat
the prosecution’s case-regardless of how guilty your client is,
what your client has done, or how right the prosecutor is. You, as
the defense attorney, are not the judge; you are not the jury. You
are an advocate for one client, just as the prosecutor is the advocate
for one client, the state.
It means to know your client is a serial killer yet feel professionally
able, and obligated, to persuade a court to throw out all
the evidence of guilt in a pretrial motion. In some ways you must
momentarily “suspend” your personal morality and make a firm
commitment to the system of justice. The commitment is to put
the government to its test by doing all that you can, consistent with
the Constitution, the law, and the codes of professional responsibility
to get your client “off the hook.”
Our system is an adversarial one-you do your job, and the
prosecutors do their job. You are not to do the prosecutor’s job,
and the prosecutor is not to do yours. You have both agreed to
play by the rules and that sets your limits-in essence, no lying,
cheating, or stealing. If there is a defect in the prosecution’s presentation
of the evidence, you must jump on it and point it out to
the jury. To look the other way and not point it out to the jury is
to violate your commitment as a lawyer and to deprive your client
of constitutional rights.
The criminal defense attorney in the courtroom with a “conscience” or the criminal defense attorney who worries about
reputation is not an advocate. Such a lawyer is no different than
the prosecutor who “throws” the case. Both are equally dishonest
to the client represented.
Incidentally, in “suspending” your own morality for the duration
of your representation of a defendant charged with heinous
crimes, there is nothing wrong with wanting the prosecutors to do
their job. After all, you are a citizen, and presumably, you abhor
crime and want our communities to be safe. You should want a
prosecutor to win when the evidence rises to the level of proof beyond
a reasonable doubt but only winning by doing so “fair and
Finally, a criminal defense attorney is entitled to feel disappointed
when losing a case. It is only human to enjoy winning
even when, in a pure and perfect world, you should not win. But,
at the same time, if justice were truly achieved and your client was
effectively represented and convicted by evidence properly presented
and beyond a reasonable doubt, then it is “okay” for a
criminal defense attorney to be satisfied.
Ultimately the goal is justice-for both the defendant and the
accuser. If your client received effective assistance of counsel
real, effective assistance of counsel, not that vague description
outlined by the Supreme Court-and if the evidence proved beyond
a reasonable doubt that your client was guilty-the system
Of course, the problem with the above is that it presumes
adequate resources allowing criminal defense lawyers to perform
their jobs. This is rare. There simply are not enough resources,
and few citizens are enamored with the idea of “giving” money so
that “criminals can go free.” The concept of the Constitution is
too ephemeral when balanced against the reality of crime.