As fewer and fewer dollars are spent on indigent defense—and as more and more people charged with a crime qualify for free legal counsel—representing criminal defendants has become increasingly more specialized and complicated.
More than a century and a half ago, Abraham Lincoln warned that “a person who represents himself has a fool for a client” (although when Lincoln practiced, most defendants, even those charged with serious criminal offenses, were expected to represent themselves if they could not afford an attorney).
Prior to the 1963 U.S. Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963), it was not uncommon in a number of states for men and women charged with felonies to take on the county prosecutor alone.
Things were a bit simpler then.
Crafting a defense for a client, or oneself if unrepresented, did not have the sophisticated nuances of today's complicated criminal prosecutions.
The protections that evolved through statute and case law are a testament to the unbiased philosophy of American jurisprudence. But those protections come at a cost.
Think about the layers of protection afforded by the U.S. Supreme Court:
- Mapp v. Ohio, 367 U.S. 643 (1961), fruits of an illegal search and seizure are inadmissible;
- Brady v. Maryland, 373 U.S. 83 (1963), suppression of favorable evidence for the defense;
- Miranda v. Arizona, 384 U.S. 436 (1966), required suspects be informed of their rights;
- Bruton v. U.S., 391 U.S. 123 (1968), confession of codefendant violates the confrontation clause of the Sixth Amendment.
More examples: Strickland v. Washington, 466 U.S. 668 (1984), defined ineffective assistance of counsel; and Padilla v. Kentucky, 559 U.S. 356 (2010), the collateral consequences of a criminal conviction on immigration status must be taken into account.
The federal criminal code has expanded by 67 percent since 1980. Navigating through the labyrinth of criminal statutes, and digesting the expanding reach of appellate decisions on a state and federal level, has become burdensome.
Accordingly, representing criminal defendants has become more complex and specialized.
Last year, the U.S. Supreme Court in Missouri v. Frye, 132 S.Ct. 1399 (2012) ruled that defense counsel must communicate a formal offer, and that failure to do so represents ineffective assistance of counsel. However, the Court did not limit itself to that conclusion.
Justice Anthony Kennedy went further and suggested that defendants are entitled to effective counsel during plea negotiations. How did he define that duty?
Kennedy acknowledged the difficulty in defining the responsibility of counsel in negotiating a plea. According to Professor Rishi Batra, “by explicitly linking bargaining and negotiation to the duties of the counsel during the plea bargain process,” the Sixth Amendment requires not only communication of pleas but also adequate assistance of counsel in negotiating pleas.
A look at death penalty litigation is instructive. There was a time when a single lawyer could negotiate a plea seeking to avoid the death penalty, litigate the case at trial, and then present the defendant's interests at sentencing.
Today, a team of lawyers is needed to defend a capital case: including a litigator to try the case, and a mitigation specialist to provide background for plea negotiations and to present evidence during the penalty phase.
It was the death penalty that first introduced the idea of free legal counsel for indigent defense. In Powell v. Alabama, 287 U.S. 45 (1932), 30 years before Gideon, the U.S. Supreme Court said that states must provide counsel to those accused of capital murder.
And now, capital punishment is providing the example for competent defense in serious criminal cases.
Many litigators spend countless hours preparing a case for trial. They spend very little time getting ready for plea negotiations.
Preparation for plea negotiation requires techniques that are different from trial preparation. Compromise and concession are often not effective trial tactics.
Is this the dawn of the “team” approach to criminal defense? Do serious felonies require “negotiation counsel” to advocate for pleas and “trial counsel” to litigate?
The roles of a negotiator and litigator are different, as are the skill sets, but both may soon be required to provide effective legal representation in criminal cases.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. He welcomes comments from readers. You can also read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino