On Oct 14, 2014, U.S. Attorney General Eric Holder proclaimed with great fanfare that, effective immediately, federal prosecutors can no longer include in plea agreements language which operates to waive a criminal defendant’s Sixth Amendment right to the effective assistance of counsel. Additionally, all prior agreements that contain such language could no longer be enforced. [ABA Journal, Posted Oct 14, 2014, at 03:37 CDT, by Martha Neil]. In doing so, the U.S. Department of Justice has again counter-attacked an issue caused by its own short-sided actions, while completely failing to address the real problem. When measured against the actual damage caused by ineffective assistance of defense counsel on our legal system, the Attorney General’s charade is little more than fiddling while Rome continues to burn.
It is, of course, commendable that these waivers can no longer operate to impede a criminal defendant’s constitutional right to appeal a criminal conviction based on incompetent legal counsel – which should never have been abridged by the Department of Justice or accepted by our courts in the first place. But to then break an arm slapping oneself on the back – chastising a violation of a Sixth Amendment guarantee while pretending that the problem is solved – is hypocritical.
Ineffective counsel remains a nagging problem. A small number of criminal defense attorneys abuse the criminal justice system. Sometimes this is done intentionally or with the intent to gain an unethical advantage over prosecutors and the criminal justice system. Sometimes it is done simply through incompetence or indifference when an attorney acts or fails to act in such a manner that causes the deprivation of a criminal defendant’s constitutional rights. Regardless of the cause, the results are the same: the unnecessary delay of closure and the recovery of restitution for crime victims, the re-victimization of crime victims by requiring them to repeatedly testify at hearings or trials, the delay of criminal cases which last years beyond what is reasonable in an already-overcrowded judicial system, the judicial system’s unnecessary expending of precious resources, and the further delay in all manner of business pending before the courts. And to what cost to the criminal defense attorney? None. If a defense attorney is found to be ineffective –sometimes openly claiming under oath that he or she was ineffective in order to earn a criminal defendant a new trial – he simply moves on to the next defendant, like typhoid Mary, wreaking havoc and destruction every step of the way.
If there had been no problem with ineffective representation of criminal defendants to begin with, the Department of Justice would never have put the rule into place. With the elimination of this rule, and with the opportunity for criminal defendants to again maintain protection of their Sixth Amendment rights, logically, ineffective assistance of counsel still exists. But rather than immediately addressing the serious problem which remains, the U.S. Attorney General did nothing more than claim victory for simply cleaning up his own mess.
In making this announcement Holder stated that “[e]veryone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel.” (It is telling that the Attorney General used the word “opportunity” when describing access to effective assistance, rather than acknowledging it as a guarantee provided by our constitution. Perhaps the root of the problem is becoming clearer). The U.S. Attorney General completely avoided, or cared less about, any effort to actually eliminate the continued impact of the myriad of ineffective assistance claims which haunt our justice system – the actual problem, apparently, was not even worthy of a comment.
It is past time to remove those who are ineffective from causing such damage and to preclude them, once identified, from representing criminal defendants. After all, if the constitution guarantees criminal defendants effective counsel, how can we knowingly continue to appoint indigent criminal defendants counsel known to be ineffective? Are we not violating their constitutional rights and subsequently, the rights of every single crime victim, by even making such appointments?
If the Attorney General actually cared about a criminal defendant’s Sixth Amendment rights, actually wanted to do something about the effects of ineffective assistance of counsel on the victims of crime and our court system, and actually wanted to make the criminal justice system more color-blind and fair, then he should have addressed how to fix the problem. But, again, more burning and more fiddling is all we seem to get.
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Don Geary, Chief Assistance District Attorney Cobb Judicial Circuit, retired LtCol USMCR, Adjunct Professor at Emory School of Law, and author of a 2014 law review article on ineffective assistance of counsel (Don Geary, Build It And They Will Come: The Realized Prophecy of Strickland v. Washington, 7 J. Marshall L.J. 307).
