You have the right to an attorney

Imagine you’ve been charged with a felony, that you face a prison term, and that you don’t have the money to hire a lawyer. One of the greatest rights you have in that circumstance is being weighed by the state supreme court.

The case is so important that the court, which usually allots thirty minutes to the cases it hears, spent more than 72 minutes on a case that deals with our rights to a speedy trial in which we are effectively represented by an attorney. As everybody who’s ever watched a police show on television knows, a person who cannot afford to hire an attorney will get one appointed to represent them.

But what if no attorney is available? Or what if the attorney appointed to represent you has so many other similar cases that you might not get the best defense possible?

Let’s recall our rights in the Sixth Amendment to the United States Constitution:

” In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

That seems pretty straightforward. But it was not until a Missouri drifter named Clarence Earl Gideon was arrested in Florida on a criminal charge that the U. S. Supreme Court ruled that state courts are required by the Sixth Amendment to provide counsel to indigent people.

And it’s not just any counsel. The U. S. Supreme Court ruled in 1970 that “ineffective” counsel was a violation of the protection provided to us in the Sixth Amendment. In fact, the court said a judge cannot create a situation in which ineffective counsel is provided. The opinion said (and this is an excerpt from one paragraph in a lengthy opinion), “defendants facing felony charges are entitled to the effective assistance of competent counsel. Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts”.

Effective counsel has become an issue for the Missouri Supreme Court.

Normally, Missouri Supreme Court arguments are pretty dry and technical. That’s why we only use a few seconds of the arguments when we do our news stories. But because this case is so directly tied to our basic rights and because the lawyers and the judges framed the discussion so well in laymen’s terms within a legal framework, we posted the entire hour and 12 minutes (and 40 seconds) with the story we have at Missourinet.com

Or you can go to the Supreme Court’s audio argument archive and read the case summary while listening to the arguments.

Here’s the deal: Eight of Missouri’s district public defender offices have been certified by the state public defender commission as full up with cases. Those offices have notified judges in their districts the offices will not accept any more appointments to represent people until the caseloads they have are reduced. Twenty-two other district offices are eligible for certification. State Public Defender Cat Kelly tells us the other four are “up and down.”

Here, then –and probably too simply put– is the rub.

The Missouri Rules of Professional Conduct say lawyers will “provide competent representation to a client….shall act with reasonable diligence and promptness in representing a client, (and) will not represent a client if the representation involves a concurrent conflict of interest.” It is a conflict of interest if “the representation of one client will be directly adverse to another client” or “the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Violation of those professional standards can cost a lawyer his or her license.

So.

Can a judge acting to guarantee the constitutional rights of citizens to a fair and speedy trial in which they are represented by an attorney order a lawyer whose client load already is so large that the appointment will mean that representation of that client will have a diverse impact on other clients and thereby risk loss of his or her law license? Who decides? How is that decision made?

It’s easy to see this as a dispute within the legal profession. But at the heart of the issue, it’s more than that.

This is about our constitutional rights and protections. These lawyers are arguing about what can happen, what should happen, to us.

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