Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the right to a jury trial and had a bench trial in front of a judge who, in the past, had been disciplined twice for discriminating against people of the defendant's race. She is convicted and sentenced to life without the possibility of parole. She appeals and gets new counsel, but her appellate attorney fails to raise the most meritorious legal claim-namely, that her trial attorneys were ineffective for failing to investigate her case. She loses on appeal. She finds a post-conviction attorney who raises the incompetence of her trial attorneys in a post-conviction motion filed in the state courts, but the state courts say that she should have raised that issue on appeal and it is now waived. Her post-conviction attorney then files a federal habeas corpus petition alleging that she received constitutionally ineffective trial counsel. The federal district judge-a Reagan appointee-has a hearing and finds that she had woefully ineffective assistance of trial counsel and grants her petition, noting her probable innocence, only to have the United States Court of Appeals reverse and reinstate her conviction. Even though she had terrible trial counsel, she cannot get habeas relief, because she failed to raise that claim at the appropriate time-namely, on appeal. If her appellate attorney was constitutionally ineffective, it might excuse her failure to raise the trial attorney ineffectiveness claim properly, but her state postconviction attorney failed to raise a claim about the incompetence of her appellate counsel so that claim is now also waived. Absent clemency, she must spend the rest of her life in prison even though everyone acknowledges that she had a sham of a trial. This is a real story and not just a law school hypothetical,' and it is representative of what happens in a shocking number of criminal cases across the country. The United States Supreme Court has described the right to effective counsel as 'necessary to insure [the] fundamental human rights of life and liberty[.]"' 2 In practice, however, the right to counsel in our criminal justice system is, in many respects, illusory. Not everyone is entitled to the assistance of trial counsel and even those who are often have trial attorneys who are unable or unwilling to provide effective representation. And the picture only gets worse at the appellate and postconviction review stages as litigants run into increasingly complex procedural barriers that prevent them from having their ineffectiveness claims heard. No symposium designed to address crises in the legal profession would be complete without a discussion of our systematic failure to provide competent legal representation to criminal defendants. In these remarks, I will analyze each stage of the criminal process from the trial to direct appeal, through the state post-conviction process, and into federal habeas corpus proceedings and explain how, at each stage, criminal defendants routinely face the threat of incarceration (or continued incarceration) without the aid of competent counsel. In addition to failing to provide effective representation, I will demonstrate how the criminal justice system essentially prevents defendants from ever being able to challenge their counsels' ineffective performance, thus rendering the right to effective counsel a right without a remedy. Finally, I will offer some possible suggestions for ways to reform the criminal justice system so as to restore meaning to the fundamental right to counsel.
Primus, Eve Brensike. "The Illusory Right to Counsel." Ohio N. U. L. Rev. 37, no. 3 (2011): 597-620. (invited symposium piece)