Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine

TLDR: In this paper, an indigent defendant has hired an attorney and negotiates a plea bargain for her client; the client will receive a sentence reduction if, during her own prison term, she cooperates with the prosecution.

Abstract: INTRODUCTION Defense counsel negotiates a plea bargain for her client; the client will receive a sentence reduction if, during her own prison term, she cooperates with the prosecution. While serving her sentence, the client fulfills her part of the bargain, but the government drags its feet in honoring its commitment to make a motion for sentence reduction. Became she has already been sentenced, the defendant has no attorney to represent her and, when she asks for one, the court says she has no right to counsel. The prosecutor meets with an uncharged and uncounselled suspect and negotiates an agreement whereby the suspect will waive indictment and plead guilty on a future date. No attorney assists the suspect in these negotiations. When the suspect hires an attorney, the attorney commits malpractice and utterly destroys the plea negotiations. After the suspect, who is now a defendant, receives a lengthy sentence, he claims he received ineffective assistance of counsel. The court agrees that the attorney 's malpractice was the direct cause of the failed negotiations. Nevertheless, the court rules against the defendant. Under Supreme Court law, the suspect had no right to counsel at the precharge negotiations because the government had not yet filed formal charges. An indigent defendant has appointed counsel. The defendant pleads guilty and the judge directs him to "cooperate" with a probation officer who will interview him and write a presentence report. Although defense counsel knows that the probation officer will ask the defendant about sensitive subjects, such as his prior convictions and his conduct in this case, defense counsel does not attend the interview. Later, the probation officer claims that the defendant lied during the interview. Accordingly, the officer asks the court to increase the defendant's sentence by six months for this "obstruction of justice. " The defendant, protests: he did not lie; rather, the probation officer 's questions were unclear. The judge hears testimony, credits the probation officer's story, and imposes an enhanced sentence. Later, the defendant argues that his attorney's failure to attend the interview constitutes ineffective assistance of counsel. The judge denies his petition outright; because the probation officer is "an arm of the court, " the presentence interview is not a "critical stage" and the defendant had no right to assistance of counsel. The rhetoric of the Sixth Amendment is grand; the reality is grim. The rhetoric promises that: "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense.'" "[T]he accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal. . . . "2 In reality, a mechanical and rote invocation of a rigid right-to-counsel doctrine deprives modern criminal defendants of counsel at proceedings that are truly critical stages of contemporary criminal procedure The current right-to-counsel doctrine was developed in the 1970's. It created a bright-line rule still in effect today. The right to counsel attaches only at "critical stages" of a criminal prosecution. Under this critical stage doctrine, the right to counsel only attaches after the initiation of formal adversary proceedings and only applies to confrontations between the accused and the prosecution or law enforcement. In the years following the Supreme Court's development of the critical stage doctrine, national trends of mandatory sentencing and sentencing guidelines revolutionized criminal procedure and dramatically altered the roles of the system's key players.3 Now, defense counsel's role outside the courtroom is substantially amplified. Among other things, counsel negotiates about the prosecutor's charging decisions, bargains over plea agreements, mediates between cooperating defendants and the government, assists the defendant in confronting the probation officer, and advocates in connection with proceedings ancillary to sentence. …