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Students must provide a critical review of the questions, topics and issues posed and substantively reply to the contributions of at least three peers. Individual postings should include a full discussion of the content of the question posed and explain how it relates to the concepts in the weekly text readings and other resources. The postings should be analytic in nature and include comparisons/contrasts, and examples that can bolster your point. The Discussion is for your benefit and it is important to respond to the discussion topic and to engage others in a running dialogue.

Your initial post should be 250 words. You should then respond to 3 or more posts 250 words each.

This can be accomplished by:

• Validating with additional evidence from the literature.

• Posing a thoughtful question with a commentary which generates further discussion.

• Providing an alternative point-of-view, with evidence and examples.

• Offering additional insight into how the concept might be understood, with evidence provided with real world examples.

Fifth Amendment Question: Why should the police be required to advise suspects of their Fifth Amendment rights when police are not required to advise people who consent to searches that they need not give consent? What is the difference? When does Miranda apply? Give examples. Support your position.

Effective Assistance of Counsel Question:

Do you believe the right to counsel is a meaningful one, given the interpretation it has received by the Supreme Court? Is the definition of “effective assistance of counsel” too restrictive? Why or Why not? Use relevant case law to support your position.

Classmate 1 Joseph:

The Sixth Amendment, ratified on December 15, 1791, guarantees the right of a criminal defendant, which include the right to a public trial without unnecessary delay, the right to an attorney, the right to an impartial jury, and the right to know their accuser(s), the charges, and evidence against them (NCC).

Under this Amendment it speaks specifically about capital cases and not state charges when a defendant has the inability to afford an attorney. It was not until 1963 that the Supreme Court ruled on

Gideon v. Wainwright

addressing the right of defendant to have an attorney when they are facing incarceration. Although the defendant has the right to represent themselves a judge usually appoints an attorney to watch over the defendant.

Clarence Gideon was charged with a felony breaking and entering in the state of Florida. Mr. Gideon could not afford an attorney and represented himself because Florida state law indicated that an attorney my only be appointed to an indigent defendant in capital cases (Gideon). Gideon was ultimately found guilty and sentenced to five years in prison.

Gideon appealed the decision to the Florida Supreme Court (FSC), arguing that his constitutional right to counsel was violated. The FSC denied the appealed and the case was taken to the Supreme Court of the United States (SCOTUS). Before the court, the issue brought before them was to determine if the Sixth Amendment extended to felony defendants in state courts.

Ultimately, the courts had rendered this decision in

Betts v. Brady

indicating that a felony in a state court did not necessarily violate the Due Process Clause of the Fourteenth Amendment (USC). Gideon’s handwritten request to the SCOTUS garnered their attention and the case was heard. In a unanimous decision authored by Justice Hugo Black, “the Court held that it was consistent with the Constitution to require stated courts to appoint attorneys for defendants who could not afford to retain counsel on their own” (Gideon v. Wainwright, 1963). This decision overruled

Betts v. Brady

and making the

Gideon v. Wainwright

the staple case law for the right to counsel for anyone indigent defendant whether it be federal or state charges.

The SCOTUS has also ruled that not only do you have the right to counsel, but you have the right to an effective lawyer. The right to effective counsel is tested under a two-prong test established by

Strickland v. Washington

. The first being the error prong, whether the counselor’s performance is deficient under the circumstances, with performance being measured under the standard of prevailing professional norms. The second being the prejudice prong, whether the counselor’s supposed subpar conduct affected, with reasonable probability, the trial’s outcome (

Strickland v. Washington

, 1984).

The effective assistance of counsel is defined as, “The accused defendant must be assisted and represented by either a retained or appointed attorney, who makes decisions about defense strategy without interference from the government” (LII) . Most would argue that court appointed attorneys are not the best of the best. By definition, the attorney only has to represent the defendant and not let the government interfere with their representation making it extremely restrictive.

In order to have an attorney found to not effectively represent you they would have to do any or all of the following; not enlist experts to challenge evidence, not investigate the states witnesses, fail to investigate alibis or alibi witnesses, not conducting DNA when applicable, not reporting a conflict of interest, or not attending hearings. Unless they are not done in any form or fashion the defendant would not stand a chance at getting a judgement overturned.

References

Betts v. Brady,

316 U.S. 455 (1942).

Gard, S. (1976).

Ineffective assistance of counsel–standards and remedies

, Missouri Law Review; 41(4) Retrieved from https://scholarship.law.missouri.edu/mlr/vol41/iss4/1.

Gideon v. Wainwright,

372 U.S. 335 (1963).

Gideon v. Wainwright

. (n.d.).

Oyez

. Retrieved April 6, 2021, from

https://www.oyez.org/cases/1962/155

.

Legal Information Institute. (n.d.).

Effective assistance of counsel

. Retrieved April 6, 2021from

https://www.law.cornell.edu/wex/effective_assistan…

National Constitution Center. (n.d.).

Right to speedy trial by jury, witnesses, counsel

. Retrieved April 6, 2021 from https://constitutioncenter.org/interactive-constitution/amendment/amendment-vi.

Strickland v. Washington

, 466 U.S. 668 (1984).

United States Courts. (n.d.).

Facts and case summary – Gideon v. Wainwright

. Retrieved April 6, 2021 from https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-gideon-v-wainwright.

Classmate 2 Crystal:

This particular right was so prevalent during my first two years as a paralegal. During a court-martial, that is part of the arraignment, which is where the military judge informs the accused of several rights, such as the right to a panel, the right to counsel, or right to a military judge alone. You are also told of your charges and that the trial can go on without you if you are voluntarily absent. With what I have seen from courts-martial, I do see it is important for an accused to have the right to counsel, and that it has to be effective. An accused/defendant can claim ineffectiveness, but in order to do this, they must prove that the assistance of counsel was unreasonable and therefore ineffective, as well as they must prove that if it was not for the errors made by the attorney, there is a reasonable probability that the trial or proceeding would have had a different outcome. I don’t think it is too restrictive, but it would require the defendant to have some sort of knowledge, which isn’t always the case.

A recent case that was decided in June of 2020, is

Andrus v. Texas

. In this case, Terence Andrus was sentenced to death. In 2008, Andrus tried carjacking and he fired multiple shot and killed the owner of the car and someone that was in the area. He was charged with capital murder. During his trial, specifically the guilt phase, his defense counsel did not give an opening statement, and the defense counsel rested immediately after the State rested their case. During the closing argument, the defense counsel essentially said he was guilty and that he was more worried about the sentence. During sentencing, there was no opening statement, only brief cross-examination, no objections, and really didn’t put on any mitigating evidence.

The Supreme Court found that the counsel did fail to be effective and the judgement was vacated and the case was remanded.

To be in trial and see the person whom is supposed to be defending you do so terrible and produce almost no evidence is just horrible, so I do not think that it is too restrictive. With Andrus v. Texas, this shows another time when the Supreme Court did what they needed to do to protect rights.

Reference:

https://www.supremecourt.gov/opinions/19pdf/18-9674_2dp3.pdf

Classmate 3 Chelsea: I think that the right to counsel is very meaningful because it is difficult to navigate the legal system when you are not well versed in it. You wouldn’t throw someone in a pool who doesn’t know how to swim and tell them to figure it out as they go. They will need assistance to stay afloat. The Sixth Amendment provides that in any criminal prosecution, the accused has the right to assistance of counsel in his defense (Cohen, 2014).

in Moran v. Burbine, 475 U.S. 412, 431 (1986), the court established that the Sixth Amendment right to counsel is activated when the police shift from the the investigative to accusation stage. The right attaches when the judicial proceedings have been initiated against him whether by formal charge, arraignment, indictment, or preliminary hearing (Cornell Law School, n.d).

The Supreme court has ruled that the right to counsel means the right to effective legal counsel. However, in a system where public defenders are overworked and underpaid, the Supreme Court knows that effective legal counsel is hard to come by without shelling out your own assets. To judge the effectiveness of counsel, the Supreme court established a test in Strickland v. Washington, 466 U.S 668 (1984). The tests consists of two prongs, the Error Prong and the Prejudice Prong. These basically measure if the attorney’s performance was under the standard of professional norms and if their poor performance was the cause of the trial outcome (Cornell Law School, n.d). I don’t think the definition is too restrictive. Attorneys have different styles and personalities and ways of handling their clients, but as long as a public defender can meet these professional norm standards and act in such a way that is helpful to the trial and not a detriment, I believe that the public defender has succeeded.

Cohen, Andrew (2014).

What Does the Supreme Court Really Think about the Right to Counsel?

accessed from:

https://www.theatlantic.com/national/archive/2014/02/what-does-the-supreme-court-really-think-about-the-right-to-counsel/284085/

Cornell Law School, (n.d).

Right to Counsel

. accessed from:

https://www.law.cornell.edu/wex/right_to_counsel#:~:text=The%20Sixth%20Amendment%20gives%20defendants,done%20through%20the%20incorporation%20doctrine.

  
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