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42 U. Cin. L. Rev. 1 (1973)
The Defective Assistance of Counsel

handle is hein.journals/ucinlr42 and id is 13 raw text is: UNIVERSITY OF CINCINNATI LAW REVIEw VOLUME 42 1973 No. 1 THE DEFECTIVE ASSISTANCE OF COUNSEL* David L. Bazelon** I. INTRODUCTION The constitutional guarantee of effective assistance of coun- sel1 is a guarantee with a purpose. That purpose is not, as some people seem to believe, to shift the balance against the peace * This text was prepared and used as the basis for the Robert S. Marx Lectures, delivered on December 6 and 7, 1972 at the University of Cincinnati College of Law. ** Chief Judge, United States Court of Appeals for the District of Columbia. 1 The language of the United States Constitution does not contain the term effective assistance: In all criminal prosecutions, the accused shall enjoy the right •.. to have the Assistance of Counsel for his defence. U.S. CONST. amend. VI. The term stems from the cautiously worded opinion of Mr. Justice Sutherland in Powell v. Alabama, 287 U.S. 45 (1932): All that is necessary now to decide . . . is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not dis- charged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. Id. at 71 (emphasis added). With Gideon v. Wainwright, 372 U.S. 335 (1963), and its aftermath, the extension of the right to counsel mandate brought added impetus to the effective representation dictum. General studies on the right to effective assistance can be found in: Craig, The Right to Adequate Representation in the Criminal Process: Some Obser- vations, 22 Sw. L.J. 260 (1968); Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 MINN. L. REV. 1175, 1239 (1970); Katz, Gideon's Trumpet: Mournful and Muffled, 55 IowA L. REV. 523 (1970); Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw. U. L. REV. 289 (1964); Note, Effective Assistance of Counsel for the Indigent Defendant, 78 HARV. L. REV. 1434 (1965); Note, Effective Assistance of Counsel, 49 VA. L. REV. 1531 (1963); Comment, Effective Representation-An Evasive Substan- tive Notion Masquerading as Procedure, 39 WASH. L. REV. 819 (1964),

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