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18 Crim. Just. 37 (2003-2004)
Exonerations Change Judicial Views on Ineffective Assistance of Counsel

handle is hein.journals/cjust18 and id is 181 raw text is: Exonerations Change Judicial Views on Ineffective Assistance of Counsel by Adele Bernhard Te American public is fascinated with criminal jus- S ce. Crime stories titillate. They're the daily fare on t.. tlevision newscasts, the subject of true crime bestsellers, and the front-page stories in newspapers and magazines nationwide. Today, it is the story of exonerations of the wrongly convicted that has captured the public's imagination. In recent months, the New York Times painstakingly explored how a group of young men convict- ed of raping and assaulting the Central Park jogger had been wrongly convicted---despite their taped confessions. Newsday published a four-part series on 13 wrongly con- victed individuals in New York alone. Parade magazine fea- tured It Could Happen to Any of Us, by Jack Newfield, describing how Ray Krone, a former Boy Scout and Little League ballplayer, was convicted of a murder he did not commit in Arizona. PBS aired an hour-long special that illustrated the post-exoneration lives of wrongly convicted men. And The Exonerated-a play combining fiction with real-life events, was an off-Broadway hit. It is not hyperbole to suggest that the interest and excite- ment generated by the stream of exoneration stories has encouraged hundreds of young people to attend law school. invigorated J.D. curriculum, revamped crime laboratories. and influenced jury verdicts. Law evolves more slowly than pop culture or public atti- tude. Because most exonerations have not resulted in writ- ten legal opinions, their impact is only slowly seeping into case law. However, courts are influenced by the same news that sways the rest of us. Even without explicitly referring to innocence or wrongful convictions, modern trial courts are undoubtedly more likely to admit expert testimony on the question of eyewitness identification because they are painfully aware of just how easily such witnesses-no mat- ter how honest or passionate---can be wrong. They are cer- tainly more inclined to view confessions suspiciously, espe- cially when it involves the very young, and to consider whether and to what extent police slant evidence. Finally, the fact that innocent people are routinely convicted- despite a full-blown jury trial at which they were represent- ed by defense counsel-suggests that courts should play a more active role in supervising the quality of criminal defense services. Without overstating the case, there is some evidence that Adele Bernhard is an associate professor of lanv at Pace Law School in White Plains, New York, where she teaches the Criminal Defrnse Clinic and the Post-Conviction Project. courts are doing more to protect the rights of the accused to effective assistance of counsel. Some courts are relaxing the overly restrictive standard by which individual post-convic- tion claims are judged. Others have become more receptive to affirmative litigation challenging the provision of crimi- nal defense services on Sixth Amendment grounds. Finally, at least one circuit has abrogated the virtual immunity that currently protects assigned and public defenders from mal- practice liability. This article discusses each of these devel- opments, focusing on the federal courts and on New York State, where 1 live and practice. Ambivalence to enforcing right to counsel Even as its criminal justice jurisprudence has evolved more restrictively, the Supreme Court has steadfastly insist- ed that the Constitution requires provision of counsel to anyone facing a loss of freedom as the result of a criminal charge. (Gideon i. Wainwright, 372 U.S. 335 (1963), Alabama v. Shelton, 535 U.S. 654 (2002).) Nonetheless, a right is only as potent as its enforcement, and the vigor of the Sixth Amendment right to counsel has been undercut by judicial reluctance to supervise the provision of criminal defense services. In part, this reticence is due to appropriate concern for finality and the difficulty of devising a standard of review that would spare appellate courts the task of combing through lengthy transcripts looking for trial errors. But the reserve can also be attributed to the unstated belief that excellence in defense services is unnecessary. If every- one is guilty, it doesn't matter who does the defending. As Richard Posner puts it: I can confirm from my own experience as a judge that criminal defendants are generally poorly represented. But if we are to be hardheaded we must recognize that this may not be an entirely bad thing. The lawyers who represent indigent crininal defen- dants seem to be good enough to reduce the probability of con- victing an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants may be optim nal. (Richard A. Posner, The Problematics of Morals and Legal Theory 163-64 (1999), cited in Abbe Smith, Difference in Criminal Defense and the Difference It Makes, 11 WASH. U. J.L. & Po'Y 83 (2003).) Twenty years ago, when the Supreme Court decided Illustration by Susan Wise

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