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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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