This Term’s Cases Consider Right to Counsel in Context of Current Justice System Realities

By The Constitution Project’s Mary Schmid Mergler and Christopher Durocher. Schmid, senior counsel, and Dorucher, government affairs counsel, are the authors of an ACS Issue Brief released today, “The ‘Right-to-Counsel Term.’"

Today, the Supreme Court is hearing argument in two cases related to the right to counsel, the first two in a collection of cases this fall that has earned the October 2011 Term the nickname “Right-to-Counsel Term.” Three other cases are slated for argument later this fall.  We examine these cases in greater depth in our new ACS Issue Brief.

Martinez v. Ryan and Maples v. Allen kick-off the Right-to-Counsel Term by raising the question of what, if any, right to effective counsel a defendant can expect in post-conviction proceedings.  In Martinez, the Court will consider whether the right to counsel should extend to ineffective assistance of counsel claims in a first state habeas petition if the defendant was prohibited from raising such claims during his direct appeal (when the state is required to provide him with counsel).  In Maples, the Court is being asked to decide whether a habeas petitioner is entitled to an equitable exception to the Antiterrorism and Effective Death Penalty Act’s (AEDPA) procedural default rules when a defendant has been completely abandoned by counsel.  In both cases, the defendants have legitimate claims that they were prevented from raising on post-conviction appeal due to counsel’s errors.  And in both cases, fundamental fairness requires that these individuals, who will otherwise lose their right to challenge their convictions due solely to the errors or carelessness of their counsel, be permitted to raise those claims. 

In December, the Court will hear Martel v. Clair, in which they are asked to decide whether a death row inmate, who has a federal statutory right to counsel for his federal habeas proceedings, may receive new counsel based on assertions that his counsel was not pursuing certain claims or investigating certain facts. Though this is not truly an ineffective assistance of counsel claim, the Court should hold that habeas petitioners have a right to seek new counsel from a federal court. In a system where individuals lack a true right to counsel in post-conviction appeals, Maples, Martinez, and Clair could provide a modicum of relief to those attempting to negotiate the highly complex and treacherous terrain of post-conviction review. 

At the end of this month, the Right-to-Counsel Term continues with Lafler v. Cooper and Missouri v. Frye, two cases focusing on the scope of the right to counsel during the plea bargaining stage. In the modern era, overwhelmed prosecutors, defense counsel and courts have contributed to plea bargaining becoming far more common than jury trials in resolving criminal charges. Today, nearly 95 percent of criminal cases are resolved through pleas rather than trial, making the effective assistance of counsel during plea negotiations essential. In both Cooper and Frye, the defendants received much lengthier sentences because of counsel’s errors during the plea process. While the Court has already clarified in previous cases that the right to counsel attaches during plea negotiations, in Cooper and Frye, the Court is asked to decide whether the defendants suffered prejudice from counsel’s errors, and if so, what the remedy should be. The Court’s decisions in Cooper and Frye could go a long way to ensuring that the right to counsel is meaningful during plea negotiations.

This Term, the Supreme Court has an opportunity to shape the Sixth Amendment right to counsel and related claims in a way that recognizes the manner in which our modern criminal justice system actually operates. In that system, plea bargaining—not trial—resolves the overwhelming majority of criminal cases, and post-conviction proceedings are labyrinths littered with legal technicalities too complex for a layperson to navigate without qualified counsel.  The Court can use these cases as an opportunity to make small, but critical, steps to make certain that our modern criminal justice system seeks fairness and justice above all else.