Dependent Counsel

Abstract

Much has been written about the woeful underfunding of indigent defense and the tragic effects of that underfunding on the American criminal system. But indigent defense suffers from another, perhaps deeper problem: defense lawyers who are structurally dependent on prosecutors and judges. Because defense lawyers are typically repeat players in the criminal system, they form ongoing relationships with judges and prosecutors. These relationships force them to compromise the interests of some clients to protect the interests of others, or the interests of the lawyers themselves. In this Article, I define a novel category of common but seldom-litigated legal problems resulting from the relationships between defense attorneys, prosecutors, and judges. I then argue, using the results of interviews with defense attorneys across the country, that those problems expose deeper structural flaws in the American criminal system than previous scholarship, which has focused on chronic underfunding of indigent defense, can explain. The criminal system, I argue, corrupts the relationship between client and lawyer not merely by depriving her of the resources she needs to do her job, but also by extracting her cooperation in the prosecution and incarceration of her client. Finally, I chart two related ways forward: constitutional litigation of a right to counsel free from certain forms of corrupting pressure, and collective action to assert that right and resist constitutional violations.

Details

Publisher:
Stanford University Stanford, California
Citation(s):
  • Charlie Gerstein, Dependent Counsel, 16 Stan. J. C.R. & C.L. 147 (2020).
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