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Making Good On A Promise

The Sixth Amendment guarantees the accused a right “to a speedy and public trial” and to “the assistance of counsel.” But for many defendants, a trial is never really an option.

While statistics vary by jurisdiction, the Department of Justice reports that about 95% of all convictions in the United States result from a guilty plea. More than 80 percent of defendants are unable to afford their own lawyers, and court-appointed lawyers, buried under unmanageable caseloads, often push defendants into plea bargains to avoid time-consuming trials.

A 34-year-old who, through a plea bargain, received a six and a half year prison sentence for a first-time drug offense committed while he was in college told Color Lines Magazine in 2004, “You don't really have a choice but to cop a plea. The feds start getting pissed if you start talking about a lawyer or trial. You are going to jail. And the prosecutors make you understand that. You might as well go for as little time as possible.” He said that his defense attorney was the one who pressured him to accept the deal.

In many cases a plea bargain is appropriate. If a defendant is likely to be convicted anyway, he has every reason to try to reach an agreement that gives him the lightest sentence possible. But when legal representation amounts to little more than drive-by lawyering, in which an overworked and undertrained defense attorney never provides the option of a vigorous defense, then the constitutional right to counsel becomes a sham. The results are a deck stacked against poor defendants, enormous collateral damage to families, and overcrowded jails populated by inmates who should not be there.

For the first time in a decade, the Justice Department recently sponsored a conference to address what Attorney General Eric Holder called the “crisis” afflicting poor defendants.

In conjunction with the conference, the Justice Department rolled out plans for a new Access to Justice initiative. The program, to be led by Harvard Law School professor Laurence Tribe, will investigate ways to ensure that the promises of the Sixth Amendment are not forgotten when defendants lack the resources to pay for their own defense. Tribe began his work this week.

The effort is long overdue. The fact that the Justice Department failed to hold a conference on the issue for 10 years is an indictment of the highly politicized and ineffective Justice Department that the administration of President George W. Bush operated during most of that time.

On one point, however, the attorney general’s definition of justice is still unfairly skewed. Holder told conference attendees that they should not be surprised to see the nation’s top prosecutor leading an effort to improve representation of defendants because, “Although they may stand on different sides of an argument, different sides of a courtroom, the prosecution and defense can and must share the same objective: Not victory, but justice."

It is true that a prosecutor's job is to seek justice, not merely to earn convictions, but a defense lawyer’s job is to defend, and nothing else. Even when he believes the person he is defending is guilty, he still is bound to do his utmost to protect that person.

The 18th century thinker Samuel Johnson was once asked what he thought about the propriety of a lawyer supporting a cause he knows to be bad. Johnson replied, “Sir, you do not know it to be good or bad till the Judge determines it.... An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why, then, Sir, you are wrong, and he is right.”

When prosecutors, police or juries don't do their jobs properly, the defense lawyer who vigorously argues his case may end up helping a guilty person avoid punishment. That is a price we pay for the assurance that our own rights will be respected if we ever stand accused.

The law demands proof beyond a reasonable doubt before anyone is deprived of life or liberty. People who can afford their own lawyers will always enjoy such protection, but those who are stuck with drive-by lawyering seldom do. Professor Tribe's task is to make the system work for everyone the way it is supposed to work. I hope he succeeds.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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