“Lawyers, Jails, & the Law’s Fake Bargains” by Michael Tigar, excerpts, part2

Aachen, Hans von. Allegory. 1598. Oil on copper, 56 x 47 cm. Alte Pinakothek, Munich. Downloaded with express permission from the Web Gallery of Art at http://www.wga.hu from site admin Emil Kren, Ph.D.. Many thanks.

“Lawyers, Jails, and the Law’s Fake Bargains” by Michael  Tigar,  published by the Monthly Review at www.monthlyreview.org/lawrise

            (excerpts from the 15-page article, second instalment, apologies from the blog admin for the excerpted version, blog viewers have a short attention span. )        

        (Michael Tigar is an American University Washington College of  Law Professor  (Constitutional Law; Supreme Court; French legal system; criminal law and procedure; human rights); ; one of the most renowned lawyers in the United States. He has argued seven cases before the U.S. Supreme Court and more than 100 appellate cases; written extensively about litigation, aspects of trial practice, criminal law, the death penalty, and the role of the criminal defense lawyer. His books include Fighting Injustice (ABA, 2002); Federal Appeals: Jurisdiction and Practice; and Examining Witnesses.  Throughout his career, Tigar has been active in pro bono cases, the American Bar Association, continuing legal education programs, and international human rights. During the apartheid period, he went to South Africa to train black lawyers. Prior to joining AU, Tigar served as a professor at the University of Texas Law School)

        Quote “In addition, there are dozens of communities where defendants may be held without bail for weeks at a time, due to crowded court dockets. Because a poor person cannot post cash bond, he or she stays in jail. The racial disparity in arrest patterns is then compounded by the disparity between rich and poor. In these communities, it is often the practice not to appoint counsel until the defendant appears in court after the long delay. By this device, the accused is kept in jail for want of a lawyer to move for low bail or release on personal recognizance. The social consequences of this system are that the jailed accused, though presumed innocent, loses whatever employment he or she may have had, and risks a breakdown in family and community ties.

          Quote “True, the constitution formally guarantees effective assistance of counsel. This ought to be, and could be if properly interpreted, a mechanism for ensuring that the contract between counsel and accused reflects the client’s desires and interests. Not so.

              Quote “In the world of commerce, when a wealthy person hires a lawyer, the lawyer is required to communicate with the client and to provide zealous and diligent representation. If the legal issues involved are complex or specialized, the lawyer must warn the client if he or she lacks the training and experience that may be required. The contract in this setting is dictated by the client’s expressed goals, and the rules of legal ethics operate predominantly to require that the lawyer diligently and skilfully  fulfill the bargain. The legal ethics do, however, require that the lawyer not assist the client in wrongdoing. In the main, however, the state through its courts and agencies supports the fulfillment of the wealthy client’s desires and goals.

           Quote “In sharp contrast, the relationship between the indigent accused and appointed counsel is governed by loose and discretionary standards. In reviewing a case to determine whether counsel was ineffective, the courts give wide latitude to so-called tactical decisions, including decisions not to investigate possible defenses, to refrain from cross-examining witnesses, and to make only token arguments to the jury. As the Supreme Court has said, “judicial scrutiny of counsel’s performance must be highly deferential.” “Deferential” to what? To the lawyer’s decision to do less than might be done or than the client would wish.

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        Quote “This brings us to the contract that is related to that between the appointed lawyer and the client, and that is the plea bargain. A defendant is charged. The appointed lawyer points out that he could remain in jail and wait for trial, probably be convicted, and then spend significant jail time. On the other hand, a guilty plea would probably result in a lesser sentence, and for minor crimes release for “time already served.” The lawyer, because of the nature of his “contract” with the client, is of course in a position to make the dark side of this dream come true, for his indifference and inattention would make conviction quite likely if the case were to be tried.

               Quote “Thus begins a typical scenario in the 90 percent of all criminal cases that end in a plea bargain. The “contract” between the accused and the state follows a ritual form. The accused is asked if he understands the charges. At the lawyer’s prodding he says yes. He is asked if he wishes to waive a trial, and all the rights to summon and cross-examine witnesses that would be involved in a trial. The accused, often sensing that he has no realistic choice, says yes. The judge then seals the bargain and imposes sentence.

          Quote “What’s wrong with this picture? Two main things: the purported consent is unreal, and the accused is not truly informed of the rights he is forfeiting. Recently, prosecutors have added a third dimension to the unfairness by seeking waivers of the right to appeal.

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      Quote “The newer wrinkle in all of this is the by-now routine  prosecution insistence that the defendant, as part of the bargain, affirmatively promise never to challenge the plea bargain as unfair. In ordinary commerce, this would be like buying a car after a strong sales pitch, and under pressure to purchase, and being forced to agree that you could not bring the car back to the dealer even if it was lethally unsafe. Some appellate courts are questioning the validity of such agreements, but they often, and perhaps mostly, are upheld.

        Quote “So we are shovelling people into the prisons at this enormous rate. The root causes are no doubt overcriminalization and racially-biased police and prosecution decisions. But the twin and phony contracts between lawyer and client and between client and the state gravely weaken the ostensible constitutional provisions that are designed to provide review and remedy for those sorts of abuses. XXXXX

      XXXXXX” closed-quote.

(second of three excerpted instalments)