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Right to Counsel: For Everyone or Just the Innocent?

Por: | 13 de marzo de 2014

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By Anneli Soo, University of Tartu

No matter how law-abiding we are, anyone of us could be labelled a criminal one day and thus become a defendant in a court of law — because we are accused wrongly and maliciously, because of a mistake on part of the state or because we have actually committed an act that is considered criminal by the state no matter what our intention might have been. Most of us have only a vague idea of what criminal procedure is and what our rights as a defendant are, which is why we need a professional lawyer — a defence counsel — by our side to advise and help us through this difficult and unfamiliar situation.

Yet the system may fail us totally because the counsel that we hire or is appointed by the state (the state appoints a counsel for those who are too poor to pay for one) proves ineffective. For instance, the counsel may sleep through the entire proceedings, may appear in the court with the question “Which one of you is my defendant?” (making it obvious that he or she has not even met the defendant before, let alone discussed the case with one) or may read the newspaper in the courtroom without paying any attention to the proceedings. These are not made-up examples: the first example comes from a case in the United States, and the other two I witnessed for myself when I was a law student. Should the defendant complain about the counsel’s apathy? What if the defendant does not complain when the court is in session but wishes to do so later? What should the court do when it receives such a complaint?

If the defendant complains while the court is in session and if the complaint is justified, the court has no choice but to change the counsel. This is done in Estonia, and even the European Court of Human Rights, which acts as a model for many countries, is known to have ordered the state courts to do so. If the defendant has hired the counsel, he or she may just fire the counsel. It is also possible that although the defendant does not complain, the court notices the counsel’s incompetence or apathy and either replaces the counsel or suggests that the defendant do so. In this way, serious injustice can be prevented and the administration of justice can continue smoothly.

However, the case becomes complicated if the defendant does not complain and is convicted. Many factors can prevent the defendant from complaining: he or she may simply fail to notice the counsel’s incompetence; the defendant may be hesitant or reluctant to complain about the incompetence, even if it is apparent, because, after all, the counsel may be the only person on the defendant’s side; the court itself cannot observe what goes on outside the courtroom (inadequate attention or consultation, lack of a well-thought-out strategy, and so on). Yet, if a mistake has been made, it should be rectified, and the defendant should get a chance to appeal to a higher court so long as the defendant can explain why no complaint was made to the lower court earlier.

For the appellate court, such cases present several difficulties. First, it must judge the performance of a counsel it has never witnessed. Secondly, it must decide the case while balancing the conflicting needs of protecting the defendant’s rights and avoiding delays. Each time a conviction is set aside, extra resources have to be spent on the re-trial. Therefore, in many cases, the courts have upheld convictions despite gross incompetence on part of the counsel, setting them aside only if the court has grounds to think that the defendant may in fact be innocent. This is so, for instance, in the United States, where the Supreme Court asks the defendant to show that but for the counsel’s mistakes, the outcome of the case would have been different. This, however, means that only those defendants who are presumably innocent have the right to have a competent counsel. But should it be really so? What about the fact that most defendants have only a limited understanding of criminal procedure? Shouldn’t we protect them without discriminating at that stage between the innocent and the guilty? Anything else would mean that we are making a distinction at the beginning of the proceedings: hardworking and wise counsels are assigned to the “innocent” and lazy fools to the “guilty”. Is that fair?

As a result of my research I have come to the conclusion that all defendants have the right to have a qualified and diligent lawyer by their side. When a defendant complains to the court of appeal that her or his counsel made serious mistakes during the trial, the appeals court should look into what the counsel did or failed to do instead of focusing on whether the defendant is in fact guilty or innocent. Those innocent who were convicted because of the counsel’s incompetence should of course be acquitted by the higher court. Even if the higher court considers the defendant to be guilty but finds that the counsel made mistakes or was incompetent, the conviction should be set aside and the defendant given a chance to have a re-trial — this time with a more competent counsel. To keep such re-trials to the minimum, they should be awarded only in cases of gross incompetence.

I am glad that I am not the only one to advance such a view: the European Court of Human Rights has a long-lasting judicial practice that supports it.


Anneli Soo
University of Tartu

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