Might the United States Supreme Court Breath New Life into the Right to Counsel?

Over 50 years ago the United States Supreme Court pronounced that every defendant in a criminal case has the right to counsel. At the time, there was little discussion about who was going to pay for this and insure it got implemented. Years later, when Strickland v. Washington was decided, there were critics who said that the standard of what constitutes ineffective assistance eviscerated the right to counsel; the critics claimed that surely Gideon stood for more than counsel in name only.

Fast forward to crushing public defender caseloads and there is where the criminal justice system sits. But, perhaps that may change this term. The United States Supreme Court has agreed to hear three cases:

WEAVER, KENTEL M. V. MASSACHUSETTSWhether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

McWILLIAMS, JAMES E. V. DUNN, COMM’R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution. Finally, 

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

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