The answer to what a judge should do when you see or perceive ineffective assistance of counsel is sometimes not easy for judges. Intervening can lead to the retort, “Judge, I do not mind your trying my case, but please do not lose it.” Yet saying or doing nothing frankly can lead to an unjust result or a wrongful conviction.  

Peter A. Joy (Washington University in St. Louis – School of Law) has posted A Judge’s Duty to Do Justice: Assuring the Accused’s Right to the Effective Assistance of Counsel (Hofstra Law Review, Vol. 46, No. 139, 2017) on SSRN.

Here is the abstract:

Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice.

I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads and inadequate resources for state public defenders and other publicly provided defense lawyers. Instead of continuing to pigeon-hole ineffective assistance of counsel claims as a post-trial inquiry, there are some circumstances when a trial judge’s duty to do justice requires an inquiry into whether defense counsel is providing effective assistance of counsel at the trial level.

In this article, I begin by analyzing resistance to recognizing ineffective assistance of counsel at the trial level and in post-conviction proceedings. Next, I examine the crises in public defense and how case overloads and funding practices for public defense create disincentives to effective assistance of counsel. I then analyze how the rights of the accused differ when the accused has a publicly provided lawyer compared to privately retained counsel. In the next part of the article, I describe the situations that trigger a trial judge’s duty to conduct an effective assistance of counsel hearing, and I proceed to recommend both the type of hearing and the standard the judge should apply in evaluating counsel’s effectiveness. I conclude by arguing that to do justice a trial judge must ensure the accused’s right to the effective assistance of counsel.