Van Susteren, Greta

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Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews11-1-1996Responsibility of a Criminal Defense AttorneyGreta Van SusterenThis Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationGreta Van Susteren, Responsibility of a Criminal Defense Attorney, 30 Loy. L.A. L. Rev. 125 (1996).Available at: https://digitalcommons.lmu.edu/llr/vol30/iss1/17RESPONSIBILITY OF A CRIMINALDEFENSE ATTORNEYGreta Van Susteren*The constitutional responsibility of a criminal defense lawyeris simply defined: It is to render "[a]ssistance of [c]ounsel."' Un-fortunately, the Constitution went no further in defining the re-sponsibilities, and thus it fell on the shoulders of the United StatesSupreme Court to outline the duties of the defense counsel.The plain truth is that the United States Supreme Court hasbeen ineffective in defining what constitutes assistance of coun-sel-although admittedly, defining it might be an impossible task.The difficulty in defining the responsibilities may lie in the simple,and not surprising fact, that none of the current members of theUnited States Supreme Court can boast of having been a criminal2defense attorney. Hence, having the United States SupremeCourt write guidelines or set standards may be analogous to askinga podiatrist to define competent heart transplant procedures.To define the responsibility of a criminal defense attorney,you must have experienced the task. You must have stood next toan accused at a presentment and made a bail argument; counseledyour client in both the cellblock behind the courtroom and the jail;tried to pull discovery from the unwilling prosecutor; investigatedthe case with usually no money; argued the law to the judge andthe facts to the jury; and last, but not least, begged for mercy foryour client. While doing this, you usually have suffered the criti-cism of a client who is sure you are not doing enough or who maynot even be talking to you. Further, you have suffered at the* Greta Van Susteren is cohost with Roger Cossack on CNN's Burden ofProof. She is a former E. Barrett Prettyman/Stuart Stiller Fellow at GeorgetownLaw Center and, as a defense attorney, has tried more than a dozen murder casesand countless other criminal trials.1. U.S. CONST. amend. VI.2. The landmark "ineffective assistance" case is Strickland v. Washington, 466U.S. 668 (1984). It is interesting to note that the only Justice who dissented to theentire majority opinion in Strickland was Justice Thurgood Marshall. Justice Mar-shall was a trial lawyer, and he obviously understood criminal defense work.LOYOLA OF LOS ANGELES LAW REVIEWhands of a community who thinks you are a fiend.In its effort to define the constitutional responsibilities of acriminal defense attorney, the Supreme Court held that assistanceof counsel must be effective.3 But, as you might guess, gauging theeffective assistance of counsel is much like critiquing beauty. It isin the "eyes of the beholder."Different groups define effective counsel differently. Thecourts who want to uphold convictions at almost all costs typicallydefine effective assistance of counsel vastly different from howcriminal defense lawyers define what is effective. Similarly, howcriminal defense attorneys define effective assistance of counsel isvastly different from still another group-the convicted prisoners.The convicted prisoners' standard for effective assistance ofcounsel is usually equal to a miracle worker-in other words, astandard that cannot be met by mere mortals, let alone lawyerswithout resources. Clients have been known to demand that theirlawyers make a silk purse out of a sow's ear.It also may not surprise you that a person may define effectiveassistance of counsel one way on one day and then suddenly afterbeing indicted, convicted, and sent to prison, will define it differ-ently than before. You encounter this frequently from politicianswho have been convicted of a crime. This shift is akin to the adagethat a conservative becomes a liberal once indicted.One thing we all agree upon is that a warm body with a barnumber is not enough. However, to make a point, it would notsurprise me if a court said that a warm body with a bar number,which is able to stand up when the clerk bellows "all rise," isenough. That is not enough for me and should not be for you.But, for those judges who feel the pressure of community clamor,it tragically may be enough. Community pressure and hatred ofcrime should never be factors in defining the responsibilities of acriminal defense attorney, but it happens often-too often. Onecomponent of the responsibility is the ability to be immune tothose community pressures.In the Supreme Court's effort to define effective assistance ofcounsel, it defined the opposite: "ineffective assistance of coun-sel.",4 In Strickland v. Washington, Justice Sandra Day O'Connorwrote: "The benchmark for judging any claim of ineffectiveness3. McMann v. Richardson, 397 U.S. 759,771 n.14 (1970).4. Strickland, 466 U.S. at 686.[Vol. 30:125EFFECTIVE ASSISTANCE OF COUNSELmust be whether [the] counsel's conduct so undermined the properfunctioning of the adversarial process that the trial cannot be re-lied on as having produced a just result."5 The Court went on tostate that the defense lawyer must "perform reasonably"6 and mustact like a "reasonably competent attorney."7At first glance, the United States Supreme Court's definitionmight seem appropriate. "Just results" ought to be the ultimategoal and lawyers should act "reasonably." However, in reality, thisdefinition says nothing and offers no guidance. How do you meas-ure whether counsel's conduct so undermined the proper function-ing of the adversarial process that the trial cannot be relied uponas having produced a just result?The Supreme Court's failure is that its definition is so vaguethat it merely enables courts to do as they please, whether it is torarely declare a lawyer ineffective or commonly declare the lawyereffective. Armed with this definition, a fact finder-a judge--canrender, with justification, virtually any finding of effectiveness.The definition is so imprecise, or so fluid, that it allows courts toachieve the agenda of choice-whether the court wants to declarea lawyer ineffective or effective. Usually, the court finds the law-yer to be effective since few judges want to incur the wrath of thecommunity by giving a defendant a new trial. That doesn't seemright. The law should be more precise.To say that the system should "work" is to say that trialsshould be fair and that the accused should have an effective law-yer. I am not saying that the guilty should go free-only that thesystem be fair and that an accused have an effective lawyer, onewho takes seriously the responsibility of a criminal defense attor-ney and who can actually perform the tasks required.So what is the responsibility of a criminal defense lawyer?The answer is to do all that you can, consistent with the Constitu-tion, the law, and the codes of professional responsibility," to de-feat the prosecution's case-regardless of how guilty your client is,what your client has done, or how right the prosecutor is. You, asthe defense attorney, are not the judge; you are not the jury. You5. Id.6. Id. at 675.7. Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759,770-71 (1970)).8. See, e.g., THOMAS D. MORGAN & RONALD D. ROTUNDA, MODEL CODE OFPROFESSIONAL RESPONSIBILITY, MODEL RULES OF PROFESSIONAL CONDUCT, ANDOTHER SELECTED STANDARDS INCLUDING CALIFORNIA RULES ON PROFESSIONALRESPONSIBILITY (1995).November 1996]LOYOLA OF LOS ANGELES LAW REVIEWare an advocate for one client, just as the prosecutor is the advo-cate for one client, the state.It means to know your client is a serial killer yet feel profes-sionally able, and obligated, to persuade a court to throw out allthe evidence of guilt in a pretrial motion. In some ways you mustmomentarily "suspend" your personal morality and make a firmcommitment to the system of justice. The commitment is to putthe government to its test by doing all that you can, consistent withthe Constitution, the law, and the codes of professional responsi-bility to get your client "off the hook."Our system is an adversarial one-you do your job, and theprosecutors do their job. You are not to do the prosecutor's job,and the prosecutor is not to do yours. You have both agreed toplay by the rules and that sets your limits-in essence, no lying,cheating, or stealing. If there is a defect in the prosecution's pres-entation of the evidence, you must jump on it and point it out tothe jury. To look the other way and not point it out to the jury isto violate your commitment as a lawyer and to deprive your clientof constitutional rights.The criminal defense attorney in the courtroom with a"conscience" or the criminal defense attorney who worries aboutreputation is not an advocate. Such a lawyer is no different thanthe prosecutor who "throws" the case. Both are equally dishonestto the client represented.Incidentally, in "suspending" your own morality for the dura-tion of your representation of a defendant charged with heinouscrimes, there is nothing wrong with wanting the prosecutors to dotheir job. After all, you are a citizen, and presumably, you abhorcrime and want our communities to be safe. You should want aprosecutor to win when the evidence rises to the level of proof be-yond a reasonable doubt but only winning by doing so "fair andsquare."Finally, a criminal defense attorney is entitled to feel disap-pointed when losing a case. It is only human to enjoy winningeven when, in a pure and perfect world, you should not win. But,at the same time, if justice were truly achieved and your client waseffectively represented and convicted by evidence properly pre-sented and beyond a reasonable doubt, then it is "okay" for acriminal defense attorney to be satisfied.Ultimately the goal is justice-for both the defendant and theaccuser. If your client received effective assistance of counsel-[Vol. 30:125November 1996] EFFECTIVE ASSISTANCE OF COUNSEL 129real, effective assistance of counsel, not that vague descriptionoutlined by the Supreme Court-and if the evidence proved be-yond a reasonable doubt that your client was guilty-the systemworked.Of course, the problem with the above is that it presumesadequate resources allowing criminal defense lawyers to performtheir jobs. This is rare. There simply are not enough resources,and few citizens are enamored with the idea of "giving" money sothat "criminals can go free." The concept of the Constitution istoo ephemeral when balanced against the reality of crime.LOYOLA OFLOSANGELES LAW REVIEW [Vol. 30:125

Responsibility of a Criminal Defense Attorney

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Responsibility of a Criminal Defense Attorney

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