By Shana-Tara O’Toole | Due Process Institute | President
Cultures and jurisdictions through the ages have experimented with different methods for administering justice. After their separation from Great Britain, the Americans insisted upon an adversarial system to determine criminal trials. This system stood in deliberate contrast to the English courts of the time that were one-sided in favor of the Crown’s government.
Indeed, the framers of the Bill of Rights explicitly protected individuals who would become subject to criminal law and procedure. The right to be free from unreasonable searches and seizures, the right to confront one’s accusers, and the right against coerced self-incrimination are just a few of the explicit protections that are still litigated in American courtrooms. But one specific right is often the cornerstone of protecting all others: the Sixth Amendment’s right to “assistance of counsel” in criminal prosecutions.
Today’s criminal law has become so vast and complex that many businesses need lawyers to attempt to stay in compliance with government edicts. Most people, of course, don’t consult lawyers regularly (or ever) and they don’t know they’re in trouble until they are arrested—sometimes weeks, months, or years after investigators started building a case. In such a system, a layperson is helpless without a lawyer when the government brings a criminal case against them.
Once a defense attorney gets involved, however, it is her job to protect the myriad procedural rights of the accused going forward. She can also investigate the methods of the investigation to ensure that the government built their case while respecting the Constitutional rights of her client. That is, she can retroactively protect her client’s rights against illegal actions that the government might have already performed. Thus, the right to effective assistance of counsel is the sine qua non of rights for a criminal defendant. Without a lawyer as protection against a government accusation, the scales of justice are impermissibly stacked in favor of the prosecution.
For these reasons, the Due Process Institute and a number of ideologically diverse groups submitted an amicus brief to the Louisiana First Court of Appeal to express support for the right to counsel and explain how the text of the Bill of Rights and Anglo-American legal history support a robust right to effective assistance of counsel because it is indispensable to secure the panoply of other rights under the Constitution. The brief makes clear how the adversarial criminal process envisioned by the American founders requires effective and meaningful assistance of legal counsel for the defendant explores how, as a matter of text, history, and case precedent, the Sixth Amendment compels the States, when they establish professional prosecutorial and police functions, to allocate sufficient funds for such a defense within the adversarial system.
You can read the bipartisan amicus brief in Allen et al. v. Edwards here. We wish to thank our friends from across the political spectrum (the American Conservative Union Foundation Nolan Center for Justice, Cato Institute, FreedomWorks Foundation, the James Madison Institute, R Street Institute, Innocence Project New Orleans, The Innocence Project, National Legal Aid & Defender Association, and Public Defender Services for the District of Columbia) for joining our brief.
We also thank Chloe Chetta of Barrasso Usdin Kupperman Freeman & Sarver and Timothy O’Toole of Miller & Chevalier for their amicus support on this matter.