Wouldn’t Conservatives be Happier if They Moved to a
? Totalitarian State
The right to counsel, to be represented by a lawyer when one is charged with a criminal offense is a fundamental right in a free society. The person charged with a crime is facing all of the power of the state, and is facing an adversary armed with immense legal and economic resources. And so enshrined in the law of the
is that the accused has the right to be represented by a lawyer. United States
This does not mean that just because the accused has a lawyer the requirement is met. Lawyers are people my friend, and like all people they can be competent or incompetent. Having an incompetent attorney satisfies the letter of the law, but not its intent. And in two narrowly decided decisions, by votes of 5 to 4 the Supreme Court has recognized this basic, obvious fact. A defendant who is harmed by incompetent counsel has the right to some relief.
In the first case, a defendant was advised to reject a plea bargain by his attorney. There was no dispute to the fact that the advice by the attorney was based on an incorrect and erroneous understanding of the law, something the defendant could not have known.
Respondent was charged under
law with assault with intent to murder and three other offenses. The prosecution offered to dismiss two of the charges and to recommend a 51-to-85-month sentence on the other two, in exchange for a guilty plea. In a communication with the court, respondent admitted his guilt and expressed a willingness to accept the offer. But he rejected the offer, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist Michigan
This interpretation of the law was wrong, and everyone involved agreed it was wrong. So in a 5 to 4 decision Justice Kennedy found that the defendant was entitled to relief.
the correct remedy is to order the State to reoffer the plea. If respondent accepts the offer, the state trial court can exercise its discretion in determining whether to vacate respondent’s convictions and resentence pursuant to the plea agreement, to vacate only some of the convictions and resentence accordingly, or to leave the conviction and sentence resulting from the trial undisturbed
The second case was even a more egregious violation of basic rights. In this case the defendant was offered a plea agreement through his attorney, and the attorney never even informed the defendant of the offer. Here again the decision of the Court is unassailable
This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.
But assail the decision the four Conservative justices of the Supreme Court did. In their minds, if they were really honest, a defendant has little or no rights, and as long as he or she is furnished with a lawyer, no matter how incompetent, justice is served.
These case should be a reminder, a very scary reminder of just how close the
is to a totalitarian like legal system. One more Conservative Justice on the Supreme Court, a certainty when the next Republican is elected President and basic individual rights like the right of privacy and the right of a fair trial are in jeopardy. Surely even Conservatives must appreciate the irony of how they profess reverence for law and the Constitution while at the same time they seek to destroy both. United States