CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 29, 2017

Duncan on Defense Lawyering

Meredith J. Duncan (University of Houston Law Center) has posted 'Lucky' Adnan Syed: Comprehensive Changes to Improve Criminal Defense Lawyering and Better Protect Defendants’ Sixth Amendment Rights (82 Brooklyn Law Review 1651 (2017)) on SSRN. Here is the abstract:
Almost twenty years ago, seventeen years old and accused of murder, Adnan Syed was deprived of his Sixth Amendment right to the effective assistance of counsel at trial and sentenced to life in prison. The reality is that Syed is just another casualty of the criminal justice system’s tolerance of poor defense lawyering. The substandard quality of legal representation highlighted in Syed’s case continues to harm countless defendants nationwide, and the promise of effective assistance of counsel for the accused remains unfulfilled due to a combination of factors. This article suggests comprehensive changes to certain aspects of the criminal justice system in an effort to improve the overall quality of criminal defense lawyering. In the more than thirty years since Strickland v. Washington, prisoners have famously had difficulty proving that their trial counsel provided constitutionally inadequate representation. The success rate of ineffective assistance of counsel claims is well documented as abysmally low. Worse still, the failure rate of ineffective assistance claims does not accurately reflect the frequency with which defendants receive unacceptable legal representation at trial.
Yet despite well-reasoned criticism, a majority of the Supreme Court has thus far failed to recognize the insufficiency of current ineffective assistance jurisprudence. In addition to the Court’s ruling in Strickland, the poor quality of appointed counsel can be attributed to a combination of factors including the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, grossly underfunded public defender systems in the states, prosecutorial resistance to pretrial discovery and disclosure requirements, and the failure of jurists to report instances of incompetent lawyering in their courtrooms. This article suggests comprehensive changes to various segments of the criminal justice system in an effort to improve the overall quality of criminal defense lawyering.

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