CrimProf Blog

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

Friday, June 1, 2018

Zeidman on The Right to a Partisan Lawyer

Zeidman steveSteven Zeidman (CUNY School of Law) has posted Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer (Forthcoming, Mercer Law Review Vol. 69, No. 3, Spring 2018) on SSRN. Here is the abstract:
 
In Ake v. Oklahoma, the Supreme Court held that an indigent defendant is entitled to the assistance of an expert in cases where it is established that mental health is at issue. Thirty two years later, in McWilliams v. Dunn, the Court finally addressed the open question of whether that expert must be independent of the prosecution. During oral argument, counsel for McWilliams argued that the expert must be part of the defense team and on the defendant’s side. Justice Gorsuch, in only his second week on the Court, stated dubiously that if that were the case then “surely [it] would also require a partisan lawyer.” Although certainly not his intent, Justice Gorsuch’s question should compel a reexamination of the contours of the right to counsel and the nature of the relationship between client and lawyer. 

In many jurisdictions, indigent defendants are represented by individual lawyers from Assigned Counsel Programs, rather than by lawyers from Public Defender offices or organizations that provide defense services pursuant to contracts with state or local government. Often, former prosecutors comprise a significant number of lawyers on Assigned Counsel Program panels. This article argues that indigent defendants should indeed be entitled to a partisan lawyer and that former prosecutors cannot and should not fulfill that crucial role.

https://lawprofessors.typepad.com/crimprof_blog/2018/06/zeidman-on-the-right-to-a-partisan-lawyer.html

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