The Right to Counsel

“In all criminal prosecutions, the accused shall enjoy the right […] to have the Assistance of Counsel for his defence.” (United States Constitution).  The U.S. Supreme Court has provided numerous rulings regarding a criminal defendant’s right to counsel incluing that law enforcement must advise a suspect of his right to counsel during custodial interrogation (Miranda v. Arizona, 384 U.S. 436, 1966) and must stop questioning if and when the suspect explicitly invokes the right to counsel (Berghuis v. Thompkins, 560 U.S. ____, 2010) and may not, provided that the criminal process has not begun by either arraignment or indictment, attempt to question the suspect again until fourteen days have passed from the initial request to speak with counsel prior to questioning (Maryland v. Shatzer, No. 08-680, 2010).  While the right to counsel has been available since the early years of our nation, it was not until 1963 where defendants were able to petition for the assistance of free or reduced fee counsel in cases where the defendants are unable to afford their own attorneys (Gideon v. Wainwright, 372 U.S. 335).  The U.S. Supreme Court later ruled in 1977 that “a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment” (Brewer v. Williams, 430 U.S. 387) (Right to Counsel).  One might believe that these cases clearly closed the issue at hand, however, the U.S. Supreme Court further ruled in Strickland v. Washington, Padilla v. Kentucky and others that having the assistance or benefit of counsel includes the ability to have a competent attorney represent the interests of the defendant (Ineffective Assistance of Counsel).

In the New York case of People v. Hurrell-Harring, the system appeared to be working properly.  Ms. Hurrell-Harring was arrested for attempting to introduce contraband into a correctional facility upon arrival after investigators had been alerted to her plan to smuggle marihuana to her incarcerated husband during visitation.  She confessed to her actions and her husband confessed to coercing her into the actions a few days later.  The court appointed the county’s public defender to her case upon learning that she could not afford bail let alone private counsel.  The public defender, who recalled the state having her “dead to rights”, assisted her with a plea bargain for a reduced incarceration on the felony charge.  Ms. Hurrell-Harring spent four months incarcerated before being released to complete her five year sentence on felony probation.  In reality, her court appointed attorney – who had received several reprimands from the state’s group that disciplines lawyers, was suffering from chronic depression, had been neglecting his cases both as a public defender and private counsel for some time and had committed an unrelated felony of his own in his representation of a separate case – failed to notice that her actions failed to meet the full elements of the offense for the felony which she was charged and only comprised a lesser included offense that carried a misdemeanor punishment.  After her release, a team of attorneys in private practice picked up Ms. Hurrell-Harring’s case pro bono and filed an appeal of the conviction citing ineffective counsel.  In June 2008, the State Court of Appeals ruled in the matter, overturned the conviction and stated that “the act of which defendant is accused does not constitute a crime” (Glaberson).

The American Civil Liberties Union has noted a number of recent situations in which defendants, not having readily available access to effective counsel, are denied what the ACLU argues are fundamental human rights.  The ACLU notes that, while capital murder cases are typically some of the most complex and time intensive matters, the majority of these cases are assigned to public defenders that are overworked, inexperienced, lacking critical resources and in many cases unable to meet the minimal guidelines for capital defense as defined by the American Bar Association.  While international law and recent court rulings prohibit the execution of the mentally ill, a 2006 report by Amnesty International identified that nearly ten percent of executions in the United States during the prior three decades involved individuals who were deemed severely mentally ill.  Additionally, the Prison Litigation Reform Act (PLRA) passed by Congress in 1996 had the stated purpose of curtailing allegedly frivolous lawsuits from prisoners while adding numerous procedural burdens and restrictions including requiring prisoners to exhaust all grievance remedies within the prison system – where appointed counsel does not exist – prior to filing a lawsuit for violation of their rights against the prison system.  A failure to meet a procedural requirement or deadline within the grievance system would effectively nullify the prisoner’s access to the courts (American Civil Liberties Union).

The Fourteenth Amendment to the United States Constitution states, in part, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (United States Constitution).  While this amendment and numerous related court rulings strive to ensure that everyone’s rights are equal, it is the opinion of this researcher that a person’s rights under law are significantly enhanced by money, position and power.  In 2002, cases were ultimately dismissed against eighteen indigent Mexican immigrants in Dallas, Texas, who had been convicted for possession with intent to deliver large quantities of cocaine that were reportedly field tested by two narcotics officers but were later found to be nothing more than crushed and repackaged wallboard.  Plea bargains in the cases involved prison sentences and, in at least one case, deportation under federal law (Duggan).  In contrast, former house majority leader Tom Delay was convicted of conspiring to funnel corporate contributions to legislative candidates and money laundering.  Delay’s $10 million criminal defense had already argued the money laundering conviction down to ten years of community service before appealing the three year sentence for the conspiracy case to a higher court.  Delay’s attorneys filed a $10,000 bond to prevent the defendant’s incarceration during the appeals process (Smith).

It is the formed opinion of this researcher that the right to effective counsel is not only a matter of Constitutional and human rights but also a matter of effective checks and balances within the criminal justice system.  All too often in this researcher’s experience, law enforcement officials focus on the number of arrests with regards to effective case clearance rates and criminal prosecutors focus on the number of convictions as their measurement of effectiveness.  These actions would tend to create a bias towards arrest, conviction and incarceration where – lacking a properly funded and equipped public defense system – the scales of justice easily become unbalanced.


American Civil Liberties Union.  (December 2010).  Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America.  Retrieved from the American Civil Liberties Union at:

Duggan, Paul.  (January 18, 2002).  ‘Sheetrock Scandal’ Hits Dallas Police.  Retrieved from the Washington Post at:

Glaberson, William. (March 19, 2010).  The Right to Counsel: Woman Becomes a Test Case.  Retrieved from the New York Times at:

Ineffective Assistance of Counsel.  (n.d.).  Retrieved from Wikipedia on February 13, 2011, at:

Right to Counsel.  (n.d.).  Retrieved from Wikipedia on February 12, 2011, at:

Smith, R. Jeffrey.  (January 10, 2011).  Tom Delay, former U.S. House leader, sentenced to 3 years in prison.  Retrieved from The Washington Post at:

United States Constitution: Bill of Rights.  (n.d.)  Retrieved on February 12, 2011, at:

© 2011 – 2014, Jeremy Liebbe. All rights reserved.

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About the author

Jeremy Liebbe holds a Master of Science in Forensic Psychology, holds a Bachelor of Arts in Police Science, and is currently completing a Doctorate of Philosophy in Psychology. He has over a decade of law enforcement investigative experience as a detective sergeant with experience including narcotics, crimes against children, and homicide investigations. As a result of his expertise in complex criminal investigations and forensic mental health Jeremy has earned numerous commendations, lectured throughout Texas and in several other states, authored and co-authored over a half dozen published papers, and has provided expert testimony in over a dozen felony trials.