Law Commons^™

Ensuring Able Representation For Publicly-Funded Criminal Defendants: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

While there are skilled private defense lawyers who enthusiastically represent indigent criminal defendants, too often defense lawyers whose income depends upon appointments provide deplorable representation. The problem is well known and pervasive. In addition to the blizzard of claims on appeal of ineffective representation, defenders' efforts have been savaged by judges and by fellow lawyers. These nagging problems persist: to induce private lawyers to represent their clients effectively by eliciting the defendant's story and managing their relationship in a way that at least does not displease the defendant; investigating his and the prosecution's positions; pressing the prosecution for discovery, for …

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …