Page 52 - Ad Hoc Report June 2018
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prerequisite to a federal court’s authority to deprive an accused of his life or liberty.”13 Despite establishment of this substantive right, no legislation was immediately
forthcoming to ensure it in practice. Federal judges were responsible for implement- ing the Sixth Amendment, but they lacked access to any institutional assistance in the form of a federal scheme or structure for providing defense counsel. Judges had the power to appoint attorneys. But without the authority and resources to pay them, the costs of defending indigent clients fell wholly on the shoulders of the private bar. Courts had to rely on attorneys’ professional obligation to perform pro bono service. Assignment methods varied depending on the court and were mixed in their success of equally distributing the work among the bar and “in picking a suitable attorney for a particular case.”14 With the exception of the few legal aid organizations in large cities that employed skilled defense attorneys, the vast majority of poor defendants were appointed counsel who were young, generally inexperienced, and typically had no trial experience at all, let alone experience with criminal defense.15
Although lacking resources, the lower courts did not allow the Sixth Amendment to wither; they continued to define the contours of the right to an attor- ney for those unable to afford one. The accused was entitled not to just a pro forma attorney but to “effective, wholehearted assistance of counsel and to the undivided loyalty” of his representative.16 Such dedication was “essential to due process”17 and encompassed a lack of conflicts not only with other defendants or parties but also with other players in the criminal justice system. The appointed attorney should not act “as a passive friend of the court, but as a diligent, conscientious advocate,” said the D.C. Circuit.18 Decisions about the defense were to be left solely to the defense attorney.19 Judge E. Barrett Prettyman observed that:
The constitutional right of an accused to the assistance of counsel might well be destroyed if counsel’s selections upon tactical problems were supervised by a judge. The accused is entitled to the trial judgment of his counsel, not the tactical opinions of the judge. Surely a judge should not share the confidences shared by client and counsel. An accused bound to tactical decisions approved by a judge would not get the due process of law we have heretofore known. And how absurd it would be for a trial judge to opine that such-and-such a course was ineffective
13 Johnsonv.Zerbst,304U.S.458,467,(1938).
14 BruceJ.Havighurst&PeterMacDougall,Note,TheRepresentationofIndigentCriminalDefendants
in the Federal District Courts, 76 Harv. L. Rev. 579, 581 (1963).
15 76HarvLRev579at582–583.
16 MacKennav.Ellis,280F.2d592,595(5thCir.1960),modified,289F.2d928(5thCir.1961).
17 Id.at599.
18 Tatev.UnitedStates,359F.2d245,253(D.C.Cir.1966)(citingEllisv.UnitedStates,356U.S.674, (1958)).
19 SeeO’Malleyv.UnitedStates,285F.2d733,734(6thCir.1961)(“Manyquestionsmayariseinthe course of a trial, which must be left to the decision of the defense attorney.”).
No recommendation presented herein represents A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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