Connecting Theory and Reality: Teaching Gideon and Indigent Defendants' Non-Right to Counsel at BailFaculty Scholarship
AbstractIn my article, I critique criminal procedure textbooks' and law professors' limited treatment of the constitutional right to counsel at the bail stage. While explaining that casebook authors usually praise the Supreme Court's landmark decisions in Gideon v. Wainwright and Argersinger v. Hamlin for guaranteeing trial counsel to indigent state defendants, I suggest that they shed minimal light on Gideon's irrelevance to most state defendants when they first appear before a judicial officer. Reviewing leading criminal procedure casebooks, I demonstrate that it is the rare text which informs law students that accused defendants should not expect to find a defense lawyer present when first appearing in court but should prepare to defend themselves. I contend that casebook authors inattentiveness to the current form of "assembly line justice" in the lower criminal courts presents students (and law professors) with a misleading picture in which they falsely believe the poorest individual is represented by a lawyer, who defends individual liberty and commences "a thorough-going investigation" essential for preparing a defense. I conclude by urging casebook authors and teaching colleagues to take advantage of the opportunity to inform students about the true story of counsel's invisibility in states' initial pretrial proceedings. For reform to succeed, students must be encouraged to wrestle with the apparent inconsistency between an accused's entitlement to counsel at trial and non-right when liberty and fair trial rights are at stake at the initial bail stage of a criminal proceeding.
Citation Information4 Ohio State Journal of Criminal Law 167 (2006).