If defense attorneys were randomly assigned by the court in every case (and not just in the cases where a defendant can’t afford one), this would solve the problem of people getting better defenses based on their wealth.
I can also think of other problems this might cause, which might be why this isn’t done, can anybody confirm or deny these reasons?
POSSIBLE REASONS:
This would place a person’s defense totally in the hands of the state, and the possibility of corruption is too great. It could be argued, though, that the state manages to assign impartial judges (for the most part) so perhaps a system that assigns defense attorneys might work too.
Attorneys would no longer be so highly paid, and wouldn’t attract the higher skilled people it does now. Also, attorneys wouldn’t be as likely to be performance driven.
I’m not arguing that this should or should not be done, so I don’t think this is a (Great) Debate. I imagine people have proposed this in the past, and there are some concrete legal reasons why this isn’t done.
I can think of a good reason. Then the state would be solely responsible for defense AND prosecution. For all you know, the two opposing lawyers who work with each other constantly could agree to your fate before ever looking at the facts of the case. Like is done now sometimes.
Besides, choice of defense is why OJ isn’t on death row.
Actually, before the Simpson Case went to trial, the DA decided not to prosecute it as a death penalty case. If he had been convicted, the most he could have gotten would have been life in prison.
The simple answer is that you have a Constitutional right to counsel of your choice (subject to a few limitiations-- for example, the attorney is entitled to refuse to take your case, and you are not entitled to insist on a counsel who suffers from a non-waivable conflict of interest). If the government were to pass a law saying that all criminal defense counsel had to be assigned, every conviction could be overturned on appeal.
Looking at it more practically, who is going to pay these attorneys? Assigned attorneys are paid by the court. If the government had to pay the fees of every lawyer for every criminal defendant, the cost would be astronomical. And you’re correct-- at the low rates that assigned attorneys are paid now (I think it’s about $70 per hour on the federal level, whereas private attorneys can earn $300-400 per hour), you would find only a small number of top flight criminal lawyers would be willing to take the cases. As it stands now, many of the lawyers who sign up to be assigned counsel are under-qualified. You know all of those stories of death penalty lawyers in Texas who fall asleep or are drunk during the trial? Those are all almost always assigned attorneys. How would you like it if your fate was in the hands of one of these people (or maybe someone who was just starting out as a lawyer and got on the assigned counsel list because they weren’t getting paid clients in), when you could easily afford a skilled criminal lawyer?
Yes, the system is unfair and the wealthy are able to afford a better defense than the poor. But the solution is to raise the quality of defense available to the poor-- raise the CJA rates and encourage skilled lawyers to donate their time-- not to lower the quality of defense available to the rich.
No, as I said before, I’m asking what legal reasons have prevented this in the past. I’m not proposing that this be done.
Nurlman: Thanks for the info, I didn’t know that there was a Constitutional basis for this.