July 2010 Bar Bulletin
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July 2010 Bar Bulletin

‘You (might) have a right to a lawyer ...’

By Robert C. Boruchowitz

 

Readers of the Bar Bulletin expect to see a judge on the bench, and parties and their lawyers whenever they enter a courtroom. But in many misdemeanor courts, there is no defense attorney, sometimes there is no prosecutor and sometimes the defendants themselves are not present, because they are appearing by television link from a jail, often miles away.

This lack of lawyers is not contemplated by the constitution or court rules. Both the federal and state constitutions make clear that an accused person has the right to the assistance of counsel. The Washington court rules require that: “The right to a lawyer shall accrue as soon as feasible after the defendant has been arrested, appears before a committing magistrate, or is formally charged, whichever occurs earliest. A lawyer shall be provided at every critical stage of the proceedings.”

The Washington Supreme Court recently reaffirmed the importance of a lawyer’s advice when it set aside a guilty plea of a 12-year-old boy, holding that “because of ineffective assistance of counsel, A.N.J. was misinformed of the consequences of his plea and was not adequately informed of the nature of the charge against him.”1

The Court quoted from Justice Hugo Black’s opinion in the famous case of Gideon v. Wainwright, which established the right to appointed counsel in state felony cases:

From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

The Court also noted that despite sterling work by most public defenders, “in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.”


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