The Right to Effective Legal Representation
Most international human rights instruments provide for the right to legal representation in criminal proceedings as part of the right to a fair trial. See, e.g., ICCPR, art. 14(3)(d); Statute of the International Criminal Court, art. 67(1)(d); European Convention for Human Rights, art. 6(3)(c); Charter of Fundamental Rights of the European Union, art. 47; American Convention on Human Rights, art. 8(2)(d); African Charter on Human and Peoples' Rights, art. 7(1)(c).
The right to counsel would be pointless if it didn’t encompass a right to effective counsel. Both national courts and international human rights tribunals have held that states must ensure that legal assistance is both effective and substantial.
In particular, states must ensure that every accused person has the right to be assisted by counsel, to be accompanied by counsel before any authority at every stage of the proceedings, and, if detained, to communicate with counsel in private. Moreover, states are obligated to provide full and free legal assistance at all stages of the proceedings to those defendants who lack economic resources. See, e.g., ICCPR, art. 14(3)(d); Statute of the ICC, art. 67(1)(d); European Convention for Human Rights, art. 6(3)(c); Charter of Fundamental Rights of the European Union, art. 47; American Convention on Human Rights, art. 8(2)(e); UN Basic Principles on the Role of Lawyers, 1990, §3. The United Nations Economic and Social Council has made clear that these obligations are particularly critical in death penalty cases, calling on governments to provide “adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases”(ECOSOC Resolution 1989/64, §1(a)).
Additionally, States have a duty to ensure adequate time and facilities for the preparation of the defense, which means that lawyers must be granted sufficient time and resources to defend their clients, not only during the trial phase but also during pre-trial hearings, plea negotiations, sentencing hearings, and post-trial appeals. See, e.g., ICCPR, art. 14(3)(b); Statute ICC, art. 67(1)(b); ECHR, art. 6(3)(b); ACHR, art. 8(2)(c). According to the European Court of Human Rights, what constitutes adequate time to prepare depends on the circumstances of the case, including the complexity and the stage of the proceedings. By their very nature, capital cases are complex and demanding, and states that fail to permit defense counsel sufficient time to prepare for trial will violate their international legal obligations. If, during the course of the proceedings, a new attorney is appointed, the court must allow enough time for new counsel to prepare the defense, postponing the trial if necessary (see, e.g., Goddi v. Italy, 8966/80 Eur.Ct.H.R., Apr. 9, 1984; Daud v. Portugal, 22600/93 Eur.Ct.H.R, Apr. 21, 1998; Bogumil v. Portugal, 35228/03 Eur.Ct.H.R, Oct. 7, 2008).
Finally, authorities have a duty to take remedial measures if the appointed lawyer fails to provide effective representation. The well-established jurisprudence of the European Court of Human Rights states that the mere appointment of a defense lawyer does not in itself ensure compliance with the duty to provide effective assistance. Although a State cannot be held responsible for every shortcoming on the part of the lawyer, the right to counsel requires state authorities to intervene if a failure to provide effective representation is either manifest or sufficiently brought to their attention (see Artico v. Italy, 6694/74 Eur.Ct.H.R., May 13, 1980; Kamasinski v. Austria, 9783/82 Eur.Ct.H.R., Dec. 19, 1989; Daud v. Portugal, 22600/93 Eur.Ct.H.R., Apr. 21, 1998). In such cases, authorities must replace counsel, require him to fulfill his obligations, or otherwise ensure the right to counsel - for example, the court could invite the lawyer to add to or to file an amended pleading rather than declare an appeal inadmissible (Czekalla v. Portugal, 38830/97 Eur.Ct.H.R., Oct. 10, 2002).
As to the duties of lawyers, most codes of conduct worldwide establish that lawyers must always act in the best interests of the client and maintain confidentiality. Lawyers must be independent, must represent their clients with zeal and diligence, and should not take on a case if they lack the competence, time or resources to handle the case adequately. Lawyers must also avoid conflicts of interest, and should refrain from defending several clients when this risks impairing the quality of any one client’s defense. These duties apply both to state-appointed and private attorneys, at every stage of the proceedings.
In a capital case, where the clients’ life is at stake, attorneys have added responsibilities. Counsel must ensure that she has the requisite experience and training to handle a capital case. Wherever possible, she should seek assistance from other lawyers, investigators, and experts. Successful capital case representation requires a team approach. See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, February 2003, Guideline 4.1, “The Defense Team and Supporting Services,” available at http://www.lb9.uscourts.gov/webcites/10documents/Smith_guidelines.pdf.
It is critical that lawyers consult with their clients on a regular basis and keep them informed of developments in the case. Counsel has also a fundamental obligation to conduct a thorough investigation of the facts of the crime and the background of the accused. It is particularly important to thoroughly investigate and present mitigating evidence regarding the client’s life history, mental impairments or other factors that could lead the court to exercise compassion. For examples of mitigating circumstances considered relevant by courts when deciding on the imposition of a death sentence, see, e.g., Williams v. Taylor, U.S. Supreme Court, 2000, 529 U.S. 362; Wiggins v. Smith, U.S. Supreme Court, 2003, 539 U.S. 510; Porter v. McCollum, U.S. Supreme Ct., 2009, 130 S. Ct. 447; Manohar Lal alias Mannu & Another v. State, Supreme Court of India, 2000, 2 SCC 92; Mulla & Another v. State of Uttar Pradesh, Supreme Court of India, 2010, Crim. App. No. 396 of 2008; The Queen v. Patrick Reyes, Judgment on Sentencing, Supreme Court of Belize, 2002; Pipersburgh v. R, Privy Council, 2008, 72 WIR 108, at para. 33; DPP v Wycliffe Liburd, Eastern Caribbean Supreme Court, 2009, Suit No. SKBHCR 2009/0007, from Saint Christopher and Nevis, Criminal Circuit; George v. The Queen, Court of Appeal of Saint Lucia, 2011, HCRAP 2009/005. Mitigating evidence provides critical support for arguments that the defendant, even if guilty, does not merit the death penalty. Attorneys should also raise any legal issue that might impede the application of a death sentence, making use of both domestic and international legal arguments (see other sections under International Legal Issues). Counsel should file objections and document any violation of due process to preserve the issue for appeal to both national and international bodies.
Death Penalty Worldwide will release a comprehensive manual for defense attorneys in 2012 with detailed guidance for the representation of capital defendants.
Legal Representation In Practice
Although the right to effective legal representation is well recognized, poor legal representation is the norm in most retentionist states. Lawyers around the world lack resources and training, as is apparent from the data available on the Death Penalty Worldwide database. Although legal aid is provided in theory, the quality of legal aid in practice is hampered by shortages of legal aid lawyers (as in Malawi or China), insufficient funding (e.g., in Jamaica, Zimbabwe, Sudan, Uganda, Malawi, Guinea-Conakry, United States), or overloaded public defenders (United States, India). In many countries, lawyers typically meet their clients for the first time on the day of trial. In other jurisdictions, legal aid is virtually nonexistent, and individuals may be convicted and sentenced to death without any legal representation whatsoever (e.g., South Sudan, Guinea-Conakry, Saudi Arabia). Some jurisdictions have parallel justice systems – often traditional or religious courts – where legal representation is not provided (e.g., Sudan). Even when defendants are assisted by lawyers, their delivery of a competent defense is often impaired by their inexperience and lack of training (e.g., Guatemala, India, Cameroon, Malawi, United States). Interference of the executive with the independence of lawyers or with the access of lawyers to their clients has been reported in some countries (e.g., Belarus, China, Iran, Indonesia).
It should be mentioned that claims of ineffective assistance of counsel – before national or international courts - may prove useful to challenge a death sentence. These claims may lead to the reversal of the conviction or to the invalidation of the death sentence (see e.g., Strickland v. Washington, U.S. Supreme Ct., 1984). Under the jurisprudence of the European Court of Human Rights, for a violation of the right to legal assistance to be established, it is not necessary to prove that the lack of effective representation caused prejudice (see Artico v. Italy, 6694/74 Eur.Ct.H.R., May 13, 1980, at §35).
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
Artico v. Italy, 6694/74 Eur. Ct. H.R., May 13, 1980, www.echr.coe.int/hudoc (right to legal representation as part of the general notion of a fair trial).
Robinson v. Jamaica, HRC Communication No. 223/1987, U.N. Doc. Supp. No. 40 (A/44/40) (1989) (State party is under an obligation itself to make provision for effective representation by counsel in a case concerning a capital offence, even where provision of legal assistance would require an adjournment of the proceedings).
Strickland v. Washington, 466 U. S. 668, U.S. Supreme Court, 1984 (The Sixth Amendment right to counsel includes the right to effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The same principle applies to a capital sentencing proceeding. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.).
Mac Leod, Fallos: 217:1022, National Supreme Court of Argentina, 1950 (in case of conflict between the opinion of attorney and defendant, the defendant’s will should prevail over the freedom and independence of the attorney, since it’s his rights that are at stake).
RIGHT TO FREE LEGAL REPRESENTATION
Taylor v. Jamaica, HRC Communication No. 707/1996, Jun. 14, 1996, CCPR/C/60/D/707/1996 (at §8.2: “where a convicted person seeking constitutional review of irregularities in a criminal trial has insufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interest of justice so requires, legal assistance should be provided by the State.”).
RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE THE DEFENSE
Smith v. Jamaica, 282/1988, Mar. 31, 1993, UN Doc. CCPR/C/47/D/282/1988 (Defendant had no opportunity to consult his legal representatives about the preparation of the defense, and only had a brief interview with his counsel, during a short postponement on the first morning of the trial. This does not constitute adequate time to prepare).
Reid v. Jamaica, 355/1989, Jul. 8, 1994, UN Doc. CCPR/C/51/D/355/1989 (1994) (Defendant met his counsel only ten minutes before trial. This does not constitute adequate time to prepare).
Little v. Jamaica, Communication No. 283/1988, U.N. Doc. CCPR/C/43/D/283/1988 (1991) (“In cases in which a capital sentence may be pronounced, it is axiomatic that sufficient time must be granted to the accused and his counsel to prepare the defense for the trial; this requirement applies to all the stages of the judicial proceedings”).
Goddi v. Italy, 8966/80 Eur.Ct.H.R., Apr. 9, 1984; Daud v. Portugal, 22600/93 Eur.Ct.H.R, Apr. 21, 1998; Bogumil v. Portugal, 35228/03 Eur.Ct.H.R, Oct. 7, 2008, all available at www.echr.coe.int/hudoc (if, during the course of the procedure, a new attorney is appointed, the court must allow enough time for new counsel to prepare the defense, including postponing the trial, even if counsel does not so ask).
Öcalan v. Turkey, 46221/99 Eur. Ct. H.R., March 12, 2003 (First Section), May 12, 2005 (Grand Chamber), available at www.echr.coe.int/hudoc (in a highly complex and voluminous capital case, two one-hourly meetings per week with the client, and two weeks to prepare a 17,000-page file, were deemed insufficient).
Chaparro Álvarez y Lapo Iñiguez v. Ecuador, Inter-Am.Ct.H.R, Nov. 21, 2007 (defense attorneys were not granted the time and means to prepare the defense).
Gordillo, Raúl Hilario, Expte: G.445.XXI, Fallos: 310:1934, Corte Suprema de Justicia de la Nación Argentina (National Supreme Court of Argentina), Sep. 29, 1987 (defense counsel was appointed 24 hours before the deadline for the legal reasoning of an appeal and refused. Supreme Court stated that the provincial court had the duty to grant the attorney the necessary time to prepare or otherwise replace the attorney).
INEFFECTIVE ASSISTANCE OF COUNSEL
Artico v. Italy, 6694/74 Eur.Ct.H.R., May 13, 1980, www.echr.coe.int/hudoc (for a violation of the right to legal assistance to be established, it is not necessary to prove that the lack of effective representation caused prejudice. “There is nothing in Article 6 par.3(c) indicating that such proof is necessary; an interpretation that introduced this requirement into the sub-paragraph would deprive it in large measure of its substance. More generally, the existence of a violation is conceivable even in the absence of prejudice”).
Daud v. Portugal, 22600/93 Eur.Ct.H.R., Apr. 21, 1998; Magalhães Pereira v. Portugal, 44872/98 Eur.Ct.H.R., Feb. 26, 2002; Panasenko v. Portugal, 10418/03 Eur.Ct.H.R., Jul. 22, 2008, all available at www.echr.coe.int/hudoc (violation of the right to effective legal assistance, failure of state authorities to take action).
Moreno Ramos v. USA, Report no.1/05, Inter-Am.Comm.H.R, Jan. 28, 2005 (Ineffective assistance of counsel. Trial attorneys of a Mexican citizen sentenced to death in Texas failed to present mitigating evidence at the sentencing phase and to argue violations of international law. The Commission found lack of adequate legal assistance and responsibility of the State for not taking action, since the ineffectiveness was manifest. For the Commission, there’s no need to show that the result would have been different: the mitigating evidence the attorney failed to provide was available and was “potentially” important for the decision on sentencing).
Chaparro Álvarez y Lapo Iñiguez v. Ecuador, Inter-Am.Ct.H.R, Nov. 21, 2007 (Ineffective assistance of counsel. Articles 1/1 and 8 ACHR were considered violated in a case where defense attorneys were not granted the time and means to prepare the defense, and attorneys were not present in relevant stages of the procedure).
Williams v. Taylor, 529 U.S. 362 (U.S. Supreme Court, 2000) (counsel’s failure to investigate and present significant mitigating evidence that “might well have influenced the jury’s appraisal” of the defendant’s moral culpability violated his constitutional right to the effective assistance of counsel).
Wiggins v. Smith, 539 U.S. 510 (U.S. Supreme Court, 2003) (the performance of trial counsel, by failing to conduct a reasonable investigation and present mitigating evidence related to the defendant’s dysfunctional background, violated his Sixth Amendment right to effective assistance of counsel).
Porter v. McCollum, 130 S. Ct. 447 (U.S. Supreme Court, 2009) (at capital sentencing, counsel’s failure to present evidence of the accused’s mental impairment, family background or military service held to be ineffective assistance in violation of the Sixth Amendment and prejudicial to the accused).
Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. Supreme Court, 2010) (conviction reversed after trial lawyer provided ineffective assistance of counsel while considering a guilty plea).
Núñez, Ricardo Alberto, Expte.: N.19.XXXIX, Fallos: 327:5095, Corte Suprema de Justicia de la Nación Argentina (National Supreme Court of Argentina), Nov. 16, 2004 (defendant was declared “defenseless”, due to the insufficiencies of the performance of defense counsel, aggravated by the failure of the competent jurisdictions to address the situation. A defendant shall not be blamed nor affected by the ineffectiveness of the institution supposed to ensure the exercise of his constitutional right. The Court annulled the proceedings from the moment of the “defenseless” condition and ordered that proceedings resume after the defendant being provided with effective assistance of counsel).
Habeas Corpus HC58115-MG, 2.Turma, Supremo Tribunal Federal (Federal Supreme Court of Brazil), Aug. 26, 1980, published RTJ 99, p. 586 (the inactivity of the defense attorney left the defendant without an effective defense. In such a case, one may presume a prejudice to the defendant and to the interests of justice. The Court annulled the proceedings from the moment when the defendant was deemed defenseless).
American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, http://www.americanbar.org/content/dam/aba/migrated/2011_build/ death_penalty_representation/2003guidelines.authcheckdam.pdf, Oct. 20, 2003.
American Bar Association, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/ Standards/National/2008_July_CC1_Guidelines.authcheckdam.pdf, 2008.
American Civil Liberties Union, Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America, http://www.aclu.org/files/assets/HRP_UPRsubmission_annex.pdf, Dec. 2010.
Amnesty International, Fair Trials Manual, Chapter 3: The Right to Legal Counsel Before Trial, Doc. No. POL 30/002/1998, http://www.amnesty.org/en/library/info/POL30/002/1998 , Dec. 1, 1998.
Council of Bars and Law Societies of Europe, Code of Conduct for European Lawyers, http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_Code_of_conductp1_1306748215.pdf, 1988 (last amended 2006).
Mariana Grasso, «Comentario al Informe Nº 1/05 Caso Moreno Ramos. La defensa técnica ineficaz en materia penal. El control de convencionalidad en materia de debido proceso», in Derecho Internacional de los Derechos Humanos. Análisis de los estándares del Sistema Interamericano, p. 231, org. Ministerio Publico de la Defensa/Defensoría General de la Nación, Argentina, 2009.
Bradley A. Maclean, Effective Capital Defense Representation and the Difficult Client, 76 Tennessee Law Review, pp. 661-674, 2009.
Robin M. Maher, The Guiding Hand of Counsel and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Hofstra Law Review, Vol. 31, p. 903, 2003.
Jill Miller, The Defense Team in Capital Cases, Hofstra Law Review, Vol. 31, p. 1117, 2003.
Northwestern University School of Law, Center for International Human Rights & Fredrikson&Byron, P.A, Manual of Best Practices for Attorneys Representing Clients in Capital Cases, 2012 (to be published in 2012).
U.N. Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Aug. 27 to Sep. 7, 1990, p. 18, U.N. Doc. A/CONF.144/28/Rev.1, 1990.
U.N. Office of the High Commissioner for Human Rights in cooperation with the International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, http://www.ohchr.org/Documents/Publications/training9Titleen.pdf, 2003.
U.S. Department of Justice, DOJ Capital Case Representation Standards for Indigent Defense Systems, http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/ Standards/National/DOJStandards.authcheckdam.pdf, 2000.
Last updated on June 28, 2012