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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, July 23, 2010

Who's the Boss in a Criminal Defense Representation?

The Sixth Amendment to the United States Constitution as a practical matter guarantees criminal defendants the right to be represented by lawyers at their trials. In Faretta in Faretta v. California the defendant asked not to use a lawyer even though the trial judge insisted on one. The U.S. Supreme Court found the logic of this compelling. Then comes the kind of case exemplified by Scott Panetti who represented himself ramblingly while wearing a purple cowboy suit, frustrated because his trial subpoenas for the late John F. Kennedy, the pope, Anne Bancroft, and Jesus did not get his witnesses to court. University of Georgia law professor Erica J. Hashimoto argues in the latest issue of the Boston University Law Review-- the third of volume 90-- that proposed reforms of the rule in Faretta shouldn't take control of the defense from the defendant and give it all to the lawyer in the case.


  1. thanks for this information. I wrote an entire post about this at my blog, http://www.georgiaappellatelawblog.com. I had to think about my approach to cases after reading this law review article, and I think that there are many instances where the lawyer has to make the final decision. Hope you take a look and tell me what you think.

    Scott Key

  2. Your response in your blog is enlightening and stimulating. I heard once that a contrast between being a politician and a professor is that a politician shows people who appear to disagree with each other that they really do not, while a professors shows people who appear to agree that they really do not. In reading what you say about Professor Hashimoto's argument, my political impulses outweigh my professorial ones.
    Assume for argument's sake that someone counts the decisions made in a lawyer's representation of a defendant: there would be millions. Of those millions, those of which the lawyer is obliged to suffer being overruled by the client could be counted on the client's fingers. Hashimoto shows us cases in which momentous decisions-- some of which are in the latter class-- have been usurped by counsel. It would violate the lawyer's duty to decide over the client's objection that the client should admit guilt to a charged offense or, in a death case, that mitigation evidence be presented, but at least in the past, some judges have countenanced this. Hashimoto argues that these decisions and some additional decisions should be left to the client. She does not suggest bright-line rules for the division of authority. She suggests that judges' apparent inclination to strengthen counsel's power in this matter should be minimized. It looks to me that this claim of hers is not controversial as between you and Professor Hashimoto and me.