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What is the Assigned Counsel System?

Instructor: Kenneth Poortvliet
The assigned counsel system is used when courts appoints private attorneys to represent defendants who can't afford an attorney. In this lesson we will explore how that works and the reason behind the system.

What Is an Assigned Counsel System?

It's 1960, and Chuck is being arraigned for a crime he didn't commit. He can't afford an attorney, and since it's not a capital crime, a crime that carries life in prison or the death penalty, the state has no obligation to give him one. At his trial, he tries to defend himself, but he still loses and spends the next eight years in jail.

Fifty years later, his grandson, Chuck the third, is sitting in court being arraigned for a crime he didn't commit, and he can't afford an attorney either. However, unlike his grandfather, the court pays for his attorney, and his is found not guilty. What happened in those fifty years? Did the Constitution get amended?

An assigned counsel is a private attorney who is appointed by a court to represent an indigent defendant. Being indigent means that he or she can't afford an attorney. Assigned counsel is used in states that do not have a public defender's office. A public defender is a salaried state employee who represents indigent defendants appointed to them by the court.

Some states have mixed systems that use both assigned counsel and public defenders. Other states use only assigned counsel, while others use only public defenders. In mixed states, like North Carolina, a public defender's office is located in the larger populated counties, and assigned counsel is used elsewhere.

So What Changed in Those Fifty Years?

The Sixth Amendment to the U.S. Constitution says that in criminal prosecutions, the accused has the right to have 'the Assistance of Counsel for his defense.' At the time of the signing of the Constitution, this meant that the court couldn't prohibit a defendant from bringing his or her own attorney, as was the practice in England. Over the years, the states and the federal government started providing attorneys to indigent defendants who were charged with a capital crime.

Gideon v. Wainwright

Clarence Earl Gideon of Gideon v. Wainwright
Gideon v Wainwright

In 1963, the meaning of assistance of counsel changed after Clarence Earl Gideon, a petty criminal, appealed his conviction for a burglary charge. Gideon broke into a pool hall, smashed a cigarette machine taking the money and a bottle of wine, and left. He was spotted leaving and was later arrested and charged.

At trial he asked the judge for an attorney saying that he couldn't afford one. The judge said no, and the jury convicted him. The judge gave him five years. Gideon appealed all the way to the Supreme Court without help from an attorney.

The Supreme Court said that the Sixth Amendment afforded anyone with a significant loss of liberty at stake the right to an attorney, and if the defendant couldn't afford one, the state would have to pay for it. This was significant as it expanded the obligation of the states to pay for an attorney for any crime that could send the defendant to prison.

How Do the States Get an Attorney to Everyone?

Over the years, the states implemented systems to provide representation to indigent defendants charged with felonies (crimes that carry a year or more in prison). The most obvious was to pay a local attorney to represent the defendant, and thus began the assigned counsel system. But to save costs and provide efficiency, some states formed public defender's offices. These offices hired clerical staff and attorneys and often leased space in or near the courthouse, and the public defender was created. As stated earlier, some states have one system or the other, and some are mixed.

However, even in the states that use only public defenders, assigned counsel are appointed to cases where the public defender's office has a conflict of interest. The most common conflict arises when co-defendants need separate attorneys when their interests become adverse. This happens most often when the police flip one of the co-defendants by having one defendant testify against the other defendant in exchange for a lighter sentence or a reduced charge.

The way the court assigns the attorney is similar in both systems, except that for assigned counsel, the local attorneys put themselves on a list, and the judges pull from that list as defendants qualify for assistance. The defendant has to apply for a free attorney, and in many states, it's only free if you win. If you lose, then you might have to pay the state back the fees paid to the attorney.

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