AN ASSESSMENT OF THE ROLE ACTUALLY PLAYED BY THE DEFENSE ATTORNEY IN TODAY'S GUILTY PLEA SYSTEM, WITH EMPHASIS ON THE EFFECTIVENESS OF COUNSEL IN DEFENDING THE CLIENT'S RIGHTS AND THE PROBLEMS OF THE PLEA BARGAINING SYSTEM.
THE CRIMINAL DEFENSE ATTORNEY IS OFTEN SEEN AS A ROMANTIC FIGURE - A SOPHISTICATED MASTER OF THE SYSTEM WHOSE ONLY JOB IS TO BE ON THE DEFENDANT'S SIDE. IN ACCORDANCE WITH THIS VIEW, IT IS COMMON TO REGARD THE RIGHT TO COUNSEL AS A PRIMARY SAFEGUARD OF FAIRNESS IN PLEA BARGAINING. THE SUPREME COURT AND OTHER OBSERVERS OF THE PLEA BARGAINING PROCESS HAVE RELIED HEAVILY ON THE ASSUMPTION THAT CRIMINAL DEFENSE ATTORNEYS WILL, ALMOST INVARIABLY, URGE THEIR CLIENTS TO CHOOSE THE COURSE THAT IS IN THEIR CLIENTS' BEST INTERESTS. HOWEVER, THIS ASSUMPTION MERITS EXAMINATION IN TERMS OF THE ACTUAL WORKINGS OF THE CRIMINAL JUSTICE SYSTEM. THIS ARTICLE EXPLORES THE EXTENT TO WHICH THE PRESENCE OF COUNSEL DOES PROVIDE A SIGNIFICANT SAFEGUARD OF FAIRNESS IN GUILTY PLEA NEGOTIATION, AND FINDS THAT CURRENT CONCEPTIONS OF THE DEFENSE ATTORNEY'S ROLE ARE OFTEN MORE ROMANTICIZED THAN REAL. THE THESES OF THIS ARTICLE IS THAT THE PLEA BARGAINING SYSTEM IS AN INHERENTLY IRRATIONAL METHOD OF ADMINISTERING JUSTICE AND NECESSARILY DESTRUCTIVE OF SOUND ATTORNEY-CLIENT RELATIONSHIPS. THE AUTHOR CONTENDS THAT THIS SYSTEM SUBJECTS DEFENSE ATTORNEYS TO SERIOUS TEMPTATIONS TO DISREGARD THEIR CLIENTS' INTERESTS TEMPTATIONS SO STRONG THAT THE INVOCATION OF PROFESSIONAL IDEALS CANNOT BEGIN TO ANSWER THE PROBLEMS THAT EMERGE. THE RESEARCH FOR THIS ARTICLE CONSISTED OF INTERVIEWS WITH PROSECUTORS, DEFENSE ATTORNEYS, TRIAL JUDGES AND OTHER PARTICIPANTS IN THE CRIMINAL JUSTICE SYSTEM IN TEN MAJOR URBAN JURISDICTIONS. THE ROLE OF THE PRIVATELY RETAINED ATTORNEY IS FIRST EXAMINED. THE FUNCTIONS OF PUBLIC DEFENDERS, OTHER APPOINTED ATTORNEYS WHO REPRESENT INDIGENT OFFENDERS, AND DEFENDANTS WHO REPRESENT THEMSELVES IN THE BARGAINING PROCESS ARE EXAMINED, AND COMPARED TO THE CONDUCT OF PRIVATE ATTORNEYS. THIS ARTICLE PRESENTS SOME OF THE SERIOUS PROBLEMS, INCONGRUITIES, AND ETHICAL DILEMMAS THAT THE GUILTY-PLEA SYSTEM HAS CREATED AND THE AUTHOR CONCLUDES THAT NOTHING SHORT OF ABOLITION OF PLEA BARGAINING PROMISES SATISFACTORY RESOLUTION OF THESE PROBLEMS. (SNI ABSTRACT)