Two Rights to Counsel

Table of ContentsI. Introduction 1133II. The Constitutional Significance of Surprise 1139III. The Constitutional Significance of Coercion 1142IV. Deception and Conventional Criminal Practice 1144V. Coercion and Plea-Bargaining Practice 1147VI. The Implications of the Changing Face of Bargaining Surprise 1149VII. The Implications of the Emergence of Professional Persuasion 1163VIII. Conclusion 1170I IntroductionAs Gideon v. Wainwright1 nears the ripe old age of fifty, we gathered at a conference at Washington and Lee University School of Law to reflect upon the meaning of the contemporary right to counsel. To my thinking, there is not one constitutional right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the comparatively unstructured domains of the plea-bargain and guilty plea. I acknowledge that the term extralegal is loaded and almost certainly too strong. By extralegal, I do not intend to signify a practice unrecognized by law. Rather, I mean the aspects of a practice that are informed by influences beyond formal code law.2I recall vividly my first week as a public defender in the Bronx. I came to the job from a prestigious boutique white-collar defense firm that had represented such high-profile clients as Martha Stewart. I had done quite well at a top-ten law school and had completed a prestigious clerkship. But I remained wholly unprepared for practice in the Bronx criminal courts. No amount of training in the science of law could have provided me with the experiential wisdom required to master the art of local practice. Instead, I had to live the practice (and not just the law) before I could represent my clients effectively. The tired old adage holds that a good lawyer knows the law; a great lawyer knows the judge. The truth is not so simple. A great defense lawyer knows not only the law and the judge, but also the prosecutor, the court officers, the treatment providers, the social workers, the foreignlanguage interpreters, the corrections and probation officers, the customs and norms of each and every courthouse subcommunity, the going plea rate, the criminal and so-called collateral consequences of conviction, the quickest path from one courtroom to another, the courthouse elevators that are perennially slow or broken, and, most of all, the client's needs, objectives, and sympathetic characteristics.3 Most of this wisdom accrues independently of (or, at least, not entirely dependent upon) law. That is, a great defense lawyer is more than just a legal technician; she is a sociologist, a psychologist, and a humanist.Of course, most facets of comprehensive defense practice are not the appropriate purview of constitutional constraint. But, until recently, the Supreme Court had turned an unhealthy blind eye to the realities. In essence, the Constitution had utterly failed to accommodate any and all practices beyond law. Most of defense practice was left to the domain of professional ethics or was unregulated altogether.4 Over the past five years, however, that has begun to change. The Court has adopted the constitutional perspective that it can no longer wholly sidestep messy practice questions. Through a trio of landmark rulings-Padilla v. Kentucky,5 Laser v. Cooper,6 and Missouri v. Frye7-the Court has reached the understanding that conventional criminal justice primarily relies neither on trials nor even on law.8 To the contrary, the criminal-justice system is-as the Court recognized in Laser-a system of pleas and plea-bargains.9 For a nation committed to the due process ideal, this may constitute an unfortunate reality, but it remains the reality nonetheless. More to the point, the right to effective assistance of counsel would mean very little if these principal practices were walled off from constitutional regulation. …