Of all the rights accorded an accused, none is more important than the Sixth Amendment right to the assistance of counsel, because "The right to be represented by counsel... affects his ability to assert any other rights he may have." United States v. Cronic, 466 U.S. 648 (1984) at 653. For without an effective advocate, most of the other safeguards become meaningless.

It is well-settled that the right to counsel means the right to "effective assistance of counsel," McMann v. Richardson, 397 U.S. 759 (1970) at 771, but what does this phrase mean?

Jurisprudence does not specify what kind of assistance counsel must provide in any given case; instead, it offers only general guidance. To be effective, counsel must "bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland v. Washington, 466 U.S. 668 (1984) at 686. Sounds simple enough. So how does one do this?

Let's start by clarifying what defense counsel is not called to do. Contrary to popular belief, the role of defense counsel is not to obtain acquittals for the innocent and plea bargains for the guilty, as the role of defense counsel is not dependent on the guilt or innocence of the client, but by standards applicable to every case.

Under our system of justice, a client's actual guilt or innocence is immaterial. As shocking as this may sound, it is nevertheless true. In his book, The Defense Never Rests, 1972 Signet, F. Lee Bailey famously observed that in the American system of justice "the thing that is of the least concern is whether or not a person is innocent." In other words (ala Yogi Berra) one's guilt or innocence is not determined by one's guilt or innocence. It is determined only by the evidence and nothing else. For this reason, Louisiana law requires counsel for both the state and defense to confine their arguments to the evidence and conclusions that may be drawn therefrom. La. Code Crim. P. art 774. Accordingly, the focus of counsel should not be on the client's actual guilt or innocence, but rather on the evidence of the client's guilt or innocence, and specifically, on what can be proven beyond a reasonable doubt. Appreciating this distinction is essential to understanding the role of defense counsel.

In a criminal case, the fundamental role of defense counsel is to test the prosecution's case against the reasonable doubt standard at every phase of the proceedings. Before trial, counsel begins this process by searching for reasonable doubt through investigations. During trial, counsel continues this process by eliciting reasonable doubt through witness examinations. And at the end of trial, counsel concludes this process by demonstrating the existence of reasonable doubt through closing arguments. This is the means by which counsel renders the trial a reliable adversarial testing process. Because this is a performance driven process and not an outcome driven process, winning is never required.

The doubt finding process begins and often ends with the investigation. In every case, "counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary." Strickland, at 691. What this means is that counsel must make some sort of inquiry to determine if the allegations are true, the facts are accurate and whether any affirmative defenses are applicable. In modern parlance, this might be called a "fact check." At the very least it involves a thorough discussion with the client of the facts of the case.

The most common mistake counsel can make is to assume that because something is written in a police report it must necessarily be true. A police report is only as reliable as the witness who provides the information and the officer who records it. Experience teaches us that witnesses often make mistakes, and yes sometimes even lie, and police reports often contain inaccuracies, errors and omissions.

Keeping in mind that in the eyes of the law what matters is not actual guilt but legal guilt - what can be proven beyond a reasonable doubt - the investigation should focus on the reliability of the witnesses, the accuracy of the police reports and the overall sufficiency of the evidence. This task is analogous to a doctor trying to determine whether a patient has a serious illness. To make a reliable diagnosis, a prudent doctor will not rely on his first impressions but will instead conduct tests to confirm what disease is present and how severe it is. Likewise, to make a reliable assessment of the prosecution's case, a prudent lawyer will conduct investigations to confirm what crime can be proven beyond a reasonable doubt and how strong the evidence is. This knowledge is essential to counsel rendering sound advice to the client.

Once counsel has gained a firm understanding of the nature and strength of the prosecution's case, he can then intelligently advise the client about his options. That is, should the client take the medicine being offered by that state, i.e. accept the plea bargain, or undergo surgery, i.e. go forward with trial?

Most of the time, like a prudent doctor, counsel will recommend taking the known medicine (albeit sometimes bitter) in favor of undergoing surgery, which often carries substantial risks .

On rare occasions counsel will find himself defending a client at trial. Generally referred to as a fact-finding process, a criminal trial is perhaps better described as a doubt finding process, as the outcome in a criminal trial is predicated not on guilt or innocence, but again on the presence or absence of reasonable doubt. Counsel's role at trial, as in the investigation process, is to test the sufficiency of the prosecution's case, but with the added tool of the scalpel of cross-examination with which to dissect the evidence.

The role of defense counsel is simple - to subject the prosecution's case to meaningful adversarial testing with the purpose of ensuring that no client is ever convicted absent proof beyond a reasonable doubt. When counsel fulfills this role, regardless of the outcome, he has provided effective assistance.

Alan J. Golden, District Public Defender

1st Judicial District

A trial has often been compared to a surgical operation with the added difference that there is another surgeon in the operating room who is trying to kill the patient.