The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise of effective representation by a well-prepared and experienced defense counsel, supported by defense investigators, experts, and other resources needed to mount an effective defense. Yet recent empirical research undertaken by the author for the California Commission on the Fair Administration of Justice (Fair Commission) portrays a discouraging reality that is often far different from this theoretical model.\nPart II of this article describes the methodology used to collect the data reported in this article, and Part III gives an overview of some of the most significant findings arising from the research conducted for the Fair Commission. Parts IV through VI report details of our survey of California's institutional public defender, contract defender, and assigned counsel systems. Part VII examines the funding for indigent defense services, revealing the disparity between counties and the disparity in resources between prosecution and defense. Part VIII discusses California judicial decisions that found ineffective assistance of counsel and looks at the types of errors that are most frequently made. These cases are individually detailed in Appendix II. Part IX presents a number of solutions to help alleviate some of the systemic problems that contribute to the ineffective assistance of counsel in California. Part X concludes by listening to the voices of those public defenders and private criminal defense attorneys who responded with comments about the system they live, breathe, and work in on a daily basis.