Speaking Truth to Power: The Obligation of the Courts to Enforce the Right to Counsel at Trial

Professor Metze takes a critical look at the historical and contemporary law on the right to counsel and the evolution of what measure the courts must use to review trial counsel’s performance. By the use of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, the courts have settled on the proper measure of counsel’s representation. Struggling with the new rights extended to former servants and slaves, the courts following the Civil War fought a slow but steady battle to implement the constitutional guarantees of the Bill of Rights to all citizens. After a century, the Supreme Court finally guaranteed the right to counsel to all facing the loss of life or liberty. During the twentieth century, it was determined that more than counsel’s mere presence was needed. This Article addresses the constitutional right to counsel, what standard of effectiveness a defendant may expect his counsel to perform, and the history of these concepts. Finally, it analyzes the practical applications of the right to counsel and the court’s application of its attorney competence standards, leading to the conclusion that those in power may think they do no harm resisting the temptations of change, but by their deeds, if only for their own political survival, the least among us survive, and the smell of systemic disease lingers.