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Abstract

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of history and adopted the upside-down English view of the right to counsel. Just as the English denied counsel when the charge was serious -- when counsel was most necessary -- now in the United States, the courts deny the protection of the right to effective assistance of counsel when the case is strong against the defendant -- when counsel is most necessary. A criminal defendant is more likely to be protected from having an incompetent attorney if the case against him is weak. This Comment is concerned primarily with analyzing Maine's indigent criminal defense delivery system and with seeking a working definition of effective assistance of counsel. Unfortunately, the courts are not helpful in this attempt, largely because the courts differentiate between constitutionally effective assistance of counsel and adequate or competent assistance of counsel. At times the courts consider incompetent counsel constitutionally effective. Because the courts are not helpful in guiding the behavior and performance of criminal defense attorneys, one must look to other sources to determine how a criminal defense attorney should provide quality representation for criminal defendants. This Comment will turn to the American Bar Association (ABA) and other commentators for guidance. What follows from knowing how an adequate defense attorney performs is an inquiry into the type of delivery system that will best ensure such behavior on a consistent basis. This Author accepts as true that society should seek to eliminate the possibility that criminal defendants, the vast majority of whom are indigent, may be subjected to the assistance of incompetent lawyers. This Comment will look at the ABA's guiding principles for establishing an effective defense delivery system. It also will look at the well-respected New Hampshire Public Defender's Office. Maine's court appointment “system” will be measured against these two guide posts. This Comment will urge Maine to reexamine its method of providing indigent criminal representation and urge the adoption of a public defender program, or, at the very least, a more structured court appointment system. Maine's “system” does not adequately protect a criminal defendant's right to effective counsel. Mostly poor and limited in education, criminal defendants have no voice of their own. Moreover, society considers criminal defendants enemies of an orderly and peaceful society. Society's natural instinct is to destroy its enemies. Created by a people determined to limit the power of the majority of society over the individual, the United States Constitution provides the individual with protection from this natural instinct. The defense attorney is that primary protection; he is the voice of the defendant. It is his responsibility to ensure that the power of the government is checked vigilantly and vigorously through competent testing of the Government's case. If the lawyer is muted by his own incompetence, the defendant will have no voice and the government will remain unchecked. The courts' complicity in this muting should be rejected by a people determined to protect the individual from the tyranny of the society. The bare minimum that the United States Supreme Court and the Maine Supreme Judicial Court say the United States Constitution requires is not consistent with the principles of liberty and justice on which this country was founded. Maine must adopt a system that, by design, will ensure the consistent provision of quality representation for indigent criminal defendants, who represent the overwhelming majority of criminal defendants making their way through the justice system.

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