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University of Iowa News Release

Release: Feb. 26, 2003

Law Professor Writes Book About Assistance Of Counsel

UI law professor Jim Tomkovicz has written a new book that is the first comprehensive examination of a criminal defendant's Constitutional right to be represented by an attorney in the 40 years since the U.S. Supreme Court's landmark decision Gideon v. Wainwright.

"The Right to Assistance of Counsel: A Reference Guide to the U.S. Constitution," was published by Greenwood Press last fall.

"The right to assistance of counsel has developed dramatically since the early 1960s, but nobody had tried to describe its contours or the myriad right-to-counsel issues that have arisen since then," said Tomkovicz.

The notion of an accused person's right to assistance to legal counsel was imported to the United States from British common law, he said, and continued to expand significantly under our Constitution. It reached its peak in 1963 with the Gideon decision, when the U.S. Supreme Court ruled that all defendants charged with felonies must be afforded representation by an attorney at trial, even if the government has to pay the attorney's fees.

Since the 1970s, Tomkovicz said, the Supreme Court has been whittling away at a person's right to counsel by limiting the circumstances in which a convicted person can receive a new trial on the grounds that he or she was inadequately represented. In the most extreme cases, people convicted of a criminal offense have asked for retrials because their attorneys came to court drunk or fell asleep during the trial, depriving them of their right to counsel.

Tomkovicz said the courts have denied retrials in some of those cases by focusing less on the quality of the defense attorney's performance and more on the outcome of the trial. Under the rules established by the Supreme Court, convictions should be overturned only if a convicted defendant can show a "reasonable probability" that a competent performance by defense counsel would have resulted in an acquittal.

"The standard for establishing ineffectiveness of counsel is very hard to meet. First, a defendant has to show deficient performance--and that indulgent standard is not easily satisfied," he said. "And even if you prove that the attorney made serious enough errors, you still have to establish a high enough likelihood that the outcome would have been different. Under these governing standards, few claims of ineffective assistance succeed."

Tomkovicz believes the Court's ineffectiveness doctrine, and the resulting restrictions on the right to effective legal assistance, are attributable to pragmatism. In reality, many court-appointed defense attorneys do not have the skills or resources needed to provide an adequate defense, and the states have not furnished the funding necessary to remedy that situation. Consequently, if courts were required to order retrials in every case where a court-appointed defender failed to provide reasonably effective representation, the U.S. court system might be overwhelmed with retrials that could impair its operation and impose prohibitive expenses.

"The greatest travesty is the number of attorneys who aren't equipped to handle these cases, especially capital cases, and can't provide the kind of counsel defendants need and should be entitled to have under our Constitution," he said.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500.

CONTACT(S): Tom Snee, 319-384-0010, tom-snee@uiowa.edu.