A Call for Mandatory Appointment of Counsel

By Paul Casterlerio, Legal Director

All people charged with committing a crime have a Sixth Amendment right to the appointment of counsel at trial and on direct appeal of any conviction if they
cannot afford to retain their own attorney. However, in the post conviction process — when the conviction has been upheld — no one has the constitutional right to counsel. The only rights convicted people have to counsel are those that individual states grant; because many states do not provide for the mandatory appointment of counsel, prisoners without resources must navigate their way through the criminal justice system on their own — from their prison cell. This means they must comply with all rules and procedures put in place by the state, and if they slip-up in any way, their petition will be denied and dismissed. They might plead incorrectly by not knowing the necessary elements that constitute a legally valid claim. For example: their trial lawyer was incompetent. Or they might simply miss a filing deadline. It all invalidates their post conviction petition and results in it being dismissed

To repeat: a convicted person with no legal training, no investigator and insufficient legal resources has no choice but self-representation.

Centurion currently represents an individual who was convicted of a murder he did not commit because of the false testimony of a jailhouse snitch. This individual was

forced to represent himself post conviction because the state would not appoint counsel to represent him. He alleged in the papers he drafted and filed that his trial lawyer was incompetent. His allegations were based on what he knew had occurred at his trial: his lawyer failed to adequately investigate his case. However, he had no idea of the depths of his attorney’s failure or that the prosecution suppressed evidence proving that the snitch was a liar. Had his attorney conducted a minimal investigation, he would likely have been able to catch the state hiding the evidence that proved that the snitch was a serial perjurer who, in this case, lied by saying our client confessed to him. Our client’s pro se petition was denied. Then, years later when Centurion discovered and presented the evidence, the state’s response was: these issues should have been raised in the first petition. And, you are prohibited from relitigating the issue of your trial attorney’s competence. That’s not all: because we are raising these issues in a second or successive petition, a different and higher standard of proof is imposed in order to overturn a conviction. In other words, evidence that would have freed the client had he presented it in his first petition is now insufficient because it comes too late.

This is a fairly typical example of how the system holds on to unjust convictions, preventing some innocent people from ever gaining their freedom. Others spend years in prison forced to litigate procedural issues that have nothing to do with the truth before gaining their freedom. In our client’s case, had competent counsel been appointed to represent him in his first post conviction relief application, he likely would have been freed many years ago. Instead, procedural red tape keeps him locked up as we fight to keep his case alive. All this could have been prevented if the appointment of counsel were mandatory in the post conviction setting. This must change. Until all states grant the mandatory right to counsel for all prisoners in their initial post conviction relief applications, too many innocent people will remain convicted and in prison.