NCJ Number
35896
Journal
Texas Law Review Volume: 54 Issue: 5 Dated: (JUNE 1976) Pages: 1081-1114
Date Published
1976
Length
34 pages
Annotation
REVIEW OF FIFTH CIRCUIT RESPONSE TO THE SIXTH AMENDMENT GUARANTEE OF RIGHT TO EFFECTIVE COUNSEL THROUGH EXAMINATION OF CASE LAW ESTABLISHING CONFLICTING STANDARDS OF ASSESSING DEFENSE COUNSEL COMPETENCY.
Abstract
FIFTH CIRCUIT INCONSISTENCIES ARE TRACED TO EFFORTS TO DEFINE THE CONSTITUTIONALLY MANDATED LEVEL OF ATTORNEY COMPETENCY AS YET UNDEFINED BY THE SUPREME COURT. THE CIRCUIT'S ADOPTION OF A MODIFIED FARCE-MOCKERY STANDARD, THE REASONABLE EFFECTIVENESS STANDARD, IN HERRING V ESTELLE (1974) IS EXAMINED THROUGH ITS OWN CONTENT, THROUGH COMPARISON OF SUPREME COURT SIXTH AMENDMENT CASE LAW, AND THROUGH ASSESSING ITS PROBABLE EFFECT ON THE ADMINISTRATION OF JUSTICE. ALSO CONSIDERED IS THE SUBSEQUENT ADOPTION OF APPLICATION OF THE STATE ACTION CONCEPT TO CLAIMS OF COUNSEL INCOMPETENCY ADVANCED BY DEFENDANTS RETAINING COUNSEL OF THEIR OWN CHOICE IN FITZGERALD V ESTELLE (1975). THE LATTER CONSIDERATION TOUCHES UPON THE SOUNDNESS OF THE COURT'S LEGAL REASONING, THE REDUCED PROTECTION FROM INCOMPETENT COUNSEL AFFORDED BY FITZGERALD, AND POLICY JUSTIFICATIONS UNDERLYING THAT REDUCED PROTECTION.