Marceau.PUBLISHED.pdf - REMEDYING PRETRIAL INEFFECTIVE ASSISTANCE Justin F Marceau I THE RIGHT TO A LAWYER WHO DOES NOT AFFIRMATIVELY INCRIMINATE THE

Marceau.PUBLISHED.pdf - REMEDYING PRETRIAL INEFFECTIVE...

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277 REMEDYING PRETRIAL INEFFECTIVE ASSISTANCE Justin F. Marceau * I. T HE R IGHT TO A L AWYER W HO D OES N OT A FFIRMATIVELY I NCRIMINATE THE C LIENT ................................................................... 279 II. T HE R EMEDY P ROBLEM ...................................................................... 288 A. Suppression as an Adequate but Unlikely Remedy ....................... 289 B. A Damage Action Under § 1983 Is an Inadequate or Unavailable Remedy ..................................................................... 293 C. A Malpractice Action Under State Tort Law Is an Inadequate or Unavailable Remedy ................................................................ 301 D. Equitable Relief Is Either Unavailable or Inadequate .................. 307 III. D O F RYE AND L AFLER P ROMISE A S OLUTION ? .................................... 310 IV. C ONCLUSION ....................................................................................... 312 Imagine three separate defendants. Defendant One is facing serious criminal charges, and his lawyer, without any investigation or serious thought, advises him to speak freely with law enforcement regarding the circumstances surrounding the crime. In counsel’s view, if the client says he is innocent, there is nothing for the defendant to lose by submitting to an extended interrogation. Defendant Two is represented by a lawyer who is operating under a conflict of interest, and Two’s lawyer advises him to speak to law enforcement and incriminate himself so that counsel is better able to serve another, perhaps better paying, client. Defendant Three is represented by a defense lawyer whose misunderstanding of the procedural law governing pretrial proceedings is so deficient that counsel mistakenly advises his client that anything he says is subject to a grant of immunity such that neither the statements nor their fruits can be used at trial. Imagine further that each of these instances of misadvice by counsel led to statements and other evidence that materially assisted the prosecution’s case and, therefore, prejudiced the defendant. As serious as these errors are, it is quite possible that none of these wronged clients will be entitled to a constitutional remedy. Whereas many commentators have lamented the shortcomings of the right to effective assistance of counsel under Strickland v. Washington , this Article observes that * Associate Professor, University of Denver, Sturm College of Law. I am grateful to Alan Chen and Sam Kamin who discussed this Article with me at an early stage. Thanks also to Neal McConomy for his excellent assistance.
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278 TEXAS TECH LAW REVIEW [Vol. 45:277 even when the right is adequate, in certain circumstances the remedy may not be. 1 To put the above examples in relative context, consider the passage in Marbury v. Madison where Chief Justice Marshall famously extols that “where there is a legal right, there is also a legal remedy.” 2 Or, consider Justice Sutherland’s observation in Mapp v. Ohio that, without a remedy, a constitutional right is in jeopardy of becoming “valueless and undeserving of mention.” 3 Of course, much has changed in the law of constitutional remedies in recent decades. Increasingly, courts and scholars have recognized—even celebrated 4 —the judicial practice of honoring, primarily in the breach, the rule that every right must have a remedy, much less a full and effective remedy.
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  • Fall '15
  • LeeAnnClark
  • criminal law, Lawyer, of counsel, Strickland v. Washington

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