When a Lawyer Errs

Every criminal defendant who faces the possibility of going to prison is entitled to a lawyer, the Supreme Court ruled in 1972. But how good must the lawyer be? Last week a three-judge panel of the U.S. Court of Appeals for the District of Columbia endorsed a set of standards that lawyers must meet. It then added the startling requirement that whenever a defendant shows that his lawyer was seriously inadequate, the federal prosecutor bears the burden of proving "beyond a reasonable doubt" that the lawyer's action did no harm to his client's chances.

Chief Judge David Bazelon, long a pioneer in civil rights decisions, prescribed that a defense attorney must at least discuss a client's rights with him, outline "fully" the possible trial tactics and conduct all "appropriate investigations." Perhaps such rules would not be necessary, said Bazelon, "if all defense attorneys had the skill and experience of a Clarence Darrow. We do not live in that kind of world, however." Bazelon then reversed the 1970 robbery conviction of Willie DeCoster Jr. because his lawyer had not interrogated some witnesses who might have backed the defendant's story.

The decision prompted a bitter dissent from Judge George MacKinnon, who pointed out that DeCoster's lawyer had not talked to the suggested witnesses because he believed DeCoster was guilty, a fact DeCoster in effect conceded during posttrial procedures. Reviewing Bazelon's liberal record, the conservative MacKinnon sounded an unusually personal note, saying that "practically all criminal convictions would be set aside" if Bazelon had his way. "What my colleague overlooks is that the public has some right to have the guilty convicted." Colleague Bazelon may also have neglected to consider fully the increasingly conservative view of the Supreme Court--where last week's decision may well wind up for review.

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