Counsel: Role of Counsel

The preceding discussion has centered on the moral problems of zealous defense that spares nothing and no one in pursuit of victory. While these are central to understanding the defender's role, it would be irresponsible to conclude without noting that they form only a small part of the landscape of criminal defense. In reality, very few criminal defendants are fortunate enough to have a defender who fits the excessive-zeal picture. In the United States, three-fourths of all criminal defendants are indigent, represented either by overworked public defenders or by private counsel paid bargain-basement fees by the state. The result is perfunctory defense, little or no fact investigation, and quick negotiated pleas—"meet 'em, greet 'em, plead 'em," as observers describe the typical lawyer-client interaction. One study in New York City found that private counsel for indigent defendants interviewed prosecution witnesses in fewer than 5 percent of their felony cases, and other studies reveal equally shocking lapses (Luban, 1993). In practical terms, the greatest moral problem of criminal defense is not excessive zeal, but incompetence and indifference. For these lead to the kind of bureaucratic mass-processing of faceless, interchangeable defendants that the defense counsel's role as champion of individual dignity was supposed to counteract.