In Ake v. Oklahoma, the Supreme Court of the United States held that an indigent defendant is entitled to the assistance of an expert in cases where it is established that mental health is at issue. Thirty-two years later, in McWilliams v. Dunn, the Court finally addressed whether an expert must be independent of the prosecution. During oral argument, counsel for McWilliams argued that Ake required that the expert must be part of the defense team and on the defendant's side. Justice Gorsuch, in only his second week on the Court, stated dubiously that if that were the case, then "surely it would also require a partisan lawyer." Although certainly not his intent, Justice Gorsuch's question should compel a reexamination of the contours of the right to counsel. Given the complexities and demanding nature of the work and the intricacies of the relationship between lawyer and client, the accused should indeed be entitled to a partisan lawyer.
This Article looks into the motivations of lawyers who represent poor people accused of crime. Poor criminal defendants must be entitled to unabashedly and unequivocally partisan lawyers, those fully devoted to the underlying causes of indigent criminal defense and the case of each individual client. This Article notes that many lawyers on assigned counsel plans are former prosecutors and argues that they should not be permitted to represent indigent defendants unless and until their attitudes and motivations are vigorously vetted.
"Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer,"
Mercer Law Review: Vol. 69:
3, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol69/iss3/5