Speaking Truth to Power: The Obligation of the Courts to Enforce the Right to Counsel at Trial

Sole-authored argument, presented at the Sixth Annual Criminal Law Symposium, that Strickland v. Washington, 466 U.S. 668 (1984), has degenerated into a doctrinal instrument for shielding verdicts rather than enforcing the Sixth Amendment. Professor Metze traces the right to counsel from English common law (where felony defendants were denied counsel until 1836) through the framers' deliberate inversion of that rule, the Fourteenth Amendment's slow absorption of Sixth Amendment guarantees (Powell v. Alabama, Johnson v. Zerbst, Betts v. Brady, Gideon v. Wainwright), the migration from "farce and mockery" to "reasonably competent assistance," and Strickland's two-prong settlement. The doctrinal critique focuses on the prejudice prong: Metze argues it is logically incoherent because it imports an exculpatory-evidence materiality analysis (United States v. Agurs) into a context where, unlike Brady review, the reviewing court has no fixed object to evaluate and must instead speculate counterfactually. He contrasts the prong with United States v. Cronic, 466 U.S. 648 (1984), where presumed prejudice attaches when counsel is constructively absent at a critical stage, and asks why effective absence is treated categorically differently from actual absence. The empirical payload is a 1984-2012 audit of every Strickland citation in the Seventh Court of Appeals of Texas: 425 affirmances against three reversals (effectively two trial-error reversals), a 0.7% rate. Combined with the Caprock Regional Public Defender data showing rural counties with appointment rates near zero, the article presents Gideon as structurally unrealized in West Texas and Strickland as the appellate machinery that lets that condition persist.

The article is structured as a long doctrinal history that converges on an empirical indictment. Professor Metze opens with the right to counsel at English common law, where felony defendants were denied counsel until 1836, and shows that the original thirteen states (with the partial exception of South Carolina and Virginia) had already rejected that rule by statute or constitution before the Sixth Amendment was ratified. He then walks through the Fourteenth Amendment's incorporation arc, beginning with the post-Reconstruction jury-exclusion cases and moving to Powell v. Alabama, 287 U.S. 45 (1932), which first used the word "effective" as a limit on counsel's performance, and Johnson v. Zerbst, 304 U.S. 458 (1938), which made denial of counsel a jurisdictional defect in federal trials. He covers Betts v. Brady, Gideon v. Wainwright, and Argersinger v. Hamlin, then traces the standard from "farce and mockery" through "normal competency" and "reasonably competent assistance" to Strickland.

The doctrinal critique has two prongs of its own. First, the performance prong is unenforceably elastic, exactly as Justice Marshall warned in dissent. Second, the prejudice prong is, in Metze's words, "pure fiction." He argues that the Strickland Court grafted the materiality test from Brady-style exculpatory-evidence doctrine onto a context where it does not fit: Brady asks whether a known piece of suppressed evidence was material, while Strickland asks reviewing courts to imagine an alternate trial with a competent lawyer and predict whether the verdict would have changed. He contrasts this with United States v. Cronic, decided the same day, which presumes prejudice when counsel is constructively absent at a critical stage, and asks why the "effectively absent" lawyer is treated worse than the "actually absent" lawyer.

The article then turns practical. Metze, as Director of the Criminal Clinics at Texas Tech, founded the Caprock Regional Public Defender Office to serve a sixteen-county rural region twice the size of New Hampshire, where the average misdemeanor appointment rate was roughly 10% (state average 38.71% in 2010), with several counties making no appointments in years. Misdemeanor judges in these counties are constitutional county judges with no required legal training. He records what local officials told him on the record, including a judge who said, "I didn't give them the money to buy the beer to get drunk... so why should I give them the money to get out of trouble?"

Finally, he audits every case in the Seventh Court of Appeals of Texas since 1984 that cites Strickland or addresses ineffective assistance. Of 425 affirmances, only three were reversed for ineffectiveness, and only two of those involved trial-stage attorney error (a lawyer who called his own client a "drunk Mexican" in summation, and a lawyer who failed to interview witnesses or investigate). The reversal rate is 0.7%. For an appellate practitioner the article doubles as a roadmap for arguing Strickland and Cronic together and for preserving the prejudice question for direct review rather than habeas, where Texas provides no right to counsel.

The constitutional right to a lawyer is being quietly hollowed out at the trial-court level, Patrick Metze argues in this 2012 Texas Tech Law Review article. Metze, a former Texas capital defender now teaching at Texas Tech, names the doctrine that allows it: Strickland v. Washington (1984) requires defendants claiming ineffective counsel to prove the lawyer's deficient performance changed the outcome, a nearly impossible bar. Combined with public defenders carrying 200, 500, even 1,000 cases at a time, the result is that no one is constitutionally entitled to a lawyer who can actually defend them. Metze argues the trial courts have an affirmative duty to ensure counsel is effective; they have stopped doing it. Useful for reporters covering public-defender caseload crises, indigent-defense funding, or wrongful convictions traceable to trial-level representation. Published as part of the Sixth Annual Criminal Law Symposium.

The Sixth Amendment guarantees every person charged with a crime the right to a lawyer. In 1963, in Gideon v. Wainwright, the Supreme Court finally ruled that the right applies to poor people in state courts too: if you cannot afford a lawyer, one must be appointed for you. In 1984, in Strickland v. Washington, the Court took the next step and ruled that the lawyer has to be competent. To win an ineffective-assistance claim, however, a convicted person must show two things. First, that the lawyer's work fell below a professional standard. Second, that but for the lawyer's mistakes the outcome would probably have been different.

Professor Patrick Metze, who spent thirty-eight years as a Texas criminal defense lawyer before founding the criminal clinics at Texas Tech University School of Law, argues that the second requirement has quietly gutted the first. Appellate judges, asked to imagine an alternate trial with a competent lawyer and to guess whether the jury would have voted differently, almost always answer no. The right exists on paper. In practice, the courts almost never enforce it.

He proves the point with numbers. He read every case from the Seventh Court of Appeals of Texas, which covers forty-six counties including Amarillo and Lubbock, that mentions Strickland or ineffective assistance going back to 1984. In twenty-eight years, that court reversed three convictions for ineffective assistance and affirmed 425. The reversal rate is 0.7%.

He also reports what he saw running the Caprock Regional Public Defender Office, which Texas Tech set up to serve a sixteen-county rural region where some counties had appointed no lawyers for poor defendants in years. One county judge told him, "I didn't give them the money to buy the beer to get drunk... so why should I give them the money to get out of trouble?" In those counties the misdemeanor judges are not even required to be lawyers.

Metze's conclusion is that the failure is not the trial bar's. It is the appellate bench's. Judges, he says, have stopped having the backbone to enforce the Constitution against trial courts and prosecutors when doing so is politically costly. The right to counsel survives in the case books. On the ground, in much of Texas, Gideon has never actually arrived.

If you've ever watched a cop show, you've heard the line: 'You have the right to an attorney. If you cannot afford one, one will be appointed to you.' That's the Sixth Amendment. The reason that line exists is that no one can really defend themselves against the government's prosecutors, evidence labs, and witnesses without help from a lawyer who actually knows what they're doing.

Professor Metze's argument in this paper is that the courts have stopped making sure that promise is kept. Public defenders, the lawyers appointed to people who can't afford their own, are often carrying hundreds of cases at the same time. They can't actually defend most of those clients in any meaningful way. The Supreme Court has long said the right to counsel means the right to effective counsel. Metze says the lower courts have quietly stopped checking whether the counsel is effective, and the system has stopped working the way the Constitution promised it would.