NACDL

The Right to Counsel

Eric M. Freedman, Giarratano is a Scarecrow: The Right to Counsel in State Capital Postconviction Proceedings, 91 CORNELL LAW REVIEW 1079 (2006):

Criminal defendants need lawyers whether it be at trial or in their state postconviction proceedings. But some prosecutors and courts reference Murray v. Giarratano, claiming that this case supports the proposition that there is no right to counsel in state capital postconviction proceedings. Professor Eric M. Freedman’s brilliant article presents a strong case as to why Giarratano should not be interpreted this way.

Freedman begins the article with a description of the Supreme Court’s decision in Giarratano. He then notes state legislative reaction to this decision, including the influence of ABA Criminal Justice Standards that provide empirical support for his arguments. Next he analyzes Justice Kennedy’s opinion in the case, pointing out that the language in the controlling opinion justifies having counsel in these cir