It was fairly simple to invert the Anglo-American legal doctrine of “innocent until proven guilty.” In large counties in the United States, as many as 80% of those accused of felonies are represented by publicly-funded counsel. These counsel have such voluminous caseloads that in some cases, they can’t spend more than an hour on a particular case. Because the Sixth Amendment guarantees all criminal defendants effective counsel, these defendants can challenge their conviction on the grounds that their public defender didn’t have appropriate opportunity to raise a vigorous and effective defense.
However, the Supreme Court held (in Strickland v. Washington) that in order to vindicate the Sixth Amendment right to effective counsel, a defendant must (a) first wait until they are convicted; (b) prove up that the counsel was professionally unreasonable; and (c) prove up that the ineffective counsel was “prejudicial.” In other words, they must prove (as the Court held subsequently Harrington v. Richter) that the likelihood that they would have prevailed given effective counsel was “substantial.”
In other words, the default situation, given the reality of overloaded public defenders, is ineffective counsel–because, in reality, very few private defense attorneys would spend just a couple hours on a felony rap–which can then be remedied by a showing of likely innocence.
Just how overloaded are public defenders? The American Bar Association, as of 2011, recommended that public defenders handle no more than 150 felony cases per year. As of 2010, Cook County public defenders were handling an average of 235 felony cases.
Even assuming the state is only charging slam-dunk cases (a reasonable assumption, given prosecutors are often overworked as well), this basically guarantees that hundreds, if not thousands, of criminal defendants are not getting effective counsel every year.
The courts, in not recognizing the reality of underfunded public defense programs, are guilty of a cynical formalism that brushes aside the Sixth Amendment’s letter and spirit: that when faced with the machinery of the state, every citizen is presumed innocent. It is facially reasonable to require a defendant to prove on appeal or via collateral attack that effective counsel would almost certainly have made a difference (i.e., to prove a substantial likelihood that they would have prevailed). In reality, though, it means that indigent defendants, significantly likely to receive ineffective counsel, enjoy only an adulterated presumption of innocence.