‘Effective’ Counsel: The Quiet Crisis
Derrick Bernard Jr. | May 5, 2023 | 5 min read
ARCHIVED COPY — article text preserved from the public website.
In Colorado, the Office of Alternate Defense Counsel exists to protect one of the most
fundamental rights in the criminal justice system: the right to effective legal
representation.
When a person cannot afford an attorney, the Public Defender’s Office is usually
appointed. But when the Public Defender has a conflict of interest, the case is referred to
the Office of Alternate Defense Counsel, often called ADC or OADC. This office
contracts with private attorneys to represent indigent defendants in criminal cases,
juvenile cases, and certain postconviction matters.
On paper, this system is supposed to protect fairness. It is supposed to make sure that a
person’s constitutional rights do not depend on money, status, or access to private
counsel.
But the deeper question is whether Colorado’s alternate defense system consistently
lives up to that promise.
A Safety Net With Serious Responsibility
The Office of Alternate Defense Counsel is not a minor agency. It is responsible for
protecting people who are already in a vulnerable position: people accused by the state,
facing jail or prison, and unable to afford private representation.
These defendants are not asking for special treatment. They are asking for the same
basic protections guaranteed by the Constitution: the right to counsel, the right to due
process, the right to confront evidence, the right to investigate a defense, and the right to
a fair trial.
When ADC works properly, it can be a critical safeguard. It can provide conflict-free
representation, independent advocacy, and access to defense attorneys who are
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capable of challenging the power of the prosecution.
But when it does not work properly, the consequences can be devastating.
The Problem With Accountability
One of the most important concerns surrounding alternate defense counsel is
accountability. Are the attorneys being chosen according to their specialities, or just for a
warm body with a bar license? Darren Cantor is handpicking the attorneys that get
assigned cases through ADC appointment. Can we rely on impartiality? Where is the
oversight?
Because ADC relies on contract attorneys, quality control becomes essential. The
agency must ensure that appointed attorneys are competent, prepared, ethical, and
properly supported. It must also ensure that attorneys are not merely names assigned to
a case, but actual advocates willing and able to fight for the client.
That means attorneys must investigate. They must review discovery. They must file
necessary motions. They must challenge weak or unlawful evidence. They must consult
experts when needed. They must communicate with their clients. They must prepare for
trial. And they must preserve important issues for appeal.
If those things do not happen, the defendant may still technically have “a lawyer,” but not
meaningful representation.
That distinction matters.
A warm body sitting at counsel table is not the same as a defense. A court-appointed
attorney who fails to investigate is not the same as effective counsel. A lawyer who does
not challenge the prosecution’s theory, does not present witnesses, and does not protect
constitutional rights can leave a defendant exposed to the full weight of the state with no
real protection.
Oversight Cannot Be an Afterthought
Any system that spends public money to provide constitutional representation must be
monitored carefully. Oversight is not about attacking defense lawyers. It is about
protecting defendants, protecting the integrity of the courts, and making sure the state is
fulfilling its constitutional obligations.
There must be meaningful standards for attorney selection. There must be performance
review. There must be training. There must be consequences when attorneys repeatedly
fail to meet professional standards. There must be a clear way for defendants and
families to raise concerns before the damage becomes permanent.
The problem is that many defendants do not feel there is a practical remedy when their
appointed counsel is failing them in real time.
A complaint process may exist, but a complaint does not automatically stop a trial. It
does not automatically force an attorney to investigate. It does not automatically reopen
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discovery. It does not automatically call witnesses, challenge expert testimony, or undo a
missed deadline.
For a person sitting in jail awaiting trial, the question is not simply whether a complaint
can be filed.
The question is whether anyone will act before it is too late.
Public Defense Must Be More Than a Formality
The Sixth Amendment does not guarantee the appearance of representation. It
guarantees the right to counsel in a meaningful sense.
That means defense counsel must have the time, resources, skill, and independence
necessary to defend the accused. This is especially important in serious felony cases,
where the government may rely on police investigators, forensic analysts, expert
witnesses, jail calls, informants, digital evidence, surveillance, and years of investigative
work.
An indigent defendant cannot meaningfully fight that kind of case with an attorney who is
overburdened, unsupported, unprepared, or unwilling to challenge the state.
If the prosecution has investigators and experts, the defense must have access to
investigators and experts too. If the government has years to build a case, the defense
must have a fair opportunity to review and challenge that case. If the state uses
complicated evidence, the defense must be equipped to test it.
Anything less turns the courtroom into a performance of fairness rather than fairness
itself.
The Risk of Wrongful Convictions
When alternate defense fails, the danger is not just a bad outcome. The danger is a
wrongful conviction.
Wrongful convictions often happen when defense systems break down. Evidence goes
unchallenged. Witnesses are not interviewed. Alternate suspects are ignored. Forensic
issues are not investigated. Discovery violations are missed. Constitutional objections
are not preserved. Judges are not forced to confront unfairness on the record.
By the time the case reaches appeal or postconviction review, the record may be
incomplete. The damage may already be done. The person may already be convicted,
sentenced, and fighting from behind prison walls.
That is why meaningful defense at the trial level matters so much.
The trial is where facts are tested. It is where witnesses are challenged. It is where
evidence is admitted or excluded. It is where the jury forms its understanding of the
case. If the defense fails at that stage, the rest of the system may never fully repair the
harm.
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The Human Cost
Behind every case number is a person. Behind every appointed attorney is a family
waiting, hoping, and praying that the system will work.
When it does not, the consequences are not theoretical. Parents lose children. Children
lose parents. Families lose income, stability, and years of their lives. Communities lose
trust in the courts. And innocent people may lose their freedom.
This is why concerns about alternate defense counsel should matter to everyone.
A justice system cannot call itself fair if poor defendants receive weaker protection than
people who can afford private counsel. Constitutional rights are not supposed to depend
on a bank account.
A Call for Stronger Safeguards
Colorado’s alternate defense system should be strengthened, not ignored.
That means stronger oversight. Better transparency. Clearer complaint procedures.
Faster intervention when representation is failing. Stronger attorney performance
standards. Better access to investigators and experts. More training. More
accountability. And a deeper commitment to making sure indigent defendants receive
real advocacy, not symbolic representation.
The Office of Alternate Defense Counsel exists because conflicts happen. But the
solution to one conflict cannot become another injustice.
If Colorado promises conflict-free counsel, that counsel must be prepared, supported,
accountable, and effective.
Because when alternate defense counsel fails, it is not just a problem for one defendant.
It is a warning sign for the entire justice system.
