Does The Adversary System Work In Criminal Cases?

This case is not really so unusual.

A criminal defendant tells his attorney that he wants to appeal and the criminal defendant's attorney agrees. The criminal defendant's attorney screws up and, prior to the deadline for filing an appeal, e-files the wrong document to the court. The criminal defense attorney then screws up again when the clerk of the court asks him if he screwed up. Result: The criminal defendant loses his appeal on procedural grounds.

Either the court got the criminal defendant's case wrong, or it didn't. The criminal defendant did nothing wrong. But, the criminal defendant will suffer because of his lawyer's obvious mistake in which the criminal defendant had no involvement.

Money in a malpractice case (where the burden will be on the criminal defendant to prove not just that his lawyer screwed up, but that he would win on appeal) is not a very good substitute for getting the right result.

The attorney who screwed up in this case will probably face professional discipline for harming a client through his negligence. But, that doesn't get the defendant out of jail.

This result is a natural consequence of an adversary system of justice, but, where the criminal defendant's lawyer (who may have been appointed for him) makes an obvious screw up, it is not clear that this result is appropriate in the same way that it would be if this were simply a civil dispute over money where mistakes can be remedied in kind by the private lawyer hired with a malpractice settlement. The assumption that go into making it fair for a principal to be held responsible for his agent's actions in a criminal case are often unrealistic, particularly in cases where criminal defense attorneys' screw up.