Georgia v. McCollum, 505 U.S. 42, 23 (1992)

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O'Connor, J., dissenting

Court's determination in this case that the peremptory challenge is a creation of state authority, ante, at 51, breaks no new ground. See Edmonson, supra, at 620-621. But disposing of this threshold matter leaves the Court with the task of showing that criminal defendants who exercise peremptories should be deemed governmental actors. What our cases require, and what the Court neglects, is a realistic appraisal of the relationship between defendants and the government that has brought them to trial.

We discussed that relationship in Polk County v. Dodson, 454 U. S. 312 (1981), which held that a public defender does not act "under color of state law" for purposes of 42 U. S. C. 1983 "when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." 454 U. S., at 325. We began our analysis by explaining that a public defender's obligations toward her client are no different than the obligations of any other defense attorney. Id., at 318. These obligations preclude attributing the acts of defense lawyers to the State: "[T]he duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are 'officers of the court.' But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor . . . ." Ibid.

We went on to stress the inconsistency between our adversarial system of justice and theories that would make defense lawyers state actors. "In our system," we said, "a defense lawyer characteristically opposes the designated representatives of the State." Ibid. This adversarial posture rests on the assumption that a defense lawyer best serves the public "not by acting on behalf of the State or in concert with it, but rather by advancing 'the undivided interests of his client.' " Id., at 318-319 (quoting Ferri v. Ackerman, 444 U. S. 193, 204 (1979)). Moreover, we pointed out that the independence of defense attorneys from state control has a constitutional dimension. Gideon v. Wainwright,

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