Georgia v. McCollum, 505 U.S. 42, 24 (1992)

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Cite as: 505 U. S. 42 (1992)

O'Connor, J., dissenting

372 U. S. 335 (1963), "established the right of state criminal defendants to the guiding hand of counsel at every step in the proceedings against [them]." 454 U. S., at 322 (internal quotation marks omitted). Implicit in this right "is the assumption that counsel will be free of state control. There can be no fair trial unless the accused receives the services of an effective and independent advocate." Ibid. Thus, the defense's freedom from state authority is not just empirically true, but is a constitutionally mandated attribute of our adversarial system.

Because this Court deems the "under color of state law" requirement that was not satisfied in Dodson identical to the Fourteenth Amendment's state action requirement, see Lugar, supra, at 929, the holding of Dodson simply cannot be squared with today's decision. In particular, Dodson cannot be explained away as a case concerned exclusively with the employment status of public defenders. See ante, at 54. The Dodson Court reasoned that public defenders performing traditional defense functions are not state actors because they occupy the same position as other defense attorneys in relevant respects. 454 U. S., at 319-325. This reasoning followed on the heels of a critical determination: Defending an accused "is essentially a private function," not state action. Id., at 319. The Court's refusal to acknowledge Dodson's initial holding, on which the entire opinion turned, will not make that holding go away.

The Court also seeks to evade Dodson's logic by spinning out a theory that defendants and their lawyers transmogrify from government adversaries into state actors when they exercise a peremptory challenge, and then change back to perform other defense functions. See ante, at 54. Dodson, however, established that even though public defenders might act under color of state law when carrying out administrative or investigative functions outside a courtroom, they are not vested with state authority "when performing a lawyer's traditional functions as counsel to a defendant in a


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