A Number of Landmark Court Decisions - Term Paper Example

Right to Counsel: the evolution and expansion of the Supreme Court’s understanding of the reach of the Sixth Amendment to the United s Constitution INTRODUCTION The Constitution’s Sixth Amendment provides, inter alia, that “In all criminal prosecutions, the accused shall enjoy the right to … have the assistance of counsel for his defense.” The right to counsel was originally understood as ‘negative,’ in the sense that the prosecuting authority was forbidden to take steps to prevent a defendant’s procurement of an attorney for his defense. However, starting with its holding in Powell v. Alabama [287 U.S. 45 (1932)], the Supreme Court has periodically expanded the formal reach and scope of the Sixth Amendment ‘right to counsel’ provision. This report examines a number of landmark Court decisions and concludes that the Court’s understanding of the right to counsel has evolved from a right to retain counsel to a right to assured counsel, in any proceeding that might result in incarceration or other abridgment of personal freedom. It now appears that the trajectory of that impetus is continuing into the realm of pretrial activities (e.g., arraignment) and the thorny issue of pro se defenses. BACKGROUND Since the first years of the American Republic under its existing Constitution, provisions for a defendant’s right to counsel in criminal cases have been written into law.1 Even before adoption of the Sixth Amendment (1791), Congress enacted legislation. According to Beaney (1955), the Judiciary Act of 1789 (1 Stat. 73) “provided that in federal courts parties could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of the court [29].” The Act of April 30, 17902 (1 Stat. 112 et seq.) went considerably further. It established that any person charged with treason or other capital crime not only had a right to legal counsel but also that upon the defendant’s request “the court before which is tried, or some judge thereof, shall immediately … assign to him such counsel not exceeding two, as he may desire, and they shall have free access to him at all reasonable hours [1 Stat. 118].” It thus appears that even before enactment of the Sixth Amendment a defendant’s right to counsel was popularly construed as normative, even if not universally a court procedure. As noted supra, however, it was not until its decision in Powell that the Supreme Court began expanding the right to counsel clause to its present scope. FORMAL EXPANSION OF THE SCOPE OF THE ‘RIGHT TO COUNSEL’ CLAUSE The Supreme Court’s interpretation of the ‘right to counsel’ clause in criminal trial proceedings—in the absolute sense of ‘having a lawyer’—developed over three decades, beginning, as noted, with Powell and culminating in Gideon v. Wainwright [372 U.S. 335 (1963)]. However, in the wake of its decision in Gideon, the Court found it necessary in subsequent cases to determine related matters (e.g., what actually constitutes ‘effective counsel’ [McMann v. Richardson, 397 U.S. 759 (1970)], trial judge’s requirement to appoint separate counsels for codefendants in instances in which the defendants in question have divergent interests [Holloway v. Arkansas, 435 U.S. 475, 1978]). Decisions in the following cases limn the trajectory of the Court’s thinking during the decades in question. Powell v. Alabama [287 U.S. 45 (1932)]: In this case, the Supreme Court determined that the Sixth Amendment’s guarantee of right to counsel in capital cases must be more than pro forma, in order not to implicate the ‘due process’ clause of the Fourteenth Amendment.3 Powell grew out of the notorious ‘Scottsboro Boys’ case, in which a group of young black men were tried and convicted of rape and assault in what was even at the time of the court proceedings accounted a travesty of justice.4 The defendants were assigned attorneys immediately preceding actual trial. Following a one-day trial, all nine defendants were convicted and sentenced to death [Id., at 50]. The Alabama Supreme Court affirmed the trail court findings and sentences.5 The United States Supreme Court granted certiorari and heard the defendants’ appeal. The defendants argued “(1) they were not given a fair, impartial, and deliberate trial; (2) they were denied right of counsel, with the accustomed incidents of consultation and opportunity for preparation for trial; and (3) they were tried before juries from which members of their own race were systematically excluded [Id., at 50].” The Court held that the defendants had, for practical purposes, been denied right to counsel, given the manner in which defense counsel was afforded them, and therefore implicated the ‘due process’ clause of the Fourteenth Amendment. “The fact that the right involved is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions (Herbert v. State of Louisiana, 272 U.S. 312, at 316)’ is obviously one those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt within another part of the Federal Constitution [275 U.S. 45, at 67].” As a practical matter, in its decision in Powell the Court established a nexus between gravity of the prospective sentence—in this case, execution—and a right to counsel that extended beyond the pro forma defense counsel appointments that characterized the 1932 criminal proceedings. Johnson v. Zerbst [304 U.S. 458 (1938)]: In this case, the Court held that, in federal criminal proceedings, the Sixth Amendment requirement for right to counsel was absolute, and could not be denied to defendants who could not afford to retain a lawyer. Johnson, an enlisted man in the United States Marine Corps on leave, in the company of a fellow Marine, was arrested in November 1934 after being found in possession of counterfeit $20 federal reserve notes. Unable to provide bail, Johnson was remanded while awaiting trial. While Johnson had been represented in a preliminary hearing before a federal commissioner, “the accused [was] unable to employ counsel for [his] trial [304 U.S. 458, at 460].” Despite evident indigence and absence of counsel, Johnson, in response to a trial court query, responded that he was ready for trial.6 He was convicted in District Court (Charleston, SC) of possession and distribution of counterfeit U.S. currency and sentenced to a term in a federal penitentiary. Johnson’s conviction was upheld by the Court of Appeals (Fifth Circuit) [92 F.2d 748]. Upon appeal, the Supreme Court granted certiorari and, after hearing arguments, reversed the decisions of the district and appellate courts. Despite a number of questionable actions undertaken at trial by the prosecution, the core issues facing the Court in Johnson were determinations regarding the reach of the requirement for provision of counsel and the collateral issue of constitutionally acceptable voluntary waiver of counsel. Regarding the first, the Court, after first asserting that right to counsel “is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty [304 U.S. 458, at 462],” addressed the thornier problem of Johnson’s ostensible waiver of right to counsel (i.e., when he stated that he was prepared to go to trial). “The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether is intelligent and competent waiver by the accused [Id., at 465].” In effect, the Court held that the absence of defense counsel immediately established an affirmative requirement on the trial court to determine if right to counsel had been waived by the defendant. A simple statement to that effect was insufficient. “The purpose of the constitutional guaranty of a right to counsel is to protect the accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution [Id.].” Betts v. Brady [316 U.S. 455 (1942)]: In this case, the Supreme Court refused to extend to the several states the Sixth Amendment’s requirement for right to counsel in state criminal proceedings, contrary to what the Court had previously established in Johnson (q.v., supra) for their federal counterpart. Betts was indicted for robbery by a Maryland grand jury. Before trial, Betts, claiming indigence, requested court assignment of counsel, which request was denied by the presiding judge, “as it was not the practice in Carroll County to appoint counsel for indigent defendants save in prosecutions for murder and rape [316 U.S. 455, at 456].” At trial, Betts was convicted and sentenced to a term in the state penitentiary. The Maryland Supreme Court upheld Betts’ conviction. The United State Supreme Court granted certiorari. The Court held that “The Sixth Amendment of the national Constitution applies only to trials in federal courts. The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, although a denial by a state of rights or privileges specifically embodied in that and others of the first eight amendment may, in certain circumstances, or in other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth [316 U.S. 455, at 461,462].”7 The Court’s decision in Betts amounted to deference to individual state practice.8 Thus, those states that adopted provisions of law requiring appointment of counsel to indigent defendants could implicate the Fourteenth Amendment’s due process clause if the state provision were not responsibly enforced.9 The Court relied on historical practices among the several states in coming to its decision, finding diversity existing at the state level—extending as far back as the colonial period and, for that matter, in certain instances in which a state from time to time amended its governing requirements as political interests and social mores evolved—sufficient to warrant the conclusion that the matter was best left to state legislatures for determination. In its decision in Betts, the Court also emphasized the importance of the particulars of the case. “[The] accused was not helpless, but was a man forty-three years old, of ordinary intelligence and ability to take care of his own interests on the trial of that narrow issue [of the veracity of witnesses to the offense in question]… It is quite clear that in Maryland, if the situation had been otherwise and it appeared that that the petitioner was … at a serious disadvantage by reason of lack of counsel, a refusal to appoint would have resulted in the reversal of a judgment of conviction [Id., at 472,473].” Irrespective the arguments of the Court in support of its holding in Betts, it is difficult to reconcile them with the underlying argument applied by the Court in support of its earlier decision in Johnson (q.v., supra). The Court’s presumption, that even the most talented layman cannot be expected to appreciate the intricacies of the law insofar as they might be construed to be of assistance to him were he a defendant in a criminal proceeding—as was the Court’s assertion in Johnson—and therefore the right to counsel was absolute, is difficult to reconcile with its decision in Betts, which, at least in part, relied on the fact that the defendant-petitioner, as a career criminal, had accumulated a wealth of practical knowledge concerning the workings of the criminal courts. Nonetheless, this conundrum would remain in place until the Court’s decision in Gideon v. Wainwright [372 U.S. 335 (1963] (q.v., infra).10 Until its decision in Gideon, however, the Court restricted its consideration of the reach of state responsibility in meeting requirements established under the Sixth Amendment to the determination of ‘special circumstances.’ Court decisions in the post-Betts period: During the twenty-year interval separating its decisions in Johnson and Gideon, the Court established a number of ‘special circumstances’—in effect, classes of defendants or offenses—that implicated the Fourteenth Amendment’s due process clause and, by extension, the Sixth Amendment’s right to counsel clause in state criminal proceedings. These included such varied considerations as youth and immaturity [e.g., Moore v. Michigan, 355 U.S. 155 (1957)], inexperience attributable to limited education [e.g., Uveges v. Pennsylvania, 335 U.S. 437 (1948)], and insanity or mental abnormality [e.g., Palmer v. Ashe, 342 U.S. 134 (1951)]. Gideon v. Wainwright [372 U.S. 335, 1963]: In this case, the Court, unanimously overruling is decision in Betts, decided that the Sixth Amendment’s provision of right to assistance of counsel was ‘fundamental’ and, as a consequence, the Fourteenth Amendment makes that right constitutionally mandated in state courts. Gideon was convicted in a Florida criminal court of a felony (breaking and entering) and sentenced to five years incarceration. Pleading indigence, Gideon requested court-appointed counsel, which request was denied by the trial court, on grounds that Florida law established that the state was only obligated to provide counsel to indigent defendants in capital cases. The Court opinion concluded, “From the very beginning, our state and national constitutions and law have laid great emphasis on procedure and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him [372 U.S. 335, at 344].” With its decision in Gideon, the Court affirmed as a matter of law that anyone charged with a felony, irrespective the venue, had a right to counsel at trial. However, at least one species of criminal proceeding remained—that of an indigent person charged with a misdemeanor that, upon conviction, might result in imprisonment. Argersinger v. Hamlin [407 U.S. 25, 1972]: In this case, the Court extended the reach of the Sixth Amendment’s ‘right to counsel’ clause to cover indigent defendants charged with those misdemeanors that, upon conviction, included incarceration as a prospective penalty.11 In Argersinger, the defendant was convicted of carrying a concealed weapon, a misdemeanor in the state of Florida carrying a maximum penalty of six months imprisonment and a fine. At bench trial, the defendant (Jon Argersinger), after being denied a court-appointed defense attorney, was convicted and sentenced to 90 days incarceration. Upon appeal, the Florida Supreme Court “held that the right to court-appointed counsel only extends to trials for ‘non-petty offenses punishable by more than six months imprisonment [236 So.2d 442, at 443]’ [407 U.S. 25, at 27].” The Court reversed the holding of the Florida appellate court. “The requirement for counsel may well be necessary for a fair trial even in petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more [Id., at 33].”12 PROSPECTIVE EXPANSION OF THE REACH OF THE ‘RIGHT TO COUNSEL’ CLAUSE The Supreme Court has granted certiorari in Sixth Amendment cases, each of which implicates right to counsel. In coming weeks, the Court will hear arguments in Rothgery v. Gillespie County (Texas) [Docket No. 07-440, 2008], in which the petitioner argues that his Sixth Amendment right to counsel was denied during pretrial court proceedings. Rothgery was charged with possession of a firearm by a convicted felon, a serious offense. (As it happens, months after he was initially charged, Rothgery’s attorney presented evidence that his client had never been convicted of a felony and, therefore, the charge against his client could not be sustained. Rothgery was freed, albeit after spending three weeks in prison because he was unable to post the required bond.) Rothgery brought suit against Gillespie County in federal district court, arguing that his incarceration during the pretrial proceedings in the absence of court-appointed counsel violated his Sixth Amendment rights. The federal court dismissed Rothgery’s suit (a decision upheld by the Court of Appeals, Fifth Circuit) on grounds that the district court hearing that resulted in Rothgery’s incarceration did not involve a prosecutor and, therefore, did not implicate the Sixth Amendment. Simply stated, the Court of Appeals, in its decision, held that it was not incarceration, per se, that implicated the Amendment but, rather, a formal decision to go to trial. The Supreme Court heard oral arguments in Indiana v. Edwards [Docket No. 07-208] in late March 2008. At issue is the reach of the state’s authority—in this case, Indiana—to override a defendant’s right to act pro se, as his own attorney, in a criminal proceeding. In this case, Ahman Edwards, a man of diminished mental capacity charged with murder, has argued that he is competent to act in his own defense. The state holds otherwise, arguing that allowing Edwards to act pro se would, however indirectly, effectively undermine his Sixth Amendment rights. Additionally, the state argues that it has an interest in securing court-appointed counsel, in that doing otherwise risked exposing the state to public obloquy. Decisions in both of these cases will be handed down in coming months. FINAL THOUGHTS It is evident from the foregoing discussion that the Court, with the arguable exception of its decision in Betts, has progressively extended the reach of the Sixth Amendment’s right to counsel clause to any proceeding that prospectively involves incarceration, however brief, upon conviction. In every case that reached the Court, it was the fact of incarceration, real or prospective, that proved decisive. Understood in these terms, it appears that the Court, in its upcoming decision in Rothgery, might well find for the petitioner. The course that the Court might take in Edwards is much more problematic. In decisions reaching back to the 1950s, the Court firmly established a Sixth Amendment right to counsel in cases involving defendants who were mentally retarded or otherwise of diminished mental capacity. In a sense, Edwards presents a ‘mirror-image’ to those antecedent cases. Instead of desiring court-appointed counsel, the defendant wishes to proceed without such assistance. This presents the Court with an unwanted prospective outcome. In the absence of a ‘two-level’ standard for permitted pro se proceedings—one for mentally competent defendants and another for those less competent—the practical effect of deferring to Edwards’ wishes could well be that trial judges might be tempted to so raise the standard for competency that few individuals displaying troubled mental conditions could be brought to trial at all. Works consulted in the preparation of this report Beaney, W. M. (1955), The right to counsel in American courts, Ann Arbor [MI]: University of Michigan press, 260pp Coyle, Marcia (2008), Right to counsel probed by justices: two cases raise key criminal law issues, National Association of Criminal Defense Lawyers [NACDL] News & Issues D’Addio, David J. (2004), Dual sovereignty and Sixth Amendment right to counsel, Yale Law Journal, Vol. 113, pp 1991 et seq. Find Law (2007), U.S. Constitution/Sixth Amendment: Annotations Halama, Meredith E. (1998), Loss of a fundamental right: the Sixth Amendment is a mere ‘prophylactic rule,’ University of Illinois Law Review, Vol. 1998, No. 4 U.S., Supreme Court (1932), Powell v. Alabama, 287 U.S. 45 (1963), Gideon v. Wainwright, 372 U.S. 335 (1970), McMann v. Richardson, 397 U.S. 759 (1978), Holloway v. Arkansas, 435 U.S. 475 (1938), Johnson v. Zerbst, 304 U.S. 458 (1942), Betts v. Brady, 316 U.S. 455 (1972), Argersinger v. Hamlin, 407 U.S. 25 (2008), Rothgery v. Gillespie County, No. 07-440 [Certiorari to the Court of Appeals, Fifth Circuit, March 19, 2008] (2008), Indiana v. Edwards, No. 07-208 [Certiorari to the Supreme Court of the State of Indiana, 49 So.2 0705 CR 202] Read More