§ 28.03 THE RIGHT TO COUNSEL: AT TRIAL

• Jurisdiction: North Carolina

§ 28.03. The Right to Counsel: At Trial²⁰

[A] The Right to Employ Counsel

It has always been clear that, at a minimum, the Sixth Amendment entitles an accused in a federal prosecution to employ a lawyer to assist in his defense at trial.²¹ Moreover, since 1963, the right to counsel has been deemed a fundamental right of criminal justice;²² therefore, an accused in a state prosecution has a similar Fourteenth Amendment right to retain an attorney to represent him during trial.

[B] Indigents: The Right to Appointed Counsel²³

[1] Overview

Justice Hugo Black, speaking for the Supreme Court, wrote in 1956 that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has."²⁴ If the "amount of money" an accused has cannot pay for a lawyer, he has little chance for "equal justice" without outside help. Moreover, given the historic correlation between race and poverty, "failure to provide adequate assistance of counsel to accused indigents draws a line not only between rich and poor, but also between white and black."²⁵ The Supreme Court reacted gradually, but ultimately broadly, to the problem of representation for indigents in criminal cases.

In 1938, the Supreme Court announced in Johnson v. Zerbst²⁶ that the "Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." From that point, therefore, indigents prosecuted in federal court had the right to have counsel appointed for them at government expense. For 25 years after Zerbst, however, the Court did not require the states (as distinguished from the federal government) to appoint counsel for indigents. Following a twisting path described below, the Court eventually mandated appointment of counsel in state prosecutions in its 1963 landmark decision in Gideon v. Wainwright.²⁷ Until Gideon, legal representation of indigents in state courts was sporadic and often ineffective.²⁸ Now it is mandatory, though very serious problems with provision of adequate indigent defense persist.²⁹

[2] The Road to Gideon

[a] Powell v. Alabama

In Powell v. Alabama,³⁰ nine teenage black youths (ages 12 to 19) were prosecuted for the alleged rape of two white girls in an Alabama community that, due to the race of the parties, was "explosive with rage and vengeance."³¹ The youths, residents of another state, and described by the Court as "ignorant and illiterate," were indicted, arraigned, and brought to trial less than two weeks after the capital offenses supposedly occurred.

As Supreme Court Justice George Sutherland explained, until the day of trial, "no lawyer had been named or definitely designated to represent the defendants." Instead, as the trial judge explained, he had "appointed all the members of the bar for the purpose of arraigning the defendants and then of course anticipated . . . [them to] continue to help the defendants if no counsel appeared." On the day of trial, two lawyers, one of whom was from out of state and unfamiliar with local law, offered to represent the youths. Once appointed, however, the lawyers were denied a continuance to adequately prepare their defense. Eight of the defendants were convicted and sentenced to death in the three one-day trials that followed.

The Court overturned the convictions. It treated the youths as constructively unrepresented by counsel at trial, given the manner in which their lawyers had not been allowed time to prepare. In oft-quoted language, Justice Sutherland expansively described the need for assistance of counsel:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.³²

The Court's holding, however, was much narrower than that broad language might suggest and focused on the special circumstances of the case:

All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.³³

[b] Johnson v. Zerbst

Powell involved a state prosecution. The Court's next significant step in providing counsel to indigents came at the federal level. In Johnson v. Zerbst,³⁴ as previously noted, the Court held that "[t]he Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel."

Quoting Justice Sutherland's above-noted passage about the importance of counsel, which the Powell Court used to explain why the Scottsboro defendants had been denied due process, the Zerbst Court used the same concerns to conclude that "the wise policy of the Sixth Amendment" is "a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself," especially because "the prosecution is presented by experienced and learned counsel."

[c] Betts v. Brady

In Betts v. Brady,³⁵ the Court was invited to announce that the federal per se constitutional right to appointed counsel it had found in the Sixth Amendment applied to the states as a matter of Fourteenth Amendment due process. It did not take the step. In Betts, B, an indigent, was indicted for robbery in state court. He requested, but was denied, the assistance of counsel at trial. B was convicted and sentenced to prison. B appealed his conviction on the ground that he was entitled to free assistance of counsel at trial.

The Supreme Court rejected the principle that "due process of law demands that in every criminal case, whatever the circumstances, a State must furnish counsel to an indigent defendant." Based on its reading of state constitutional history and contemporary state practices, the Court concluded that the right to counsel was not essential to a fair trial in light of the "common understanding of those who have lived under the Anglo-American system of law."

Instead, the Court looked to the individual circumstances of the case, as it had Powell v. Alabama.³⁶ This time, however, the Court concluded that no special circumstances existed in B's case to justify the appointment of counsel. In contrast to the Powell defendants, B was prosecuted for a non-capital crime, and the case presented only the "simple issue" of whether B's alibi claim should be believed. The Court concluded that B, "not helpless, . . . a man forty-three years old, [and] of ordinary intelligence," could handle his defense adequately by himself.

[3] Gideon v. Wainwright

Gideon v. Wainwright³⁷ overruled Betts v. Brady.³⁸ Gideon brought the protections of the Sixth Amendment right to counsel to the states, through the Fourteenth Amendment Due Process Clause. This incorporation of the Sixth Amendment right to counsel means that counsel must be appointed for indigents in state criminal cases, as they have been in federal cases since Johnson v. Zerbst,³⁹ without case-by-case examination of the circumstances.

In Gideon, G was prosecuted for the felony of breaking and entering a poolroom. G requested, but was denied, the assistance of counsel. According to the Court, he conducted his own defense "about as well as could be expected from a layman." Nonetheless, the jury convicted him, and he was sentenced to five years' imprisonment.

The Supreme Court, per Justice Hugo Black, overturned the conviction.⁴⁰ According to Justice Black, Betts had "made an abrupt break with [the Court's] own well-considered precedents," especially that of Powell v. Alabama,⁴¹ from which the Court once again quoted Justice Sutherland's expansive passage about the importance of counsel. An "obvious truth," the Court found, is that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Justice Black further observed:

Governments . . . quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. [The implication of this is] . . . that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental . . . in some countries, but it is in ours.

By holding that the Constitution mandated universal representation, the Gideon Court sought to realize the "noble ideal" of "assur[ing] fair trials before impartial tribunals in which every defendant stands equal before the law."⁴²

Justice Harlan, concurring in the judgment, agreed that Betts should be overruled, but considered it "entitled to a more respectful burial" than the Court gave...