CHAPTER 4 THE RIGHT TO COUNSEL: AT TRIAL AND ON APPEAL

• Jurisdiction: United States

Chapter 4 THE RIGHT TO COUNSEL: AT TRIAL AND ON APPEAL

§ 4.01 OVERVIEW: THE IMPORTANCE OF DEFENSE LAWYERS IN THE ADVERSARY SYSTEM

Defense lawyers occupy a unique role in the criminal justice system. Lionized by some, demonized by others, they are frequently the most important actors in a criminal case. Because a defense lawyer necessarily sometimes protects the guilty, he may seem to some to be "a nettlesome obstacle to the pursuit of wrongdoers."¹ During the adjudication phase of a criminal case, however, there is little dispute that the role of defense counsel is of critical importance — in the words of the Supreme Court, defense lawyers "are necessities, not luxuries."²

At every stage, the adjudication process is calibrated (whether successfully or not) both to reduce the risk of wrongful convictions of innocents and to assure due process for all. Yet that statutory and constitutional calibration — be it regarding discovery, plea bargaining, the trial itself or most any other stage — is conducted with the assumption that the defendant will have a competent attorney representing his interests. Because of this assumption of competent counsel in the adjudication process, it is no exaggeration to state that the very legitimacy of the American criminal justice system depends on the participation of competent, ethical defense lawyers who diligently represent their clients' best interests.

§ 4.02 WHEN THE RIGHT TO COUNSEL APPLIES³

The Sixth Amendment right to counsel applies only after the commencement of adversarial judicial proceedings; the Court has concluded that this commencement starts the "criminal prosecution" for right-to-counsel purposes.⁴ Once the right-to-counsel has attached, it applies not only at the trial itself but also at any "critical stage" of the prosecution.⁵ The Court has described a critical stage as "those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel"⁶ and as "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial."⁷

Applying this test, the Court has found that a pretrial lineup,⁸ a preliminary hearing,⁹ and an arraignment at which rights may be lost (for example, the ability to plead not guilty by reason of insanity),¹⁰ all constitute "critical stages," requiring the presence of counsel. On the other hand, when the police display photographs, including those of the defendant, to witnesses for identification purposes,¹¹ or take a handwriting exemplar from the defendant,¹² it is not a "critical stage" so that the Sixth Amendment right to counsel does not apply. The Sixth Amendment right to counsel also applies at sentencing proceedings.¹³

§ 4.03 THE RIGHT TO COUNSEL: AT TRIAL¹⁴

[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.¹⁵ Moreover, since 1963, the right to counsel has been deemed a fundamental right of criminal justice;¹⁶ 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 Counsel¹⁷

[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."¹⁸ 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."¹⁹ 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. Zerbst²⁰ 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 twenty-five 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.²¹ Until Gideon, legal representation of indigents in state courts was sporadic and often ineffective.²² Now it is mandatory, though certainly not without significant problems.²³

[2] The Road to Gideon

[a] Powell v. Alabama

In Powell v. Alabama,²⁴ nine teenage black youths (ages twelve to nineteen) 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."²⁵ 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.²⁶

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.²⁷

[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,²⁸ 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,²⁹ 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 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 in Powell v. Alabama.³⁰ This time, however, the Court concluded that no special circumstances existed in B's case to justify the...