Chapter 6 Counsel for the Defense

• Jurisdiction: United States

Chapter 6 Counsel for the Defense

A. Introduction

Among its several important safeguards, the 6th Amendment to the United States Constitution provides that: "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence." In a system of justice premised on the assumption that the clash of skilled advocates representing the opposing views of the parties is the surest path to the truth, it only makes sense to involve an attorney for the defense as a counterweight to the public prosecutor. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the landmark decision which held that the 6th Amendment right to counsel applies to the States and requires the appointment of trial counsel for indigents facing felony charges, the Supreme Court considered the participation of a defense attorney essential "to achieve a fair system of justice." 372 U.S., at 344.

[I]n 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. This seems to us to be an obvious truth. Governments, both state and federal, 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. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural 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., at 344.

In this chapter we will examine the more precise contours of the right to "the assistance of counsel," focusing on cases in which the unavailability or the alleged inadequacies of defense counsel may have contributed to wrongful convictions. We begin by considering the scope of indigents' federal constitutional rights to representation by court-appointed counsel in criminal trials, appeals, and post-conviction review. We then review minimal performance standards for defense counsel, focusing on the constitutional requirement for "the effective assistance of counsel." We pay special attention to cases involving scientific evidence and the measures taken by defense counsel to be prepared to challenge or present expert testimony bearing on trial issues. We conclude in a related vein by exploring whether and to what extent fundamental fairness, or the right to the effective assistance of counsel, embrace a right for indigents to secure the help of court-appointed experts in defending against criminal accusations.

B. The Right to Court-Appointed Counsel: The Criminal Trial and Beyond

The Supreme Court's first major ruling regarding a constitutional right to court-appointed counsel occurred more than three decades before Gideon v. Wainwright, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Indeed, Powell marked one of the Court's earliest decisions setting aside a state court judgment in a criminal case in reliance on the 14th Amendment's Due Process Clause. Under review were the convictions and death sentences returned against several black youths for raping two white women on a freight train that was travelling through northern Alabama. This was the famous Scottsboro Boys case, representing what most observers agree resulted in one of the most glaring series of wrongful convictions in this country's history.¹ Barely more than two weeks separated the alleged rapes and the youths' indictments, trials, and condemnation to death. Alabama law entitled them to court-appointed defense counsel, but which lawyers would represent them was not resolved until the opening day of the trials. The manifest unfairness of this untimely appointment caused the Court to reverse their convictions. Justice Sutherland's opinion explained that "during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." 287 U.S., at 57.

The right to court-appointed counsel recognized in Powell v. Alabama was carefully limited to the facts of that case. "In the light of ... the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives—we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process." Powell v. Alabama, 287 U.S. 45, 71 (1932). Not until 1963, with the Court's decision in Gideon v. Wainwright and the Warren Court's application of the 6th Amendment right to counsel to the states, were indigents constitutionally entitled to be represented by court-appointed counsel in felony trials without limitation.²

Nine years later, the justices ruled in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) that an indigent who was required to represent himself in a Florida criminal trial on a misdemeanor charge of carrying a concealed weapon, a "petty offense" punishable by a maximum of six months in jail, was denied his 6th Amendment right to counsel upon conviction and receipt of a 90-day jail sentence. It was unclear whether the right to court-appointed counsel recognized in Argersinger was limited to misdemeanor cases resulting in jail time or was meant to be available more broadly. Because laypersons facing low-level criminal charges without the assistance of counsel may be ignorant of their rights, ill-equipped to defend themselves in court, feel pressure to plead guilty to avoid suffering conviction and punishment following a trial, or otherwise be at heightened risk of wrongful conviction, the resolution of this issue has special relevance to our subject matter. The Supreme Court considered whether indigent defendants have a constitutional right to court-appointed counsel in misdemeanor trials that do not result in incarceration in Scott v. Illinois.

Scott v. Illinois 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979)

Mr. Justice REHNQUIST delivered the opinion of the Court.

We granted certiorari in this case to resolve a conflict among state and lower federal courts regarding the proper application of our decision in Argersinger v. Hamlin, 407 U.S. 25 (1972). Petitioner Scott was convicted of theft and fined $50 after a bench trial in the Circuit Court of Cook County, Ill. His conviction was affirmed by the state intermediate appellate court and then by the Supreme Court of Illinois, over Scott's contention that the Sixth and Fourteenth Amendments to the United States Constitution required that Illinois provide trial counsel to him at its expense.

Petitioner Scott was convicted of shoplifting merchandise valued at less than $150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine or one year in jail, or both. The petitioner argues that a line of this Court's cases culminating in Argersinger v. Hamlin, supra, requires state provision of counsel whenever imprisonment is an authorized penalty.

The Supreme Court of Illinois rejected this contention, quoting the following language from Argersinger:

"We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." 407 U.S., at 37.

"Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts." Id., at 40.

The Supreme Court of Illinois went on to state that it was "not inclined to extend Argersinger" to the case where a defendant is charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant. We agree with the Supreme Court of Illinois that the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant such as petitioner, and we therefore affirm its judgment....

There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense. W. Beaney, The Right to Counsel in American Courts 27-30 (1955)....

[T]he Court held in Duncan v. Louisiana, 391 U.S. 145 (1968), that the right to jury trial in federal court guaranteed by the Sixth Amendment was applicable to the States by virtue of...