'Critical stage': extending the right to counsel to the motion for new trial phase.

INTRODUCTION

Only in relatively recent times has the right to counsel for criminal defendants expanded to the level that we now take for granted; namely, that any indigent defendant facing prosecution for a crime has the right to free, effective assistance of counsel for his defense. (1) This development in Sixth Amendment jurisprudence, however, has not come without its share of ambiguity.

The current confusion over the reach of the Supreme Court's Sixth Amendment right to counsel doctrine (2) as it applies to criminal defendants in the post-trial setting has resulted in a split of authority at the circuit court level. (3) The gravamen of the split is whether the period for filing a motion for new trial is a "critical stage" of the prosecution to which the right to counsel attaches. (4) Although the Supreme Court has not addressed this particular question, this Note argues that a logical extension of prior Supreme Court precedent on the reach of the Sixth Amendment right to counsel and the reach of the Due Process and Equal Protection Clauses in related contexts does in fact compel coverage for this stage of the prosecution. Furthermore, the extension of this right to counsel to the post-trial phase of the prosecution is entirely consistent with the overall policy and rationale behind the Sixth Amendment. Resolution of this issue holds practical significance, not merely to prospective indigent criminal defendants, but to criminal defense lawyers and the government as well. In short, the matter is one of basic individual rights, commitment to constitutional norms, economic efficiency, and management of scarce judicial resources.

Part I of this Note provides an overview of the post-trial and postconviction review procedures available to criminal defendants. Part II examines the circuit split in question and provides a breakdown of this conflict over the right to counsel in post-trial motions for a new trial. Part III examines the history of the Sixth Amendment right to counsel jurisprudence, the rationale and policy behind the right, and an overview of Supreme Court precedent on the right to counsel. Part IV analyzes the post-trial problem in light of this history and provides precedent and argues that the right to counsel should extend throughout the period for filing this post-trial motion for a new trial. Finally, this Note concludes with a glimpse into possible practical policy concerns that support ensuring adequate and effective assistance of counsel for indigent criminal defendants at the motion for new trial stage.

1. OVERVIEW OF POST-TRIAL REVIEW PROCEDURES AVAILABLE TO CRIMINAL DEFENDANTS

   Before engaging in an extended discussion of the current circuit conflict over whether the right to counsel attaches to a defendant's motion for new trial, it may be useful to begin with a brief overview of the three most common post-trial remedies available to convicted criminal defendants: the motion for new trial, the right to appeal, and the writ of habeas corpus. Having a working knowledge of each of these three post-trial review procedures (and their respective constitutional groundings) will prove helpful in a review of the problem addressed by the circuit courts, and will also help to illuminate why extension of the right to counsel is necessary in this particular context.

   1. Motion for New Trial

      Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." (5) Although the Constitution is conspicuously silent on whether a criminal defendant has a right to a new trial, Congress, through the Judiciary Act of 1789, provided for defendants the possibility of granting new trials "for reasons for which new trials have usually been granted in the courts of law." (6) Simply put, this procedure extended to those cases in which any convicted federal criminal defendant sought a new trial. (7)

      The language of Rule 33 that allows the court to grant a new trial ("if the interest of justice so requires") has been held to mean that "the court may grant a new trial if it reaches the conclusion that a miscarriage of justice has resulted." (8) In determining whether to grant a new trial, the power of the trial court judge is strong, for if the court decides to grant a criminal defendant a new trial, the prosecution may not appeal the decision. (9) While district court judges' power may be great in this area, so too has been their discretion: they have not engaged in any easygoing application of this considerable remedy. (10) To wit, as noted by one authority, "a new trial will not be granted if the defendant had a fair trial and the verdict is supported by the evidence." (11)

   2. Right to Appeal

      The Supreme Court has clearly and consistently held that there is no constitutional protection for a defendant's right to appeal. (12) In dicta from McKane v. Durston, (13) the Court rejected the notion that the states were constitutionally required to give convicted criminal defendants the avenue of appellate review. Specifically, the Court noted:

      An appeal from a judgment of conviction is not a matter of absolute right, independently of [state] constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review. (14) Nearly one hundred years later, the Court effectively affirmed that view, again in dicta, when it noted that "[t]here is, of course, no constitutional right to an appeal." (15)

      Despite this obvious lack of constitutional support, the right to appellate review for criminal convictions has gained a foothold in every state and throughout the federal criminal justice system. (16) Typically in the federal courts, and in most state courts, the right to appeal is provided to all defendants convicted of a felony. (17) For misdemeanor convictions, usually some form of review is provided (commonly in the general trial court) with the option of subsequent discretionary appellate review. (18)

      The Supreme Court also has held that once the state or federal government grants the defendant a statutory right to appeal, "it cannot condition that right in a manner that violates the constitutional guarantee of equal protection." (19) Of particular relevance to the analysis presented here, this concept of equal protection includes the idea that the defendant has a right to appointed counsel for his first appeal of right, (20) while the concept of due process mandates that the defendant have effective assistance of counsel on his appeal of right. (21) These guarantees do not extend, however, to subsequent discretionary appellate reviews. (22)

   3. Federal Habeas Corpus: Collateral Review

      The federal writ of habeas corpus constitutes a collateral remedy in that the defendant pursues the writ after all other opportunities for appellate review have been exhausted. (23) The source for this right is found in Article I of the Constitution, which provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (24) The Judiciary Act of 1789 first defined this power of federal review by authorizing the federal courts to issue the writ of habeas corpus. (25) The Habeas Corpus Act of 1867 expanded the scope of the federal habeas writ by giving federal courts the "power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." (26) Though there has been considerable debate over the reach and import of this statutory remedy as well as the objective of Congress in adopting the 1867 Act, such issues are beyond the scope of this Note. (27)

2. OVERVIEW OF THE CIRCUIT CONFLICT

   In the abstract, the current circuit conflict may seem more like an argument over the issue of timing (28) than an irreconcilable constitutional impasse. As the following discussion will show, those circuits that have held that the right to counsel attaches to the motion for new trial stage have focused almost uniformly on both the timing and nature of the motion for new trial and the policies and rationale behind the Sixth Amendment right to counsel. (29)

   Conversely, those circuits that have denied extension of the right to counsel to this stage have conspicuously ignored the policies and rationale inherent in the Sixth Amendment guarantee and have focused instead on the timing of the motion for new trial, while giving minimal attention to the nature of the new trial motion as it relates to the entire trial continuum. (30)

   1. Mayo v. Cockrell: Noting and Avoiding the Obvious

      The most recent circuit court to note, address, and effectively side-step the issue of whether the right to counsel attaches to a post-trial, post-appeal motion for new trial is the Fifth Circuit in Mayo v. Cockrell. (31) In Mayo, the defendant was convicted of various felonies in Texas state court. (32) Following the sentencing phase, Mayo informed his lawyer Mewis of his desire to appeal. (33) Mewis advised Mayo to hire another lawyer, because he did not handle appeals. (34) Neither Mewis nor his assistant on the case took any further action on the matter. (35)

      When the deadline for filing an appeal approached, and Mewis still had not heard from any prospective appellate lawyers, he held a meeting with Mayo in jail to ascertain whether Mayo had hired another lawyer. (36) Mayo informed Mewis that he was indigent and could not afford to hire an attorney. (37) Consequently, three days prior to the deadline to file a motion for new trial and notice of appeal, Mewis took...