Right to Counsel

Author:Francis A. Allen

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The constitutional right to counsel in American law encompasses two broad categories of rights: first, rights of persons to retain and employ counsel in official proceedings and, second, rights of persons who because of financial incapacity or other reasons are unable to procure the assistance of lawyers, to have counsel appointed in their behalf.

The modern rights to counsel are the product of a historical evolution extending over a half-millennium. English criminal procedure in the early modern era diverged sharply from today's institutions of adversary criminal justice. In the Tudor and Stuart regimes, legal proceedings in which the crown's interests were strongly implicated were heavily tilted in favor of the state and against the accused. Thus it was only in the least serious cases, those involving MISDEMEANORS, that the privilege of the accused to present his defense by counsel was recognized. Not until the end of the seventeenth century was a similar right granted defendants in TREASON trials (along with the right to have counsel appointed by the court when requested).

Over 140 years were to elapse before Parliament recognized the right of the accused to retain and employ counsel in FELONY trials. The earlier recognition of the right to counsel in treason cases reflects the fact that members of Parliament were themselves frequent targets of treason prosecutions launched by the crown. Throughout the eighteenth century the incongruity of a system that recognized counsel rights in misdemeanor and treason cases but withheld them in felony cases at a time when as many as 150 felonies were punishable by death was widely perceived and sometimes protested.

In the American colonies there was great variation in practices and statutory provisions relating to rights of counsel in criminal cases. By 1776, however, the right of attorneys retained by the accused to perform defense functions in courts appears to have been widely conceded, and in several of the colonies practices were considerably in advance of those then prevailing in England. In Pennsylvania, for example, the appointment of counsel for impoverished defendants in capital cases was mandated by statute; and in Connecticut even more liberal practices of appointment were established in the quarter-century before the American revolution.

Rights to counsel entered American constitutional law through provisions included in the early state constitutions and with the ratification of the Sixth Amendment to the federal Constitution in 1791. Seven of the original states and Vermont adopted constitutional provisions relating to the rights to counsel, and the right so protected was that to retain and employ lawyers in criminal trials. By the beginning of the nineteenth century only two states, Connecticut and New Jersey, appear clearly to have recognized a right in the accused to request appointment of counsel in all serious cases; and in neither was the privilege created by a constitutional provision.

Included in the Sixth Amendment, upon which most of the modern law of counsel rights depends, is the following clause: "In all criminal prosecutions, the accused shall enjoy the right ? to have the Assistance of Counsel for his defense." There is no direct evidence of the framers' intentions in drafting the language or of the understanding of those who ratified the amendment. Yet the general assumption until well into the present century was that the right constitutionally protected was one to employ counsel, not to have counsel assigned.

One of the most remarkable features of Sixth Amendment history is the paucity of judicial authority on the counsel clause for nearly a century and a half after the amendment's ratification. There was no comprehensive exegesis in the Supreme Court, and only a scattering of holdings in the lower federal courts. The relative absence of authoritative interpretation may be explained in part by the long delay in establishing a system of federal criminal

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APPEALS and the strict limitations applied to the HABEAS CORPUS remedy in the federal courts. The landmark decision in JOHNSON V. ZERBST was not handed down until 1938, six years after the Court had begun its delineation of the rights to counsel protected by the DUE PROCESS clause of the FOURTEENTH AMENDMENT in state criminal prosecutions. (See POWELL V. ALABAMA.) Johnson was comprehensive and far-reaching. The Court, through Justice HUGO L. BLACK, without pausing to canvass the historical understanding of the counsel clause, held that a federal trial court lacked power "to deprive an accused of his life and liberty unless he has or waives the assistance of counsel." Second, the assistance of counsel "is an essential jurisdictional prerequisite" to a federal court's power to try and sentence a criminal defendant. Hence the habeas corpus remedy may be invoked by a prisoner to set aside his conviction if the Sixth Amendment right to counsel was withheld at his trial. Third, although the right to have counsel assigned may be waived, allegations of waiver will be closely scrutinized. WAIVER OF CONSTITUTIONAL RIGHTS involves "an intentional relinquishment of a known right or privilege." The trial judge has a "protecting duty" to see that the accused understands his rights to legal assistance, and if the judge determines that the defendant has waived his rights, the record of the trial should clearly reveal the judge's determination and the basis for it.

In holding that the counsel clause not only creates a right to make use of a retained lawyer in federal criminal proceedings but also mandates the assignment of counsel for an accused otherwise unable to procure legal assistance, Johnson v. Zerbst upset the long-prevailing understanding to the contrary. Yet the decision did not immediately produce a major alteration in the actual practices of federal criminal justice. Many federal district courts before 1938, with the active encouragement of the Department of Justice, had been assigning counsel to indigent defendants in felony cases. The lawyers so appointed typically received no compensation for their services and were hampered in having no resources for pretrial investigations of their cases or for many other incidents of trial. Johnson v. Zerbst did little to improve this situation. It was not until a quarter-century later that Congress enacted the Criminal Justice Act of 1964 and for the first time provided, however inadequately, a system of compensated legal assistance in the federal courts.

In the celebrated case of Powell v. Alabama, decided in 1932, the Supreme Court made its first significant contribution to the constitutional law of counsel rights in Fourteenth Amendment cases. Powell, in addition, was one of the great seminal decisions in the Court's history and strongly influenced the development of the entire modern constitutional law of CRIMINAL PROCEDURE. The decision arose out of one of the most famous of twentieth-century criminal prosecutions, that of the Scottsboro defendants. Seven illiterate young blacks were arrested on the charge of raping two white women. After INDICTMENT the accused were divided into groups and tried in three separate trials. No lawyer having come forward to represent the defendants, the trial judge appointed "all the members of the bar" to assist in the arraignment, an act later described by the Supreme Court as merely "an expansive gesture." At the trial no lawyer was designated to assume personal responsibility for protecting the defendants' interests. Each trial was completed in a single day, and in each the jury convicted the accused and sentenced them to death. The convictions were affirmed in the Alabama Supreme Court, the chief justice vigorously dissenting.

At the time of the Powell decision, the Supreme Court had rarely employed the federal judicial power to upset state criminal prosecutions. (See MOORE V. DEMPSEY.) The determination of the Court that the procedures in the Alabama trial had violated the accused's rights to due process of law protected by the Fourteenth Amendment was, therefore, an event of portentous significance. The Court held that both the right of the defendants to retain counsel and the right to have counsel assigned in their behalf had been nullified. The speed with which the Scottsboro defendants had been rushed to trial and conviction deprived them of an opportunity to secure legal assistance, and the arrival of lawyers eager to provide representation for the defendants shortly thereafter indicated that the haste was seriously prejudicial. Beyond this, the Court found that the failure to make an effective appointment of counsel in behalf of the accused, given the circumstances of the case, constituted a denial of due process.

The constitutional theory of Justice GEORGE SUTHERLAND'S opinion for the court is important, for it dominated thought about the rights of counsel for the next three decades. Whatever else the protean phrase "due process of law" contemplates, argued the Court, it encompasses the requirement of NOTICE and hearing in criminal cases. A FAIR...

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