Ineffective Counsel in State Capital Case: Violation of Due Process
POWELL v. ALABAMA, Supreme Court of the United States (1932), 287 U.S. 45, 53 S.Ct. 55
FACTS:
The defendants, including Powell, and several other black males were riding a freight train with seven young white males and two young white females. A disturbance between the blacks and whites resulted in all of the white males, except one, being thrown from the moving train. Word was sent ahead to law enforcement officials to remove all blacks from the train for the alleged reason that the two females had been raped by the young black men.
Prior to reaching Scottsboro, Alabama, the defendant and others were removed from the train, arrested, and ultimately taken by military detachment to Gadsden, Alabama. The defendant, Powell, and the others were young, illiterate, and not necessarily very schooled in the ways of the world.
Subsequent to the indictment for rape, defendant was arraigned and entered a plea of not guilty. The defendant was not asked if he had counsel or if he wished to have counsel appointed. At the arraignment, the judge appointed all members of the Alabama bar, in a general sense, to represent the several defendants.
Six days after arraignment, the trial began with no attorney clearly in charge of the defense. A Mr. Roddy from Tennessee appeared and requested that he be allowed to assist any counsel which the trail court might appoint. Ultimately, and with little serious substantive discussion of the role of any defense attorney, the court permitted Mr. Roddy and a Mr. Moody to appear for Powell and his fellow defendants. Little or no defense preparation had been done prior to the date of the trial.
The defendants were all convicted of rape and given the penalty of death. The trial court denied motions for new trials and imposed the sentence given by the jury. The Supreme Court of Alabama affirmed the convictions over the strong dissent of one member.
PROCEDURAL QUESTION:
Where the appointment of counsel in a state capital case has been handled in a casual fashion and which allowed little time for trial or preparation, does such practice contravene the dictates of the Due Process Clause of the Fourteenth Amendment?
HELD: Yes.
RATIONALE:
Mr. Justice SUTHERLAND delivered the opinion of the Court.
* * *
In this court the judgments are assailed upon the grounds that the defendants, and each of them, were denied due process of law and the equal protection of the laws, in contravention of the Fourteenth Amendment, specifically as follows: . . . ; (2) they were denied the right to counsel, with the accustomed incidents of consultation and opportunity of preparation for trial; . . .
The only one of the assignments [of error] which we shall consider is the second, in respect of the denial of counsel; and it becomes unnecessary to discuss the facts of the case or the circumstances surrounding the prosecution except in so far as they reflect light upon that question.
* * *
First. The record shows that immediately upon the return of the indictment defendants were arraigned and pleaded not guilty. Apparently they were not asked whether they had, or were able to employ, counsel, or wished to have counsel appointed; or whether they had friends or relatives who might assist in that regard if communicated with . . . .
It is hardly necessary to say that the right of counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. This will be amply demonstrated by a brief review of the record.
April 6, six days after indictment, the trials began. When the first case was called, the court inquired whether the parties were ready for trial. The state's attorney replied that he was ready to proceed. No one answered for the defendants or appeared to represent or defend them. Mr. Roddy, a Tennessee lawyer not a member of the local bar, addressed the court, saying that he had not been employed, but that people who were interested had spoken to him about the case. He was asked by the court whether he intended to appear for the defendants, and answered that he would like to appear along with counsel that the court might appoint.
* * *
. . . Prior to that time, the trial judge had "appointed all the members of the bar" for the limited "purpose of arraigning the defendants." Whether they would represent the defendants thereafter if no counsel appeared in their behalf, was a matter of speculation only, or, as the judge indicated, of mere anticipation on the part of the court. Such a designation, even if made for all purposes, would, in our opinion, have fallen far short of meeting, in any proper sense, a requirement for the appointment of counsel. How many lawyers were members of the bar does not appear; but, in the very nature of things, whether many or few, they would not, thus collectively named, have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned.
In any event, the circumstance lends emphasis to the conclusion 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, thoroughgoing 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.
Nor do we think the situation was helped by what occurred on the morning of the trial. . . . Mr. Moody . . . expressed a willingness to help Mr. Roddy in anything he could do under the circumstances. To this the court responded, "All right, all the lawyers that will; of course I would not require a lawyer to appear if -." And Mr. Moody continued, "I am willing to do that for him as a member of the bar; I will go ahead and held do anything I can do." With this dubious understanding, the trials immediately proceeded. The defendants, young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers, charged with an atrocious crime regarded with especial horror in the community where they were to be tried, were thus put in peril of their lives within a few moments after counsel for the first time charged with any degree of responsibility began to represent them.
* * *
One test which has been applied to determine whether due process of law has been accorded in given instances is to ascertain what were the settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence, subject, however, to the qualification that they by shown not to have been unsuited to the civil and political conditions of our ancestors by having been followed in this country after it became a nation. (Citations omitted.) Plainly, as appears from the foregoing, this test, as thus qualified, has not been met in the present case.
We do not overlook the case of Hurtado v. California, 110 U.S. 516, where this court determined that due process of law does not require an indictment by a grand jury as a prerequisite to prosecution by a state for murder. In support of that conclusion the court . . . [noted] that the Fifth Amendment, in addition to containing the due process of law clause, provides in explicit terms that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, . . .," and said that since no part of this important amendment could be regarded as superfluous, the obvious inference is that in the sense of the Constitution due process of law was not intended to include, ex vi termini, the institution and procedure of a grand jury in any case; and that the same phrase, employed in the Fourteenth Amendment to restrain the action of the states, was to be interpreted as having been used in the same sense and with no greater extent; and that if it had been the purpose of that Amendment to perpetuate the institution of the grand jury in the states, it would have embodied, as did the Fifth Amendment, an express declaration to that effect.
The Sixth Amendment, in terms, provides that in all criminal prosecutions the accused shall enjoy the right "to have the assistance for counsel for his defense." In the fact of the reasoning of the Hurtado case, if it stood alone, it would be difficult to justify the conclusion that the right to counsel, being thus specifically granted by the Sixth Amendment, was also within the intendment of the due process of the law clause. But the Hurtado case does not stand alone. In the later case of the Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226, 241, this court held that a judgment of a state court, even thought authorized by statute, by which private property was taken for public use without just compensation, was in violation of the due process of law required by the Fourteenth Amendment, notwithstanding that the Fifth Amendment explicitly declares that private property shall not be taken for public use without just compensation. [Citations omitted.]
These later cases establish that notwithstanding the sweeping character of the language in the Hurtado case the rule laid down is not without exceptions. The rule is an aid to construction, and in some instances may be conclusive; but it must yield to more compelling considerations whenever such considerations exist. The fact that the right involved is of such a character that it cannot be denied without violating those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," Herbert v. Louisiana, 272 U.S. 312, 316, is obviously one of
those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourth Amendment. . . .
It never has been doubted by this court, or any other so far as we know, that notice and hearing are preliminary steps essential to the passing of an enforceable judgment, and that they, together with a legally competent tribunal having jurisdiction of the case, constitute basic elements of the constitutional requirement of due process of law.
* * *
What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. 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. If charged with crime, he is incapable, generally, of determining for himself whether in indictment is good or bad. 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 has 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. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate. . . . If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.
* * *
[The Court seemed to assume that the defendants lacked the ability] to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. 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 or the case.
* * *
The judgments must be reversed and the causes remanded for further proceedings not inconsistent with this opinion.
Judgments reversed.
Notes
1. In Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), it was held that failure to appoint counsel at arraignment deprived the petitioner of due process, because under Alabama law certain defenses had to be raised then or be abandoned. Counsel was required notwithstanding the fact that the defendant simply pleaded "not guilty" at the arraignment. This was held to have been a "critical stage" of the criminal justice process.
2. If a situation similar to Powell were to reoccur under present Sixth Amendment interpretation, the Sixth Amendment would require that counsel be appointed for trial purposes. In the next case, Gideon v. Wainwright, the Sixth Amendment was held to apply to state trials through the Due Process Clause of the Fourteenth Amendment.
Sixth Amendment Requires Appointed Counsel in State Felony Prosecution
GIDEON v. WAINWRIGHT, Supreme Court of the United States (1963), 372 U.S. 335, 83 S. Ct. 792
FACTS:
Following a breaking and entry into a Florida pool hall, Gideon was charged with a felony. At the appropriate time, Gideon appeared in court and requested the court to appoint counsel to represent him since he lacked sufficient funds to hire an attorney. The trial judge refused, citing Florida law which permitted appointment of counsel at public expense only in capital cases.
Gideon stood trial and served as his own counsel, but received a guilty verdict. The sentence imposed by the court amounted to five years. Post-conviction relief proved ineffective as the Florida Supreme Court denied any relief. The final step before him, Gideon applied to the United States Supreme Court, proceeding in forma pauperis. Interestingly, upon the granting of certiorari, the Court appointed free-counsel for the hearings before the Court!
PROCEDURAL QUESTION:
Where an indigent defendant is without means to procure the assistance of counsel in a state felony prosecution, must the government furnish the assistance of counsel under the requirements of the Sixth Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment?
HELD: Yes.
RATIONALE:
Mr. Justice BLACK delivered the opinion of the Court.
* * *II
The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." We have construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. [In Betts v. Brady, 316 U.S. 455 (1942)] Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down "no rule for the conduct of the states, the question recurs whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment." 316 U.S., at 465, 62 S.Ct., at 1257, 86 L.Ed. 1595. In order to decide whether the Sixth Amendment's guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered "relevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the states prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the states to the present date." (Citation omitted.) On the basis of this historical data the Court concluded that "appointment of counsel is not a fundamental right, essential to a fair trial." (Citation omitted.) It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment's guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, "made obligatory upon the states by the Fourteenth Amendment." Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was "a fundamental right, essential to a fair trial," it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court.
* * *
We accept [the Betts v. Brady] assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is "fundamentally essential to a fair trial" is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court after full consideration of all the historical data examined in Betts, had unequivocally declared that "the right to the aid of counsel is of this fundamental character." Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932). While the Court at the close of its Powell opinion did by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:
"We concluded that certain fundamental rights, safeguarded by the first eight Amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution." (Citations omitted.)
* * *
[We] recognize 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. 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. . . . A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:
"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 science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. 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 otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, thought he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 287 U.S., at 68-69, 53 S.Ct., at 64, 77 L.Ed. 158.
* * *
The judgment is reversed . . .
Notes
1. In the principal case, the Court held that the Sixth Amendment right to the assistance of counsel in a felony case required the government to furnish such aid where the defendant could not personally afford to hire counsel. In a similar fashion, although not strictly based on the right to counsel, the Court in Ake v. Oklahoma, 470 U.S. 68, (1985), held that the prosecuting jurisdiction must furnish a court-appointed psychiatrist where the indigent defendant has properly raised the insanity issue. The Court noted that in the absence of a psychiatric evaluation of the defendant and the lack of psychiatric assistance to evaluate and present evidence, the defendant's counsel may be unable to present an accurate picture of the defendant's mental status which existed at the time of the crime.
2. Should indigent misdemeanor defendant be accorded "free" counsel for trials involving misdemeanors? Or should the government be permitted to try such persons without offering free assistance of counsel? Some misdemeanors are rather intricate and complex to defend. Would this change your decision? Consider the next principal case.
Without Trial Counsel, No Indigent Defendant May Be Incarcerated Following Trial
ARGERSINGER v. HAMLIN, Supreme Court of the United States (1972), 407 U.S. 5, 92 S.Ct.2006
FACTS:
Following an arrest for the crime of carrying a concealed weapon, Argersinger faced trial in a state court. He did not receive the assistance of counsel under the Sixth Amendment because the crime had not been classified as a felony.
Subsequent to his conviction, Argersinger pursued a direct attack which culminated in a decision of the Florida Supreme Court. The Florida Court denied relief by holding that the right to appointed counsel applied only to serious offenses punishable by more than six months incarceration. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Absent waiver, may a person be incarcerated for any class of offense if the person has not been represented by counsel?
HELD: No.
RATIONALE:
Mr. Justice DOUGLAS delivered the opinion of the Court.
* * *
While there is historical support for limiting the "deep commitment" to trial by jury to "serious criminal cases," there is no such support for a similar limitation on the right to assistance of counsel:
"Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest. At the same time parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel. . . .
* * *
The Sixth Amendment thus extended the right to counsel beyond its common-law dimensions. But there is nothing in the language of the Amendment, its history, or in the decisions of this Court, to indicate that it was intended to embody a retraction of the right in petty offenses wherein the common law previously did require that counsel be provided.
We reject, therefore, the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer.
* * *
Both Powell and Gideon involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. Powell and Gideon suggest that there are certain fundamental rights applicable to all such criminal prosecutions, even those. . . where the penalty is 60 days' imprisonment:
"A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense - a right to his day in court - are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel," 333 U.S., at 273, 68 S.Ct., at 507.
The requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. [Citations omitted.]
The trial of vagrancy cases in illustrative. While only brief sentences of imprisonment may be imposed, the cases often bristle with thorny constitutional questions. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.
* * *
Beyond the problem of trial and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.
In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result. . . .
* * *
There is evidence of the prejudice which results to misdemeanor defendants from this "assembly-line justice." One study concluded that "(m)isdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel." American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970).
We must conclude, therefore, that the problem associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused of a fair trial. Mr. Justice Powell suggests that these problems are raised even in situations where there is no prospect of imprisonment. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S., at 73, 90 S.Ct., at 1890, "the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or `petty' matter and may well result in quite serious repercussions affecting his career and his reputation."
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.
* * *
Reversed.
Notes
1. Many petty offenses are punishable by either a fine or imprisonment, or both. According to Argersinger, could you assume that an indigent would be granted appointed counsel for an offense which the judge had already decided to punish with a fine if conviction resulted? Many indigent persons could not afford to pay any fine. Any effect?
2. Following a trial without counsel, could a judge grant probation which could later result in incarceration upon revocation? Would such approach run counter to Argersinger? The person would be incarcerated despite the fact that no counsel appeared at trial or entry of plea, and yet incarceration without counsel would be the result.
3. In Scott v. Illinois, 440 U.S. 367 (1979), the trial court convicted the indigent petitioner of theft and levied a fine. The crime for which he was charged potentially carried some jail time, but Scott was not given any time. Scott argued that he had a Sixth Amendment right to counsel since he had been charged with an offense for which he could have been given incarceration. Scott held that the Sixth Amendment requires that no indigent defendant be sentenced to a term of imprisonment [custody of any sort] unless the state has given the defendant the assistance of counsel. Since Scott was not sentenced to custody, he did not have the right to appointed counsel.
4. The assistance of counsel is important not only at trial and prior to trial, but may play a critical role in ensuring that innocent are not wrongfully convicted. In Douglas v. California, 372 U.S. 353 (1963), the defendant had been denied assistance of counsel for appellate purposes and had effectively been denied an appeal [unless the defendant could discern the mechanics of the process and pursue it on his own]. The Court held that where the type of an appeal a person gets depends on the wealth of the appellant, such distinction violates the Equal Protection clause of the Fourteenth Amendment. An indigent must be granted free appointed counsel for the first appeal following conviction, according to the Douglas Court.
Qualified Right to Counsel at Some Post-Conviction Hearings
MEMPA v. RHAY, Supreme Court of the United States (1967), 389 U.S. 128, 88 S.Ct. 245
FACTS:
[The case of Mempa was consolidated with that of a petitioner similarly situated.]
Petitioner was convicted of the crime of "joyriding" upon his entry of a guilty plea. He received two years probation on the condition that, among other things, he serve thirty days in the county jail. Several months later, the local prosecutor prepared to have Mempa's probation revoked on the ground that he had become involved in additional criminal activities.
At the probation revocation hearing, Mempa was not represented by counsel. He answered affirmatively when asked if he had been involved in a new crime, burglary. His probation officer corroborated Mempa's account of the burglary. The hearing concluded with the judge sentencing petitioner to ten years in the penitentiary.
The Supreme Court of Washington denied Mempa's petition for a writ of habeas corpus and the Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Does the right to appointed counsel extend to an indigent's state probation revocation hearing?
HELD: Yes.
RATIONALE:
Mr. Justice MARSHALL delivered the opinion of the Court.
* * *
In 1948 this Court held in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, that the absence of counsel during sentencing after a plea of guilty coupled with "assumptions concerning his criminal record which were materially untrue" deprived the defendant in that case of due process. Mr. Justice Jackson there stated in conclusion, "In this case, counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner." Id., at 741, 68 S.Ct., at 1255. Then in Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), where a denial of due process was found when the defendant did not intelligently and understandingly waive counsel before entering a plea of guilty, this Court emphasized the prejudice stemming from the absence of counsel at the hearing on the degree of the crime following entry of the guilty plea and stated, "The right to counsel is not a right confined to representation during the trial on the merits." Id., at 160, 78 S.Ct., at 194.
* * *
In Gideon v. Wainwright, . . . Betts was overruled and this Court held that the Sixth Amendment as applied through the Due Process Clauses of the Fourteenth Amendment was applicable to the States and, accordingly, that there was an absolute right to appointment of counsel in felony cases.
[T]he sentencing judge is required by statute, together with the prosecutor, to furnish the Board with a recommendation as to the length of time that the person should serve, in addition to supplying it with various information about the circumstances of the crime and the character of the individual. We were informed during oral argument that the Board places considerable weight on these recommendations, although it is in no way bound by them. Obviously to the extent such recommendations are influential in determining the resulting sentence, the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant or present his case as to sentence is apparent.
Even more important in a case such as this is the fact that certain legal rights may be lost if not exercised at this stage. For one, Washington law provides that an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation. State v. Farmer, 39 Wash.2d 675, 237 P.2d 734 (1951). Therefore in a case where an accused agreed to plead guilty, although he had a valid defense, because he was offered probation, absence of counsel at the imposition of the deferred sentence might well result in loss of the right to appeal.
* * *
Without undertaking to catalog the various situations in which a lawyer could be of substantial assistance to a defendant in such a case, it can be reiterated that a plea of guilty might well be improperly obtained by the promise to have a defendant placed on the very probation the revocation of which furnishes the occasion for desiring to withdraw the plea. An uncounseled defendant might very likely be unaware of this opportunity.
* * *
All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing [hearing].
The judgments below are reversed and the cases are remanded for further proceedings not inconsistent with this opinion.
Notes
1. The holding in the principal case is limited to the situation where the revocation of probation also involves the imposition of a sentence. In the typical case, the trial court has earlier imposed the sentence but deferred its execution during good behavior. Thus, the revocation of probation does not involve the imposition of a new sentence, only the beginning of the execution of the earlier sentence.
2. Why should counsel be present at a sentencing hearing? How do you believe counsel could assist the convicted individual at this stage of the criminal process? Could the attorney present the evidence in the view most favorable to the defendant-convict?
Right to Appellate Counsel Demands Effective Representation
EVITTS v. LUCEY, Supreme Court of the United States (1985), 469 U.S. 387, 105 S.Ct. 830
FACTS:
Respondent has for the past seven years unsuccessfully pursued every legal theory to him in an effort to obtain a decision on the merits of his appeal and to prove that his conviction was unlawful. The Kentucky appellate courts refused to hear him on the merits of his claim did not stem from any view of those merits, but the failure of counsel to obey a court rule which had the effect of precluding an appeal on the merits. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where the appellant was accorded nominal representation on appeal, does the appellate-level right to counsel also include the right to effective assistance of counsel?
HELD: Yes.
RATIONALE:
JUSTICE BRENNAN delivered the opinion of the Court.
[The case of] Douglas v. California, 372 U.S. 353 (1963), held that the Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal as of right. In this case, we must decide whether the Due Process Clause of the Fourteenth Amendment guarantees the criminal defendant the effective assistance of counsel on such an appeal.
* * *
Rather the issue we must decide is whether the Commonwealth's dismissal of the appeal, despite the ineffective assistance of respondent's counsel on appeal, violates the Due Process Clause of the Fourteenth Amendment.
Before analyzing the merits of respondent's contention, it is appropriate to emphasize two limits on the scope of the question presented. First, there is no challenge to the District Court's finding that respondent indeed received ineffective assistance of counsel on appeal. Respondent alleges - and petitioners do not deny in this Court - that his counsel's failure to obey a simple court rule that could have such drastic consequences required this finding. We therefore need not decide the content of appropriate standards for judging claims of ineffective assistance of appellate counsel. Cf. Strickland v. Washington, 466 U.S. (1984); United States v. Cronic, 466 U.S. (1984). Second, the stipulation in the District Court on remand limits our inquiry solely to the validity of the State's action under the Due Process Clause of the Fourteenth Amendment.
Respondent's claim arises at the intersection of two lines of cases. In one line, we have held that the Fourteenth Amendment guarantees a criminal appellant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal "adequate and effective," see Griffin v. Illinois, 351 U.S. 12, 20 (1956); among those safeguards is the right to counsel, see Douglas v. California, 372 U.S. 353 (1963). In the second line, we have held that the trial-level right to counsel, created by the Sixth Amendment and applied to the States through the Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 344 (1963), comprehends the right to effective assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). The question presented in this case is whether the appellate-level right to counsel also comprehends the right to effective assistance of counsel.
* * *
As we have made clear, the guarantee of counsel "cannot be satisfied by mere formal appointment," Avery v. Alabama, 308 U.S. 444, 446 (1940). "That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command . . . . An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S., at ; see also McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) ("It has long been recognized that the right to counsel is the right to the effective assistance of counsel"); Cuyler v. Sullivan, 446 U.S., at 344. Last Term, we emphasized this point while clarifying the standards to be used in assessing claims that trial counsel failed to provide effective representation. See United States v. Cronic, 466 U.S. (1984); Strickland v. Washington, supra. Because the right to counsel is so fundamental to a fair trial, the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits.
* * *
In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, and the consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that - like a trial - is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant - like an unrepresented defendant at trial - is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right - like nominal representation at trial - does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.
A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney. This result is hardly novel. The petitioners in both Anders v. California, 386 U.S. 738 (1967), and Entsminger v. Iowa, 386 U.S. 748 (1967), claimed that, although represented in name by counsel, they had not received the type of assistance constitutionally required to render the appellant proceedings fair. In both cases, we agreed with the petitioners, holding that counsel's failure in Anders to submit a brief on appeal and counsel's waiver in Entsminger of the petitioner's right to a full transcript rendered the subsequent judgments against the petitioners unconstitutional. In short, the promise of Douglas that a criminal defendant has a right to counsel on appeal - like the promise of Gideon that a criminal defendant has a right to counsel at trial - would be a futile gesture unless it comprehended the right to the effective assistance of counsel.
Recognition of the right to effective assistance of counsel on appeal requires that we affirm the Sixth Circuit's decision in this case. Petitioners object that this holding will disable state courts from enforcing a wide range of vital procedural rules governing appeals. Counsel may, according to petitioners, disobey such rules with impunity if the state courts are precluded from enforcing them by dismissing the appeal.
Petitioners' concerns are exaggerated. The lower federal courts - and many state courts - overwhelmingly have recognized a right to effective assistance of counsel on appeal. These decisions do not seem to have had the dire consequences for the States' ability to conduct appeals in accordance with reasonable procedural rules.
* * * The decision of the federal district court and the Court of Appeals to grant a writ of habeas corpus is affirmed.
Notes
1. Notice that Evitts was perfectly postured to have the Court decide the case in favor of defendant since both sides admitted or did not contest that the defendant had received ineffective assistance of counsel. In a variety of contexts, the Court had stated that the first appeal has not been adjudicated consistent with due process where effective assistance of counsel has not been forthcoming. The right to counsel on appeal is not a hollow one and counsel's performance must be within the range which would be expected of an attorney in a similar circumstance.
2. In Lockhart v. Fretwell, 506 U.S. 364 (1993), a defense counsel had failed to make an objection during a capital punishment sentencing proceeding which had a good basis in existing case law. Prior to the time that the petitioner's habeas corpus case was heard by the federal court of appeals, the supporting case law had been overturned. In order to prevail on an ineffective assistance of counsel claim, the defendant must allege and prove that there was deficient legal representation, that the deficient performance prejudiced the defense, and that but for the unprofessional errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668 (1984) Strickland required that prejudice be shown, but Lockhart noted that prejudice must be evaluated according to current case law at the time the habeas corpus case is heard. In this case, though the attorney should have made an objection at the correct time, the petitioner was not harmed since the objection would not be valid if made currently.
Right to Counsel Limited in Habeas Corpus Cases and Second Appeals
MURRAY v. GIARRATANO, Supreme Court of the United States (1989), 492 U.S. 1, 109 S.Ct. 2765
FACTS:
Virginia death row inmates brought a civil rights suit against various officials of the Commonwealth of Virginia. The prisoners claimed, based on several theories, that the Constitution required that they be provided with counsel at the expense of the Commonwealth for the purpose of pursuing collateral proceedings related to their convictions and sentences. The lower courts ruled that appointment of counsel upon request was necessary for the prisoners to enjoy their constitutional right to access to the courts in pursuit of state habeas corpus relief.
The District Court found that Virginia's duty under to assist death row inmates would be unfulfilled since some death row inmates have too limited assistance of death row "unit attorneys" which provide too limited legal assistance. Along the same lines, the District Court concluded that Virginia's provisions for appointment of counsel after a petition is filed did not cure the problem. The inmate would not receive the attorney's assistance in the critical stages of developing his claims.
The District Court ordered Virginia to develop a program for the appointment of counsel to indigent death row inmates wishing to pursue habeas corpus in state court, but the District Court held that the Commonwealth had no similar constitutional obligation to appoint counsel for the pursuit of habeas corpus in federal court.
On appeal to the United States Court of Appeals, that court accepted the findings as not clearly erroneous and so affirmed the District's Court's decision. The Supreme Court granted certiorari and now reversed.
PROCEDURAL QUESTION:
In discretionary state appeals and state and federal habeas corpus proceedings, are states required to appoint counsel to aid incarcerated convicts and death row litigants?
HELD: No.
RATIONALE:
CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE WHITE, JUSTICE O'CONNOR, and JUSTICE SCALIA join.
* * * In [Pennslyvania v.]Finley, [481 U.S. 551 (1987)], we ruled that neither the Due Process Clause of the Fourteenth Amendment nor the equal protection guarantee of "meaningful access" required the State to appoint counsel for indigent prisoners seeking state postconviction relief. The Sixth and Fourteenth Amendments to the Constitution assure the right of an indigent defendant to counsel at the trial stage of a criminal proceeding, Gideon v. Wainwright, 372 U.S. 335 (1963), and an indigent defendant is similarly entitled as a matter of right to counsel for an initial appeal from the judgment and sentence of the trial court. Douglas v. California, 372 U.S. 353 (1963); Griffin v. Illinois, 351 U.S. 12 (1956). But we held in Ross v. Moffitt, [417 U.S. 600 (1974)], at 610, that the right to counsel at these earlier stages of a criminal procedure did not carry over to a discretionary appeal provided by North Carolina law from the intermediate appellate court to the Supreme Court of North Carolina.
* * *
Respondents, like the courts below, believe that Finley does not dispose of respondents' constitutional claim to appointed counsel in habeas proceedings because Finley did not involve the death penalty. They argue that, under the Eighth Amendment, "evolving standards of decency" do not permit a death sentence to be carried out while a prisoner is unrepresented. In the same vein, they contend that due process requires appointed counsel in postconviction proceedings, because of the nature of the punishment and the need for accuracy. Id., at 48-49.
* * *
We [come to] the conclusion that the rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal. The additional safeguards imposed by the Eighth Amendment at the trial stage of a capital case are, we think, sufficient to assure the reliability of the process by which the death penalty is imposed. We therefore decline to read either the Eighth Amendment or the Due Process Clause to require yet another distinction between the rights of capital case defendants and those in noncapital cases.
The dissent opines that the rule that it would constitutionally mandate "would result in a net benefit to Virginia." Post, at 16. But this "mother knows best" approach should play no part in traditional constitutional adjudication. Even as a matter of policy, the correctness of the dissent's view is by no means self-evident. If . . . direct appeal is the primary avenue for review of capital cases as well as other sentences, Virginia may quite sensibly decide to concentrate the resources it devotes to providing attorneys for capital defendants at the trial and appellate stages of a capital proceeding. Capable lawyering there would mean fewer colorable claims of ineffective assistance of counsel to be litigated on collateral attack.
* * *
For the reasons previously stated in this opinion, we now hold that [Pennslyvania v.] Finley applies to those inmates under sentence of death as well as to other inmates . . . .
* * *
The judgment of the Court of Appeals is Reversed.
JUSTICE O'CONNOR concurring.
I join in THE CHIEF JUSTICE's opinion. As his opinion demonstrates, there is nothing in the Constitution or the precedents of this Court which requires that a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the States to provide such proceedings, see Pennsylvania v. Finley, 481 U.S. 551 (1987), nor does it seem to me that the Constitution requires the States to follow any particular federal model in those proceedings.
Notes
1. Should the Constitution be interpreted to provide assistance of counsel to death row inmates and others who are attempting collateral or discretionary legal maneuvers? Do you think the Court is acknowledging the seriousness of the position which death row inmates without counsel find themselves. Could the Commonwealth offer assistance of counsel if it so desired?
2. The Court set the standard of competency for counsel for criminal trial and sentencing hearings under Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on an ineffective assistance of counsel claim, the defendant must allege and prove that there was deficient legal representation, that the deficient performance prejudiced the defense, and that but for the unprofessional errors, the result would have been different. In Strickland, defendant had, against the advice of counsel, pled guilty to three capital murder charges and then alleged that his assistance of counsel was deficient. Mr. Washington's proof of deficient assistance of counsel fell short, according to the Court.
Go to the Top of This Document
The End of All Instructional Material!