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June 12, 2018

Lesson 15: Right to Counsel

States created public defender departments, which routinely represent criminal defendants

Does an indigent criminal defendant have a right to an appointed, government-paid lawyer? Most Americans today, inured to watching police procedural television programs, would probably say yes. But it was not always so.

The Sixth Amendment to the Constitution provides that “in all criminal prosecutions” the accused shall enjoy certain rights. They include “a speedy and public trial, by an impartial jury,” “to be informed of the nature and cause of the accusation,” to confront “the witnesses against him,” to have power to compel testimony of “witnesses in his favor” and, finally, “to have the assistance of counsel for his defence.”

Originally the Sixth Amendment was held to apply only to federal criminal cases. The first time the Supreme Court held the Sixth Amendment applicable in a state criminal case was in 1932, in Powell v. Alabama — the internationally famous Scottsboro Boys case. Nine black men were tried in Alabama on charges of raping two white women; they were not told they could hire a lawyer.

The Alabama Supreme Court affirmed their conviction; the United States Supreme Court reversed by a vote of 7-2. Justice Sutherland emphasized the particulars of the case: the penalty was death, the defendants were ignorant and far from home.

Those circumstances were not present in the 1942 case of Betts v. Brady: the charge was robbery, the defendant did not face racial prejudice and, after the state judge denied his request for a lawyer, he proceeded to defend himself. For the 6-3 majority, Justice Owen Roberts basically said the circumstances were not as egregious as in the Scottsboro case and the Sixth Amendment was not “an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.”

Betts gave no clear guidance to courts; they were left to decide whether the denial of a lawyer in a particular case was an egregious injustice. In 1962 the Supreme Court took up another routine criminal case, the conviction of Clarence Gideon in Florida for robbery. His request for appointment of a state-paid lawyer was rejected by the trial judge as contrary to Florida law. To represent Gideon, the Court appointed Abe Fortas, a highly successful Washington lawyer who would be appointed to the Court in 1965. Fortas showed that Florida law prevented the appointment of a lawyer before determination of whether there was a serious issue, and that Gideon could not have understood the intricacies of hearsay and other evidentiary rules.

In March 1963 the Court ruled 9-0 in Gideon v. Wainwright that every criminal defendant in state court was entitled to a lawyer, to be paid by the government in the case of indigents.
Gideon was retried in Florida, with a government-paid lawyer, and acquitted by a jury after an hour’s deliberation. More important, states created public defender departments, which routinely represented criminal defendants at trial.

June 12, 2018