Outline
A. Application of bill of rights to states using due process clause
· Some things are fundamental to the concept of liberty that due process will require them to apply to the states.
· Incorporations: Does the amendment apply to the state? Does the remedies created by the supreme court apply?
B. Right to counsel under the 6th Amendment
6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense.”
I. Right to appointed counsel: the right a person has when charged with a crime, if he cannot afford an attorney, how far his rights go.
· Powell: The Scottsboro Boys- 1931, in Atlanta crowded train black boys got into fight with white boys and beat white boys- sheriff arrested black boys, 2 girls found at R.R. tracks, prostitutes. Each girl claimed they had been raped by the black boys, boys were sentenced to death. 9 boys charged with capital rape, all white jury, many people discovered this case and fought for these boys. Sam Lebowitz got involved pro bono for the cause of the D’s and worked its way up to the Sup. Ct. ATL had statute which allowed appointment of counsel in capital case- no police reports/ no witness statements and given one day to prepare for trial. Sup Ct in Powell came to the conclusion since they were challenged to do something about state injustice- overturned conviction on basis that there was some connection b/w an accused ability to get a fair trial and to get an attorney who is properly prepared
– Since they were challenged to do something about state injustice- overturned conviction on basis that there was some connection between an accused ability to get a fair trial and to get an attorneyy who is properly prepared
· Betts v. Brady(10 years post Powell): Trial Court- Betts is charged with robbery (felony), he is an indigent and asks the court to appoint an attorney for him. MD only permitted right to counsel in rape and murder charges, thus, denied. Betts represents himself and gets convicted. MD says Betts is NOT entitled to an attorney. Court has the opportunity to extend Powell to make it the law for all prosecution, but Court does not do this. Rather, the Sup Ct turns the D down. They do not extend Powell. State by state issue, Court is not going to interfere.
– Great majority of states believe appointment of counsel is not a fundamental right (although Powell said right to counsel was fundamental an inherent in the due process).
· Gideon v. Wainwright (Landmark Case): Indigent Charged with a felony, and wanted FL to appoint counsel for him. Judge denied his request and proceeds to trial, he is sentenced and sent to jail.
– Wainwright is the warden/habeas corpus case, Sup Court has different justices now- Justice Black writes for the majority (dissented in Betts)- Court is posed with the same exact issue as it was in Betts- Is appointment of counsel a fundamental right? Yes. Overturned Betts, and canvas of state courts- shift in the state courts- considerable portion do appoint counsel in every case.
– Appointed counsel was a fundamental right because it was is required by the due process clause of the 14th amendment.
– 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 (applies right to counsel to states for indigent accused where actual custody imposed.)
· Argersinger v. Hamlin: If a person got a sentence of less than 6 months, counsel was not appointed (not felony case).
– Sup Court reaffirms that any offense where a person could be thrown in jail, has the right to appointment of counsel if he is indigent (where jail is an option counsel MUST be appointed if he cannot afford.)
· Scott v. Illinois: D is denied the appointment of counsel, for which imprisonment is authorized, but he does not actually get jail time. Judge does not appoint counsel he gets probation, no jail time.
– If D does not get jail time, then he DOES NOT have right to counsel from the beginning.
– Imprisonment cannot be imposed unless the accused is provided counsel
· Nichols v. US: No custody, no right to counsel.
– Extended Scott by applying to probation as well.
· Alabama v. Shelton: Court gives D 30 days suspended sentence- no jail time- AL appoints him a lawyer b/c he violates his probation and triggers the 30 days. AL gives a distinction- custody was imposed on the first case and b/c it was eventually imposed, he WAS entitled to counsel retroactively.
– IF A D, EITHER IN FED OR STATE CT, UNDER THE 6TH AMENDMENT, IS CHARGED WITH A MISDEMEANOR (Argesinger)OR FELONY (Betts), AND HE IS INDIGENT AND REQUESTS COUNSEL, THE CT IS OBLIGATED TO APPOINT COUNSEL FOR HIM, BUT HE MUST ULTIMATELY GET JAIL-TIME (custody) ON THAT CASE (Shelton).
II. Right to counsel of one’s choice: There are limitations to one having the counsel of his choice.
1. If a person is not a member of the bar he may only represent himself.
2. Defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent him.
3. Nor may a defendant insist on counsel who has a previous or ongoing relationship with any opposing party, even when the opposing party is the government.
4. If the court finds conflict of interest it can insist that defendant be separately represented.
· Gonzalez-Lopez: Indigents do not have the right to counsel of their choice. Courts can excluse people who are not admitted to the bar.
– Deprivation to counsel of choice is when you are erroneously deprived of counsel of your choice
III. When right to counsel first “attaches”:
· Kirby
IV. At first appearance
· Rothgery v. Gillespe: There is a time the court rules the proceeding have begun. Counsel must be present for what is considered a critical stage. (a trial like confrontation)
V. Right to self-representation
· Farrata v. California: Whether an appointed attorney can be forced upon a D? What if a D wants to represent himself? No matter how foolis
D argued that it was no assistance at all Ct disagreed- the attorney made tactical decision and D must prove that it was prejudice.
– ATTY’S FAILURE MUST BE COMPLETE.
VIII. Right to “effective” assistance of counsel as applied to plea-bargains
· Frey: The prejudice is that he could of gotten a better deal and the attorney should have informed him of that.
· Hill: Hill did not show prejudice. He did not allege that if adequate assistance was given he would have acted differently.
– It’s tricky this because you are trying to predict the future. (He say/ she say)
– Now pleas are offered on record as a need to inform defendants of the process and their options.
· Padilla: IAC to not tell that they could be deported. Hypo: 2003 person pleads guilty to theft and is told you might be deported. In 2012 because of a change in policy they get arrested and are told they are being deported due to the 2003 conviction. Wanted to try the 2003 conviction on IAC that he was no notified when he was.
– Defendant has to be properly informed
· Cooper: defendant was given advice and defendant rejected the plea bargain. The government conceded it’s IAC. The court isn’t trying to determine that but it accepts that and finds prejudice.
– What is the remedy? The court does not conclude
IX. Right to counsel at appellate level
· Douglas v. CA (Plea after trial) 1963: Due process clause of the 14th amendment requires counsel on appeal but it also requires equal protection.
– Did the indigent counsel have right to counsel at their first appeal- was discretionary at this time. Supreme Court held on appeal, if you have been convicted, you have the right to appellate counsel.
– APPLIES RIGHT TO APPELLATE COUNSEL TO STATES FOR CONVICTED INDIGENT UP TO INTERMEDIATE LEVEL OF APPEAL ONLY (defendant has right to counsel at trial and on first appeal).
· Ross v. Moffitt 1974: limits Douglas by stating- on their first appeal, appeal as of right defendant is able to have a court appointed attorney. But because an appeal to State Supreme Court or US Supreme Court is discretionary it should not have to provide counsel. Less compelling reason to appoint an attorney when an appellant is attacking the state- equal protection clause does not require complete protection.
– ENTITLED TO APPOINTED APPELLATE ATTORNEY (Douglas)ONLY TO THE FIRST LEVEL OF APPEALS, NOT BEYOND (does not encompass collateral attacks/writ of habeas corpus) ** OFTEN TIMES, IF THERE IS A GOOD ISSUE, THE APPELLATE ATTORNEY MAY TAKE IT TO THE NEXT LEVEL AND NOT GET PAID.
