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Advanced Criminal Procedure
University of Iowa School of Law
Gruber, Aya

Right to Counsel
Monday, December 15, 2008
12:33 PM
Introductory Right to Counsel
General Principles
Defendants are entitled to counsel in all criminal prosecutions
Powell v. Alabama(4)
D’s were a group of 9 black men accused of raping white women. Court did not appoint counsel but appointed the whole state bar to represent them. 
Court held that the appointment of a primary defense lawyer was a requirement of due process in capital cases
Betts v. Brady(5)
Counsel is only required under special circumstances and not in every criminal case
6th Amendment: in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense
Whether the right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions; whether it is basic to our system of jurisprudence; whether it is a fundamental right, essential to a fair trail; whether it is fundamental to the American scheme of justice
Gideon v. Wainwright(5)
D was prosecuted for breaking and entering, a felony. D request, but was denied, the assistance of counsel. Jury convicted him and he appealed, citing the need for counsel
Court holds that the earlier decision of Betts had been a break with the Court’s precedents, and that D is entitled to counsel
Any person who is haled into court who is too poor to hire a lawyer cannot have a fair trial unless counsel is provided for him
Anyone who has money buys the best lawyer they possibly can, implying they are necessities and not luxuries
Also, the government hires lawyers
Mere existence of serious criminal charges justifies the service of counsel
Proceedings Requiring Counsel: Critical Stages
General Principles
6th Amendment applies only after the commencement of adversarial judicial proceedings at critical stages of the prosecution
This starts the criminal prosecution
Adversarial Proceedings
Adversarial proceedings do not start until arraignment
Critical Stages of the Prosecution
Those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel
Also any stage of the prosecution where counsel’s absence might derogate from the accused’s right to a fair trail
e.g.- pretrial lineups, preliminary hearings, and arraignments where rights may be lost
Does not begin with arrest or even postarrest probable cause hearings
DWI, psych exams, blood tests, and handwriting tests are all not critical stages (depending on the state)
Right to Counsel at Sentencing
Must have counsel at sentencing
However, not required at probation revocations sometimes
Potential Issues in Right to Counsel
Gagnon: D was given a suspended sentence and a term of probation for a counseled felony conviction
Court holds that probation revocation hearings are not part of the criminal prosecution and right to counsel does not apply
Nichols: court holds that a valid, uncounseled misdemeanor conviction may be used as the basis for enhancing punishment of the defendant after a subsequent, counseled conviction
Alabama RCP 6.1(a) (22)
D is entitled to counsel in any criminal proceedings and if indigent, shall have counsel appointed whenever constitutionally required
Right to Counsel on Appeal
D has a right to an attorney on the first appeal as of a right (based on DP and EP rather than 6th Amendment)
Argersinger v. Hamlin(11)
D was charged with a misdemeanor with a max penalty of 6 months imprisonment, $1000, or both
Court holds that absent waiver, no person may be imprisoned for any offense, whether petty or anything else, unless he was represented by counsel at trail
Entitled to counsel only if he actually, not merely potentially, will be jailed if convicted
Scott v. Illinois(11)
D was charged with theft, a misdemeanor with a potential penalty of 1 year imprisonment. D was convicted but only fined $50.
D argues that although he was not imprisoned, he should be entitled to counsel at trial
Court holds that the constitution requires the right to counsel hinges on actual imprisonment, not merely potential for imprisonment
D cannot be sentenced to imprisonment unless he has the assistance of counsel
Alabama v. Shelton(11)
An indigent was charged with assault, a misdemeanor that carried the potential penalty of 1 year jail and $ 2000 fine. D did not get counsel and was convicted. However, the court suspended the sentence and put D on probation
D argues that a suspended sentence may end up in actual imprisonment without the assistance of counsel and his conviction should be overturned
Court holds that counsel is required in any situation where actual imprisonment may be imposed
Here, D was deprived of counsel when tried, convicted, and sentenced, unable to challenge the original judgment
Incarceration, if it occurred, would be based on the uncounseled conviction
Court suggests that pretrial probation solves this dilemma, by saving the adjudication and guilt phase of the proceedings to occur only when D breaches the probation conditions
State v. Pierre(23)
D was suspected of murder and after his arrest, D made several incriminating statements without counsel present during questioning
D moved to suppress the statements as violation of the right to counsel
Court holds that no right to counsel attaches until prosecution has commenced, and here, merely signing an information does not trigger the right to counsel
Only when does that state decide to move forward with prosecution based on the information, is there an initiation of adversarial proceedings
Adequacy of Counsel
General Principles
Effective assistance of counsel entails various important duties
Must work solely for the benefit of the client free from compromising influences
Must interview client early on in the relationship
Must conduct a prompt investigation and explore all avenues
Strickland Test
D must show that the counsel’s performance was deficient
Fell below an objective standard of reasonableness
D must show prejudice from the deficient performance
Absent the performance, there was a reasona

Court holds that because of the excessive caseloads and insufficient investigative support, indigent D’s like D are not provided with effective assistance of counsel that that Constitution requires
No attorney can prepare for one felony trial per day
Lawyer must not only possess adequate skill, but have time and resources to apply that skill
Court orders individual hearings to be held on motion of each D to determine whether or not they are receiving effective assistance of counsel
State v. Citizen(64)
Cases challenge the funding disparities in a county in Louisiana. There is a tax, supplement by fines, that puts into the criminal court fund $3,500,000 per year. Total criminal court fund is $5,300,000. By agreement, the portion generated by the tax goes 60% to the DA, and 40% to the DCs. Any surplus remaining gets split between DA and DCs 50/50.
PD does not get funding from here and desperately needs money; DA will not give it any of theirs
Court holds that the statute demanding that indigent defense costs not be paid by the counties put the burden to pay defense costs on the state
State cannot proceed with their prosecution until it provides adequate funds for their defense
County can choose to pay for the costs, but cannot be forced to because of legislative statute
Judge appoints counsel at first appearance
Counsel then files a motion to determine adequacy of funds
If judge finds inadequate funds, then counsel may file a motion to halt prosecution
If motion is granted, trial must begin with 2 years or prosecution will forever be barred
Defendant must also be released if kept for longer than speedy trial allows
State v. Lynch(69)
Oklahoma passed a statute limiting the amount of compensation lawyers can receive for taking indigent defense claims.
G claims that compensation should only exceed the statutory limit when extraordinary circumstances are shown; there is no unconstitutional taking when court-appointed attorneys are required to represent indigent defendants
Court holds the statute unconstitutional in its application because the maximum statutory fee is inadequate in many individual cases
The system presses lawyers into service without affording a post-appointment opportunity to show cause why they should not be forced to accept the appointment
The statute provides an arbitrary and unreasonable rate of compensation that may result in an unconstitutional taking based on the facts of each case