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Criminal Procedure II
Wayne State University Law School
Pagac, Christine

Right to Counsel

Powell v. Alabama (1932)
– under Due Process Clause of the 14th Amendment, and given “special circumstances of the case, the Court finds right to counsel in state felony prosecution.
– Powell was the Scottsboro Boys case (group of black boys charged with rape of a white woman). Inflammatory…

Johnson v. Zerbst (1938)
– 6th Amendment guarantees appointed counsel to indigent defendants in federal court (felony case).
– Johnson better known for test of waiver of right to counsel.

Betts v. Brady (1942)
– 6th Amendment right to counsel does not apply to the states through the 14th Amendment
o but lack of counsel in a particular case may violate due process

Gideon v. Wainwright (1963)
– 6th amendment right to counsel applies to states through the 14th Amendment. Guarantees right to appointed counsel in state felony prosecutions
o Lawyers are “necessities, not luxuries.”

What changed between Betts and Gideon?
– the court changed
– at the time of Betts most states were not offering appointed lawyers, but at the time of Gideon many states were
o Gideon’s lawyer was a future SC justice

Problem 1
– Officers from the US Coast Guard arrested Greenberg for marijuana trafficking. An initial appearance judge reads him the charges, Miranda warnings, sets a date for the prelim, appoints counsel and sets bail.
– Despite warnings, Greenberg confesses
– No right to counsel as a suspect, just during formal proceedings

Problem 5
– Defendant, with no lawyer, pleads guilty to manslaughter. Gets 10 year suspended sentence & 18 months of probation
– 12 months later, Defendant arrested for obstruction of justice, disorderly conduct, open profanity and public drunkenness
– You cannot get jail without being offered a lawyer so there is a problem with the charges for obstruction of justice and disorderly conduct

Right to Counsel for Misdemeanors
– For a misdemeanor if no lawyer is offered or waived then a judge cannot sentence you to imprisonment

Suspended Sentences/Probation
– Alabama v. Shelton (2002): if imprisonment (jail or prison) is imposed as part of a suspended sentence, or if imprisonment may be imposed following a violation of probation, right to counsel attaches at the time of the initial sentencing.
o Whether you have a due process right to a lawyer is decided on a case-by-case basis.
– Probation is not a criminal prosecution so you are not entitled to a lawyer

Right to Counsel Applies At:
– The 6th amendment requires a lawyer for all adversary judicial proceedings during criminal prosecution of all felonies and misdemeanors for which actual or suspended imprisonment is imposed.
– all other proceedings in which life/liberty at stake, may be an argument under Due Process on a case by case basis
– Critical stages only

Rights on Appeal
– Right to a copy of the transcript after Griffin
o not limited to appeals where D is incarcerated
o applies to all types of appeals, even non-criminal proceedings
– Access to an appeal even if you cannot afford it
o Supported by Equal Protection Clause and Due Process Clause
– Counsel on Appeal of Right under Douglas
– Ross says that you do not get Counsel by right on an appeal to the SC
– there is a right to Counsel even on 1st tier discretionary appeals
o Halbert v. Michigan – you must give indigent defendants a lawyer even where they plead out in the lower court

Right to Counsel: The Equity Principle

The Griffin-douglas Equality Principle
– Griffin v. Illinois

Meaningful Access to the Courts
– No filing fees

Problem 23
– Jury Deadlocks at the first trial
– 16 witnesses testify at the one-day trial
– Mistrial declared
– Gov’t buys transcript, but the trial court will not allow free transcript for the defense
– How is this different from Griffin
o the court will read back any testimony that occurred during the first trial
o this is not an appeal, this is a re-trial
– Test to decide if there is a right to the transcript (Ake)
o you must be an indigent
o the transcript must be valuable to the appeal or defense

Problem 24
– Defendant charged with murder. Victim died 8 months after being shot
– ME testifies that death due to pulmonary embolism from thrombosis caused by paralysis from shooting
– Defendant requests $600 for independent forensic pathologist to challenge blood clot cause. Judge denies
– Ake test applies
o should be able to get an independent pathologist, but perhaps not any one you choose, rather one in a lower price range

Problem 6
– Defendant with speech impediment charged with murder. Wants to represent self, judge allows for pre-trial motion but not at trial. Gets c

get a new trial to say that you did not have enough time to prepare because you thought your client was going to get another atty
– So does he meet the Strickland test?
o there must be an error
o but for the error, the outcome would have been different

Are there Circumstances where Prejudice is Presumed?
– When counsel is absent at a critical stage of the trial
– Conflict of interest
– Interference with the lawyer by the State

You only have a right to effective assistance of counsel where you have a right to counsel

Conflict of Interest
– Standard for getting new trial under 6th Amendment
o you need an actual conflict that adversely affects the lawyer’s performance (the outcome does not have to be affected)
– the standard is lower because the court feels it is worse for the lawyer to have a conflict of interest than to simply be ineffective
– this applies to retained and appointed lawyers
– if the conflict is objected to before trial then the judge must fix it
– if the conflict is objected to after the trial then you apply Sullivan unless it was a waivable conflict and it was waived
– If not objected to at trial you must show that the lawyer would have done something differently that would have affected the outcome of the trial

Problem 20
– Atty represents two defendants in a murder case (hired hit, hit-man and boss)
– Conflict was not waived – waiver must be express
– if the atty is not aware of the conflict then it does not adversely affect the case
– there is no objection here by either defendant
– the atty is aware of the conflict
– is there an actual conflict – yes
o one defendant takes a plea that has him testify against the other
§ Is there an adverse effect?
· yes, the cross examination cannot be as effective because he would be putting the first defendant’s plea at risk

Constitution and Pretrial Release