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Criminal Procedure: Investigation
West Virginia University School of Law
Ashdown, Gerald G.

Criminal Procedure Investigation


Spring 2016


Section 1. The Right to Appointed Counsel and Related Problems

A. The Right to Appointed Counsel in Criminal Proceedings

Why have a RTC?

Fair trial, advocacy, zealousness – the notion is based on the adversarial process that contemplates having a lawyer on both sides. In addition, there are very high stakes when a decision could take away someone’s freedom
Defense lawyer’s responsibilities include: investigation, enforcing Rules (evidence, crim. pro), research, bargain or negotiate

Prior to Betts

Powell v. Alabama – lawyer required when capital case (arrested 3-4 black guys for rape of a white woman)
Johnson v. Zerbst – 6th Amendment requires appointment in federal cases

Betts v. Brady (1942) pg. 62

Robbery case that denied counsel to indigent defendants when prosecuted by a state
Court applied a fundamental fairness test “when circumstances would require appointment for fundamental fairness”

Problem – states can simply examine the facts and say the D did not need a lawyer

Court was ultimately unwilling to put a financial burden on the states to provide Ds a lawyer

Gideon v. Wainwright (1963) pg. 64

Under the 14th Amd., states are required to provide counsel in state felony criminal cases to represent Ds who are unable to afford to pay their own attorneys

Policy – this is the only surefire way to enforce the RTC

So why did the SCT change its mind?

Cynical answer – 7 new justices were appointed with more liberal ideas
Legal answer – SCT was reviewing a lot of these sort of cases b/c Ds were not given lawyers, the Court had reversed almost all & required an appointment of an attorney

Debate between total incorporation v. fundamental fairness – Black ultimately liked total incorporation more and fundamental fairness had not been working & review was expensive

RTC Progression according to Ashdown

Gideon (Felony) — Argersinger (misdemeanor with jail time) — Scott (Authorized) – Shelton (Suspended Sentence)

B. Extending Gideon to Misdemeanor Cases

Argersinger v. Hamlin (1972) pg. 70

Jury trial rule where a lawyer was required for when D faced imprisonment of more than 6 months
Holding: you can’t put someone in jail unless they have been given an attorney – “actual imprisonment”
Policy – these minor cases can be complex, risk of “assembly line justice”

Also, legislative problem – prosecutor will ultimately be the one who decides if jail time will be sought
Judge will already be biased by prosecutor’s communication with Judge
If Defendant has a lawyer in a misdemeanor case then the judge knows the case must be egregious – likely bad guy – bad facts

Problem with Argersinger – judiciary won’t be able to impose any jail time where D does not have counsel
How to avoid?

Give everyone a lawyer, but problem is money, expensive
Take jail time out of statutes – but that interferes with deterring the crime
Mon Co. response – give everyone lawyer, since Argersinger they do not do anymore

Scott v. Illinois (1979) pg. 71

Not provided counsel, convicted and fined $50, faced $500 fine and 1 year in jail

Wanted counsel b/c of stigma surrounding criminal record

Scott’s argument: everyone gets a lawyer unless possibility of imprisonment is taken out of statute


Why reject?

Since Scott was not sentenced to imprisonment, even though the applicable statute allowed for it, the state was not obligated to provide counsel. Rehnquist called that line of reasoning “the central premise of Argersinger.”
Effect on the administration of justice
Serious problem of dilution of legal resources – less lawyers who can spend less time on serious cases
Also slows down the legal process

Dissent — drawing a distinction between “actual imprisonment” and “authorized imprisonment.” The right to jury trial existed when (1) a non-petty offense punishable by more than 6 months of jail time and (2) actual imprisonment was likely despite the authorized maximum penalty. The majority opinion was strictly budgetary in nature.

Alabama v. Shelton (2002) pg. 74

If the prosecution offers a suspended sentence, then an attorney must be provided
Hold – you can’t give someone who is uncounseled a suspended sentence

Could get revoked or they could go to jail for 60 days

Value of a suspended sentence

Affluenza kid
Tells defendant to behave or you’re going to jail
Goal – strong deterrent to behave, also saves the state money

Movement – providing attorneys in more and more cases, which results in a dilution of resources

Note: you can always get around Argersinger when there is no suspended sentence and no jail time. As a prosecutor, you can get around by holding the D’s feet to the fire, w/o imposing a suspended sentence. Use a pre–trial diversion – hold charge if you behave yourself for so often

C. The “Beginnings” of the RTC “Criminal Prosecutions” and “Critical Stages”

Rothgery v. Gillespie County (2008) pg. 76

Court held that a criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the 6th Amd. RTC
RULE – A D is not entitled to the assistance of counsel under the 6th Amd. unless two conditions exist

There must be Criminal prosecution as defined by Rothgery – meaning that adversarial judicial criminal proceedings must have been commenced through a first formal hearing, a formal charge, a preliminary hearing, an indictment, an information, or arraignment. At this point the Ds 6th Amd. right attaches but that does not mean the D is necessarily entitled to lawyer’s assistance at the very moment
Rather, counsel must be appointed “within a reasonable time after attachment” and the defendant is only entitled to assistance of that counsel at “critical stages” in the criminal proceeding

The Court attempted to address the problem of people “languishing in jail” – People are arrested and stay in jail for a long period of time if they are unable to

nied his lawyer’s pro hac viche request (where an attorney wants to practice in another jurisdiction under an attorney who is licensed in that jurisdiction)

Why deny pro hac viche request?

Guy may have been before the judge before and misbehaved
IN this case, guy was very aggressive in front of the judge on a previous occasion

Government conceded that they denied D their right to an attorney of choice, BUT ARGUED

Harmless error – have to show an affect on the outcome to have prejudice
IEC from Strickland – result of the proceeding would have been different

Prejudice & if not prejudice then you must show the alternate attroeny would’ve employed an alternate defense

Scalia/Court’s response

We are not going to measure this situation by prejudice
Absolute standard – there is a choice of counsel violation whenever D’s choice is wrongfully denied
Distinguished between “effective” representation & counsel of choice
Ineffective assistance of counsel = fairness, BUT the 6th Amd RTC of choice is absolute and independent

Trial Error v. Structural Errors

Trial error – errors occurred during presentation of the case to the jury

Harmless error stand can be applied to these and most constitutional errors

Structural errors – affect the framework within which a trial proceeds

Denial of counsel – Gideon
Denial of right to self representation – McKaskle v. Wiggins
Right to a jury trial

Cant measure courtroom style
Also can’t gauge ability to bargain with the prosecution (lawyer may be buddy of the prosecutor)

Caplin & Drysdale Chartered v. US (1989) pg. 117

Cocaine – 100 kilos – mandatory minimums in federal court
D wanted the representation of C&D – huge law firm

But, under forfeiture statute, D’s property was seized including money he could of used to pay for representation

C&D argument – D was denied of his 6th Amd. RTC of choice – forced to use public defender

Policy argument – prosecutors/AG will take money to make it easier for prosecution to obtain a guilty verdict, Ds end up being forced to use public defender
Therefore the balance of power is undermined

Court response

Court has a legitimate interest in taking funds
Also, lessens the power of organized crime & drug enterprises
C&D could still represent

Can’t have a contingency fee in criminal case, “hope you win”