The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Monday, August 14, 2006

Is an Indigent Person Always Entitled to a Lawyer?

Listen to this episode.

Clarence Earl Gideon (v. Wainright)Here's an interesting question I wondered about: Does the Constitution guarantee that an indigent person (someone who cannot afford a lawyer) is entitled to have a court-appointed lawyer? I found out that the Supreme Court has modified its thinking about this question over the years.

The Sixth Amendment to the Constitution states:

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.

Seems straightforward enough. If someone is accused of a felony, and he cannot afford a lawyer, he must have a lawyer appointed for him. Otherwise, he would be denied the 6th Amendment right seemingly granted to him.

Furthermore, the Due Process clause of the 14th Amendment, which states that ""No person shall be... deprived of life, liberty, or property, without due process of law...." , would appear to be violated as well. The impoverished defendant, unable to get a lawyer, would potentially be deprived of his liberty, thus violating at least 2 Constitutional rights.

Has the Supreme Court ruled consistently on this? Not by a long shot! A celebrated case, Betts v. Brady, was decided in 1942, illustrates this. Mr. Betts was indicted for robbery in Maryland. He asked for a lawyer before his trial. The judge refused his request, forcing Betts to represent himself. The Maryland law only required counsel for certain capital crimes, such as murder or rape. Counsel was not required for robbery, even though it was a felony. Betts lost the case, and went to jail. He petitioned for a writ of a certiorari, asking the Supreme Court whether his conviction was constitutional or not.

This seems like an open and shut case. Nowadays, if a defendant represented himself or herself, we would presume that he or she would not get a fair trial. In this 1942 case, however, the Court ruled, by a 6-3 vote, that Betts did indeed get fairly treated. The majority opinion, written by Justice Owen Roberts, framed the ruling as follows:

The question we are now to decide is whether due process of law demands that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent defendant. Is the furnishing of counsel in all cases whatever dictated by natural, inherent, and fundamental principles of fairness?

Roberts answered "no", that the right to counsel in a criminal case could be legislated by the states on a case by case basis. This opens up a huge can of worms. What's to prevent a state from passing a law that excludes the right to counsel for so many circumstances that the 6th Amendment becomes irrelevant? Justice Hugo Black, who I mentioned in the Korematsu case as having justified the internment of Japanese Americans during the war, this time said in his dissenting opinion:

"The right to counsel in a criminal proceeding is 'fundamental.' "

Mr. Justice Black's opinion was, of course, the minority opinion in 1942. It took 21 years before the Court came around to his way of thinking. The 1963 case was Gideon v. Wainright. The circumstances were similar to Betts v. Brady. Mr. Gideon, like Mr. Betts, was accused of robbery, in his case of a pool hall in Panama City, Florida. He appeared in court, declared that he was too poor to afford a lawyer, was forced to act as his own counsel, and was convicted. He received a 5 year prison sentence. He appealed to the Supreme Court, asserting that his 14th Amendment right of due process had been denied him. The Court appointed Abe Fortas, a prominent attorney who eventually became a Supreme Court justice, to represent him.

In a unanimous decision, on March 18, 1963, the Court unanimously ruled, 9-0, that Gideon was correct and his conviction was overturned. The majority opinion, in a dramatic twist of fate, was delivered by Justice Hugo Black. As he had wanted in 1942, the right of an indigent defendent to legal counsel became a fundamental right that a state could not ignore.

Gideon v. Wainright was the subject of a wonderful book by Anthony Lewis, called Gideon's Trumpet. It was also the subject of a movie. In 1966, the "fundamental right" was expanded again. The case of Miranda v. Arizona required that when a person could potentially become a defendant in a criminal case, the police must warn him or her. This is the famous "Miranda warning" - you know - you have the right to remain silent, anything you say may be used against you, you have the right to an attorney, etc., etc.

I think this story shows the genius of our system. Sometimes the system makes an error, but eventually, there is the potential to correct the mistake. Many times it actuallly happens that way, as it did here.

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