Amdt6.7.2.1.2 Right to Have Counsel Appointed: Current Doctrine

Sixth 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 defence.

Over time the Court abandoned the special circumstances language of Powell v. Alabama1 when capital cases were involved and finally in Hamilton v. Alabama, 2 held that in a capital case a defendant need make no showing of particularized need or of prejudice resulting from absence of counsel; henceforth, assistance of counsel was a constitutional requisite in capital cases. In non-capital cases, developments were such that Justice Harlan could assert that the ‘special circumstances’ rule has continued to exist in form while its substance has been substantially and steadily eroded.3 The rule was designed to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in fundamental fairness. Generally, the Court developed three categories of prejudicial factors, often overlapping in individual cases, which required the furnishing of assistance of counsel. There were (1) the personal characteristics of the defendant which made it unlikely he could obtain an adequate defense of his own, 4 (2) the technical complexity of the charges or of possible defenses to the charges, 5 and (3) events occurring at trial that raised problems of prejudice. 6 The last characteristic especially had been used by the Court to set aside convictions occurring in the absence of counsel, 7 and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950. 8

Against this background, a unanimous Court in Gideon v. Wainwright9 overruled Betts v. Brady and held that in our adversary system of criminal justice, 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.10 Justice Black, a dissenter in the 1942 decision, asserted for the Court that Betts was an abrupt break with earlier precedents, citing Powell and Johnson v. Zerbst. Rejecting the Betts reasoning, the Court decided that the right to assistance of counsel is fundamental and the Fourteenth Amendment does make the right constitutionally required in state courts. 11 The Court’s opinion in Gideon left unanswered the question whether the right to assistance of counsel could be claimed by defendants charged with misdemeanors or serious misdemeanors as well as with felonies, and it was not until later that the Court held that the right applies to any misdemeanor case in which imprisonment is imposed – that no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right. 12 The Court subsequently extended the right to cases where a suspended sentence or probationary period is imposed, on the theory that any future incarceration that occurred would be based on the original uncounseled conviction. 13

Because the absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court, Gideon has been held fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable, 14 but also may not be subsequently used either to support guilt in a new trial or to enhance punishment upon a valid conviction. 15

Footnotes

  1.  Jump to essay-1287 U.S. 45, 71 (1932).
  2.  Jump to essay-2368 U.S. 52 (1961). Earlier cases employing the special circumstances language were Williams v. Kaiser, 323 U.S. 471 (1945); Tompkins v. Missouri, 323 U.S. 485 (1945); Hawk v. Olson, 326 U.S. 271 (1945); De Meerleer v. Michigan, 329 U.S. 663 (1947); Marino v. Ragen, 332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596 (1948). Dicta appeared in several cases thereafter suggesting an absolute right to counsel in capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948). A state court decision finding a waiver of the right in a capital case was upheld in Carter v. Illinois, 329 U.S. 173 (1946).
  3.  Jump to essay-3Gideon v. Wainwright, 372 U.S. 335, 350 (1963).
  4.  Jump to essay-4Youth and immaturity (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 (1948); Marino v. Ragen, 332 U.S. 561 (1947); De Meerleer v. Michigan, 329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited education), Uveges v. Pennsylvania, supra), and mental illness (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342 U.S. 134 (1951)), were commonly cited characteristics of the defendant demonstrating the necessity for assistance of counsel.
  5.  Jump to essay-5Technicality of the crime charged (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Williams v. Kaiser, 323 U.S. 471 (1945)), or the technicality of a possible defense (Rice v. Olson, 324 U.S. 786 (1945); McNeal v. Culver, 365 U.S. 109 (1961)), were commonly cited.
  6.  Jump to essay-6The deliberate or careless overreaching by the court or the prosecutor (Gibbs v. Burke, 337 U.S. 772 (1949); Townsend v. Burke, 334 U.S. 736 (1948); Palmer v. Ashe, 342 U.S. 134 (1951); White v. Ragen, 324 U.S. 760 (1945)), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633 (1959); Gibbs v. Burke, supra), and questionable proceedings at sentencing (Townsend v. Burke, supra), were commonly cited.
  7.  Jump to essay-7Hudson v. North Carolina, 363 U.S. 697 (1960), held that an unrepresented defendant had been prejudiced when his co-defendant’s counsel plead his client guilty in the presence of the jury, the applicable state rules to avoid prejudice in such situation were unclear, and the defendant in any event had taken no steps to protect himself. The case seemed to require reversal of any conviction when the record contained a prejudicial occurrence that under state law might have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 (1962), reversed a conviction because the unrepresented defendant failed to follow some advantageous procedure that a lawyer might have utilized. Chewning v. Cunningham, 368 U.S. 443 (1962), found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore the unrepresented defendant had been prejudiced.
  8.  Jump to essay-8Quicksal v. Michigan, 339 U.S. 660 (1950). See also Canizio v. New York, 327 U.S. 82 (1946); Foster v. Illinois, 332 U.S. 134 (1947); Gayes v. New York, 332 U.S. 145 (1947); Bute v. Illinois, 333 U.S. 640 (1948); Gryger v. Burke, 334 U.S. 728 (1948). Cf. White v. Ragen, 324 U.S. 760 (1945).
  9.  Jump to essay-9372 U.S. 335 (1963).
  10.  Jump to essay-10372 U.S. at 344.
  11.  Jump to essay-11372 U.S. at 342-43, 344. Justice Black, of course, believed the Fourteenth Amendment made applicable to the States all the provisions of the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947), but for purposes of delivering the opinion of the Court followed the due process absorption doctrine. Justice Douglas, concurring, maintained the incorporation position. Gideon, 372 U.S. at 345. Justice Harlan concurred, objecting both to the Court’s manner of overruling Betts v. Brady and to the incorporation implications of the opinion. Id. at 349.
  12.  Jump to essay-12Scott v. Illinois, 440 U.S. 367 (1979), adopted a rule of actual punishment and thus modified Argersinger v. Hamlin, 407 U.S. 25 (1972), which had held counsel required if imprisonment were possible. The Court has also extended the right of assistance of counsel to juvenile proceedings. In re Gault, 387 U.S. 1 (1967). See also Specht v. Patterson, 386 U.S. 605 (1967).
  13.  Jump to essay-13Alabama v. Shelton, 535 U.S. 654 (2002).
  14.  Jump to essay-14Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Doughty v. Maxwell, 376 U.S. 202 (1964); Kitchens v. Smith, 401 U.S. 847 (1971). See Linkletter v. Walker, 381 U.S. 618, 639 (1965).
  15.  Jump to essay-15 Loper v. Beto, 405 U.S. 473 (1972) (error to have permitted counseled defendant in 1947 trial to have his credibility impeached by introduction of prior uncounseled convictions in the 1930s; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented); United States v. Tucker, 404 U.S. 443 (1972) (error for sentencing judge in 1953 to have relied on two previous convictions at which defendant was without counsel); Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior conviction without the assistance of counsel at trial, with instruction to jury to regard it only for purposes of determining sentence if it found defendant guilty, but not to use it in considering guilt, was inherently prejudicial); but see United States v. Bryant, 136 S. Ct. 1954. at 13 (2016) (holding that the use of prior, uncounseled tribal-court domestic abuse convictions as the predicates for a sentence enhancement in a subsequent conviction does not violate the Sixth Amendment right to counsel, as repeat offender laws penalize only the last offense committed by the defendant); Nichols v. United States, 511 U.S. 738 (1994) (as Scott v. Illinois, 440 U.S. 367 (1979) recognized that an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction may be used as the basis for penalty enhancement upon a subsequent conviction).