Counsel for the Indigent: An Unfunded Mandate

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.”  Over the course of constitutional time, deprivation of counsel to the indigent has been a non-issue, has amounted to both a 6th and 14th Amendment violation, and appears to be heading back to obscurity due not to a new interpretation of the Constitution or less of a need for the indigent, but due, instead, to a lack of necessary funding and a laissez faire attitude of the current Court.

In the 1930's Alabama state law required the appointment of counsel for murder and rape.  The state court failed timely to appoint counsel in Powell v. Alabama, 287 U.S. 45 (1932).  The Court decided that by violating its own state law, Alabama thus violated due process of law under the 14th Amendment and required the appointment of counsel in a retrial (which never occurred).  In Smith v. O'Grady, 312 U.S. 329 (1941) an uneducated man, without counsel, was not informed of the charges against him but yet coerced into pleading guilty on the promise of a three year sentence.  Shocked when he received a twenty year term, he spent eight of those years seeking relief which finally came when the Court deemed Nebraska to have essentially violated its own law and thereby the due process clause of the 14th Amendment when it failed to appoint counsel.  The Hughes Court certainly seemed to head toward a general rule that states must make reasonable efforts to appoint (and thereby pay) counsel for the indigent.

Yet, in Avery v. Alabama, 308 U.S. 444 (1940), the Court seemed to care less for formalities such as preparation.  That is, at arraignment on Monday, March 21, 1938, two lawyers were appointed, as was the custom in Alabama for death penalty cases.  Trial was set for Wednesday but was not reached until Thursday when counsel moved to continue the matter (one had been on trial since appointment and the other had pressing matters in court until the night before trial), a motion which was denied.  But Alabama took the speedy trial right more seriously than the right to counsel; a jury found the defendant guilty and sentenced the defendant to death on March 24, 1938.

Alabama courts found that counsel represented the defendant well and even brought his claim up to the high court for review (the claim being the denial of a continuance to allow counsel to prepare for trial) thus the defendant was not denied the right to counsel under any view of the information.  The Court agreed, noting that in these rural counties everyone knows each other so nothing better would have resulted for the defense.  The Court found that because the trial judge carefully safeguarded Mr. Avery's rights, the fact that his attorneys were unprepared did not deprive him of the right to counsel.  It's a headscratcher.

A very itchy one.  In Betts v. Brady, 316 U.S. 455 (1942), the Court affirmatively declared that the 14th Amendment due process clause did not incorporate the 6th Amendment.  Thus, the state of Maryland did not offend the United States Constitution when it denied counsel to Mr. Betts in his felony case. In that case, the Court warned that denial of due process is pretty amorphous and really depended on a case by case evaluation (kind of like the current Court declared for warrants to extract blood).

So, despite the necessity of the eloquent "guiding hand of counsel" Justice Sutherland announced in Powell, in Betts v. Brady, the Court decided that the right to counsel was not a fundamental right, but rather one that had been relegated to legislative whim.  And, because the defendant was of ordinary intelligence and called witnesses in his behalf, he had a fair trial.  Indeed, if he had not - if there had been evidence that he was at a disadvantage for lack of counsel, a refusal to appoint would have resulted in the reversal of a judgment of conviction.  But, since the trial judge who heard the case determined that that did not occur, no biggie.  It is so much of a contradiction to Powell and Smith that three of the justices on the Court violently dissented.

They declared, "[w]hether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant's case was adequately presented."  Betts v. Brady, 316 U.S. at 476 (Black, J. dissenting).  The three dissenters - Justices Black, Douglas and Murphy, agreed with the incorporation doctrine and lamented that if the defendant had been charged with an identical federal offense, he would have been provided counsel.  Indeed, they said, no self respecting judge should conduct such a trial as it shocks the conscience; representation by counsel for all criminal litigants is a fundamental right.  But that dissent would percolate for 21 years.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Court accepted a handwritten pro se certiorari request.  It then appointed counsel and asked for briefing on whether it should reconsider its holding in Betts v. Brady.  Giving itself both the question and the lawyer from whom it wished to hear the answer was a bit of a hand tip.  So, the Court finally did accept both the incorporation doctrine and the idea of lawyers as fundamental requirements in criminal cases. Unless, of course, there is a valid waiver of the right to counsel in which case the defendant can self-represent. See: Faretta v. California, 422 U.S. 806 (1975)(but read Chief Justice Burger's dissent in which he cautioned that criminal defendants who waive counsel become easy convictions which undermines the public's confidence in the court system).

Fifty years later, it seems, we have come full circle not on the actual Constitutional principle, but on its implementation.  Demonstrating the preposterous nature of the Faretta decision, in Marshall v. Rodgers, 133 S.Ct. 1446 (2013), the defendant asked for counsel and then waived that right several times.  After conviction, he again requested counsel.  The Ninth Circuit ruled that there was a required presumption in favor of counsel in a post-trial, preappeal new trial motion (assumed, arguendo, as a critical stage of the proceedings).

The Court took the case to reverse the Ninth Circuit's ruling.  More precisely, the case reads like a 9 year old caught in a conundrum who declares, "I never said that!"  Apparently, the Ninth Circuit would put words into the Court's mouth that the Court is unwilling to declare one way or the other.  What the Court really said (in refusing to say anything) was that California did not make a mistake in saying that there was no clearly established precedent to suggest that there was a presumption for appointing counsel in critical stages of the proceedings where a person so requested and was unable to pay, especially when that person had decided to forego counsel once or twice which kind of ended badly and so maybe the request for counsel again was kind of legitimate...but the point is that there is no clearly established precedent so indicating - despite Gideon v. Wainwright which kind of really does say that... 

BUT (and this is the really important part) the Court also declined even to hint which way it might go if the question were actually presented.  "The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges. And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial." Marshall v. Rodgers, 133 S.Ct. at 1451.  So, by not telling and keeping that suspense high, courts can keep denying counsel to indigent defendants until one of them (possibly) can obtain appointed counsel in order to ask the question the right way.  In this version of "Mother, May I", instead of getting sent to the starting point for forgetting to say the magic words, the defendant gets to spend countless years behind bars as a guest of the state unless and until he gets a lawyer...which, remember...if he has ever self-represented - he may not be entitled to have ...or even know he may have given up - to ask whether the Court should reconsider its decision in Faretta v. California.

States may not be able to deprive counsel outright, but they can bring us to the Avery v. Alabama situation where local custom can dictate outcome just as easily as full deprivation can.   Another recent case was accepted on a speedy trial right issue, but really it was a right to counsel case.  Despite accepting cert, the Court dismissed Boyer v. Louisiana, SCT Docket 11-9953 (April 29, 2013) after hearing argument.  In that case, the defendant was charged with capital murder and, by statute in Louisiana, received two lawyers: one highly experienced in death penalty matters and the other - highly credentialed, but less experienced, from a state run agency called the Louisiana Capital Assistance Center.  The state required both counsel but conveniently had sufficient funds to pay only the less expensive attorney.  This caused considerable delays in the trial.

Despite the fact that the real question was, in charging the defendant with a capital offense without the resources to so prosecute, did the state delay his trial such that it violated the Constitutional right to a speedy trial (or the better question: does a state violate the 6th and 14th Amendments when it proceeds with criminal charges without the resources to provide an adequate defense thereby both delaying trial and depriving a litigant of the right to counsel), the litigant asked only whether the delay in payment to the lead attorney should be attributed to the state for purposes of determining one of the factors of the speedy trial analysis from Barker v. Wingo, 407 U.S. 514 (1972).  Only Justices Kennedy and Roberts did not chime in on this one.  Three Justices - Alito, Scalia and Thomas - concurred in dismissing the cert petition because, (1) the guy was clearly guilty, (2) the defense kept asking for continuances and it is really unclear why, (3) the defendant made out like a bandit as the state ultimately dropped the death penalty and (4) did they say yet that the guy was clearly guilty?  

But, four Justices - Sotomayor, Breyer, Kagan and Ginsburg - said that the question was whether a delay caused by a State's failure to fund counsel for an indigent's defense should be weighed against the state for purposes of a speedy trial assessment.  Given the facts as presented, this quartet would have so determined (and again this is key) without declaring that the defendant had been deprived of a speedy trial under the Sixth Amendment - ONLY that the factor should be weighed against the state.  No one seemed concerned about the lack of funding for indigent defense and its implication for the poor charged with crimes.

The big, bold questions of Powell v. Alabama and Gideon v. Wainwright have faded into technicalities and nitpicky formulations of questions to the Court.  But, as Chief Justice Marshall declared, this is a constitution we are expounding.  And not just a constitution, but our Constitution - We, the People's Constitution - the one we ask people to fight and die for, the one we hold dear to protect our right to speak publicly and live privately...that Constitution.  The one that guarantees the right to counsel and due process of law.  The Court in Gideon asked counsel to address the question it wished to address because it sought equal treatment under the law.  Now the Court shies from questions and answers alike.

To expound is to set forth.  The current Court issues decisions that are not decisions - witless, cowardly refusals to affirm the rights, privileges and freedoms we have grown to expect and these ideals that establish the framework of our society.  They are an insulting exercise in futility kicking the proverbial can down the road worse than their legislative counterparts.

Democracy is expensive and worth every penny.  So, when the state chooses to charge people with crimes, it must provide adequate funding for the police to be well trained, for the prosecution to protect all of the people ever vigilant of the rights of the defendant, for defense counsel to act as that bulwark between a free people and a police state, and, if required, for corrections facilities to be humane and just.  When society begins to pick and choose which parts of the system can be funded and which will suffer, courts have the duty to step in on the side of the most vulnerable.  

The first Justice Marshall exhorted that the Constitution had weight and meaning beyond the intimate details of a case; it was for keeps and we had to be careful about setting forth its parameters.  Some years later, seeking to blanket the least fortunate in the protective covering of the Constitution, a different Justice Marshall explained  that, "[h]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."  Constitutional rights cannot be beholden to state budgets any more than they can bigotry.  The cowardice of the Court reflects that indigent defense is unpopular and will, therefore, be sidelined without the courage of those determined, ever vigilant, to ensure the continuation of the rights guaranteed by both war and peace.  It is, afterall, a constitution we are expounding.