The Right to Counsel

Ross v. Moffitt (1974) Facts: This was a consolidated appeal of two separate cases in which indigent defendants were convicted in north Carolina trial courts. Both appealed and were represented by court appointed counsel before the North Carolina Court of Appeals. Each defendant thereafter pursued other discretionary post conviction remedies and was denied court appointed counsel.

Appeals Rule: As a matter of constitutional law, an indigent is NOT entitled to counsel appointed by the state insofar as a discretionary review/appeal is concerned (either to a state high court of the US Supreme Court). • The rule requiring appointment of counsel for indigent state defendants on their first appeal does not extend to requiring counsel for further discretionary appeals. Majority bases the rule on due process (fundamental fairness test). o Switched from the Equal Protection rationale used in Douglas v. CA to a Due Process rationale here

Douglas v. California (1963) Facts: Defendants were jointly represented by a public defender. They were tried and convicted of 13 felonies in California. The defendants dismissed the attorney claiming conflict of interest and later were convicted. There was a California law that the appellate court can choose whether or not to appoint counsel to an indigent defendant on an appeal as of right if after the investigation, the record felt that it was not beneficial to the court or the defendant to appoint counsel. Defendants argued that they had a right to appointed counsel during the first appeal.

Appeals Rule: Defendant has the right to counsel on an appeal as of right. • Under Equal Protection, it is not fair that someone who can afford counsel can have someone review documents but someone who cannot afford counsel will not have that opportunity.

Powell v. Alabama (1932) Facts: Boys were accused of raping two girls on a train. Defendants argued that they were denied counsel, were indigent, and could not afford to employ counsel.

Capital Case Rule: Failure to provide appointed counsel in a capital case where there defendants are (1) ignorant, (2) feeble minded, and (3) illiterate, violates Due Process. • Broad view: in all capital cases defendant gets appointed counsel. • Note: Seems as if the court is applying a fundamental rights theory "immutable principles of justice that adhere to free government"

Overview of Right to Counsel

Critical Stages of Trial Require Effective Assistance of Counsel: Capital case, felony, any case where there is a chance of imprisonment, on first appeal but NOT discretionary appeal, plea bargaining Effective Counsel: Strickland Test where you look at reasonableness and prejudice

Nix v. Whiteside (1986) Facts: Defendant told his lawyer that he was going to lie on the stand. The lawyer told him that if he decides to lie, then he would be obligated to inform the court. As a result, the defendant did not commit the perjury and he was convicted of second degree murder.

Effective Assistance of Counsel Holding: Effective assistance of counsel does not include the right to have an attorney support your perjured testimony.

Roe v. Flores-Ortega (2000) Facts: Defendant was allowed to file an appeal within 60 days after sentence announced but no appeal was filed.

Effective Assistance of Counsel Holding: It is always ineffective assistance of counsel if the defendant requests an appeal and counsel does not do so. It results in prejudice. Rules: 1. There is no constitutionally imposed duty upon counsel to file an appeal when defendant remains silent on whether to file. 2. Constitutionally imposed duty to consult with defendant regarding appeal when there is reason to think: • The rational defendant would want an appeal • Defendant reasonably demonstrated to counsel that he was interest in appealing 3. Trying to prove ineffective assistance of counsel need to prove Strickland test and that the client would have wanted to file an appeal.

Padilla v. Kentucky (2010) Facts: Defendant pled guilty to a crime but was not informed by counsel that he could be deported if he did plead guilty.

Effective Assistance of Counsel Rule: Counsel must inform client whether his plea carries a risk of deportation.

US v. Cronic (1984) Facts: Defendant pled guilty despite counsel's advice not to. Counsel did not request character witness, psychiatric examination, or pre sentencing report. Defendant argued ineffective assistance of counsel.

Effective Assistance of Counsel Rule: Strickland test - Must show (1) that counsel's performance was deficient in that it fell below a standard of reasonableness • Look to see if counsel made errors so serious that counsel was not to the standard of 6th Amendment; and (2) Show counsel's deficiencies prejudiced defendant's case so as to render the outcome of the trial unreliable and therefore unfair • Show a reasonable probability that but for counsel's errors, the result of the proceeding would have been different

Missouri v. Frye (2012) Facts: Defendant was charged with a revoked license and prosecution offered a plea deal but the plea deal was never presented to the client.

Effective Assistance of Counsel Rules: 1. Failure to inform client of plea bargain can lead to ineffective assistance of counsel IF the defendant was also prejudiced; and 2. To prove prejudice, need to show that (1) defendant would have accepted the plea bargain and (2) the court would not have revoked the plea bargain.

Gideon v. Wainwright (1963) Facts: Defendant was charged in Florida State Court with breaking and entering with the intent to commit a misdemeanor. This was a felony under Florida law. He informed the court that he was indigent and requested the Court appoint him an attorney. The court informed him that under Florida law only indigent clients charged with capital offenses are entitled to court appointed counsel. He argued that without counsel he could not get a fair trial and it violated the 6th Amendment.

Felony Case Rule: Overruled Betts v. Brady (1942) and held that the right of an indigent defendant to appointed counsel is a fundamental right, essential to a fair trial. Failure to provide an indigent defendant with an attorney is a violation of the 14th Amendment of the Constitution. • Note: Appears to be a selective incorporation theory because taking part of the 6th Amendment and applying it to the States

Betts v. Brady (1942) - OVERRULED Facts: Defendant was indicted for robbery in circuit court in Maryland. He was indigent and unable to retain an attorney. When he requested the Court appoint him an attorney, the Court informed the petitioner that it was not the practice of the Court to appoint counsel for indigent defendants, except in prosecutions for murder and rape. He argued that in all felony cases a defendant should be appointed the right to counsel.

Felony Case Rules: OVERRULED 1. It is not a violation of Due Process to deny appointed counsel in non-capital cases or defendant is not entitled under Due Process to have counsel appointed in felony cases that do not carry a capital punishment. 2. Aspects of the 6th Amendment did not necessarily apply to the states through the 14th Amendment unless the aspect was fundamental to get a fair trial • Should be looked at on a case-by-case basis • Defendant did not meet the criteria laid out in Powell that he was incompetent, feeble minded, or illiterate because he has been through a criminal trial before • Overruled by Gideon v. Wainwright (1963)

Argesinger v. Hamlin (1972) Facts: Defendant was an indigent, charged with carrying a concealed weapon, an offense punishable by imprisonment up to six months and/or a $1k fine. It was a judge-trial and the defendant had no representation. He was sentenced to a 90-day jail term. The Florida Supreme Court held that the right of a court-appointed counsel applies only to trials for "non-petty offenses punishable by more than six months imprisonment."

Misdemeanor Rule: Absent waiver of counsel, Due Process requires appointment of counsel where there is a prospect of imprisonment or actually punished by imprisonment for a misdemeanor.

Alabama v. Shelton (2002) Facts: Counsel was only provided at probation revocation hearing and not at the actual trial

Probation Rule: Defendant is entitled to counsel even if the imprisonment is suspended and contingent upon violation of probation because if defendant violates probation, he or she will go to prison. The Sentence may not have been imposed if defendant was represented at trial.

Faretta v. California (1975) Facts: Judge held a hearing to see whether defendant was competent to represent himself. The judge found that he was not. The Defendant was appointed counsel and was convicted. Defendant appealed for violating Due Process by not being allowed to represent himself.

Self-Representation Rules: 1. The Constitution requires that if a person wishes to represent himself in a state criminal proceeding, he be accorded the right of self-representation when he voluntarily and intelligibly elects this right. 2. Waiver must be made with an understanding of the: • Nature of the charges • The statutory offenses included in them • The range of allowable punishments • Possible defenses to the charges • Circumstances and mitigation • And all other facts essential to a broad understanding of the whole matter