GateHouse Media
August 16, 2019
The Sixth Amendment to the United States Constitution
provides that ”(i)n all criminal prosecutions, the accused shall have the right
... to have the Assistance of Counsel for his defense.” What exactly does the
Sixth Amendment guarantee?
The U.S. Supreme Court settled the issue more than 50 years
ago in the landmark decision of Gideon v. Wainwright. In Gideon, the Court made
it clear that the Sixth Amendment “requires appointment of counsel in ‘all
criminal prosecutions’” - even when an indigent defendant cannot afford a
lawyer.
The decision is recognized as one of the most important of
the 20th century, but did it really alter the legal landscape? More
importantly, did the decision finish the job?
In 1932, the U.S. Supreme Court decided Powell v. Alabama.
The court ruled that the U.S. Constitution requires defendants in capital cases
be given access to counsel upon request.
Ten years later in Betts v. Brady, the court refused to
extend the right to counsel to criminal charges other than capital murder. In
Betts, it was held that a refusal to appoint counsel for an indigent defendant
charged with a felony did not violate the U.S. Constitution.
Then came Clarence Earl Gideon, a 51-year-old drifter and
petty-thief. He was charged with breaking and entering in Florida. The charge
was a felony and when Gideon first appeared before the court he was without
funds, without counsel and he asked the court to appoint him a lawyer.
The judge apologized to Gideon and said that Florida law
only provides for counsel in capital cases. Gideon replied, “The United States
Supreme Court says I am entitled to be represented by counsel.”
Gideon represented himself, was convicted and appealed to
the Florida Supreme Court. His appeal was denied and his case made its way to
the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable
attorney, Abe Fortas, to represent Gideon. Fortas would one day take a seat on
the Supreme Court.
Fortas’ argument before the court was deliberate, learned
and convincing. Fortas told the court that the federal government already
recognized that the Sixth Amendment required the appointment of counsel for
indigent defendants facing felony charges.
He also pointed out that 37 states provided for the
appointment of counsel by statute, administrative rule or court decision. Eight
states provided counsel as a matter of practice. In an unprecedented act of
support for the rights of those accused of a crime, 22 state attorneys general
joined Gideon in urging the court to establish an absolute constitutional right
to counsel in criminal cases. Only five states - Florida, Alabama, Mississippi,
North Carolina and South Carolina - did not provide counsel for indigent
defendants.
Justice George Sutherland wrote in Powell some 30 years
before Gideon, “Even the intelligent and educated layman has small and
sometimes no skill in the science of law.” Fortas argued in Gideon, “You cannot
have a fair trial without counsel.”
Hugo Black wrote in Gideon, “The right of one charged with
crime to counsel may not be deemed fundamental and essential to fair trials in
some countries,” wrote the Court, “but it is in ours.”
As a result, the Gideon decision reaffirmed what all but a
handful of states were already doing. What the decision didn’t answer was how
is indigent counsel selected and managed - more importantly who pays the legal
fees when the accused cannot?
According Criminal Legal News, depending on which of the
3,033 counties an accused resides, counsel is provided by contract attorneys,
appointed attorneys or organized public defender offices. And depending on the
state, the money to pay for these services is provided by the local government,
the state or some combination of both.
The inconsistent method of providing and paying for indigent
counsel inevitably leads to the inconsistent level of competence and experience
of indigent defense.
Unfortunately, for many, the “right” to counsel in a
criminal matter depends on where you live.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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