Sunday, August 18, 2019

GateHouse: The ‘right’ to counsel may depend on where you live

Matthew T. Mangino
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 and follow him on Twitter @MatthewTMangino.
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