Petitioners Brief — Scott v. Illinois
Supreme Court brief1979
Ask Donna
What actually matters in this document.
Text
-~ Supreme Cau. US.
PILED
}
4 JUL PR 1078
Iy THE MICHAE! onn.:
L_INCHAEL RODAK, JR., CLERK
Supreme Court of the Unites States
Ocroser Term, 1977
No. 77-1177
AUBREY SCOTT,
Petitioner,
vs.
PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
On Writ Of Certiorari To The
Supreme Court Of Illinois
BRIEF FOR THE PETITIONER
JOHN 8S. ELSON
Northwestern University Legal Clinic
360 East Superior Street
Chicago, Illinois 60611
(312) 649-8576
Attorney for Petitioner
PETITION FOR CERTIORARI FILED FEBRUARY 21, 1978
CERTIORARI GRANTED MAY 30, 1978
TABLE OF CONTENTS
PAGE
GS _RRRIISE ETE ER acer ere |
SIIIIIES, cesinrditnsinseniantisectnspiinsdanitnsagscinmeannmiininmipaaain 2
QUESTION PRESENTED 2.200.002... ccecsccceeecceeeseneee 2
CONSTITUTIONAL PROVISIONS INVOLVED ... 3
STATEMENT OF THE CASE .0n.no...e.ceceeceeeeeeeeeee 4
SUMMARY OF ARGUMENT 2un..n.n.n.n...cecsc-cecccccceeeeeenes 8
IE saibiiecidscicvicasiincininninaiinisninmeciannpiianeniscenniiieestiis 12
The Sixth Amendment Right To Counsel Applies
In All State Criminal Prosecutions Regardless Of
Whether Imprisonment Results -...0.020 2.2... 12
Il.
Due Process Of Law Requires The Right To Coun-
sel At A Misdemeanor-Theft Trial Regardless Of
Whether The Defendant Is In Fact Imprisoned .... 22
A. The Decisive Factor In Determining Whether
A Defendant Has A Due Process Right To
Counsel In A Misdemeanor Trial Is Whether
Counsel Is Necessary For A Fair And Accu-
rate Judicial Fact-Finding Process .............. ... 22
B. Because It Is Undisputed That The Assist-
ance Of Counsel Is Essential To A Fair Mis-
demeanor Trial, Assertions That Appointed
Counsel Is Too Costly Cannot Outweigh The
Petitioner’s Due Process Right To Counsel .... 25
C. The Government’s Interest In Assuring The
Right To Counsel In Misdemeanor Trials Out-
weighs The Possible Added Expense Of Pro-
viding Such Counsel 29
ii
1. Providing The Right To Counsel In Mis-
demeanor Trials Is In The Tnterest Of
Society And, Therefore, Of Government ..
Important Governmental Interests Will
Suffer If The Right To Counsel Is Not
Provided In All Misdemeanor Prosecu-
tions Punishable By Imprisonment ............
3. Providing The Right To Counsel In All
Misdemeanor-Theft Prosecutions Punish-
able By Imprisonment Will Not Result In
ere ee
D. ‘The Individual Interest At Stake In A Mis-
demeanor-Theft Prosecution Not Resulting In
Imprisonment Is Substantial Enough To Re-
quire The Essential Elements Of A Fair Tria!
III.
The Equal Protection Clause Of The Fourteenth
Amendment Requires That Indigent Defendants
Chargec With Misdemeanors Punishable By Im-
prisonment Have The Right To Appointed Coun-
sel At Trial —_—- Of Whether Or Not They
Are Imprisoned ... —- soncemennneiimeneenieeee,
bo
IV.
The Due Process Safegwards Necessary To Pre-
vent An Inaccurate And Prejudicial Pre-Trial
Deprivation Of A Misdemeanor Defendant’s Right
To Counsel Would Require Expenditure Of Con-
siderable Judicial Resources. These Resources
Could Be Saved By Affording The Right In All
Misdemeanor Prosecutions .....................-2...-..--sce-0+-0000
A. The Fundamental Nature Of A Misdemeanor
Defendant’s Interest In The Assistance Of
Counsel At Trial Warrants Due Process Pro-
tection Regardless Of Whether Or Not The
Defendant Is Imprisoned ....................-.----e-e
31
37
47
A LN iO tints
iil
B. The Determination Of The Need For Counsel
In A Misdemeanor Trial Requires Due Pro-
cess Safeguards In Order To Minimize The
Substantial Risk Of Error And Prejudice
Against the Defendant ~...022.20o eee 53
C. The Procedural Safeguards Required For A
Pre-Trial Determination Of The Necessity Of
Defense Counsel In A Misdemeanor Trial In-
clude An Adversary On-The-Record Hearing
That Results In Written Findings And Rea-
sons Made By A Judge Other Than The One
Who Presides Over The Defendant’s Trial .... 56
1 f
Petitioner’s Trial Was Unfair And Therefore De-
nied Him Due Process Of Law _............. 60
AIRE FET a Se see 65
TABLE OF AUTHORITIES
Cases
Alexander v. State, 527 S.W.2d 927 (Ark. 1975) ........ 34, 35
Argersinger v. Hamlin, 407 U.S. 25 (1972) 0000...
spibicidnestdaA iaiaihdentenbaadedicgiadle 8, 9, 12, 13, 15, 19, 21, 24, 27, 33, 34, 35,
soil tidihieniaanei tle di aati 37, 39, 44, 51, 52, 53, 54, 55, 60, 62
Baker v. City of Fairbanks, 471 P.2d 386 (Alas. 1970) . 16
Baldwin v. New York, 399 U.S. 66 (1970) 2... 14, 18, 46
Bell v. Burson, 402 U.S. 535 (1971) -.....0..02..................... °6
Benton v. Maryland, 395 U.S. 784 (1969) 00. 46
Berger v. United States, 295 U.S. 78 (1935) 0.0. 31
Betts v. Brady, 316 U.S. 455 (1942) 20000. 11, 54, 58, 61
Board of Regents v. Roth, 408 U.S. 564 (1972) .... 23, 25, 26
Boddie v. Connecticut, 401 U.S. 371 (1971) .200.. 26
Boykin v. Alabama, 395 U.S. 238 (1969) 000. 57
Brady v. Maryland, 373 U.S. 83 (1963) 0... 29
iv
Brookhart v. Janis, 384 U.S. 1 (1966) ~.....00222. 2... 19
Burns v. Wilson, 346 U.S. 137 (1953) -..........2....2........0000 28
Bute v. Illinois, 333 U.S. 640 (1948) —....0022 ee. 51
Carafas v. LaValee, 391 U.S. 234 (1968) ..........0002...... 46
Carey v. Piphus, ...... U.S. ......, 98 S.Ct. 1042 (1978) ....
ETO Ey Ae GB RiP R TS ONE TaN 7 See EO Dl 30, 53, 60
Caraley v. Cochran, 369 U.S. 506 (1962) .... 19, 21, 61, 63, 64
Chandler v. Fretag, 348 U.S. 3 (1954) _00 20
Cheff v. Schnackenberg, 384 U.S. 373 (1966) -............... 14
Chewning v. Cunningham, 368 U.S. 443 (1962) —.......... 61
City of Monroe v. Fincher, 305 So.2d 108 (La, 1974) .. 34
Commonwealth v. Barrett, 322 N.F.2d 89 (Mass. App.
RN RISE Ry RE SSS “St Ee nl CeO ee atte 35
Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140
I ae snsicendiinitamniniiesnie 57
Dixon v. Love, 431 U.S. 105 (1977) 2A 5 ESSERE 24
Douglas v. California, 372 U.S. 353 (1963) 2.0... 10, 47, 48
Draper v. Washington, 372 U.S. 487 (1963) ............... 48
Dugan v. Cardwell, [1978] Pov. L. Rep. (C.C.H.)
I i saseleinmationete 35
Dunean v. Louisiana, 391 U.S. 145 (1968) 20000... 14
Elkins v. United States, 364 U.S. 206 (1960) —.....00...... 41
Ex parte McClusky, 40 F. 71 (Cir. Ct. D. Ark. 1889) ... 17
Farretta v. California, 422 U.S. 806 (1975) ...... 12, 27, 41, 51
Ferguson v. Georgia, 365 U.S. 570 (1961) —................ 63
Fitzpatrick v. United States, 178 U.S. 304 (1900) -....... 14
Foster v. Illinois, 332 U.S. 134 (1947) —0 ee... 15
Frank v. United States, 395 U.S. 147 (1969) 0... 13,17
Fuentes v. Shevin, 407 U.S. 67 (1972) —..020000220-e.. 26
Gagnon v. Searpelli, 411 U.S, 778 (1973) -......0.....2.-..-..
seinen iaih iat aati ca 17, 26, 27, 28, 51, 53, 57
Garner v. Louisiana, 368 U.S. 157 (1961) —......02...2..... 57
Gideon v. Wainwright, 372 U.S. 335 (1963) —....00.......
enaintosianinidadtenadimnaaiin 8, 11, 12, 15, 20, 21, 22, 26, 41, 49, 60, 61
v
Ginsberg v. New York, 390 U.S. 629 (1968) .......000........ 46
Goldberg v. Kelly, 397 U.S. 254 (1970) —..0.02200... 26
Goss v. Lopez, 419 U.S. 565 (1975) _..0.2. ee 26, 42
Grannis v. Ordean, 234 U.S. 385 (1914) 0000. 58
Gregg v. United States, 394 U.S. 489 (1969) 200... 55
Griffin v. Illinois, 351 U.S. 12 (1956) 2.00222... 47,48
Groppi v. Wisconsin, 400 U.S. 505 (1971) —-....222.... 13
Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969) _.......... 56
Henderson v. Morgan, 426 U.S. 637 (1976) -............... 13, 19
Hensley v. Municipal Court, 411 U.S. 345 (1973) ........ 34
Herring v. New York, 422 U.S. 853 (1975) -..000000000.... 20, 63
Holloway v. Arkansas, ... U.S. ......, 98 S.Ct. 1173
EEE, idee aibadeteicaptassnenintainsetondpsiocitiabicisclaieeensatanian 20, 25, 27, 52, 60
In re Gault, 387 U.S. 1 (1967) -......... 15, 16, 21, 23, 24, 27, 41
In re Murchison, 349 U.S. 133 (1955) 00... 59
In re Oliver, 333 U.S. 257 (1948) .22...........2.....-ccccccescceceee 13
In re Winship, 397 U.S. 358 (1970) ....02222222..22.--..e.ee0eee 30, 42
Jerome v. United States, 318 U.S. 101 (1943) 00. 17
Johnson v. Zerbst, 304 U.S. 458 (1938) 2000. 15, 21, 22
Joint Anti Facist Refugee Committee v. McGrath, 341
es, Be I cerita itinnierenierniiinenisbinsiadenneniiiupaeissittinsnoinitientins 30
Jones v. Cunningham, 371 U.S. 236 (1963) —....00000..... 34, 43
Kent v. United States, 383 U.S. 541 (1965) 0000. 57
Klopfer v. North Carolina, 386 U.S. 213 (1967) 0... 13
LaBar v. Goodman, 397 F.Supp. 463 (W.D.N.C. 1975) .. 35
Linkletter v. Walker, 381 U.S. 618 (1965) 000. 26
Loper v. Beto, 405 U.S. 473 (1972) 2222... seeeeeeceeeseeeee 35
Mackin v. United States, 117 U.S. 348 (1886) 000. 14, 15
Maghe v. State, 507 P.2d 950 (Okl. Crim. 1973) —.......... 34
Mapp v. Ohio, 367 U.S. 643 (1961) 02. eeeeeee 41
Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973) .......... 34
Mathews v. Eldridge, 424 U.S. 319 (1976) —......... 24, 25, 28
Mayer v. City of Chicago, 404 U.S. 189 (1971) W000.
cxaniapncenesesanesmesebtennestitit .-- 43, 44, 47, 48, 52
vi
McInturf v. Horton, 85 Wash. 2d 740, 538 P.2d 499
UUETITEET, iniicsniclhstiiessaelencacsensiceniitesitiht aeiiaitpuiiiadiatadiabadeidianialiniianal 32
MeNea!l v. Culver, 365 U.S. 109 (1961) 0.00.20... 61, 63, 64
Memphis Light Gas and Water Div. v. Craft, ...... US.
iieasid SE, =
Middendorf v. Henry, 425 U.S. 25 (1976) ........ 16, 17, 26, 28
Miranda v. Arizona, 384 U.S. 436 (1966) ....000000000000000.... 50
Morgan v. State, 235 Ga. 632, 221 S.E.2d 47 (1975) ...... 34
Morisette v. United States, 342 U.S. 246 (1952) ........... 17
Morrissey v. Brewer, 408 U.S. 471 (1972) -....0............ 30
Muilane v. Central Hanover Tr. Co., 339 U.S. 306
EE ASE SS eT aN Sa re 26
North Carolina v. Pearce, 395 U.S. 711 (1969) —...0........ 57
Pate v. Robinson, 383 U.S. 375 (1966) 2000000000000... 58
People v. Baldasar, 52 Ill.App.3d 305, 367 N.E.2d 459
(1977), cert. petition pending, No. 77-6219 .............. 34, 45
People v. Letterio, 16 N.Y.2d 307, 266 N.Y.S.2d 368
UI sebelah aticiicemiteeia cicada acaricidal adiaintae 16
People v. Stufflebean, 24 Ill.App.3d 1065, 322 N.E.2d
Be FI tie sci carn scesatistasslin nds taiciantiatiinnidbinegitiieidimanniodss 45
People v. Washington, 23 Ill.2d 582, 179 N.E.2d 635
II cinesene hiatal Ula itiicineailecalahineteainaetinataiemameniae 62
Pointer v. Texas, 380 U.S. 400 (1965) 0002222. 13, 19
Potts v. Estelle, 529 F.2d 450 (5th Cir. 1976) .............. 35
Powell v. Alabama, 287 U.S. 45 (1932) —................ 18, 20, 21
Ross v. Moffitt, 417 U.S. 600 (1974) 0. 48, 49, 50
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..........
nicticassisniadaihaaniaileiaastiadatatesieiliaatadbeeinsiinib iia 12, 20, 21, 22, 27, 31
Sibron v. New York, 392 U.S. 40 (1968) —.......0....... 27, 46, 62
Smith v. O’Grady, 312 U.S. 329 (1941) ............................ 19
Specht v. Patterson, 386 U.S. 605 (1967) W000... 16
Stanley v. Illinois, 405 U.S. 645 (1972) 0... 26
State ex rel. Winnie Harris, 75 Wis.2d 547, 249 N.W.
ey eG ercciecectnicseeitibnnsecsibbareipatltaiinantidadidierstibiiiennien 33, 55
State v. Harris, 312 So.2d 643 (La. 1973) -....0002.... 35
—eenrens ey > -
Vii
State v. Kirby, 33 Ohio Mise. 48, 289 N.E.2d 406
SERINE RESIN a vnuNae ID Ss PONE, OC a 5 aD 34
State v. Reagan, 103 Ariz. 287, 440 P.2d 907 (1968) ...... 34
Street v. New York, 394 U.S. 576 (1969) 0000. 46
Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975) _....... 34
Townsend v. Burke, 334 U.S. 736 (1948) 000000000. 57, 58
United States v. Moreland, 258 U.S. 433 (1922) 14
United States v. Solomon, 422 F.2d 1110 (7th Cir. 1970) 56
Washington v. Texas, 388 U.S. 14 (1967) 20000. 13, 19
Williams v. Illinois, 399 U.S. 235 (1970) 000. 35, 36
Williams v. New York, 337 U.S. 241 (1949) 00000. 32
Williams v. United States, 401 U.S. 646 (1971) _....... 26, 46
Relevant Constitutional Provisions and Statutes
Fifth Amendment, U.S. Constitution 2.000000... 14, 49, 62
Sixth Amendment, U.S. Constitution — 02000000... .---. PASSIM
Fourteenth Amendment, U.S. Constitution —............. passim
ee 55
pe ee 45
Title 28 U.S.C. §2241(c), §2254(a) 22.2... cccccccccccseescccececeees 34
32 C.F.R. §155.5(h) and (i) and §$156.7(b) (1) (iii) —...... 45
lll. Rev. Stat. Ch. 38, §§4-3, 4-4, 4-5, 16-1 (1971) 000... 17
Ill. Rev. Stat. Ch. 38, $8-7(9) (1971) 222 eeeteeeeeeeee 31
Ill. Rev. Stat. Ch. 38, §1005-1-4, 1-18, 1-21 (1977) 0000... 43
Ill. Rev. Stat. Ch. 38, §1005-3-4 (1977) 00. 55
Ill. Rev. Stat. Ch. 38, §1005-4-1 (1977) 20... 31
Ill. Rev. Stat. Ch. 38, §1005-6-2, 6-3.1 (1977) 20. 43
Lil. Rev. Stat. Ch. 38, $1005-8-1(7) (1977) 022.2. eeceoeeee 45
Ill. Rev. Stat. Ch. 78, $2 (1977) .2.2222..2.-.eceseeee 45
viii
Articles and Other Authorities
American Bar Association, Canons of Judicial Ethics,
Canoe 17 (2067) servrrvcrsccccsccsccssscrerccseccesssecsscesvece: sssseeseenenes N6
American Bar Association, Code of Professional Re.
eponsibility, BC 7-86 (1969) cocoon renner ences 56
American Bar Association Project on Minimum Stand:
ards for Criminal Juatice, Standards Relating to Sen-
tencing Alternatives and Procedures, Commentary to
Standard 4.2, 2OB-D (1DGZ) coccccccccccesrreeeenennennnnens 5S
American Bar Association, Standards Relating to the
Prosecution Function and the Defense Function, See.
tion 2.8 (Approved Draft 1974) ....... sennananeentnecnpaeseseeneee iG
Beaney, The Right To Counsel In American Courts
(ROBB) scccrercsceresrercercorescecceczevnccevenenesscsncncneccnussnensesensesensscscuste 21
Brief for the State Governments Amici Curiae, pp, 17-
18, filed by the Attorneys General of twenty-three
States in Gideon v. Wainwright, 872 U.S, 385 (1963) 61
Chicago Couneil of Lawyers, Study of Licensing Re-
atrictions on Ex-Offenders in the City of Chicago and
the Bhate of Witimele (1OGB) .cccccccccesssceccecescsssczscsssncccssescece 45
Cohen, Civil Disabilities: The Forgotten Punishment,
85 Fed, Prob, 19 (June, 1971) nn eiodlinieatielaaeieaid 45
Friendly, H, J,, The Bill of Rights as a Code of Crim:
inal Procedure, BS Calif, LR, 920 (19BB) ccc 31
Guidelines for Legal Defense Syatema in the United
States, Final Report of the National Study Commis.
sion on Defense Services (19TH) occ 38
Terael, Gideon v. Wainwright: The Art’ of Overrul-
ingt, 1968 Sup, Ct. Rew, QUE ce — 47, 54, 58, 61
H. Kalven, Jr, and H, Zeisel, The American Jury
COED cecsmssseemnncennreeenrsvnneieetnniinininininiainnmmnnman SS
Kamisar, Betta v. Brady Twenty Years Later: The
Right to Counsel and Due Process Values, 61 Mich,
Bates BRD CRGOGR) cecrercecrcreccsscecscecnsveserssccncnevssscscecnsnensnenecscseees 61
Krants et al, Right to Counsel in ¢ ‘riminal Cases; The
Mandate of Argersinger V. Hamlin (1976) occ
33, 34, 87, 38, 39, 40, 58
PEEEREKERHRHRTEEER HEHEHE EER ERE HEHE LEHRER EH EEE HERE RHEE EHO
ix
Melichereik, a ge Problema of Former Of.
fenders, 2 Nat'l Prob, and Par, Assoc, J, 48 (1956). 45
The National Advisory Commission on Criminal Jue:
tice Standards and Goals, Covers, Standard 18.1 and
I I 38, 40
The National Conference of Commissioners on Uni.
form State Laws, Unvroam Retoe Or Crominat Pro.
enpeng, Rule 821(b), comment at 53° (Approved
Dralt 1074) cccercoscccccscess Te EL SE ae 38, 55, 58
Note, Argersinger v, Hamlin and the Collateral Use
of Prior Misdemeanor Convictions of Indigenta Un.
represented by Counsel ar wil 85 Ohio St, Lad, 168
SED -aisithiiintinnines M4
The President's Commission on Law Enforcement ‘and
the Administration of Justice, Tre Crannexan Ov
Crime ty A Free Socrry (1968) . ane 38
The President's Commission on Law ih nforeement and
the Administration of Justice, Task Foree Report,
NE RE SEE LE TENA EY 45
J, Reed and R, Reed, Status, Images and Consequence :
Once a Criminal Always a Criminal, 57 Sociology and
nn 4
Rubin, Man With a Reeord: A Civil nce Problem,
35 Fed, Prob, 8 (1971) .. sesiaa 4h
Schaefer, Federaliam and ‘State Criminal Pp roeedure,
Tr: I 1s
Schwartz and Skolnick, Two Studies of Legal —
10 Social Probleme 183 (19B2Q) ow ree 4h
Special Project, The Collateral Consequences of a
Criminal Conviction, 28 Vand, L. Rev, 929 (L970) .... 44.45
The Supreme Court, 1948 Term, 68 Harv, LR, 119
SOP GED . eemmeieenseeeniennimniienanennnied 61
The Supreme Court, L961 Term, 76 Harv, LR, 4
UU ieiespcbanbesicahicheisbilebiiabibietatestcalahcsennaeh iets 61
In Tun
Supreme Court of the United States
Ocroven Team, 1977
No. 77-1177
AUBREY SCOTT,
Petitioner,
va.
PEOPLE OF THE STATE OF ILLINOIS,
Respondent,
On Writ Of Certiorari To The
Supreme Court Of Ilinois
BRIEF FOR THE PETITIONER
/
OPINIONS BELOW
2 es
The opinion of the Supreme Court of Illinois affirm:
ing the decision of the Appellate Court of Illinois is
reported at 68 Ill, 2d 269, 369 N,E.2d 881 (1977), It is
reproduced in the Appendix to the Petition for Cer-
tiorari at p, la,
The opinion of the Appellate Court of Illinois, First
District, entered on February 26, 1976, affirming
petitioner's conviction, is reported at 36 Ill, App, 8d 304,
848 N.E.2d 517 (1976), It is reproduced in the Appendix
to the Petition for Certiorari at p, 6a.
JURISDICTION
The decision of the Supreme Court of Illinois was -
entered on October 5, 1977, The Petition for Rehearing
was denied on November 28, 1977, The Petition for Writ
of Certiorari waa filed on February 21, 1978, Certiorari
was granted on May 30, 1978, The jurisdiction of this
Court is invoked under the provisions of 28 U.S.C,
§ 1257(3),
QUESTIONS PRESENTED
1) Whether the Sixth and Fourteenth Amendments
to the United States Constitution guarantee the right to
counsel when a defendant is charged with an offense
punishable under state law by imprisonment, regard-
leas of whether the defendant is in fact imprisoned?
2) Whether the trial of Petitioner Scott without the
assistance of counsel was so unfair as to deny due
process of law?
online
CONSTITUTIONAL PROVISIONS
Constitution of the United States, Amendment VI;
In all criminal prosecutions, the accused shall en-
joy the right to a speedy and pase trial, by an im-
partial 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 ac-
cusation; to be confronted with the witnesses
against him; to have compulsory process for obtain-
ing witnesses in his favor, and to have the
Assistance of Counsel for his defense.
Constitution of the United States, Amendment XIV,
Section 1;
Section 1, All prene born or naturalized in the
United States, and subject to the jurisdiction there-
of, are citizens of the United States and of the State
wherein they reside, No State shall make or enforce
any law which shall ryt the privileges or im-
munities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal protec.
tion of the laws,
_
STATEMENT OF THE CASE
On January 31, 1972, petitioner Aubrey Scott ap-
peared without counsel before the Circuit Court of Cook
County, Illinois, on a charge of theft in violation of IIl.
Rev, Stat, Ch, 38, § 16-1(AX1) (1972), This is a misde-
meanor which carries a possible sentence of a fine not to
exceed $500 or imprisonment not to exceed one year, or
both,
When Scott approached the bench the Judge advised
him that he was charged with the offense of theft. (A.
6) The Record does not indicate that Scott was given a
copy of the complaint, which alleged in substance that
Scott had on or about January 19, 1971, committed the
offense of theft in that he knowingly obtained or exerted
unauthorized control over a sample case and address
book worth $13.68, the property of F. W. Woolworth,
with the intent to deprive F, W, Woolworth permanent-
ly of the use and benefit of said property in violation of
Ill, Rev, Stat. Ch, 38, § 16-1(A\1), (A, 1-2) Because the
complaint was filed on January 21, 1972, and the initial
and only court appearance was 10 days later, it is
probable that the 1971 date alleged both in the com-
plaint and by the complainant at trial as the year of the
offense was in error, although the Record is not con-
clusive on this point,
The Judge first asked Scott whether he was “going to
be ready for trial,” but when Scott asked if he meant
“am I ready?” the Judge said “yes,” Scott answered
that he was ready for trial, The court clerk then ar-
raigned Scott, telling him he was charged with theft
and asking whether Scott was ready for trial and how
he pleaded to the charge, Scott replied that he was
—§—
ready for trial and pleaded not guilty. The clerk then
asked whether Scott wanted “to be tried by this court or
before a jury,” to which Scott replied “Well, it doesn’t
matter. Right here wili be okay with me.” (A. 7) Scott
was never advised that he had a right to representation
by counsel and, if unable to afford counsel, a right to
appointed counsel.
The one witness for the prosecution, a store security
guard, then testified to his version of the incident. On
January 19, 1971, he observed Scott ask a sales girl to
unlock some attache cases, which she did. He then
watched Scott for between fifteen and twenty minutes
while Scott walked back and forth by the sales girls with
a ten dollar bill in his hand. He observed Scott pick up
an address book and put it in his pocket. After watch-
ing Scott for five more minutes, the guard walked out
on State Street where a few minutes later Scott walked
out with “the attache case.” When the guard ordered
Scott back in the store, Scott told him the case belonged
to him. The guard further testified that prior to walking
out of the store Scott had put a number of articles inside
of the case, including ones Scott had apparently brought
to court. The guard identified what was apparently an
attache case as Woolworth’s property and said he be-
lieved it had a tag indicating the value as twelve
ninety-nine. After the State offered unidentified matter
into evidence, the guard was excused. Scott did not ask
the guard any questions, nor was he told he could do so.
The State then rested and immediately thereafter the
Judge asked Scott what he wished to say. (A. 8) Scott
testified that he had put things in the case to see if they
would fit and that, as he was partially blind, he could
not find the sales girl, but he was constantly looking for
her. When someone grabbed Scott and accused him of
—~$—
being a shoplifter Scott denied it and showed him the
money he said he had to pay for whatever he was buy-
ing. The police then came, handcuffed him and took him
to jail.
The State’s Attorney then rested on the State’s case.
The Judge asked the State’s Attorney to ask more ques-
tions because “There’s a lot of questions I want to know.”
(A. 9) The State’s Attorney, however, told the Judge to
ask the questions, observing that he felt the State had
made its case. The Judge then said there were still
questions as to how much money Scott had, what he did
with the money, whether he offered the money to any-
body and whether he ever saw a sales clerk. Scott re-
sponded that he had almost $300 in his pocket and that
he did not see the sales girl because she did not have a
counter to work behind. The Judge then directly ques-
tioned Scott as to where he was when he was arrested
and what he was going to buy with the ten dollar bill.
Scott replied that he was inside the store when he was
stopped and that he was going to pay the girl with the
ten dollar bill or with more if she said it, as he had it to
pay. Immediately after this statement the Judge said “I
don’t believe you, sir. Finding of guilt.” (A. 10)
The court sergeant then stated that Scott had been
convicted of petty larceny in 1957, for which he had
been sentenced to thirty days in the House of Correction.
Scott responded that that was thirteen years ago and
that he was not guilty of trying to make a theft. The
State’s Attorney then recommended probation, but the
Judge pronounced a sentence of “Fifty and no costs.” (A.
10)
Through counsel, Scott filed a timely notice of appeal
and a motion for a free transcript of the trial proceed-
ings, supported by an affidavit of indigency, which mo-
A
_—
tion was granted. The Appellate Court of Illinois found
that the reach of the Sixth Amendment right to counsel
is limited to defendants who are in fact imprisoned, and
therefore Scott had no constitutional right to an ap-
pointed trial counsel. (Appendix to cert. petition, 13a-
14a) The Appellate Court also rejected Scott’s statutory
argument that he had a right to appointed counsel un-
der Ill. Rev. Stat. Ch. 38, § 113-3(b), which requires the
court to appoint the Public Defender for indigents de-
siring counsel “in all cases, except where the penalty is a
fine only. . . .” The Supreme Court of Illinois affirmed
on both grounds. (Appendix to cert. petition, la-6a).
—§—
SUMMARY OF ARGUMENT
A misdemeanor-theft prosecution is a “criminal
prosecution” within the terms of the Sixth Amendment,
whether or not the defendant is imprisoned. The
rationale of Gideon v. Wainwright, 372 U.S. 335 (1963),
in making the Sixth Amendment right to counsel ob-
ligatory upon the States as an essential element of due
process does not depend upon the seriousness of the par-
ticular criminal prosecution. The Cour: in Argersinger v.
Hamlin, 407 U.S. 25 (1972), rejected a limitation on any
Sixth Amendment right, except the right to jury trial,
on the basis of the seriousness of the criminal case.
However, even with respect to the historically unique
right to jury trial, the relevant criterion for determining
whether an offense is serious enough to warrant the
protection of the right is the penalty authorized by law
rather than the penalty imposed in fact.
Rejection of an imprisonment-in-fact requirement for
the right to counsel in this case would not necessarily re-
quire extension of the right to all legal violations punish-
able by imprisonment, such as minor traffic violations.
However, whatever the Court eventually may determine
to be the outer reaches of the definition of a “criminal
prosecution” for the purposes of the Sixth Amendment,
petitioner’s prosecution clearly fits that definition since
misdemeanor-theft has all of the many indicia of a
traditional criminal offense.
As a matter of legal practice as well as legal principle
it would be illogical to make the right to counsel the one
Sixth Amendment right that is restricted by an im-
prisonment-in-fact requirement since meaningful exercise
of the other Sixth Amendment rights, especially the
=
right to jury trial, depends upon exercise of the right to
counsel.
The trial court violated petitioner’s Sixth Amendment
right to counsel by not advising him of his right to
representation either by his own hired counsel or by ap-
pointed counsel if indigent. Scott’s failure to request
such representation did not waive his right to counsel.
Assuming arguendo that the Sixth Amendment right
to counsel does not reach petitioner’s misdemeanor-theft
prosecution, the denial! of counsel nevertheless violated
due process of law. Whatever due process test the Court
finds appropriate to this proceeding, the process that is
due requires those safeguards that are essential for an
accurate adjudication of fact. In light of the Court’s find-
ings in Argersinger, it is no longer subject to dispute
that counsel is as essential for a fair trial in a mis-
demeanor prosecution as it is in a felony prosecution.
The governmental costs of providing fair fact-finding
procedures have been a factor in the Court’s ad-
ministrative due process cases only where the costs have
been of an extraordinary nature. The overriding govern-
mental interest in this case, however, is not one of cost,
but one of assuring that criminal trials result in fair
determinations of guilt or innocence. Moreover, if judges
must decide before trial which misdemeanor defendants
do or do not require counsel and, therefore, which may
or may not be imprisoned, governmental interests will
suffer in several ways. Sentencing will become unin-
formed guess-work and a usurpation of legislative in-
tent. Where convictions are uncounseled, non-imprison-
ment penalties, such as a fine, probation, or suspended
sentence will become of dubious effectiveness. The
State’s interest in using prior convictions for collateral
purposes such as impeachment, enhancement of
—10—
sentence, or revocation of probation or parole, will be
minimized where those convictions were uncounseled.
Deciding before trial that certain indigent mis-
demeanor defendants will not be afforded the right to
appointed counsel and will therefore be immunized from
imprisonment will also create serious equal protection
problems.
Reliable evidence as to the added cost of providing a
right to counsel in misdemeanor cases punishable by
imprisonment does not exist. However, several re-
spected commissions and studies that have examined the
question have determined that the cost would not be ex-
cessive and that extension of the right in such cases
would be worthwhile. Twenty-two States have already
done so. Costs may also be saved by the greater ef-
ficiency from having trained counsel on both sides.
The violation of petitioner’s rignt to equal protection
of the law from the denial of appointed counsel at trial
is even greater than the equal protection violation found
in the denial of appointed counsel on appeal in Douglas
v. California, 372 U.S. 353 (1963), since the harm from
the denial of trial counsel is more severe than the harm
from the denial of appellate counsel.
Should the Court approve a case-by-case determina-
tion of each misdemeanor defendant’s right to counsel,
that determination must satisfy the requirements of due
process both because it jeopardizes an interest of defen-
dant deserving due process protection and because it
creates a substantial risk of error and prejudice without
such protection. The protected interest is defendant’s
greatly increased likelihood of acquittal as a result of
representation by counsel. The pre-trial determination of
each defendant’s right to counsel runs substantial risk of
error because it requires the evaluation of several com-
—=
plex, interrelated factors, including the difficulties of
presenting a competent defense, the capacity of the
defendant to represent himself and the likelihood of im-
prisonment upon conviction. The risk of prejudice from
the pre-trial determination of the right to counsel arises
both from the trial judge’s exposure to unfavorable pre-
sentencing information about the defendant and the
judge’s need to rely upon ex parte communications with
the prosecution in order to attain such information. The
procedural safeguards required for an accurate, non-
prejudicial determination of each defendant’s right to
counsel are: 1) a determination made pursuant to an
on-the-record adversary hearing at which the defendant
may object to improper evidence about himself, may
argue why he needs counsel for his defense, and, where
incapable of so arguing, may be heard through counsel
regarding the reasons his defense requires counsel; 2)
written reasons by the judge to support a refusal to ap-
point counsel, and, 3) a trial before a judge other than
the one who heard any unfavorable inadmissible in-
formation about the defendant before trial.
To reverse petitioner’s conviction because his trial was
unfair, rather than because he was denied the right to
counsel, would establish a principle of judicial review
that both would be contrary to the premises of Gideon
and Argersinger and would be as uncertain, ineffective,
and as inequitable to indigents as the special cir-
cumstances rule of Betts v. Brady, 316 U.S. 455 (1942).
Nevertheless, the unfairness in petitioner’s trial was so
pervasive that reversal is required under many of the
criteria of fundamental unfairness established in the
post-Betts, pre-Gideon line of Supreme Court cases.
==) Qu
ARGUMENT
THE SIXTH AMENDMENT RIGHT TO COUNSEL
APPLIES IN ALL STATE CRIMINAL PROSECUTIONS
tela OF WHETHER IMPRISONMENT
The Sixth Amendment specifies in uniformly man-
datory terms the basic protections the Framers thought
indispensable to a fair trial, Schneckloth v. Bustamonte,
412 U.S, 218, 242 (1978); Farretta v, California, 422
U.S, 806, 8388 (1975) (Burger, C.J., dissenting), It applies
the right to counsel “in all criminal prosecutions,” It
does not apply the right, as the State of Illinois would
have it, ‘in all criminal prosecutions except for misde-
meanor prosecutions not resulting in imprisonment,’
Because the Sixth Amendment right to counsel is an es-
sential element of fundamental fairness, it has been in-
corporated against the States, Gideon vo, Wainwright,
872 U.S, 385 (1968), A decision not to apply the right to
counsel to petitioner's criminal prosecution because no
imprisonment resulted would contradict not only the
language of the Amendment and the rationale of its in-
corporation by Gideon, but it would also depart from the
Court's unwavering application of the right to counsel at
the trial phase of criminal prosecutions regardless of the
seriousness of the offense.
In Argersinger vo. Hamlin, 407 U.S, 25 (1972), the
Court rejected a proposed exemption from the right to
counsel for petty offense prosecutions that have an
authorized penalty of less than six months imprison-
ment. The Court found no historical support for a limita-
tion of the Sixth Amendment right to counsel on the
basis of the seriousness of the criminal case, 407 U.S, at
=—"=
30, Although the right to jury trial had been limited to
serious offenses because it “has a different genealogy
and is brigaded with a system of trial to a judge alone,”
407 U.S, at 29, the Court found in Argersinger that it
has never limited the application to the States of any of
the other Sixth Amendment rights on the basis of the
seriousness of the offense charged, 407 U.S, at 27-30, Cf,
In ve Oliver, 388 U.S, 257 (1948) (right to a public trial);
Pointer vo. Texas, 880 U.S, 400 (1965) (right to con-
frontation); Washington ». Teras, 888 U.S, 14 (1967)
(right to compulsory process of witnesses); Klop/fer ».
North Carolina, 386 U.S, 218 (1967) (right to a speedy
trial); Groppt v. Wisconsin, 400 U.S, 505 (1971) (right to
an impartial jury); Henderson v. Morgan, 426 U.S, 6387
(1976) (right to be informed of the nature and cause of
the accusation),
Although the Court has refused to create an exception
to the right to counsel for petty offenses based on the
length of imprisonment authorized by law, Illinois pur-
ports to recognize a form of “ultra-petty offense” excep-
tion based on the lack of imprisonment imposed in fact.
A decision upholding this principle would not on!y be
devoid of support in the language and history of the
Sixth Amendment, but it would also be inconsistent with
the primary measure the Court has previously applied
in determining the seriousness of criminal offenses.
The few cases that have considered the seriousness of
a criminal prosecution in determining the applicability
of constitutional safeguards demonstrate that the
punishment authorized by law, not the punishment im-
posed in fact, is the critical determinant of whether an
offense is sufficiently serious to warrant constitutional
safeguards, Thus, in Frank v, United States, 395 U.S.
147, 149 (1969), the Court summarized:
an i4un
In ordinary criminal prosecutions, the severity of
the penalty authorized, not the penalty actually im-
rsosed, is the relevant criterion, In such cases, the
egisiature has included within the definition of the
crime itself a judgment about the seriousness of the
offense.
In Duncan v. Louisiana, 391 U.S, 145, 162 386 (1968),
the Court explicitly rejected an argument, based on
Cheff ». Sehnackenberg, 384 U.S, 873 (1966), that the
penalty actually imposed, rather than the sentence
authorized, is the relevant criterion in distinguishing .
between serious and petty\offenses for purposes of the
right to a jury trial! The Court in Duncan noted that
Cheff, a criminal contempt case, “does not reach the
situation where a legislative judgment as to the serious:
ness of the crime is imbedded in the statute in the form
of an express authorization to impose a heavy penalty
for the crime in question,” 891 U.S, at 162 n.35, Sve also,
Baldwin ». New York, 399 U.S, 66, 68°70 (1970).
The Court has also applied the authorized imprison:
ment standard with respect to rights other than the
right to a jury, In United States v, Moreland, 258 U.S.
488 (1922), the Court, in analyzing the reach of the
Fifth Amendment requirement of presentment or in-
dietment by a grand jury, stated: “('TJhe test is not the
imprisonment which is imposed, but that which may be
imposed under the statute.” /d, at 487 (quoting Fite
patrick », United States, 178 U.S, 304, 3807 (1900) ), See
' Even in contempt cases, Me, Justice Douglas would not
consider the sentence actually imposed as a measure of the
seriousne s of an offense: “The relevance of the sentence, as
we have seen, is that it sheds light on the seriousness with
which the community and the legislature regard the offense,
Reference to the sentence actually imposed in a particular
case cannot serve this purpose,” Cheff v. Schneackenberg, 384
U.S. 873, 390-391 (Douglas, J., dissenting).
all riminal proceedings.” Johnson v, Zerbat, 804
—15—
also Mackin v, United States, 117 U.S, 848, 851 (1886).
In determining the procedural safeguards required in a
juvenile delinquency proceeding, the Court in Jn re
Gault, 887 U.S, 1, 42 (1967), required the right to
counsel because of the “potential commitment” in such
proceeding, not because Gault was in fact committed,
Although the Court did not discuss the type of
criminal penalties necessary to invoke the Sixth Amend-
ment right to counsel in Gideon v, Wainwright, 872 U.S.
335 (1968), it is significant that the Court did not limit
the right to cases in which imprisonment is in fact im-
posed,” Rather, the Court repeatedly emphasized the
necessity of counsel in order to protect one who is
“charged with crime,” 872 U.S, at 344, The Court has
also never interpreted Gideon as restricting the right to
counsel in terms of the penalty actually imposed, but in-
stead, has construed it as applying to felony cases in
general, Argersinger v. Hamlin, 407 U.S, 25, 81-82
(1972)." See also concurring opinions of Harlan, J, and
Clark, J. in Gideon v, Wainwright, 872 U.S, at 351 and
348-349,
In sum, the Court has never held the seriousness’ of a
state criminal prosecution to be determinative of the
! Similarly, the Court has never limited the Sixth Amend-
ment right to counsel in federal criminal trials because of the
lack of actual imprisonment, but rather, has described the
right as applying “in every case, whatever the circum:
stances,” Foster v, Ulinois, 882 U.S. 184, 186-187 (1847), or “in
A
8, 463
(1938
' The Court in Arpersinger did not extend the right to
counsel to cases in which imprisonment is not imposed,
However, the Court's refusal in Argersinger to “consider the
requirements of the Sixth Amendment as regards the right to
counsel where loss of liberty is not involved, . .” 407 U.S, at
87, |, dicates that the Court was not endorsing an exception to
the rght to counsel for cases not resulting in imprisonment,
Ch, Gideon vo, Wainwright, are U.S, 335, 348 (1963),
\
—'=
reach of any Sixth Amendment right, except the right
to a jury trial, Moreover, whenever the seriousness of a
prosecution for any crime, except contempt, has been a
factor in applying constitutional safeguards, the relevant
test of seriousness has been the length of imprisonment
authorized by law, not ‘the imprisonment imposed in
fact,
The Court's rejection of an imprisonment-in-fact re-
quirement for the right to counsel in this case would not
necessarily require extension of the right to every defen-
dant charged with an offense punishable by imprison-
ment, Certain types of offenses, referred to variously as
quasi-criminal, public welfare or regulatory offenses,
which would include minor traffic violations, could con-
ceivably not be deemed “criminal prosecutions” within
the meaning of the Sixth Amendment, even though they
are punishable by imprisonment.’ Cf People v, Letterio,
16 N.Y.2d 807, 266 N.Y .2d 807, 266 N.Y.S.2d 368 (1965);
but see Baker v. City of Fairbanks, 471 P.2d 386, 402
(Alas, 1970); See also Middendorf v. Henry, 426 U.S, 25,
38 (1976), .
Regardless, however, of what the Court may eventual:
ly find to be the outer reaches of the Sixth Amend-
ment's application to criminal prosecutions, the mis-
demeanor-theft prosecution of petitioner Scott is a
“eriminal prosecution” within any reasonable con-
struction of the Amendment's language. All of the
' Petitioner, however, does not advocate such an approach,
because it would’ substitute essentially arbitrary labels for the
seriousness of potential punishments actually faced by defen-
dants, a factor which the Court in /n re Gault, 887 U.S, 1, 27-
80 (1967), and Specht v, Patterson, 886 U.S, 605, 608-9 (1967),
found determinative of the need for procedural safeguards,
This approach would also disregard the criterion deemed
most important in the Sixth Amendment jury trial cases-—the
seriousness with which a legislature views an offense when it
P authorizes imprisonment for its violation, Supra pp, 18-15,
=| =
traditional indicia of criminal prosecutions are satisfied
by the theft charge brought against Scott. Theft, or lar-
ceny, was a felony at common law, Jerome v, United
States, 318 U.S, 101, 108 n.6 (19438), It was also con-
sidered infamous at common law because it exhibited
“particular turpitude and baseness of character” and be-
cause of the severe nature of its punishment, Ly parte
MeClusky, 40 F, 71, 74 (Cir, Ct. D, Ark, 1889), It re-
quires proof of mena rea, Til, Rev, Stat, Ch, 38, §§ 16-1,
4-3, 4-4 and 4-5 (1971), Perhaps, most important, theft
calls forth the moral condemnation of the community, a
point emphatically made by the Court in Moriesette v,
United States, 342 U.S, 246, 260 (19652):
Stealing, larceny, and its variants and equivalents,
were among the earliest offenses known to law that
existed before legislation; they are invasions of
rights of property which stir a sense of insecurity in
the whole community and arouse public demand for
retribution, ...
See also Middendorf v, Henry, 425 U.S, 25, 39 (1976)
(larceny carries “a stamp of ‘bad character’ with con-
viction,”), The maximum sentence of one year imprison-
ment set by the Illinois misdemeanor-theft statute also
shows the seriousness with which the community re-
gards the crime, Cf. Frank v, United States, 395 U.S,
147, 148' (1969), Furthermore, significant adverse col-
lateral consequences attach to a misdemeanor-theft con-
viction in Illinois, as in most States, /nfra 44 note 25,
Finally, misdemeanor-theft prosecutions have all of the
“invariable attributes” of the criminal trial process, the
adversary nature of which “is one of the touchstones of
the Sixth Amendment right to counsel... .” Midden-
dorf v. Henry, 425 U.S, 25, 40 (1976) (footnote omitted).°
» The Court in Gagnon v, Searpelli, 411 U.S. 778, 789 (1978)
identified those attributes as the following: “In a criminal
(Footnote continued on following page)
-18—
Considered individually or together, these factors leave
no doubt that Seott's prosecution for theft was a
“eriminal prosecution” within the meaning of the Sixth
Amendment.
Aside from the explicit Janguage of the Sixth Amend-
ment, it would be anomalous to make the right to coun-
sel the one Sixth Amendment right dependent for its ap-
plication upon the imprisonment-in-fact standard, since
it is the right to counsel that makes the other Sixth
Amendment rights effective, Powell v. Alabama, 287
U.S, 45, 68-69 (1982) (“The right to be heard would be,
in many cases, of little avail if it did not comprehend the
right to be heard by counsel,”); Schaefer, /ederalism
and State Criminal Procedure, 70 Harv, LR. 1, 8 (1956)
(“Of all the rights an accused person has, the right to be
represented by counsel is by far the most pervasive, for
it affects his ability to assert any other rights he may
have.”)
The iliogic of making the right to counsel the sub-
ordinate Sixth Amendment right is most clearly il-
lustrated by the resulting functional negation of the
right to a jury trial, Although all defendants charged
with misdemeanors punishable by over 8ix months im-
prisonment have the right to a jury trial, Baldwin v.
New York, 399 U.S, 66 (1970), according to the Illinois
Supreme Court only those ultimately imprisoned are en-
titled to the assistance of counsel in presenting their
case to the jury, Although the court clerk asked Scott if
he wanted to be tried by a jury (A, 7), this was an
continued
trial, the State is represented by a prosecutor; formal rules of
evidence are in force: a defendant enjoys a number of
procedural rights which may be lost if not timely pressed;
and, in a jury trial, a defendant must make a presentation
understandable to untrained jurors, In short, a criminal trial
under our system is an adversary proceeding with its own
unique characteristics,
ja”
—19—
empty gesture under the circumstances, for if Scott had
not waived this right, he would have been faced with a
trial that, as a layman, he was clearly incapable of
handling. As Mr. Justice Douglas noted, concurring in
Carnley v. Cochran, 369 U.S. 506, 524 (1962), a jury trial
for one without counsel becomes “a labyrinth he can
never understand nor negotiate . . . a trap for the lay-
man because he is utterly without ability to make it
serve the ends of justice.” See also Argersinger v.
Hamlin, 407 U.S. 25, 46 (1972) (Powell J., concurring in
result) (“If there is no accompanying right to counsel,
the right to trial by jury becomes meaningless.”)
The effectiveness of the other Sixth Amendment
rights is equally dependent upon the assistance of
counsel, as the trial record below demonstrates. Scott
was not advised of and did not exercise his right te
cross-examine the one witness against him, although the
right to confrontation is fundamental to fairness and has
not been limited solely to imprisoned defendants. Pointer
v. Texas, 380 U.S. 400 (1965); Brookhart v. Janis, 384
U.S. 1 (1966). Similarly, he was not advised of nor did
he exercise his right to compulsory process for ob-
taining witnesses in his favor, although the Court had
applied that right to the States in Washington v. Texas,
388 U.S. 14 (1967). Nor was Scott given a copy of the
complaint, advised of what he was alleged to have taken,
nor told of the elements of, or the penalty for, the of-
fense with which he was charged—all clearly contrary
to the intent of the Sixth Amendment, as set forth in
Smith v. O'Grady, 312 U.S. 329, 333-334 (1941), and
Henderson v. Morgan, 426 U.S. 637, 645 (1976). Finally,
although the trial judge’s admitted doubts about the suf-
ficiency of the State’s proof indicate the importance of
closing argument in order both to capitalize on those
doubts and to “correct a premature misjudgment and
—20—
avoid an otherwise erroneous verdict,” Herring v. New
York, 422 U.S. 853, 863 (1975), the judge by his peremp-
tory ruling gave Scott no notice of, nor opportunity to
exercise, his right to make a closing summation, con-
trary to the Court’s decision in Herring. See infra Part
V, pp. 62-64, for additional grounds of unfairness in
Scott’s trial. Because it is impossible to know what the
effect of tnese fundamental rights would have been had
counsel been present to exercise them, harm to the
defendant is irrebuttably presumed from the denial of
the right to counsel itself. Holloway v. Arkansas, .....
USS. ....., 98 S.Ct. 1173, 1181, 1182 (1978). Thus, if a de-
fendant who is fined, but not imprisoned, for a mis-
demeanor punishable by imprisonment is to be given
any of the Sixth Amendment rights that are funda-
mental! to a fair trial, the practical demands of the ad-
versary criminal trial process require that one of those
rights be the right to counsel. Cf. Schnekloth v.
Bustamonte, 412 U.S. 218, 241 (1973).
Once the Sixth Amendment right to counsel is held to
apply to Scott’s misdemeanor prosecution, it necessarily
follows that the trial judge violated that right by failing
to advise Scott of his right to appointed counsel if in-
digent, since a fundamental constitutional right cannot
be denied a defendant because of his financial inability
to exercise that right. Gideon v. Wainwright, 372 U.S.
335, 340 (1963). However. the trial court violated Scott’s
right to counsel not only because it faiied to advise him
of his right to appointed counsel if indigent, but also
because it neglected to inform him of his right to be re-
presented by his own counsel at his own expense. In
Chandler v. Fretag, 348 U.S.,3, 9 (1954), the Court heid
that a defendant under a sentence of life imprisonment
as an habitual criminal had an unqualified right to be
heard through his own counsel. See also Powell v.
_—
Alabama, 287 U.S. 45, 68-69 (1932). To limit that right
in misdemeanor prosecutions because the defendant is
not imprisoned would serve no valid state interest,
would subject the defendant to the same fundamental
unfairness found unacceptable in Gideon and Arger-
singer, and would countenance a procedure in mis-
demeanor cases not even permitted by the court of the
Star Chamber, BEANEY, THE RIGHT TO COUNSEL IN
AMERICAN COURTS, 8-9 (1955). Cf. In re Gault, 387 U.S.
1, 29 (1967).
Scott, of course, requested neither the appointment of
counsel nor the opportunity to be represented by his own
hired counsel. However, Scott’s silence in this regard
cannot be construed as a valid waiver of his right to
counsel since the State has the burden of demonstrating
that the failure to request counsel was an “intelligent
relinquishment of a known right or privilege,” Johnson
v. Zerbst, 304 U.S. 458, 464 (1938), and this it cannot do
on the basis of a silent record. Carnley v. Cochran, 369
U.S. 506, 513-517 (1961); Cf Schneckloth v. Bustamonte,
412 U.S. 218, 241 (1973).
In sum, a construction of the right to counsel “in all
criminal prosecutions” that would deny this right to
defendants who are not imprisoned for misdemeanors
punishable by imprisonment would be aberrant in
several respects. It would be inconsistent with the Court’s
application of all other Sixth Amendment rights to
state prosecutions, other than contempt, without regarc
for the sentence actually imposed. It would disregard
Argersinger’s rejection of a petty offense exception to the
reach of the right to counsel. It would ignore numerous
Court decisions measuring the seriousness of an offense
by the severity of the penalty authorized by the
legislature. It would make the Sixth Amendment right
that is most critical to procedural fairness, the most
—22—
restrictive in availability. It would for no reason qualify
what the Court has held to be the unqualified right to be
heard through one’s own counsel. Most important, it
would ignore the essential insight of Gideon v.
Wainwright, 372 U.S. 335, 344 (1963), “that in our ad-
versary 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 hira.”
Il.
DUE PROCESS OF LAW REQUIRES THE RIGHT TO
COUNSEL AT A MISDEMEANOR-THEFT TRIAL
REGARDLESS OF WHETHER THE DEFENDANT IS
IN FACT IMPRISONED.
A.
The Decisive Factor In Determining Whether A Defen-
dant Has A Due Process Right To Counsel In A Mis-
demeanor Trial Is Whether Counsel Is Necessary For A
Fair And Accurate Judicial Fact-Finding Process.
The Sixth Amendment defines the basic protections
that the Framers thought indispensable to a fair trial,
without which “justice will not ‘still be done.’ ” Johnson
v. Zerbst, 304 U.S. 458, 462-463 (1938) (footnote omitted):
Schneckloth v. Bustamonte, 412 U.S. 218, 242 (1973). The
Court, therefore, does not engage in a balancing of in-
dividual and governmental interests in deciding
whether the full measure of Sixth Amendment protec-
tions apply. If a prosecution for a misdemeanor punish-
able by imprisonment is a “criminal prosecution” within
the intendment of the Sixth Amendment, the analysis of
this case need thus go no further, since the right to the
assistance of counsel is embodied in the Amendment.
However, assuming arguendo that such a prosecution is
deemed something other than criminal, the right to
counsel is nevertheless still required under the
—23—
Fourteenth Amendment because a serious misdemeanor
prosecution, such as theft, jeopardizes interests that both
deserve due process protection and require the
assistance of counsel to achieve such protection.
The first question in any due process analysis—
whether the nature of the liberty or property interest at
stake warrants due process protection, Board of Regents
v. Roth, 408 U.S. 564, 570-571 (1972)—is easily resolved
in the context of a misdemeanor-theft conviction in
which no imprisonment is imposed. The stigma, the fine,
the possibility of probation and the collateral disabilities
caused by any misdemeanor conviction are sufficiently
severe state-inflicted penalties to warrant whatever
procedural safeguards are essential to assure that these
deprivations result only from a fundamentally fair fact-
finding process. See infra pp. 42-46.
The second part of the due process analysis is not as
simply resolved because it is unclear exactly what test
should be used to determine the process due in a pro-
ceeding that is conducted as a criminal! trial, but is nev-
ertheless deemed not criminal! for the purposes of the
Sixth Amendment. In Jn re Gault, 387 U.S. 1 (1967), the
Court analyzed the safeguards required by due process
in a non-criminal proceeding that is closely analogous to
petitioner’s misdemeanor trial. The Court based its find-
ing of a due process right to counsel in a juvenile delin-
quency hearing on two factors: the hearing’s possible
consequence of commitment, 387 U.S. at 41, and the
juvenile’s need for “the assistance of counsel! to cope with
problems of law, to make skilled inquiry into the facts,
to insist upon regularity of the proceedings and to ascer-
tain whether he has a defense and to prepare and sub-
mit it.” 387 U.S. at 36. Both factors are present with
even greater force in petitioner’s misdemeanor prosecu-
tion. First, he was charged with an offense that has a
=e
statutory maximum sentence of one year’s imprison-
ment in a penal institution. Second, he is a layman who
had to defend against the prosecutor’s case alone without
even the pretense of a specially trained judge mandated
to protect his best interests. Gault’s importance to the
recognition of a due process right to counsel in mi-
demeanor cases is made even clearer by Argersinger’s
explicit reliance on Gault in concluding that counsel is
needed for a fair trial in prosecutions for crimes less
serious than felonies. 407 U.S. at 33-34.
Ir. Gault the Court did not weigh in its due process
analysis the governmental cost of providing counsel.
However, in its decisions analyzing the process due in ad-
ministrative proceedings the Court has weighed the fac-
tor of governmental cost against the factors of the in-
dividual interests at stake and the relation of the re-
quested procedural safeguard to the truth-seeking func-
tion. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Given both the uniquely grievous individual harm
- resulting from a misdemeanor-theft conviction and the
formal procedures and rules of law that must be fol-
lowed by both sides in a misdemeanor trial, the due
process analysis used in Gault, rather than that used in
Mathews, is appropriate to the type of judicial proceed-
ing required in a misdemeanor prosecution.’ However.
* Mathews itself indicates that its test was designed for the
needs of assuring fairness in administrative, rather than
judicial, fact-finding: “The ultimate balance involves a deter-
mination as to when, under our constitutional system, judicial-
type procedures must be imposed upon administrative action
to assure fairness.” 424 U.S. at 348. More recently, the Court
in Diron v. Love, 431 U.S. 105, 115 (1977), indicated that the
standards appropriate for determining the requisites of pro-
cedural due process in the administrative setting are dif-
ferent from the standards appropriate for settings where the
judicial model is applicable. Moreover, the critical question in
most of the Court’s administrative due process decisions has
(Footnote continued on following page)
—25—
the question of whether the Mathews balancing test
would unduly defer to the governmental cost factor in
determining the process due in a misdemeanor prosecu-
tion not deemed criminal under the Sixth Amendment
need not be resolved in this case. For, even when the
governmental cost factor is weighed in the due process
balance, the other two factors on the scale decisively
demonstrate that the right to counsel is an indispensable
element of due process in misdemeanor trials.
B.
Because It Is Undisputed That The Assistance Of
Counsel Is Essential To A Fair Misdemeanor Trial, Asser-
tions That Appointed Counsel Is Too Costly Cannot Out-
weigh The Petitioner's Due Process Right To Counsel.
Assuming arguendo the appropriateness of the
Mathews v. Eldridge due process balancing test, its out-
come in this case is determined by the weight to be ac-
corded the first factor in that test—the relation of the
requested safeguard to the truth-seeking function.
Where the procedural safeguard in question is deemed
essential to a fair administrative fact-finding process,
the Court has required that safeguard to be provided,
unless either of two conditions are shown: (a) there are
emergency or extraordinary reasons why the govern-
ment cannot afford fair procedures,’ Board of Regents v.
® continued
been whether the procedures necessary for a fair adjudication
of fact must be provided in advance of che deprivation or can
be postponed until afterwards. Cf. Vemphis Light, Gas and
Water Div. v. Craft, ..... USS. ....., 98 S.Ct. 1554, 1565 (1978).
However, there is no afterwards for proeedural fairness at the
judicial trial stage. Lack of needed counsel is always harmful
and the degree of harm cannot be geuged on appeal. Cf.
Holloway v. Arkansas. ..... USS. ....., 98 S.Ct. 1173, 1182 (1978).
The Court has expressed this governmental burden in a
variety of ways. The “rather ordinary costs” of time, effort,
(Footnote continued on following page)
—26—
Roth, 408 U.S, 564, 570 n.7 (1972); or (b) the individual
deprivation is of a de minimis nature, Goss v, Lopez, 419
U.S, 565, 576 (1975). Only where the procedural safe-
guards requested have not been essential to a fair fact-
finding process has the Court found those safeguards to
be outweighed by the extra costs they would place on
government, Cf Memphis Light, Gas and Water Div, v.
Craft... U.S. wo, 98 S.Ct. 1554, 1565 (1978),
The State has never disputed in this case the proposi-
tion that a misdemeanor trial cannot be a fair fact-find-
ing process unless the defendant as well as the State has
the assistance of counsel, Such an assertion would be un-
tenable in light of the Court's many opinions concerning
the right to counsel since Gideon v. Wainwright, 372
U.S. 885 (1968). Denial of the right to counsel, the Court
has stated, goes to “the very integrity of the fact-finding
process,” Linkletter v. Walker, 381 U.S, 618, 639 (1965),
and “substantially impairs its truth-finding function
” Williams v. United States, 401 U.S, 646, 653
(1971). Recent decisions denying the right to counsel in
simple probation revocation hearings, Gagnon»,
Searpelli, 411 U.S, 778 (1973), and summary courts-
martial proceedings, Middendorf v. Henry, 425 U.S, 25
(1976), have only served to clarify the Court’s under-
standing that in the very different context of a
traditional criminal trial the invariable attributes of the
adversary judicial process make a fair trial impossible
continued
expense and efficiency cannot outweigh the right to pro-
cedure! due process, Fuentes ¢, Shecin, 407 U.S, 67, 90-91 1.22
(1972). If it is “within the limits of practicability,” due process
requires the State to provide a meaningful cppervanly to be
heard, Boddie v. Conneetiout, 401 U.S, 371, 379 (1971) (quot.
ing Mullane ». Central Hanover Tr, Co. 3389 U.S, 306, 318
(1950) ). See also, Bell » Burson, 402 U.S, 585, 540 (1971)
Goldberg v. Kelly, 897 U.S, 254, 261 (1970); Stanley v. Lllinors,
405 U.S, 645, 656 (1972),
—27—
without the assistance of counsel. See also, In re Gault,
387 U.S. 1, 36 (1967); Farretta v. California, 422 U.S.
806, 832-833 (majority opinion) and 838 (Burger, C.J.,
dissenting) (1975); Holloway v. Arkansas, ..... ) See
98 S.Ct. 1178, 1181 (1978); Schneckloth v. Bustamonte,
412 U.S, 218, 241-242 (1973). Moreover, as the Court
found in Argersinger, 407 U.S, at 33-37, the necessity of
counsel for a fair trial is as great in petty offense and
misdemeanor trials as in felony trials. /nfra p. 51, See
also, Sibron v. New York, 392 U.S. 40, 52 (1968). This
fact is fully illustrated by the trial in the instant case.
See infra Part V. pp. 62-64,
As noted supra pp, 28-24, Jn re Gault, 887 U.S. 1 (1967),
provides the clearest illustration of the subordination of
the governmental cost factor in a due process analysis
where the right to counsel is deemed essential to a fair
fact-finding process, Two more recent decisions in which
the Court found no due process right to counsel in quasi-
judicial proceedings reveal no departure from Gault’s
emphasis on the necessity of counsel for fairness in
judicial proceedings. In Gagnon v. Scarpelli, 411 U.S.
778, 788 (1973), the Court did recognize that the cost of
adding counsel for both the State and the probationer in
probation revocation hearings would not be insubstan-
tial. However, the Court's refusal to require the right to
counsel in all revocation proceedings was based on its
finding that given the nature and purpose of the hear-
ing, the probationer can be given fair treatment, and
possibly more favorable treatment, without counsel and
the procedural formalization counsel entails.* Moreover,
“In a revocation hearing, on the other hand [contrasted to
the attributes of a criminal trial], the State is represented not
by a prosecutor but by a parole officer with the orientation
described above (“concern for the client dominates his profes-
sional attitude”); formal procedures and rules of evidence are
not employed; and the members of the hearing body are
familiar with the problems and practice of probation and
parole.” 411 U.S, at 789,
despite the added cost, the Court required the State to
provide counsel where, based upon the facts and cir-
cumstances of the individual case, “the probationer’s or
parolee’s version of a disputed issue can fairly be
represented only by a trained advocate.” 411 U.S, at 788,
Unlike Gagnon, the Court in Middendorf v, Henry, 425
U.S. 25. 44 (1976), did consider the “extraordinarily
weighty” governmental interests at stake to be the para
mount factor in denying the due process right to counsel
in summary courts-martial proceedings, Noting the
“overriding demands of discipline and duty” of armed
forces personnel, quoting Burns v. Wilson, 346 U.S. 187,
140 (1958), the Court found compelling the Con-
gressional determination that the unique interests of the
military in having brief, informal hearings without
counsel outweighed the individual interests in having
counsel,” /d. at 45. Nevertheless, the Court took care to
point out that in a summary court-martial the non-
adversary, adjudicatory hearing, unlike a criminal trial,
could be administered fairly without counsel,'® Jd. at 40-
42.
Middendorf* cannot be viewed as a true Mathews 0.
Eldridge type of due process, interest Sanenerng case since the
Court found it necessary to “give particular deference to the
determination of Congress, made under its authority to
regulate the land and naval forces, U.S, Const., Art. 1, §8,
that counsel should not be provided in summary courts-
martial, 425 U.S. at 43.
The summary court-martial proceeding described by the
Court is more inquisitorial than adversary, the presiding of.
ficer being “enjoined to attend to the interests of the accused,
#25 U.S. at 41, Furthermore, where the serviceman believes
counse! important in order to present his case he can elect to
proceed to trial by special or general court-martial where he
has a right to counsel, /¢, at 47, Whether the demands of
military necessity would still have prevailed had the Court
found that fair adjudication required the assistance of counsel
is an interesting but irrelevant question in the context of the
‘Footnote continued on following page)
—29—
Thus, the Court has never tolerated the deprivation of
protected liberty and property interests through fun-
damentally unfair trial procedures because of the cost of
providing fair procedures. The fact that providing such
counsel may be an expense to the government is
therefore not a legally cognizable justification for the
government's refusal to provide the defendant with a
right to counsel. Even if analogy is made to the Court's
administrative due process decisions, governmental cost
becomes a factor in the context of an adversary pro-
ceedings only if it is of an extraordinary nature, The
only governmental! interest of extraordinary importance
at stake in this case, however, is that of assuring that
the right to counsel is provided in misdemeanor trials.
C.
The Government's Interest In Assuring The Right To
Counsel In Misdemeanor Trials Outweighs The Possible
Added Expense Of Providing Such Counsel.
1, Providing The Right To Counsel In Misdemeanor
Trials Is In The Interest Of Society And, Therefore,
Of Government.
The government has a paramount interest in assuring
that criminal trials result in fair determinations of guilt
or innocence, The Court declared in Brady v. Maryland,
378 U.S. 88, 87 (1963), that: “Society wins not only
when the guilty are convicted but when criminal trials
are fair; our system of the administration of justice suf-
fers when any accused is treated unfairly.” The Court's
continued
instant case where there is neither a governmental interest to
weigh in the balance that is remotely similar to the needs of
the armed forces nor a separation-of-powers clause problem in
applying the dictates of due process.
—30--
finding as to the ngcessity of the reasonable doubt stan-
dard in order to command the respect and confidence of
the community in the criminal law, /n re Winship, 397
U.S, 358, 364 (1970), is equally true with respect to the
necessity of defense counsel, Both are essential to assure
that “every individual going about his ordinaty affairs
have confidence that his government cannot adjudge
him guilty of a criminal offense without convincing a
proper factfinder of his guilt with utmost certainty.” /d.
The Court recognized that to leave people in doubt
whether innocent men are being condemned will dilute
the moral force of the criminal law, /d,
Uncertainty as to the validity of the criminal trial
process will also tend to cause anti-social responses on
the part of those convicted in a trial that did not have
the appearance of fairness, Cf. Joint Anti-Faacist
Refugee Committee v. MeGrath, 341 U.S, 128, 172 (1951)
(Frankfurter, J., concurring). The Court's observation in
Morrissey v. Brewer, 408 U.S, 471, 484 (1972), with
respect to society's interest in treating the parolee with
basic fairness is even more important with respect to the
defendant convicted in a criminal trial; for both of them
“fair treatment ... will enhance the chances of re-
habilitation by avoiding reactions to arbitrariness,”
(footnote omitted).
Procedural due process, the Court has recently noted,
has an importance to organized society of an absolute
nature that transcends the personal substantive claims
of the individual parties, Carey 0. Piphua, oon. US. cos
98 S.Ct. 1042, 1054 (1978). Denial of the right to counsel
to defendants not actually imprisoned after conviction
for misdemeanors punishable by imprisonment will, per-
haps, save the State money and will certainly make it
easier for the State to win convictions, but those in-
terests are in no respect commensurate with society's
aafiion
overriding, absolute interest in assuring that its
criminal prosecutions are procedurally fair.'' Cf, Berger
ULS., 296 U.S, 78, 88 (1935),
2. Important Governmental Interests Will Suffer If The
Right To Counsel Is Not Provided In All Misdemeanor
Prosecutions Punishable By Imprisonment.
In addition to society's paramount interest in assuring
a fair system of criminal justice, other substantial State
interests will suffer if the right to counsel is not granted
for all defendants charged with crimes punishable by
imprisonment, regardless of whether they are in fact
imprisoned, First, in order to deny the right to counsel
to one charged with a crime punishable by imprison-
ment, the judge must decide in advance of the trial and
sentencing hearing that he will not impose a prison
sentence, It is, of course, proper for a judge to decide not
to imprison a convicted defendant. However, Illinois,
like most States, provides that the judge make this de-
cision after the facts of the crime have been determined
at trial and after a sentencing hearing has been held in
order to elucidate the most appropriate sentencing al-
ternative, ///, Rev, Stat. Ch, 38, § 1005-4-1 (1977) and its
predecessor, ///, Rev, Stat, Ch, 38, § 8-7(9) (1971),
Dispensing with the trial and sentencing hearing in
deciding the appropriate sentence defies not only
legislative intent, but also accepted principles of rational
judicial sentencing. In describing the role of the senten-
cing judge, the Court has stated: “Highly relevant—if
'' Judge Friendly has pointed out that under the cireum-
stances of a trial an inflexible rule requiring the right to
counsel is appropriate since there is “everything to be gained
by the presence of counsel and no interest deserving con-
sideration to be lost... .” Friendly, The Bill of Rights aa a
Code of Criminal Procedure, 53 Calif. LR. 929, 950 (1965
(quot a Schneckloth v, RBustamonte, 412 U.S, 218, 242-24!
nO (1973) ),
= =
not essential—to his selection of an appropriate sentence
is the possession of the fullest information possible con-
cerning the defendant's life and characteristics.”
Williama v. New York, 887 U.S. 241, 247 (1949). (foot-
note omitted), To deprive the sentencing judge of the
kind of information presented at the sentencing hearing,
the Court observed:
... Would undermine modern penological pro-
cedural policies that have been cautiously adopted
throughout the nation after careful consideration
and experimentation, We must recognize that most
of the information now relied upon by judges to
guide them in the intelligent imposition of sentences
would be unavailable if information were re-
stricted to that given in open court by witnesses
subject to cross-examination,
337 U.S. at 250. A fortiori, without even the information
that has been adduced in court *% to the nature of the
defendant's criminal conduct, the judge's pre-trial
predictive sentencing decision can only be uninformed
yruess-work that disserves the State's interest in rational,
individualized sentencing. On the grounds that pre-trial
predictive sentencing is both arbitrary and a usurpation
of the legislative judgment that imprisonment is an ap-
propriate alternative sentence for the type of crime
charged, the Supreme Courts of Washington’? and
ia MeInturf ’, Horton, 88 Wash, 2d 704, 706, 588 P.2d 499,
500 (1975) “We reject the idea that a court can determine in
advance of trial what the punishment will be. Such a
grosecere would violate every concept of due process. .. .
he power to decide what acts shall be criminal, to define
crimes, and to provide what the penalty shall be is
jeaieasive, ..» It would be wnedty wrong for a court or a
judge to determine in advance to abrogate a part of a statute
or ordinance-either in a specific case or in a whole class of
CASES
—33—
Wisconsin'™ have accorded the right to counsel for all
defendants charged with crimes punishable by
imprisonment. See also, Argersinger v. Hamlin, 407 U.S.
25, 53 (1972) (Powell, J., concurring in result). Accord-
ing to the one comprehensive study of the implementa-
tion of Argersinger by the lower courts, most of the
judges interviewed believed “any sort of individualized-
prediction hearing prior to tria! was impractical and un-
wise.” KRANTZ et al., RIGHT TO COUNSEL IN CRIMINAL
CASES: THE MANDATE OF ARGERSINGER V. HAMLIN, 90
(1976) (hereinafter cited as KRANTZ).
Denying the right to counsel to misdemeanor defen-
dants who are not imprisoned will not only make the
sentencing determination uninformed, but will also
render the sentences themselves of dubious effective-
ness. Because it is unconstitutional under Argersinger to
imprison a defendant as a result of an uncounseled con-
viction, presumably an indigent, and possibly any un-
counseled defendant who cannot or does not pay his fine
will be immune from imprisonment, as will be any un-
counseled defendant who violates the terms of his proba-
tion, supervision or suspended sentence. For indigent
uncounseled defendants fines will be meaningless; for all
uncounseled defendants, probation and supervision will
be hollow sanctions.'* Cf. Argersinger v. Hamlin, 407 U.S.
‘8 State ex rel. Winnie v. Harris, 75 Wis.2d 547, 556, 249
N.W.2d 791, 795- (1977) “Under this individualized predic-
tion standard, the mere fact that the right to counsel has been
gone into strongly indicates that the judge is already con-
sidering the penstnilltey of jail for a particular defendant even
ihouats hes has not heard the evidence. On the other hand, this
system would also result in people not being incarcerated who
should be because of an erroneous evaluation of sentence
limitations prior to hearing the evidence in the case.”
'¢ An imprisonment-in-fact requirement for application of
the right to counsel may even proscribe entirely sentences of
probation, supervision, or conditional discharge for un-
(Footnote continued on following page)
=x =
at 55 (1972) (Powell, J., concurring in result); Krantz,
supra at 33-44.
The State’s interest in preserving the reliability of
prior convictions for collateral use where they are im-
portant for informed decision-making will also be im-
paired by a rule depriving unimprisoned defendants of
the right to counsel. Because uncounseled misdemeanor
convictions are unconstitutional if they “end up in the ac-
tual deprivation of a person’s liberty,” Argersinger, 407
U.S. at 40, it would also be unconstitutional to use an
uncounseled conviction in order to deprive a person of
liberty in a subsequent proceeding.’ Thus, uncounseled
prior convictions could not be used to enhance punish-
ment for subsequent offenses,'* to revoke a suspended
‘4 continued
counseled misdemeanor defendants. Cf. LaBar v. Goodman,
397 F.Supp. 463, 464 (W.D.N.C. 1975). The Court’s holdings in
Jones v. Pusstnaiian. 371 U.S. 236 (1963), and Hensley v.
Municipal Court, 411 U.S. 345 (1973), that parole restrictions
and release on parertes recognizance bond are sufficient
deprivaticons of liberty to satisfy the ein: requirement of
the federal habeas corpus statute, 28 U.S.C. §§ 2241(c) and
2254(a), indicate that probation, supervision, and conditional
discharge may likewise be held sufficiently serious de-
privations of liberty to satisfy the imprisonment standard of
Argersinger.
‘8 Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973); Alexander
v. State, 527 S.W.2d 927 (Ark. 1975); Morgan v. State, 235 Ga.
632, 221 S.E.2d 47 (1975). Note, Argersinger v. Hamlin And
the Collateral Use of Prior Misdemeanor Convictions of In-
digents Unrepresented by Counsel at Trial, 35 Ohio St. L.J.
168, 179-184 (1974).
Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975); State v.
iteagan, 103 Ariz. 287, 440 P.2d 907 (1968); Morgan v. State,
235 Ga. 632, 221 S.E.2d 47 (1975); City ey’ v. Fincher,
305 So.2d 108 (La. 1974); State v. Kirby, 33 Ohio Misc. 48, 289
N.E.2d 406 (1972); Maghe v. State, 507 P.2d 950 (Okl. Crim.
1973) but see People v. Baldasar, 52 Ill. App.3d 305, 367
N.E.2d 459 (1977) cert. petition pending, No. 77-6219.
ee or es
—35—
sentence,'’ to revoke parole or probation,'* or to impeach
the defendant.'* Moreover, since the use of prior un-
counseled convictions would be allowed by a prudent
trial judge only in the least serious prosecutions in
which there is no likelihood of imprisonment, the policy
against affording the right to counsel in all misdemeanor
prosecutions would have the illogical result of denying to
the State the use of a defendant’s record of past un-
counseled convictions in the more serious prosecutions,
where such record is most important to the State’s law
enforcement goals.
An additional problem for the State in supporting an
imprisonment-in-fact limitation on the right to counsel
in misdemeanor cases is that it would deny its non-
indigent citizens the equal protection of the laws when
they are charged with a crime for which they may be
imprisoned, but for which indigents who are not ap-
pointed counsel may not be imprisoned. Cf. Argersinger
v. Hamlin, 407 U.S. 25, 55 (1972) (Powell, J., concurring
in result). Although the trial court’s pre-trial decision to
eliminate the possibility of imprisonment confers a
relative benefit on the basis of a defendant’s indigency,
the equal protection clause has been held to require that
maximum statutory penalties “for any substantive
offense be the same for all defendants irrespective of
their economic status.” Williams v. Illinois, 399 U.S.
235, 244 (1970). Indeed, the Court in Williams stated
‘7 Alexander v. State, 527 S.W.2d 927 (Ark. 1975).
8 State v. Harris, 312 So. 2d, 643 (La. 1973); Dugan v.
Cardwell, [1978] Pov. L. Rep. (C.C.H.) 4 26,330 (Ariz. Sup. Ct.
June 21, 1978).
'° Potts v. Estelle, 529 F.2d 450 (5th Cir. 1976); Com-
monwealth v. Barrett, 322 N.E.2d 89 (Mass. App. 1975); Cf.
Loper v. Beto, 405 U.S. 473 (1972).
—3—
that it would constitute inverse discrimination to allow
indigents to avoid both a fine and imprisonment for non-
payment, whereas other defendants must suffer one or
the other. 399 U.S. at 244. An identical type of inverse
discrimination would occur under a pre-trial predictive
sentencing process for indigent defendants since before
trial all non-indigents would be subject to a fine and im-
prisonment, while selected indigents, identical to the
non-indigents in every respect except their economic
status, would be subject only to a fine. The only remedy
for this equal protection violation would be to hold pre-
trial predictive sentencing evaluations for all defen-
dants, regardless of indigency, and then to apply to all
of them the same criteria for eliminating the possibility
of imprisonment.2° However, this would constitute both
an extreme judicial incursion into the integrity of the
statutory sentencing scheme and a costly use of court
time and manpower.
The equal protection problems for the State in this
pre-trial sentencing process will be magnified when
such wealth-related distinctions are made either on the
basis of the different policies on appointment of counsel
adopted by the various jurisdictions within a single
State or on the basis of the individual judges’ pre-
dilections as to either the seriousness of different classes
of offenses or the need to have counsel for fair trials.
When each judge applies his own personal unpublished
standard for determining before trial what types of
trials require counsel for fairness and what types of of-
This, however, would not avoid the equa! protection viola-
tion, discussed — in Part III, pp. 47-50, that would arise
from denying indigent misdemeanor defendants the right to
appointed counsel at trial even if they are not imprisoned.
Reisner nee Arete tte
fenses deserve the legislatively authorized sanction of
imprisonment, arbitrary and discriminatory differences
in the determination of the rights and liabilities of
identically situated defendants will be inevitable. Cf.
Argersinger v. Hamlin, 407 U.S. 25, 54 (1972) (Powell J.
concurring in result); KRANTZ, supra at 101-104.
Each of the foregoing problems the State encounters
when it requires a judge to choose before trial which de-
fendants should or should not have the right to counsel
may not by itself be of sufficient constitutional
magnitude to invalidate the process for pre-trial selec-
tion of the defendants deserving counsel. However, when
considered together as a factor in the due process in-
terest belancing test, the collective detrimental! effect of
such problems clearly outweighs the modest cost-benefit
that may accrue to the State from denying appointed
counsel to some of the indigent misdemeanor defendants
who are not imprisoned.
3. Providing The Right To Counsel In All Misdemeanor-
eo Prosecutions Will Not Result In Impracticable
osts.
The one interest the State, of course, can assert
against affording the right to counsel to all defendants
charged with misdemeanors punishable by imprison-
ment is that this may entail an additional expense for
the State.2! Two recent comprehensive studies of the
“1 In evaluating claims that such additional expense would
be unbearable, it is instructive to note that despite the fore-
casts that the rule in Argersinger would overtax the
resources of the courts, the one comprehensive study that has
surveyed the question “uncovered no judges who claimed that
Argersinger requirements imposed any extraordinary burdens
on the courts.” KRANTZ, supra at 433.
——
question of how costly it would be to afford counsel in
such cases concluded that reliable statistics to support
an accurate estimate of this cost do not exist, that “the
question of calculating the cost of defense services re-
mains largely an enigma.” GUIDELINES FOR LEGAL
DEFENSE SYSTEMS IN THE UNITED STATES, Final Report
of the National Study Commission on Defense Services,
259 (1976); KRANTZ, supra at 10-18. Nevertheless, the
conclusion that has been drawn by these two studies, as
well as by several other nationally recognized commis-
sions that have recommended standards for the criminal
justice system, is that the right to appointed counsel for
indigent defendants should be available in all mis-
demeanor cases punishable by imprisonment.”
In reaching this conclusion the National Conference of
Commissioners on Uniform State Laws determined that
the cost of providing counsel for indigent defendants
charged with offenses punishable by incarceration
would not be excessive. Uniform Rules of Criminal
Procedure, Rule 321(b) Comment, p. 54 (1974). The Com-
missioners based this conclusion on two findings: first,
that appointed counsel can represent twice as many non-
felony as felony defendants and second, that despite the
22 GUIDELINES FOR LEGAL DEFENSE SYSTEMS IN THE UNITED
STATES, 15; KRANTZ, supra at 104 (1976); National Conference
of Commissioners on Uniform State Laws, UNIFORM RULES OF
CRIMINAL PROCEDURE, Rule 321(b) (Approved Draft 1974);
The Nationa! Advisory Commission on Criminal Justice Stan-
dards and Goals, COURTS, Standard 13.1 (1973). See also,
President's Commission on Law Enforcement and _ Ad-
ministration of Justice, THE CHALLENGE OF CRIME IN A FREE
SOCIETY, 368. (“The objective to be met as quickly as possible
is to provide counsel to every defendant who faces a signifi-
cant penalty, if he cannot afford to provide counsel himself.”)
—3—
considerably greater number of non-felony than felony
defendants, only about one and one-half times as many
non-felony as felony defendants require appointed
counsel because only 10% of the former, as op to
60-65% of the latter, meet necessary indigency Stan-
dards. Id.
The Commissioners also noted that legislatures adopt-
ing their rule would no doubt reclassify some minor
offenses presently punishable by incarceration. Jd. See
also KRANTZ, supra at 502, 550. Although the Court
recognized in Argersinger that classification of crimes is
largely a state matter, if the State is indeed concerned
that it cannot afford to provide counsel for indigent
defendants in all of the minor offense prosecutions that
now carry the potential for imprisonment, the State can,
as noted in Argersinger and as recommended by the
American Bar Association Special Committee on Crime
Prevention and Control, remove such minor offenses
from the court system altogether. 407 U.S. 25, 38 n.9
(1972). Because of the cost-saving potential of such
decriminalization, the National Advisory Commission on
Criminal Justice Standards and Goals, recommended
that appointed counsel be available in all criminal cases.
Courts, Standard 13.1 (1973). The Commission reasoned
that if its recommendation to decriminalize most traffic
offenses were followed, the non-jailable misdemeanors
would constitute a very small category of cases. There-
fore, because of the minimal incremental cost involved,
the Commission found that it would be worthwhile in
terms of fairness and the image of criminal justice in
the lower courts to extend the right to counsel to such
non-jailable offenses. Jd. at 253-254.
Even if legislatures do not choose to decriminalize
minor traffic violations, the increase in the number of
—_o
defendants who would require appointed counsel as a
result of a ruling in favor of petitioner’s right to
counsel would be relatively slight if the ruling were to
be limited to offenses as serious as petitioner’s mis-
demeanor-theft conviction. The largest proportion of
non-felony prosecutions are not for the more serious
malum in se or common law crimes, such as theft, but
rather, are for the minor regulatory-type offenses, such
as traffic violations, public drunkenness or disorderly
conduct. National Advisory Commission on Criminal
Justice Standards and Goals, Courts, 168-169 (1973);
KRANTZ, supra at 449, 595. Moreover, in the jurisdictions
that do not presently extend the right to counsel to all
prosecutions of misdemeanors punishable by imprison-
ment, it is likely that relatively few defendants charged
with the more serious misdemeanors are now tried
without counsel because the prosecutor and trial court
will usually wish to keep open the option of imprison-
ment in such cases.
Conclusive evidence that it would not be an im-
practical or undue burden on the State to provide the
right to counsel in all misdemeanor prosecutions punish-
able by imprisonment is that twenty-two States now do
exactly that. See Appendix to Petitioner’s Brief. No
reports of resulting impracticality or undue burden-
someness have been forthcoming.“ The Court has
previously found the fact that States have voluntarily
adopted a rule of procedure to be persuasive evidence
that it would not cause undue hardship on the States if
the Court should also find such rule constitutionally re-
A review of state legislation and court rules after Arger-
singer reveals a trend towards adopting a broad right to coun-
sel rule either in all criminal cases or in all cases where im-
yrisonment is authorized. Once adopted, no State appears to
one abandoned such a rule.
2 woe
a
ouifin
quired. Elkins v. U.S., 364 U.S. 206, 218-219 (1960):
Mapp v. Ohio, 367 U.S. 643, 651 (1961). Cf. Gideon v.
Wainwright, 372 U.S. 335, 345 (1963).
Finally, in evaluating the net cost of providing a right
to counsel in all misdemeanor cases, it is important not to
discount the cost savings due to the more efficient and
expeditious completion of cases that is possible when
both sides are represented by experienced counsel. The
Chief Justice has noted that a result of the lack of com-
petent advocates has been “that it often takes far longer
to complete a given case than experienced counsel would
require. . .” and that it would almost certainly follow if
self-representation were to become widespread “that
there will be added congestion in the courts and that the
quality of justice will suffer.” Farretta v. California, 422
U.S. 806, 845 (1975) (Burger C.J., dissenting).
In sum, the weight to be accorded a governmental cost
argument against finding a due process right to counsel
in misdemeanor prosecutions that are punishable by im-
prisonment depends upon which of two alternative due
process analyses the Court finds applicable. First, under
the approach taken in Jn re Gault, 387 U.S. 1 (1967), the
findings that counsel was essential for a fair trial and
that the juvenile proceeding had a potential for confine-
ment were sufficient in themselves to require the right
to counsel without any balancing of governmental costs.
Because both findings are equally, if not more strongly,
applicable to misdemeanor prosecutions punishable by
imprisonment, the right to counsel should also be af-
forded in such cases regardless of a governmental cost
factor.
Alternatively, under the due process balancing test of
the less analogous administrative procedure cases,
supra pp. 24-25 only extraordinary governmental costs
can be weighed against the need for procedural safe-
anf
guards that are essential for fair fact-finding. Because
there is no evidence that requiring counsel in mis-
demeanor prosecutions punishable by imprisonment
would require governmental costs of an extraordinary
nature, it is unnecessary to determine whether the in-
dividual and societal importance of fairness in mis-
demeanor trials should outweigh the problems at-
tendant upon such extraordinary governmental costs.
Thus, whichever due process test is adopted, the
governmental cost of providing the right to counsel in
misdemeanor cases affords no basis for denying that
right.
D.
The Individual Interest At Stake In A Misdemeanor-
Theft Prosecution Not Resulting In Imprisonment Is Sub-
stantial Enough To Require The Essential Elements Of A
Fair Trial.
The only remaining argument against affording the
right to counsel in prosecutions for misdemeanors punish-
able by imprisonment, but resulting in a fine and/or
probation, is that the harm to the defendant is of a de
minimis nature and, therefore, not deserving of due
process protection. Goss v. Lopez, 419 U.S. 565, 576
(1975). This argument, however, cannot survive a mo-
ment’s reflection as to the inevitable effect on an in-
dividual’s self-respect when he is permanently classified
by society as a criminal. The Court recognized the
significance of the personal disgrace attendant upon a
criminal conviction in a society that values the good
name of every individual when it observed that an ac-
cused has an “immense interest” in a criminal prosecu-
tion, not only because he might lose his liberty, but also
“because of the certainty that he would be stigmatized
by the conviction.” Jn re Winship, 397 U.S. 358, 363, 364
(1970).
on alana
| a.
— =
In addition, the imposition of a fine will necessarily be
a deprivation of substantial consequence to the indigent
misdemeanor defendant, whose right to appointed
counsel is by definition at stake in this case. Besides
fines and imprisonment, other forms of misdemeanor
sentences also inflict deprivations serious enough to
warrant due process protection. Thus, a misdemeanor
defendant in Illinois may undergo substantial restric-
tions on his liberty because of a sentence of “probation,”
Ill. Rev. Stat. Ch. 38, §§ 1005-1-18, 1005-6-2 (1977), “con-
ditional discharge,” Ill. Rev. Stat. Ch. 38, §§ 1005-1-4,
1005-6-2 (1977), or “supervision,” Ill. Rev. Stat. Ch. 38
§§ 1005-1-21, 1005-6-3.1 (1977).24 The Court has recog-
nized the significance of such deprivations in finding
federal habeas corpus jurisdiction where the habeas
petitioner is on parole. “What matters,” the Court stated,
is that such restrictions “significantly restrain
petitioner’s liberty to do those things which in this coun-
try free men are entitled to do.” Jones v. Cunningham,
371 U.S. 236, 243 (1963).
Any attempt to portray the effects of a misdemeanor
conviction without imprisonment as inconsequential also
cannot withstand comparison with both similar and less
serious criminal-type sanctions that the Court has
deemed sufficiently grievous to justify imposition of sub-
stantial procedural safeguards. Most telling is a com-
parison with the fine-only, municipal ordinance violation
that the Court in Mayer v. City of Chicago, 404 U.S. 189
(1971), found serious enough to justify requiring the City
“4 Furthermore, if a sentence of “time served” for an un-
counseled misdemeanant who has been una':!e afford bail
does not violate Argersinger’s prohibition a imprison-
ment as a result of an uncounseled conviction. .« . sentence
would substantially aggravate the stigma that otherwise
follows from a misdemeanor conviction.
anim
to provide a free appellate transcript estimated to cost
$300.00. In answer to the City’s argument that “where
the accused . . . is not subject to imprisonment, but only
a fine... his interest in a transcript is out~veighed by
the State’s fiscal and other interests in not burdening
the appellate process,” the Court noted, inter alia, that
the fine-only conviction may be equally or more severe
to an indigent than imprisonment:
ractical effects of conviction of even petty
lh ts of the kind involved here are not to be
minimized. A fine may bear as heavily on an in-
digent defendant as forced confinement. The col-
lateral consequences of conviction may be even
more serious. ...
404 U.S. at 197. The comparison of the instant case to
Mayer is revealing because the interests of a defendant
in having counsel at trial in order to avoid a theft con-
viction clearly outweigh the interests of a defendant in
having a transcript to facilitate an appeal of an or-
dinance violation conviction. See infra pp. 48-50.
It is also instructive to compare the degree of depriva-
tion from a misdemeanor conviction where the sentence
is a fine and/or probation with the one day’s confine-
ment that the Court in Argersinger found sufficient to
warrant the right to counsel. As noted by the Court in
Mayer, 404 U.S. 189, 197, and by Mr. Justice Powell
concurring in the result in Argersinger, 407 U.S. at 48,
the many collateral consequences of a conviction, such as
the stigma, various job disqualifications and license
revocations, may be more severe than a brief stay in jail,
as aiso may be a substantial fine for an impecunious in-
dividual. The Court has given further recognition to
25 seri al consequences of criminal
Aone gg ety ‘aed Ua aaa coal commentators.
Special Project, The Collateral Consequences of a Criminal
(Footnote continued on tollowing page)
Ore ee ne Ce
aaah ti ae EE a es Bech ate a 58 SK the NL A Ee ES ie RO
—45—
the seriousness of the collateral consequences of convic-
tions in its many decisions that have refused to dismiss
for mootness direct appeals of and collateral attacks
upon convictions where the appellant is not in custody.
“> continued
Conviction, 23 Vand. L. Rev. 929 (1990), Cohen, Civil Dis-
abilities: The Forgotten Punishment, 35 Fed. Prob. 19 (June,
1971); Rubin, Man With a Record: A Civil Rights Problem,
35 Fed. Prob. 3 Part, 1971); President’s Commission on Law
Enforcement and Administration of Justice, TASK FORCE
REPORT: Corrections (1967). The serious adverse collateral
consequences resulting from criminal convictions have also
been verified through empirical research. Cf. J. Reed and R.
d, Status, Images and Consequence: ce A Criminal
Always A Criminal, 57 Sociology and Social Research 460
( 1973): Schwartz and Skolnick, Two Studies of Legal Stigma,
10 Social Problems 133 (1962); Melicherci mployment
Problems of Former Offenders, 2 National Probation and
Parole Assoc. Journal 43 (1956). The particular effects on
petitioner of his misdemeanor conviction should he choose to
remain in Illinois are many. Because a theft conviction in-
dicates dishonesty it may be used for impeachment should
peer become a witness in court. People v. Stufflebean, 24
ll. App. 3d 1065, 1068-1069, 322 N.E.2d 488, 491-492 (1974).
Because jurors must be of “fair character” and “approved in-
tegrity,” Ill. Rev. Stat. Ch. 78 § 2 (1977), he may be excluded
from jury duty as a result of his theft conviction. A subse-
ao conviction for theft would subject him to the enhanced
elony penalty of imprisonment in the penitentiary from one
to three years. Ill. Rev. Stat. Ch. 38 §§ 16-1(eX1), 1005-8-1(7
Ab See People v. Baldasar, 52 Il. or 305, 367 N.E.2
459 (1977) cert. petition faocns No. 77-6219. Twelve oc-
cupations licen under I}linois law and_ twenty-three oc-
cupations licensed under City of Chicago ordinance require the
license applicant to have “ moral character” or some
equivalent background qualification that could be found un-
satisfied because of a theft conviction. See Chicago Council of
Lawyers, Study of Licensing Restrictions on Ex-Offenders in
the City of Chicago and the State of Illinois, 8, A-17 (1975).
Under federal law petitioner’s theft conviction would also bar
him from working in any capacity in a bank insured by the
F.D.1.C., 12 U.S.C. § 1829 (1950), or possibly in any public or
rivate employment re — a security clearance. 32 CFR
B155.5(h) and (i), and 156 (bX 1 iii).
—46—
Sibron v. New York, 392 U.S. 40, 54-57 (1968); Carafas
v. LaValee, 391 U.S. 234, 237-238 (1968); Benton v.
Maryland, 395 U.S. 784, 790 (1969); Street v. New York,
394 U.S. 576, 579-580, n.3 (1969); Ginsberg v. New York,
390 U.S. 629-633, n.2 (1968).
Finally, any argument that convictions for mis-
demeanors punishable by up to a year’s imprisonment
are not sufficiently serious deprivations to warrant the
due process right to counsel where the defendant is not
in fact imprisoned is inconsistent with the holding of
Baldwin v. New York, 399 U.S. 66 (1970), that the Sixth
Amendment right to a jury trial applies to all offenses
punishable by more than six months imprisonment,
whether or not the defendant is in fact imprisoned.
Because denial of the right to counsel, and not denial! of
the right to jury trial, “substantially impairs . . . [the
criminal trial’s} truth-finding function and so raises
serious questions about the accuracy of guilty verdicts,”
Williams v. United States, 401 U.S. 646, 653 (1971), it
would be anomalous to hold that under due process of
law the protection afforded by a jury trial is available in
less serious cases than the more critical protection af-
forded by counsel.
Thus, the adverse effects of a misdemeanor-theft con-
viction in which a fine and/or probation is imposed are
far from de minimis. The fine inevitably deprives an in-
digent of an important property interest and probation
deprives any person of substantial liberty interests. The
conviction itself forecloses a wide variety of job op-
portunities across the nation. The permanent stigma of
being classified as a criminal diminishes both the in-
dividual’s standing in the community and his own sense
of personal integrity. Therefore, there is no justification
for the argument that under the standards of due
en en wae eg in ee at te ee ce
— =
process petitioner’s deprivation was too minor for the
State to be required to afford him the most essential ele-
ment of a fair trial — the assistance of counsel.
Il.
THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES THAT IN-
DIGENT DEFENDANTS CHARGED WITH MIS-
DEMEANORS PUNISHABLE BY IMPRISONMENT
HAVE THE RIGHT TO APPOINTED COUNSEL AT
TRIAL REGARDLESS OF WHETHER OR NOT THEY
ARE IMPRISONED.
In Douglas v. California, 372 U.S. 353 (1963), the
Court held that denial of appointed counsel in an in-
digent defendant’s initial appeal of right violates the
Equal Protection Clause of the Fourteenth Amendment.
There is no principled answer to Mr. Justice Harlan’s
observation in his dissent that the Court’s equal protec-
tion rationale applies as well to an indigent defendant’s
right to counsel at trial. 372 U.S. at 363. Cf. Israel, Gi-
deon v. Wainwright: The “Art” of Overruling, 1963 Sup.
Ct. Rev. 211, 248. Recent Court decisions have made
even more clear that the equal protection right to ap-
pointed counsel on appeal must logically extend to the
right to appointed counsel at trial.
First, whether at trial or on appeal, the basis for the
disparate treatment, the defendant’s inability to afford
counsel, is the same. It is as unconstitutional now as it
was in Griffin v. Illinois, 351 U.S. 12, 19 (1956), to make
“the kind of trial a man gets depend on the amount of
money he has.” See Mayer v. City of Chicago, 404 U.S.
189, 193 (1971). Second, the consequences of an er-
roneous misdemeanor conviction, even where the penalty
is only a fine, are at least as severe as the consequences
of the fine-only municipal ordinance violation, which the
~~
Court found sufficiently serious to warrant the
guarantee of equal protection in Mayer v. City of
Chicago, 404 U.S. at 197. (“The invidiousness of the
discrimination that exists when criminal procedures are
made available only to those who can pay is not erased
by any differences in the sentences that may be im-
posed.”)
Third and most important, the nature of the disparate
treatment, denial of counsel on the basis of wealth, has
more serious consequences for the indigent defendant at
the trial level than at the appellate level. As the Court
has often noted, not every difference in the abilities of
rich and poor to present their defenses is proscribed by
equal protection; rather, it is required only “that in-
digents have an adequate opportunity to present their
claims fairly within the adversary system.” Ross v. Mof-
fitt, 417 U.S. 600, 612 (1974) (citing Griffin v. Illinois,
351 U.S. 12 (1956) and Draper v. Washington, 372 U.S.
487 (1963) ). If the assistance of counsel were less impor-
tant for an adequate defense at trial than on appeal, a
basis for distinguishing Douglas could be argued.
However, because the exact contrary is true, the equal
protection rationale of Douglas applies more forcefully
to the instant case than to Douglas itself.
More is at stake for the defendant, and his need for
counsel greater, when he is fighting to maintain his in-
nocence during trial than when he is attempting to over-
turn in a higher court a conviction based on an es-
tablished trial record. In Ross v. Moffitt, 417 U.S. at 610,
611, the Court pointed out the significant differences
between the trial and appellate stages of a criminal pro-
ceeding that make it crucial to have a lawyer at the trial
stage, but not necessarily at the appellate stage. With re-
spect to the need for counsel at trial, the Court stated:
dant Re te Pls A A
a —
—49—
The purpose of the trial stage from the State's point
of view is to convert a criminal defendant from a
person presumed innocent to one found guilty
beyond a reasonable doubt. To accomplish this pur-
pose, the State employs a prosecuting attorney who
presents evidence to the court, challenges any
witnesses offered by the defendant, argues rulings
of the court, and makes direct arguments to the
court and jury seeking to persuade them of the
defendant’s guilt. Under these circumstances rea-
son and reflection require us to recognize that “in
our adversary system of criminal justice, any per-
son haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel
is provided for him.” [quoting Gideon »,.
Wainwright, 372 U.S. 335, 344 (1963) ]
Ross, 417 U.S. at 610. At the appellate stage, however,
the Court found counsel not as critical:
The defendant needs an attorney on appeal not as a
shield to protect him against being “haled into
court” by the State and stripped of his presumption
of innocence, but rather as a sword to upset the
prior determination of guilt. This difference is
significant for, while no one would agree that the
state may simply dispense with the trial stage of
proceedings without a criminal defendant’s consent,
it is clear that the State need not provide any
appeal at all.
417 U.S. at 610-611.
The distinction made by Ross in the importance of
counsel at the trial and appellate stages is demonstrated
by the example of the instant case. Counsel for Scott at
trial could have cross-examined the adverse witness,
could have compelled the presence of witnesses, could
have moved for a directed verdict in order to challenge
the insufficiency of the State’s proof, could have either
exercised the defendant’s Fifth Amendment privilege
against self-incrimination or presented a coherent
—50—
direct examination, and could have made a closing argu-
ment capitalizing on the judge’s own professions of
doubt about the sufficiency of the State’s case. On
appeal, these most basic functions of defense counsel are
meaningless. The factual record as presented by the ex-
amination ef the prosecutor, as supplemented by the
questioning of the judge and as confused by the
testimony of the defendant gives appellate counsel little
of substance to argue. Once the adversary system has
broken down at trial, it cannot be resurrected on appeal.
In sum, if the Equal Protection Clause requires that “in-
digents have an adequate opportunity to present their
claims fairly within the adversary system,” Ross supra,
it makes no sense to require appointment of counsel for
indigents on appeal, but not for indigents at trial.”
IV.
THE DUE PROCESS SAFEGUARDS NECESSARY
TO PREVENT AN INACCURATE AND PREJUDICIAL
PRE-TRIAL DEPRIVATION OF A MISDEMEANOR
DEFENDANT'S RIGHT TO COUNSEL WOULD RE-
QUIRE EXPENDITURE OF CONSIDERABLE
JUDICIAL RESOURCES. THESE RESOURCES COULD
BE SAVED BY AFFORDING THE RIGHT IN ALL MIS-
DEMEANOR PROSECUTIONS.
A.
The Fundamental Nature Of A Misdemeanor Defen-
dant’s Interest In Having The Assistance Of Counsel At
Trial Warrants Due Process Protection Regardless Of
Whether Or Not The Defendant Is Imprisoned.
Assuming arguendo that there is no absolute con-
stitutional right to counsel in the trial of all mis-
26 See also Miranda »v. Arizona, 384 U.S. 436, 472-473 (1966)
(“Denial of counsel to the indigent at the time of interrogation
while allowing an attorney to those who can afford one would
be no more supportable by reason or logic than the similar
situation at trial and appeal struck down in Gideon v.
Wainwright, and Douglas v. California.”)
demeanors punishable by imprisonment, a trial court
must make a pretrial determination of the right to
counsel in each case. The right must be accorded if the
judge predicts either that imprisonment will be likely
upon conviction or that the special circumstances of the
case will require counsel for a fair trial. See Argersinger
v. Hamlin, 407 U.S. 25, 63-68 (Powell, J., concurring in
result); Bute v. Illinois, 333 U.S. 640, 677 (1948); Gagnon
v. Searpelli, 411 U.S. 778. 791 (1973).
A defendant’s interest in assuring that this predictive
determination does not unfairly deny him the right to
counsel is of a nature deserving due process protection.
The actual deprivation at stake in this determination is
not only the denial of counsel’s assistance, but also the
increased likelihood of conviction that results when
counsel is denied under circumstances where a fair trial
depends upon counsel’s assistance.
That lack of counsel substantially increases the likeli-
hood of conviction is evident to anyone familiar with the
practicalities of the adversary criminal trial process.
The inherent complexities of a criminal trial guarantee
that “in all but an extraordinarily small number of cases
an accused will lose whatever defense he may have if he
undertakes to conduct the trial himself.” Farretta v.
California, 422 U.S. 806, 838 (1975) (Burger, C.J., dis-
senting.) See also cases cited supra pp. 26-27. The denial
of counsel prejudices the cases of misdemeanor defen-
dants no less than felony defendants. In emphasizing the
prejudice to misdemeanor defendants from “assembly-
line justice,” the Court in Argersinger cited the con-
clusion of one study that “misdemenants represented by
attorneys are five times as likely to emerge from police
court with all charges dismissed as are defendants who
face similar charges without counsel.” 407 U.S. at 36.
—52—
The fact that a defendant denied counsel may have
been convicted even if counsel had been appointed does
not mitigate the prejudice from the denial of counsel.
The Court has found that a wrongful denial of counsel
cannot be deemed harmless since any attempt to ascer-
tain what counsel would have done to avoid conviction
would be “unguided speculation”. Holloway v. Arkansas,
wa. U.S. ....., 98 S.Ct. 1173, 1182 (1978). Hence “pre)-
udice is presumed regardless of whether it was in-
dependently shown.” Jd. at 1181.
The defendant who is denied the right to counsel does
gain a relative benefit in not being directly subject to
imprisonment. However, this assurance cannot be
presumed to offset the prejudice from being placed in
substantially greater jeopardy of conviction. As the
Court found in Mayer v. City of Chicago, 404 U.S. 189,
197 (1971), and as Mr. Justice Powell observed, con-
curring in the result in Argersinger, 407 U.S. at 48, the
collateral consequences of a conviction may be far more
serious to an individual than a brief stay in jail.
Moreover, where the State’s case is highly vulnerable
to attack through the exercise of certain basic lawyer-
ing skills, such as conducting effective cross-
examination, raising timely evidentiary objections, mak-
ing affirmative legal defenses, motions for directed ver-
dict or closing arguments, the determination of the
defendant’s right to counsel would virtually determine
whether he is acquitted or convicted. In this common
situation a state-imposed trade-off between a highly
probable acquittal with counsel and immunity from
prison without would not be fair to the defendant.
Furthermore, since the prosecutor in this type of case
has a strong interest in not having the opposition of
skilled defense counsel, the unfairness of the trade-off is
- reel
= =
compounded by the fact that the prosecutor will have the
most influence on the judge’s determination of whether
defense counsel is necessary. For all of the foregoing
reasons, a misdemeanor defendant’s interest in the
determination of whether or not he has a right to
counsel, a determination that wil] often be the difference
between conviction and acquittal, deserves due process
protection.
B.
THE DETERMINATION OF THE NEED FOR
COUNSEL IN A MISDEMEANOR TRIAL REQUIRES
DUE PROCESS SAFEGUARDS IN ORDER TO
MINIMIZE THE SUBSTANTIAL RISK OF ERROR
AND PREJUDICE AGAINST THE DEFENDANT.
In addition to jeopardizing an important interest of
the defendant, the pre-trial determination of the neces-
sity of counsel in each defendant’s misdemeanor trial is
subject to substantial risk of error and, therefore, re-
quires the safeguards of due process. Carey v. Piphus,
oo U.S. ....., 98 S.Ct. 1042, 1050 (1978). The trial court
in making such an individualized determination of the
necessity of counsel would have to address two
questions: first, pursuant to the holding of Argersinger,
whether defendant is likely to be imprisoned if con-
victed, and second, whether under the special cir-
cumstances of the case, the assistance of counsel is re-
quired by due process in order to assure a fair trial. An
affirmative answer to either question would then require
appointment of counsel for an indigent desirous of
counsel.
In order to determine whether an individual needs the
assistance of counsel for a fair adjudication oi guilt or
innocence, the Court in Gagnon v. Scarpelli, 411 U.S.
778, 790, 791 (1973), and in the line of cases that applied
=
the “special circumstances” rule of Betts v. Brady, 316
U.S. 455 (1942), stressed the importance of two criteria:
first, whether the case is complex and the defense dif-
ficult to present, and second, whether the defendant is
capable of effectively presenting his defense. Cf. Israel,
Gideon v. Wainwright: The Art of Overruling, 1963
Sup. Ct. Rev. 211, 251-252. In addition to the complexity
of the case and the competency of the individual defen-
dant, Mr. Justice Powell pointed out, concurring in the
result in Argersinger, that the trial court should also
consider in determining the need for counsel in a mis-
demeanor case the seriousness of the probable sentence
upon conviction and the community’s attitude toward
either the defendant or the incident in question, 407
U.S. at 64. Mr. Justice Powell aiso noted that “there
might be other reasons why a defendant would have a
peculiar need for a lawyer which would compel the
appointment of counsel in a case where the court would
normally think this unnecessary.” Jd. It is inconceivable
that a judge could arrive at an accurate and fair weigh-
ing of all of these intricate factors without first observ-
ing certain elementary principles of procedural due
process, such as affording both sides an opportunity to
be heard. See infra Part IV-C, pp. 56-59, for discussion
of applicable due process safeguards.
Applying due process standards to the determination
of the necessity of counsel in misdemeanor cases is
necessary not only to assure an accurate assessment of the
defendant’s need for counsel, but also to protect the
defendant from the serious potential for prejudice that
inheres in the process of making pre-trial deter-
minations as to the nature of the case, the character of
the defendant or the likelihood of his imprisonment. The
potential for prejudice under these circumstances is pre-
sent whether or not the trial court ultimately decides to
—'5—
appoint counsel and may be even greater when the court
does make an appointment. As the Wisconsin Supreme
Court has observed: “Under this individualized predic-
tion standard, the mere fact that the right to counsel has
been gone into strongly indicates that the judge is
already considering the possibility of jail for a par-
ticular defendant even though he has not heard the
evidence.” State ex rel. Winnie v. Harris, 75 Wis. 2d 547,
556, 249 N.W. 2d 791, 795-6 (1977).
Whenever the judge sitting as trier of fact learns
before trial of such pre-sentencing information as the
prior arrest and conviction record of the accused or ag-
gravating circumstances surrounding the alleged crime,
“the possibilities of prejudice are obvious.” Commentary
to Standard 4.2, American Bar Assoc. Project on
Minimum Standards for Criminal Justice, Standards
Relating to Sentencing Alternatives and Procedures 208-
9 (1967). See also Argersinger v. Hamlin, 407 U.S. 25,
42, (Burger, C.J., concurring) and 54 (Powell J., con-
curring in result); H. Kalven, Jr. and H. Zeisel, THE
AMERICAN JURY. 124 (1966); National Conference of
Commissioners on Uniform State Laws, Uniform Rules
of Criminal Procedure Rule 321(b), Comment at 53 (Ap-
proved Draft, 1974); Illinois Rev. Stat. Ch. 38, § 1005-3-4
(1977). Even in a jury trial, the disclosure of such
presentencing information to the judge before trial may
be prejudicial. The Court has noted that such pre-trial
disclosure to a judge presiding over a jury trial would
be of sufficient prejudice to contravene the purpose of
Federal Rule of Criminal Procedure 32(cXi), which
prohibits a judge from considering pre-sentence reports
before a finding or plea of guilt. Gregg v. United States,
394 U.S. 489, 492 (1969).
The need for an on-the-record hearing in which the
defendant has notice and an opportunity to answer any
—i6—
accusations the prosecutor makes against him is par-
ticularly important where the information the pros-
ecutor is giving the court prior to trial is of a pre-
sentencing nature. The potential for prejudice is enor-
mous when judge and prosecutor engaged in a private,
pre-trial, off-the-record communication about the
character of the defendant and the nature of his sup-
posed criminal activities. Such ex parte communications
are inconsistent with the fundamental principles of our
adversary system of justice, and, as such, have been con-
demned by court and bar association alike. American
Bar Association, Canons of Judicial Ethics, Canon 17
(1967); American Bar Association, Standards Relating to
the Prosecution Function and the Defense Function, Sec-
tion 2.8 (Approved Draft 1971); American Bar
Association, Code of Professional Responsibility, EC 7-
36, (1969); Haller v. Robbins, 409 F. 2d 857 (lst. Cir.
1969): United States v. Solomon, 422 F. 2d 1110 (7th Cir.
1970).
C.
THE PROCEDURAL SAFEGUARDS REQUIRED
FOR A PRE-TRIAL DETERMINATION OF THE
NECESSITY OF DEFENSE COUNSEL IN A MIS-
DEMEANOR TRIAL INCLUDE AN ADVERSARY ON-
THE-RECORD HEARING THAT RESULTS _ IN
WRITTEN FINDINGS AND REASONS MADE BY A
JUDGE OTHER THAN THE ONE WHO PRESIDES
OVER THE DEFENDANT'S TRIAL.
Several procedural safeguards are therefore neces-
sary both to assure an accurate case-by-case determina-
tion of the necessity of defense counsel and to eliminate
the prejudice otherwise likely to result from pre-trial
judicial consideration of the defendant’s capacity or
the likelihood of defendant’s imprisonment. First, and
perhaps most important, is the requirement that the
—57—
judge make on-the-record findings as to his reasons for
refusing to appoint counsel. This will assure that the
judge consider the factors determinative of the neces-
sity for counsel and arrives at a rational assessment of
those factors in a manner capable of review by 4 higher
court. Cf. Boykin v. Alabama, 395 U.S. 238, 244 (1969).
The Court has held that due process requires trial cou,'ts
to make findings and give reasons in analogous contexts
where the defendant’s rights depend upon thie court’s
giving due considerations to certain interests of the
defendant. Kent v. United States, 383 U.S. 541, 561-2
(1965) (waiver of juvenile court jurisdiction); North
Carolina v. Pearce, 395 U.S. 711, 726 (1969) (imposition
of heavier sentence after retrial). See also Commonwealth
v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and cases
and articles cited therein. Additionally, in the quasi-
judicial setting of a parole revocation hearing, the Court
has required that the hearing officer’s determination of
the probationer’s right to counsel be supported by a
statement of reasons evidencing due consideration of the
same types of factors on which the right to counsel at
trial should depend. Gagnon v. Scarpelli, 411 U.S. 778,
791 (1973).
Second, it is critical that the information which the
judge considers in making his determination of the
necessity of counsel be presented in an on-the-record
proceeding at which defendant is present so that er
parte communications between prosecutor and judge
about the defendant can be eliminated and the effect on
the trial court of any prejudicial information about the
defendant can be determined on appeal. Cf. Garner v.
Louisiana, 368 U.S. 157, 173 (1961).
Third, the defendant should be given an opportunity
to object to the introduction of erroneous evidence con-
cerning his background, Townsend v. Burke, 334 U.S.
= =
736, 740-741 (1948), and to argue in his own behalf that
he needs counsel because of the complexity of his
defense or his ignorance of the requisites of trial prac-
tice.2’ By not notifying the defendant that the court is in
the process of deciding his right to counsel and then by
failing to allow the defendant to argue why he should
not be denied that right the court would deny the most
basic element of due process of law, the opportunity to
be heard. Grannis v. Ordean, 234 U.S. 385, 394 (1914).
Finally, if the judge in determining the necessity of
counsel should learn of defefNdant’s prior record or of
any non-admissible information concerning defendant’s
allegedly criminal activities, the trial shouid be held
before a different judge.** Although judges, more than
laymen, can be presumed not to rule on the basis of in-
admissible information that they happen to hear in the
2" This poses the same paradox that is inherent in the Betts v.
Brady special circumstance rule in that the defendants who
by virtue of their ignorance need the assistance of counsel the
most, will by virtue of that same ignorance be least able to
demonstrate such need. Cf. Israel, Gideon v.
Wainwright: The “Art” of Overruling, 1963 Sup. Ct. Rev. 211,
263 n.301; Pate v. Robinson, 383 U.S. 375, 384 (1966) (“But it
is contradictory to argue that a defendant may be in-
competent, and yet knowingly or intelligently ‘waive’ his right
to have the court determine his capacity to stand trial.”) In
order to avoid the unfairness inherent in requiring a layman
to demonstrate wa he is incapable of fairly representing
himself, counsel will often be required at the pre-trial deter-
mination in order to explore with the defendant and to ex-
plain to the court the need for counsel at trial.
** This however, would not solve the ages of what has
been called “derivative bias” in that the trial judge would
know when counsel has been oe that his fellow judge
found something sufficiently bad about defendant to believe
imprisonment would be the likely sentence. KRANTZ, supra at
89-90 (1976); National Conference of Commissioners on Uni-
form State Laws, UNIFORM RULES OF CRIMINAL PROCEDURE
Rule 321(b), Comment at 53. (Approved Draft, 1974).
— =
course of a trial, the necessity of making a pre-trial
prediction as to the likelihood of defendant’s imprison-
ment would institutionalize the introduction before the
court of negative information about the defendant. In
order to avoid having to put each trial judge’s impar-
tiality to this difficult test, always to the jeopardy of the
defendant, the judge who tries the case should not be the
one who has decided the defendant is likely to be im-
prisoned if convicted. Cf. in re Murchison, 349 U.S. 133,
138-139 (1955).
Given the foregoing due process safeguards required in
order to make the pre-trial determination of the necessi-
ty of counsel in a misdemeanor trial both accurate and
non-prejudicial, the cost of affording the right to counsel
to all misdemeanor defendants may not be significantly
less than the cost of making such case by case deter-
minations of the necessity of counsel. Nevertheless, if not
all defendants charged with misdemeanors punishable
by imprisonment have a Sixth Amendment, due process
or equal protection right to counsel, each such defen-
dant at least has a due process right both to a fair on-
the-record hearing on the question of whether the
assistance of counsel is required in his case and to a
statement of reasons should the judge find counsel not
required. The record of the trial below reveals that not
only did the judge not afford the defendant a hearing,
but he gave no consideration to the defendant’s in-
dividual need for counsel. Such disregard of the most
minimal standards of due process is an independent
ground for reversal of Scott’s conviction.
—60—
V
PETITIONER’S TRIAL WAS UNFAIR AND
THEREFORE DENIED HIM DUE PROCESS OF LAW.
An unfair trial violates due process of law regardless
of the severity of the penalty imposed. Carey v. Piphus,
one US. ....., 98 S.Ct. 1042, 1053-1054 (1978); Argersinger
v. Hamlin, 407 U.S. 25, 62 (1972) (Powell, J., con-
curring in result). If the Court should find the right to
counsel not constitutionally required in all mis-
demeanor trials, the pervasive unfairness in the conduct
of petitioner’s trial would still require reversal. How-
ever, a reversal solely because the trial itself proved un-
fair, rather than because the right to counsel was
denied, would be inappropriate for several reasons. First,
it would be inconsistent with the finding in Argersinger
that counsel is as essential to a fair trial in mis-
demeanor cases as it is in felony cases. 407 U.S. at 32-34.
It follows from this equation of defendants’ need for
representation in felony and misdemeanor trials that the
per se guarantee of the right to counsel which Gideon v.
Wainwright, 372 U.S. 335 (1963), held was necessary for
a fair trial in felony cases is also necessary in mis-
demeanor cases.
Second, a rule which requires analysis of the cir-
cumstances of each trial in order to determine whether
unfairness resulted from the absence of counsel would
contradict the premise of the Court’s holdings in
Holloway v. Arkansas, ..... USS. ....., 98 S.Ct. 1173, 1181,
1182 (1978), that a denial of counsel must always be pre-
sumed to be prejudicial because of the impossibility of
knowing what competent counsel might have ac-
complished in attempting to avoid conviction. Even if
prejudice were not automatically presumed, the progres-
sion of pre-Gideon Court decisions applying the special
— =
circumstances rule of Betts v. Brady, 316 U.S. 455
(1942), reveals that in practically every case where
counsel is denied, fundamental unfairness is evident
because competent counsel can always be expected to
make a significantly better showing than a layman. Cy.
Carnley v. Cochran, 369 U.S. 506 (1962); Chewning v.
Cunningham, 368 U.S. 443, 447 (1962); Kamisar, Betts v.
Brady Twenty Years Later: The Right to Counsel and
Due Process Values, 61 Mich. L.R. 219, 280 (1962).
Finally, implementation of a rule requiring case-by-
case determinations of unfairness would encounter the
same difficulties experienced under the Betts v. Brady
special circumstances rule, which court and com-
mentator alike have condemned as unworkable and dis-
ruptive to the judicial process.2? Moreover, it is almost
certain that a special circumstances rule would be even
** The criticisms of the special circumstances rule have
focused on the following shortcomings: (1) trial judges are
unable to predict whether or not events in the forthcoming
trial will create a need for counsel, Cf. Brief for the State
Governments Amici Curiae, pp. 17-18, filed by the Attorneys
General of twenty-three states in Gideon v. Wainwright, 372
U.S. 335 (1963); (2) the vagueness of the standard results in
uncertain, uneven and often grudging application of the rule
by trial and appellate courts, Gideon v. Wainwright, 372 U.S.
335, 351 (1963) (Harlan J. concurring); Carnley v. Cochran,
369 U.S. 506, 518-519 (1962) (Black, J. concurring); Israel, Gi-
deon v. Wainwright, The “Art” of Overruling, 1963 Sup. Ct.
Rev. 211, 264; (3) it requires extensive examinations of state
law by the Supreme Court in order to determine whether
errors on unconsidered issues revealed a need for counsel, The
Supreme Court, 1961 Term, 76 Harv. L.R. 54, 116 (1962); (4)
the burden of showing fundamental unfairness in the trial is
laced only upon those who cannot afford to hire counsel,
McNeal v. Culver, 365 U.S. 109, 118-119 pel) Douglas, J.,
senourring) and (5) by virtue of its breadth and vagueness,
the special circumstances rule increases the Court's caseload
by stimulating direct and collateral attacks on convictions. The
Supreme Court, 1948 Term, 63 Harv. L.R. 119, 136 (1949).
—62—
less effective in assuring misdemeanor defendants a fair
trial than it was in protecting the fair trial rights of
felony defendants. The “low visibility” and the “rush-
rush” assembly-line nature of many misdemeanor
courts, Sibron v. New York, 392 U.S. 40, 52 (1968),
Argersinger v. Hamlin, 407 U.S. 25, 34, 35 (1972), will
often prevent each misdemeanor defendant’s particular
need for counsel from being given the careful scrutiny
required by the special circumstances rule.
Nevertheless, should the Court find it necessary to ex-
amine the record below in order to determine whether
petitioner's trial met the standards of due process, it is
evident that unfairness pervaded the trial and that un-
der several of the criteria established by the post-Betts
decisions implementing the special circumstances test,
the conviction must be reversed. Most significant in this
regard, after the State had rested its case, defense
counsel would undoubtedly have moved for a directed
verdict on the grounds that there was no evidence that
Seott had not paid for the items he allegedly stole.*° By
testifying Scott not only waived his directed verdict mo-
tion, People v. Washington, 23 I1l.2d 582, 179 N.E.2d 635
(1962), but he also tended to incriminate himself by
volunteering that he was trying to find the sales girl in
order to purchase the items when he was stopped in the
store by the security guard. (A. 10) It is doubtful that
Scott knew that he did not have to testify because the
Judge did not advise him of his Fifth Amendment
privilege against self-incrimination. Instead, the Judge
asked him what he wished to say after the State rested
its case. (A. 8)
0 The complaining witness testified that he was outside the
store for a few minutes before Scott walked out with the
allegedly stolen item that Scott said belonged to him. (A. 8)
Oe ee ee ee
—63—
The second ground of unfairness was the lack of any
cross-examination of the one witness against Scott. The
Court has often identified ineffective cross-examination
as an element of fundamental unfairness under the
special circumstances test. Carnley v. Cochran, 369 U.S.
506, 512 (1962); McNeal v. Culver, 365 U.S. 109, 113-114
(1961). A fortiori, the lack of any cross-examination
must evidence even greater unfairness.
Third, a coherent direct examination to elicit Scott’s
testimony might well have eliminated the Judge’s confu-
sion as to the sequence of events inside the store. Scott’s
testimony exemplifies the problem described in
Ferguson v. Georgia, 365 U.S. 570, 593 (1961), faced by
any defendant who must make a statement without the
guidance of counsel: “he has been set adrift in an un-
charted sea with nothing to guide him, with the result
that his statement in most cases either does him no good
or is positively hurtful.” (quoting 7 Ga. B.J. 432, 433
(1945) ).
Fourth, the Judge gave Scott no opportunity to make
a closing argument, but rather, pronounced his guilt im-
mediately after Scott’s las: response to the judge’s
questioning. The right of a pro se defendant to make a
closing argument was deemed fundamental! by the Court
in Herring v. New York, 422 U.S. 853 (1975).
Finally, the Judge’s conduct towards the defendant
was an essential element of the trial’s unfairness. The
Judge did not notify Scott of any of the fundamental
constitutional rights that have been deemed essential to
a fair trial, including the right to be informed of the
elements of the offense charged, the right to cross-
examine witnesses, the right to call and compel
witnesses in his own behalf, and the privilege against
self-incrimination. Scott exercised none of these rights.
aidlliie
Moreover, after the State had rested its case, having
foregone cross-examination and rebuttal, the Judge not
only failed to advise Scott that he too could rest, but in-
stead, asked Scott more questions to clear up the Judge’s
admitted doubts about the sufficiency of the State’s
case.*! The conduct of the Judge in Scott’s trial was far
below the standard the Court has required of trial
judges with respect to their duty to protect the rights of
pro se defendants. Cf. Carnley v. Cochran, 369 U.S. 506,
510-511 (1962); McNeal v. Culver, 365 U.S. 109, 114
(1961).
The pervasive unfairness of Scott’s misdemeanor trial
was not the result of an unusually incompetent defen-
dant, an : nusually complicated factual or legal case, or
an unusual trial judge. It was the usual result of a
criminal trial in which only the State is represented by
counsel. Although the foregoing examples of unfairness
in Scott’s trial demonstrate why this particular con-
viction should be reversed, more importantly, they
demonstrate why it is necessary to require the right to
counsel “in all criminal prosecutions.”
‘1 “The Court: There’s a lot of questions I want to know.”
(A. 9)
|
_ =
CONCLUSION
For the foregoing reasons the petitioner respectfully
requests that the judgment and opinion of the Supreme
Court of Illinois, which affirmed the decision of the
Appellate Court of Illinois, First District, which af-
firmed the conviction of petitioner by the Circuit Court
of Cook County, Illinois, be reversed.
Respectfully submitted,
JOHN S. ELSON
Northwestern University Legal Clinic
360 East Superior Street
Chicago, Illinois 60611
(312) 649-8576
Attorney for Petitioner
(KATHLEEN DEWEY, FRED KILLION and CYNTHIA GRAY. Northwestern Univer-
sity law students, assisted in the preparation of this brief.)
‘(SLEL “AID IS) YES PSA EIS ‘eOva0g “a spwoyy ‘(9/61 “1D WS) OCF PSA GZS ‘99ST 4 140d
d4N (a0UA}UAs PeZLIOYING UB be qo. ut seseo [je ut satdde jasunod 0} 7yFI4 JuCMIpUeMTY qIxIg om yey) sjeeddy jo
uno WHA) YY eq) Jo afns ayy 0} yooqns ase Aayy ySnoqye ‘payst] you aiv iddrwessiyy PuUw wIsI0ef) “eplio| J ‘BUIeqeIV «
“(C9GL) OTF PZ
‘d 86€ ‘87a “ady
(29 Pe “uosuyos’
a4 Uf *(G961) TEE
“ayy [8 92 ‘sep
May a4 uy *(QL6L)
16% PE “A GOP “198
‘aydy 18) $e ‘zed ‘(GL61) STS T
oT M4 *(OL61) “Hy “suo) att onmeeninn
cic “DEY TRO 06 ‘6S8 “8S8 "S10UBO
- canta pyle &. an [tue [BQ Burpnyour asvo peurunss Assae uy BIULOF BY)
x (6961)
Gis Pe “ 6St “Eg “Zuy
COL ‘j4noy sotsedng “a
vbosavgy “You 10 auy ‘aainbes os vorjsul
Qoc$ 40 yueutuOstaduit JO s}sesayu ay}, 7BY} Sapnjou0s
syyuoul g Aywued jen JANOS dy} YOrtyA Ul Zutpesooad [eur
usjod jt yueujutodde ‘(CJ61) (Q) 19 -wa seyjo Aue ul pue Ajsoqy jo
ALOpRpURUT B pesinbes ‘O1g “Wig Jo ssoj Aq yusurystund ul 3[Nsed Awul
aja sebuiysobsp-did sany SUV LE yor Zurpesooid peuruntso Aue uy Buozlly
TIST HV
“(1L61 “jSuo,) VYSBLY
‘eysRiy) O16 PZ “d (gz6t “ddng) ‘oug Aavay 8 10 ‘astiaa
06 ‘2Ovs0youp jo OOUSS'SIS —T ATqBnyBa Jo sso] ‘yuoutuostudurt
Aji) “2 sopunzraly ‘JIG VYSeLY Ul j[Nsel ABUL YOIYA asUOyO AUY VysUly
A048) A138) 81625 ¥018}92Q IND a3eI5 21N¥ 40 aNIHIS s2i)ddy jasunoa oO; 34u8iy
244 YUM OL 82HU2N0 223838
a
APPENDIX TO BRIEF
FOR PETITIONER
ot
‘GOSS
Fuipesoxa ouy 8 40
sHowuosiudun Aq equ
‘ystind you ssouvour
“epsiul «=puB sasuao
Ayjed Ut jasunod apta
‘oud You pip MB] IO
‘(e161 “ddng) Zz
oT V -$09§ ‘UUy
421g ‘AON HEN
“(TL61T) E88
Po “AN L0G ‘“€6z
‘UNI, $6% ‘a7D79
PY | “4 40U19Y4] 49 Y
*(L961) 888 PZ "M
‘N $Gl ‘ggg “uar,
‘1OUBIUIAPSIMT B IO AUOIaJ
B YM pesieyo 81 yUBpuazep ey)
qoryM Ul esBd PBUIUID Ar90Aa UT
"U01} 8190189
artysdurvyy MON
LLa ‘is40g ‘a ang “Ul 0} pve; Avur yoym asvo Auy BPOSOUUT WY
(,,"}ueutuO
siadunt 0} wey yol
on “qs pynod yor
' JV ULOljtAUOD ‘asual
< “JO JOUVOWAPSIUT B
YIM A[UO paZivyo
St oY YanoYy, usAe
{Vi4y wsasuNOD
jo jusurjutodde 0}
Usa SU JUBpUe
ML) (E261) O86
‘BLE PR “MN 90 ‘ZLET ‘Lz Ajoe
‘212 “ddy “you cp ‘YP JO VD ’S ‘queuuosiudun jo suajues v asod
‘si4aDyT a apdoag —J28PiQ py ~ull Avul j1N0d ay) a10yM aso Auy uBsIyoIW
‘(LOGL) 168 PS “HN
OEE “LLG “SSB ECE
‘yj/Danuomwmo,) ‘OTE HUH WD = ‘pesodun aq Avur yuautuostudut jo
‘a pypouoqovyy ‘pug ‘dug ‘ssvpy + eouejues vB YyatyM J0J oUTIUD AUY S}JoSNYyoVssV
A048} }4 Aj38191025 4018/99Q WIND e815 719 40 ams sejdcy jesunos o4 yyBiy 285
P41 4OIUM OL B28U2NO
"yueul
-uostudun Aq ajqeystund asuayo
‘(cig ‘ddng) ue YA pesieyo pues yuesiput
(2961) GIG WV P1q St oY Jt Janos ayy Aq payurodde
SASRD AUOJAJ 0 pazUty “(E161 ‘UNL OPO ‘BT 40 vdI0Y4d SITY JO jasUNOD jo aoUV
jesunood jo jusuTUIOd “wy) gy) PS “OS (PLGI) EIST -8t88B 07) Pa;ytuea st Uossed Araae
‘du ‘ssbwissabsp-arg 617 ‘ipoo) ‘a aig ‘yy “ysU0N ‘wy = ‘sZurpssvosd ayy Jo oFu}s yous py BUBISINGT]
‘EIS Ly
“ysuey ‘pul ‘suOtpnossord jRUTUTIO [LY Busipuy
'TTORS TIS ‘uosuid so pret ur yueueuy
‘AMY UBMBTT -uoo Aq ajqeysiund asuayo Auy UBMBLT
‘L(GL61) LOB “L6G °2y
NDT DNOT JG “Sesuayo dyes) yng
{[¥ 40} peyuroddy st jasunoo eat)
N ouid Uy} SLepsO OF F.ANOD GY} 40 I
“ syseonbar yUNpUejep ayy Jt vultse
“(PLOL) T0985 6B OU OYA pesivyo Jo 4ysetiv sep
‘ULY 9PeD ‘Jed = -uN st OYM Lossed yueFIPUL Youd d1UM BAG
‘jasunoa
ally OF AViIqu jviounuy
aA HART JOU Sseop OuM
pur juowmuosiuduy Aq
oquysiind wuts ue jo
HOISSHMMUO” OY) ILM pe
“SAVY ATPRULOZ St OUM
Hoxsal Bost JURpUET
o) jleaiput uu seuy
"P (L6e-1e) “spar
pitas [udepey paydope “(GL61) 962-165
HM sdissabay-add ‘PBYS “Usp “UUO,) ‘UOI}IB [BUTUTIID AUB Uy] pNITDIGUUO,)
As04S1H4 2A1Ve}8)625 Yo18192Q NOD aeI1g 21" 4O FINKE Se11ddy jesuncg of y4ybiy Hes
241 YUM OL B28U2N0
“(LLGL) 96L ‘TEL PZ
“MN 6bC “LEG PZ
‘SIM GL ‘Si4aDy] anu
‘UoIFRIadIROUL JO UONdO
JO JUIUAIINbed ay} Sepnyout yoy
40y Ajjeued ay) ‘eu B YyyLK
“Ui *J94 Ta ayDIg pes1BYO SI JUBPUBJep B TaAQUIY MA UISUOIDST MA
‘ASIMI9Y}O 10
(S161) SIOUBIWAPSIU ‘SatUOlay SB UOTYBU
66F PZ ‘d SES “POL “WOUp JIey} JO sse]psBse1 Ajle
PZ “YSRM CR ‘uo; “(LC® LTS -qy, JO Ssoy Aq afqeystund sasuey
“40H a janguyjoy MAO LC YSBM JO 10} SAutpevsooid peur jy UOPZUIYSB M
‘(L161 ‘ddy
‘Why «*X8L) 1GL ‘($961) ‘quoumuostidut Aq
‘OSL PZ “M'S GSS $096 ‘MV PO1g alqeystund souRewepsiM 40 AUO
iD ‘DIS “A owmaasy ‘UNID epon *xey, -[aJ B YM paZivyo pesnooe uy SUxa]
< ‘J9SUNOD OF Pal}IUe SI ‘deAe
‘Z00T OFS «—-OS}VYM JOUReUepstUr JO AUTO
‘Uuuy apo ‘uuey, AUB jo pasnooe uossed AldAq vaSSouUd J,
‘@SUAJIP S,JUVPUsJeap JUITIpul
10} [eSUNOD “YselTB ZULMOTO} BW
‘(GL61) AuB yw usisse |jeys aXpnl ‘j1n00
Ta-ec§ “uuy = Ayunos yourjsip so pedioiunu ‘1nd
saey dwo0gj qg -419 ay} ul UOTjOR jeuIUTO AUR Uy ByOyBG] YWNOG
(L161) GZS ‘Zz
De “d gue “116 “ddy
‘A4() GG “J4NOD 4914] “UOTIOUBS a/q
“Su hyunog you ‘IIS L34y -tssod @ st yueutuostudun a10y™
“OuJNpy “a umosg “jsuo;) UoZe1Q) ~SUOTNOaSO’d §=eUuIUID §=e UT u0sv1Q
Assi 2A138/9)095 4018}29Q WNCD ag 7INY -O eINjeIg seddy josunod o1 148iy 6
241 YUM OL S98U2NO
‘(GL6L TIO)
FES PE dd G6b'7IPIS
‘a yaomayg *(SCuI ‘($161 “‘ddng)
TIO) SEF PZ “d 882 ILE 9b GSS
‘DIS “a saqunyy ‘UuUYy IBIS TIO ‘S98VI [BUILD [[B UT BUOY BLAO
‘(HL61) OG 1H6Z§
: PPO) “APY OTUD)
‘AJUO SAIMOJey 10] (E161) (a) “‘quew
jesunosd Jo jueujUIOd 0} (¥) bP 204g) -uostadun et Ayjeued ayqissod ayy
“(lu ‘sebuissabsp-oig ‘UID “YOr¥Q «aleyM jasunOD jo jueutUIoddy oro
*(queur
uostuduit = ayqussod
0} joolqns pue uot)
BLOLA OYBs, YPM
pesseyo Si JuBpUss
“op a0 JUeT pul
jt jesunos pezurod
i de pur jeasunoo
< oO} YALL JO astape) *(uotjonayut oy
(P1461) 818 PZ 'S “JB4y OF popruaty
"AN €9€ ‘ITG ‘OIG OFIVYD JOY M
Po “OSI OR ‘yIo}s Ajddu jou saop) ‘sounaUI
“way “& ardoag (*)EOTOLIS Id) ~epsia vB Suisavyo uoNse Asr9Ay 410K MON
“ulTY
ysutudsu sZutpovssosd oy) Jo seAuys
[@ ye sapuojep oyqud yorsysip
ey) Aq pojyuosesdas oq 0) Yuta
sty jo Uy UOjyUT [peYys eapnal
oY) ‘jesuNnos PNOYPIM Banos AY Ut
saveddu yuoutuosidun jo aude;
“Uses o[qissod 8 SaLLIWO 7RY) BUILD
Auw yyiM pesivyo uossed Auv jy
‘(gz61 “ddug)
(2) av
ca lbh “uuy
VWs XOW ON OOlLXOP MAN
As0,81H4 OAL ELE/605 4018}22g WNoD e819 se\ddy jesunog of 48iy
241 YIMM OL 828U2N0
21"M 40 eIMeIg "8
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.