# Petitioners Brief — Scott v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0876%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1979 - **Citation:** 440 U.S. 367 ## 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0876%3A4. Public record. Not legal advice.