Petitioners Reply Brief — Scott v. Illinois

FOR ARGUMENL

z

<=

&

s

ame ss.

In THE

Supreme Court of the United 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

REPLY BRIEF FOR THE PETITIONER

JOHN 8. ELSON

Northwestern University Legal Clinic

360 East Superior Street

Chicago, Illinois 60611

(312) 649-8576

Attorney for Petitioner

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

RESPONDENT’S MISSTATEMENTS OF FACT ....

ARGUMENT:

I

Respondent’s Argument That Counsel Is Unnee-

essary For Fairness In Misdemeanor Trials That

Do Not Result In Imprisonment Is Contrary To

Fact And Precedent And Is Irrelevant In Light

Of The Court’s Incorporation Of The Sixth

Amendment Right To Counsel In The Fourteenth

SE -wiihintenciechietedatintniniebesenenitennisteiinaaeinitiniannseiiitsinin

IT

Petitioner Raised The Questions Of The Denial

of His Right To Due Process, Equal Protection

And A Fair Trial Both In The Illinois Courts

Below And In His Petition For Certiorari. These

Questions Are Therefore Not Waived ......................

IIT.

Respondent’s Argument That Misdemeanor De-

fendants Who Are Only Fined Are Protected By

Neither The Sixth Nor The Fourteenth Amend-

ments Contradicts Precedent And Nullifies The

Supremacy Clause. Respondent’s Alternative Ar-

gument That The Cost Of Providing Counsel Out-

weighs Defendant’s Interest In Counsel Is Irrele-

vant As A Matter Of Law And Erroneous As A

I TE EE isitetaitienintaciietiatincstntisttessiicttipinenddsdsannicncsa

A. Counsel Is As Necessary To A Fair Trial

In A Misdemeanor Prosecution Not Result-

ing In Imprisonment As It Is In A Felony

Or Misdemeanor Prosecution Resulting In Im-

prisonment. Furthermore, A Misdemeanor

PAGE

]

il

Defendant Who Is Not Imprisoned Has Suf-

ficient Interest At Stake To Require The

Requisites Of A Fair Trial ~.......0000.00000002..... . 14

B. Respondent’s Cost Argument Is Purely Spec-

ulative, Contrary To Probability And Erro-

neous In Sacrificing The Requisites Of Fair-

ness To The Claims Of Eeonomy ...................... 16

iV.

Petitioner’s Equal Protection Claim Remains

Uncontradicted By Respondent’s Argument .......... 22

IIE. sissctasistesesicnctesnddandonsiiniibinnsatebenneniiectebinineiliibienie 23

TABLE OF AUTHORITIES

Cases

Argersinger v. Hamlin, 407 U.S. 25 (1972) ~..0-200...

Susicainpbiammasapisdiliaapeteaieainimemenesiiataiaatiniittl 4, 5, 6, 7, 8, 14, 16, 20

Baldwin v. New York, 399 U.S. 66 (1970) —....2.. 7

Ballew v. Georgia, 435 U.S. 223 (1978) —...2222 2,8

Bounds v. Smith, 430 U.S. 817 (1977) -..02.- 2 13

Brady v. Maryland, 373 U.S. 83 (1963) 0.22... 2, 21

Brooks v. State, 336 So. 2d 646 (Fla. App. 1976) -.......... 3

Department of Conservation v. First National Bank,

36 Ill. App. 3d 495, 344 N.E.2d 11 (1976) —....002... 10

Douglas v. California, 372 U.S. 353 (1963) 2.0020... 22

Duncan v. Louisiana, 391 U.S. 145 (1968) _.0 7

Fuller v. Oregon, 417 U.S. 40 (1974) 20. 6

Gagnon v. Searpelli, 411 U.S. 788 (1973) —.......2......... 4

Gideon v. Wainwright, 372 U.S. 335 (1963) -........... 5, 7, 8, 14

Goldberg v. Kelly, 397 U.S. 254 (1970) 0002... 20

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ............ 11

Herring v. New York, 422 U.S. 853 (1975) —

eR

iii

YS 8 ED. , ee ee 14

Lakeside v. Oregon, 435 U.S. 333 (1978) ...0..0.-------0----- 5

Lefkowitz v. Cunningham, 431 U.S. 801 (1977), 45

U.S.L.W. 3299 (U.S. Oct. 19, 1976) eee eee 11

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) _.......... 21

Mayer v. City of Chicago, 404 U.S. 189 (1971) 16, 22

McInturf v. Horton, 85 Wash. 2d 704, 538 P.2d 499

IIE :sevelcsldnsbaeteniiphcidenaietadiatanreiitasteaabdteaicitiatatinanednahcnsiateah seat 19

McKeiver v. Pennsylvania, 403 U.S. 528 (1973) _.... 6

Middendorf v. Henry, 425 U.S. 25 (1976) 0004

Patterson v. Warden, 372 U.S. 776 (1963) 0. 8

People v. Chilikas, 128 Ill. App. 2d 414, 262 N.F.2d 732

DRIED. uciossndepillibbisidetsimiadanssacbicediie Sibdiasiiiadiadiaaliiinacitlae ndiinade 3

People v. Eickelman, 32 Ill. App. 3d 665, 336 N.E.2d 61

SAREE VE Reon Treo rca ay re OE RN RN 3

People v. Scott, 36 Ill. App. 3d 304, 343 N.E.2d 517

SII scaaneinammemannaldniaenbeaiiideigasca ai iataceidiili nia ak a 9

Pointer v. Texas, 380 U.S. 400 (1965) 000.002. 6

State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N.W.

Be ne II eaisdaciicleriaiataticcc cianaiteepbbdctadeihisteeaimabinediambadians 19

Taylor v. Hayes, 418 U.S. 488 (1974) 000s 21

United States v. Grayson, ...... USS. ......, 98 S.Ct. 2610

SESE N AE PEON SEILER der ON NEO ade ET EAE 19

Articles and Other Authorities

J. Junker, The Right to Counsel in Misdemeanor Cases,

Cy Ces its Bs GP IID occcttetiecrccesensstrensepvcnmisinseeinsesentien 6

S. Krantz, et al., Right to Counsel in Criminal Cases:

The Mandate of Argersinger v. Hamlin (1976) -......... 18

The National Conference of Commissioners on Uniform

State Laws, Uniform Rules of Criminal Procedure

CES CS GU eeetennitttctiennterinvistinttinncininicn 19

Is Tue

Supreme Court of the United 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

REPLY BRIEF FOR THE PETITIONER

RESPONDENT’S MISSTATEMENTS OF FACT

Respondent makes two misstatements of fact. First, on

page six of its brief, Respondent states that Potitioner

testified he would not pay for the briefcase after he was

accused of theft. The Report of the Trial Proceedings,

however, contains no such statement. Second, on page

three of its brief Respondent omits from its statement of

the Sixth Amendment to the United States Constitution

the right “to have the Assistance of Counsel for his

defense.”

online

ARGUMENT

I

RESPONDENT’S ARGUMENT THAT COUNSEL IS

UNNECESSARY FOR FAIRNESS IN MISDEMEANOR

TRIALS THAT DO NOT RESULT IN IMPRISONMENT

IS CONTRARY TO FACT AND PRECEDENT AND IS

IRRELEVANT IN LIGHT OF THE COURT'S INCOR-

PORATION OF THE SIXTH AMENDMENT RIGHT TO

COUNSEL IN THE FOURTEENTH AMENDMENT.

Respondent’s brief has crystallized an issue that is at

the heart of this case: whether defense counsel is essen-

tial to a fair misdemeanor trial. Counsel is not essential,

according to Respondent, because a misdemeanor trial is

a relaxed non-adversarial fact-finding process in which

inexperienced, passive prosecutors hurriedly present sim-

ple factual cases without concern for rules of evidence or

procedural formalities. (Resp. Br. 22-24). Respondent,

however, mistakes desultory fact-finding for fair fact-

finding.

This mistake is critical for two reasons. First, ac-

curate fact-finding is no less a goal of a misdemeanor

than a felony trial. The purpose and functions of counsel

like “the purpose and functions of the jury do not vary

significantly with the importance of the crime.” Ballew

v. Georgia, 435 U.S. 223, 240 (1978). The defendant thus

has no less need for either counsel or a representative

jury in a misdemeanor case “than when the State has

chosen to label an offense a felony.” Jd. at 241. (footnote

omitted). Similarly, the state’s interest is avoiding un-

fairness in its trials is the same regardless of whether

the prosecution is for a misderneanor or a felony; “our

system of the administration of justice suffers when any

accused is treated unfairly.” Brady v. Maryland, 373

U.S. 83, 87 (1963).

= i

=x

Second, when the formality of the trial process does

break down the prosecutor has the ability, as well as the

duty within ethical limits, to assure that any such relax-

ation in the adversary relationship serves the goal of

conviction rather than acquittal. The prosecutor in the

trial below recognized this duty when he refused the

judge’s request to clarify the facts by asking the defen-

dant more questions. (App.9). In making the judgment

that the State had already made its case (App.9), so that

further detail was not warranted, the prosecutor was

motivated by a duty to try to convict, not a duty to try to

clarify the facts.

Respondent’s notion that in a misdemeanor trial that

does not result in imprisonment the court and

prosecutor should have free rein to ignore the

procedural formalities of the criminal trial process is

belied not only by the functional need for those for-

malities to safeguard the integrity of the fact-finding

process, but also by Illinois law and opinions of the

Court. Illinois law' leaves no doubt that misdemeanor

' No Illinois authority supports the proposition that the

procedural requisites for the conduct of a misdemeanor trial

that does not result in imprisonment are any less rigorous

than they are for a felony trial or for a misdemeanor trial that

results in imprisonment. Rather, Illinois courts have held, on

the basis of trial records similar to that in the instant case,

that the inability of misdemeanor defendants to represent

themselves adequately requires reversal of their convictions

because of their trials’ unfairness. People v. Eickelman, 32 Il.

App. 3d 665, 668, 336 N.E.2d 61, 63-64 (1975); People v.

Chilikas, 128 Ill. App. 2d 414, 417-419, 262 N.E.2d 732, 735

(1970). What the Florida Court of A ls recently said about

defending misdemeanor trials in its State is equally true in II-

linois: “There are no ‘simple’ criminal defense representations,

and those that seem so are merely not understeod.” Brooks v.

State, 336 So. 2d 647, 651 (Fla. App. 1976). Even neent

recognizes this fact in observing that in rural areas “the scar-

city of qualified attorneys p 9 great difficulties in pro

curing effective representation for indigents” and that the

number of yualified attorneys has apparently not increased.

(Resp. Br. 35-36). If significant numbers of attorneys are not

qualified to provide defense representation in misdemeanor

trials, then what quality representation is to be expected of

pro se defendants?

_

trials are bound by all of the “invariable attributes” of

the criminal trial process, Gagnon v. Scarpelli, 411

U.S. 778, 789 (1973), the adversary nature of which

necessitates the Sixth Amendment right to counsel.

Middendorf v. Henry, 425 U.S. 25, 40 (1976). Moreover,

the assembly-line processing of the misdemeanor defen-

dant, which Respondent now advocates as the mode! of

fairness, is exactly what the Court condemned in Arger-

singer v. Hamlin, 407 U.S. 25, 32-36 (1972), as being

both inherently unfair and highly prejudicial to the un-

represented defendant’s chances for acquittal.2 Respon-

dent, indeed, stands Argersinger on its head by, on the

one hand, ignoring its analysis of the necessity of

defense counsel for a fair misdemeanor trial and, on the

other hand, citing it for limiting the right to counsel to

where loss of liberty is involved (Resp. Br. 14), a holding

the Court expressly refused to make. 407 U.S. at 37.

Respondent’s constricted interpretation of the meaning

of Argersinger is also nonsensical, for a misdemeanor

trial without counsel that must be reversed because it is

fundamentally unfair if the defendant is sentenced to

jail does not suddenly become fundamentally fair if the

defendant is only fined.

Once the immutable adversary character of American

misdemeanor trials is recognized, Respondent’s argu-

ment that counsel is of only marginal benefit to mis-

demeanor defendants cannot be reconciled with the

Court’s consistently repeated conclusion that “[iJn an

adversary system of criminal justice, there is no right

2 The unacceptable consequence of Respondent’s non-

adversarial theory of misdemeanor trials is most clearly

demonstrated in its factually erroneous and legally nihilistic

claim that, even when granted the right to counsel, a defen-

dant’s other Sixth Amendment rights are meaningless “in the

context of the reality of the over-crowded misdemeanor courts

described.” (Resp. Br. 24).

—§—

more essential than the right to the assistance of

counsel.” Lakeside v. Oregon, 435 U.S. 333, 341 (1978).

Respondent’s error, however, is not only the factual one

of discounting the critical role of defense counsel in a

misdemeanor trial. It is also the legal one of defining the

determinative issue in this case as whether or not the

governmental cost of providing counsel outweighs the

relative benefit to defendant of having the assistance of

counsel. The Court precluded exactly such weighing of

the marginal utility of counsel in promoting fairness at

trial when it held in Gideon v. Wainwright, 372 U.S. 335

(1963), that the Sixth Amendment right to counsel was

fundamental to fairness and therefore must be incor-

porated in the Fourteenth Amendment. Cf. Herring v.

New York, 422 U.S. 853, 867-68 (1975) (Rehnquist, J.,

dissenting). As the Court recognized in Argersinger, the

Sixth Amendment rights incorporated in the Fourteenth

Amendment define the scope of their own application:

“The Sixth Amendment, which in enumerated situations

has been made applicable to the States by reason of the

Fourteenth Amendment ... provides specified stan-

dards for ‘all criminal prosecutions.’” 407 U.S. at 27

(citations omitted). Thus, when a trial court finds that a

defendant faces a “criminal prosecution,” it has no dis-

cretion to question whether or not the assistance of

counsel! is essential for a fair trial in that case; after Gi-

deon the Framers’ determination that counsel is essen-

tial “in all criminal prosecutions” is binding upon the

states.

Respondent argues neither that Petitioner’s mis-

demeanor-theft prosecution is anything other than

“criminal” (see Pet. Br. 16-18), nor that the Court should

retreat from Gideon's incorporation of the Sixth Amend-

ment right to counsel in the Fourteenth Amendment. In-

stead, Respondent argues that the Sixth Amendment

—§—-

right to counsel need not be applied literally “in all

criminal prosecutions” because it should be analogized

to the right to jury trial, which the Court has refused to

apply to prosecutions for crimes punishable by less than

six months imprisonment. (Resp. Br. 10-13). The Court,

however, disapproved this very argument in Arger-

singer: “We reject, therefore, the premise that since

prosecutions for crimes punishable by imprisonment for

less than six months may be tried without a jury, they

may also be tried without a lawyer.” 407 U.S. at 30-31.

Respondent, nevertheless, asserts that the right to

counsel and the right to jury trial should be distinguished

from all the other Sixth Amendment rights, which have

thus far been applied without regard to the seriousness of

the offense, because only the rights to counsel and jury are

costly. Although this is a dubious proposition in itself,’

the critical characteristic of the Sixth Amendment rights

that have been incorporated in the Fourteenth Amend-

ment is that all of them, except the right to a jury, are

deemed essential to a fair trial. Compare McKeiver v.

Pennsylvania, 403 U.S. 528, 543 (1973), with cases cited

in Argersinger v. Hamlin, 407 U.S. at 28. See also Fuller

v. Oregon, 417 U.S. 40, 52 (1974) (right to counsel

necessary to recognize and take advantage of the ov.er

procedural and substantive fair trial safeguards). More-

over, unlike all other Sixth Amendment rights, the

> The cost of providing sufficient judges, prosecutors and

]

courtrooms to assure defendants speedy trials is obviously con-

siderable. Although the State could also save substantial time

and expense if it did not have to confront the defendant with

the witnesses against him, such cost-saving has never been a

factor in deciding the application of the Sixth Amendment

— to confrontation. See Pointer v. Texas, 380 U.S. 400

(1965). The commentator whom Respondent cites in support of

a distinction between the hey to counsel and jury and all

other Sixth Amendment rights on the basis of the former's

cost of implementation emphatically rejects the use of such

distinction in order to apply the right to counsel more narrow-

i. than the non-jury Sixth Amendment rights. J. Junker, The

- 4 . ounsel in Misdemeanor Cases, 43 Wash. L. Rev. 685,

708 (1968).

—7—

Court has found historical reasons for limiting the right

to jury trial to a narrower compass than. that specified

by the terms of the Sixth Amendment. Duncan v.

Louisiana, 391 U.S. 145, 160 (1968). Exactly the

opposite is the case with the right to counsel, for “there

is nothing in the language of the Amendment, its

history, or in the decisions of this Court, to indicate that

it was intended to embody a retraction of the right in

petty offenses wherein the common law previously did

require that counsel be provided.” Argersinger v.

Hamlin, 407 U.S. at 30.

Finally, even if Respondent’s jury trial analogy were

to be accepted, reversal of Petitioner’s conviction would

still be required. The Court’s jury trial cases make

clear that the relevant criterion for distinguishing

between serious and petty offenses is the penalty

authorized by law, not the penalty actually imposed.

Duncan v. Louisiana, 391 U.S. 145, 162 n.35 (1968);

Baldwin v. New York, 399 U.S. 66, 68-70 (1970). Since

the authorized penalty for misdemeanor theft in Illinois

was a maximum one year’s imprisonment, IIl. Rev. Stat.

ch. 38, § 16-1 (1969), Petitioner was tried for what the

Court has classified as a serious offense under the stan-

dard adopted in Baldwin, 399 U.S. at 69.

Respondent’s argument that prosecutions for even

such serious offenses do not warrant the right to counsel

fails on three grounds. First, it makes the Sixth

Amendment’s explicit application “in all criminal

prosecutions” totally meaningless. Second, it makes the

application of Gideon’s holding that counsel is an essen-

tial element of fundamental fairness contingent upon

whether or not a particular state has classified an

offense as a felony, rather than upon whether or not the

offense charged is serious enough to warrant the con-

stitutional requisites of a fair trial. The Court has

previously rejected the arbitrary formalism of making

—§—

constitutional rights depend upon a particular state’s

classification of offenses as misdemeanors or felonies.

Ballew v. Georgia, 435 U.S. 223, 240 (1978); ef. Patterson

v. Warden, 372 U.S. 776 (1963). Third, it effectively

nullifies the right to jury trial. Although Respondent

asserts that a layman can adequately try a misdemeanor

case to a jury (Resp. Br. 24-25), Respondent does not ex-

plain how laymen can be expected to perform adequate-

ly the tasks that are critical in trying any criminal case

to a jury, such as, jury voir dire, making an opening

statement, objecting to incompetent evidence, making a

closing argument, proposing jury instructions and argu-

ing the post-trial motions necessary to preserve error for

appeal. Competency in these crucial functions is not

always found in practicing criminal defense attorneys;

to expect if from laymen is unrealistic.

In summary, Respondent has offered no rationale and

no precedent to controvert the logic of Petitioner’s alter-

native Sixth Amendment arguments: first, that the Sixth

Amendment, as incorporated in the Fourteenth Amend-

ment, applies by its own terms “in all criminal

prosecutions” and therefore in all prosecutions for mis-

demeanors in which imprisonment is authorized; and sec-

ond, that regardless of whether the Sixth Amendment’s

terms are to be applied literally, the right to counsel is as

fundamental to fairness in a misdemeanor trial that does

not result in imprisonment as it is in a felony trial or in

a misdemeanor trial that does result in imprisonment.

Moreover, even if there could be some doubt after G-

deon and Argersinger as to whether an indigent mis-

demeanor defendant’s right to anpointed counsel at trial

is fundamental to fairness, there can be no doubt, and

none is suggested by Respondent, that the Sixth Amend-

ment was violated by the trial court’s failure to notify

Petitioner that he had a right te be represented by his

own counsel at his own expense. (See Pet. Br. 20-21).

—~9—

II.

PETITIONER RAISED THE QUESTIONS OF THE

DENIAL OF HIS RIGHT TO DUE PROCESS, EQUAL

PROTECTION AND A FAIR TRIAL BOTH IN THE IL-

LINOIS COURTS BELOW AND IN HIS PETITION FOR

CERTIORARI. THESE QUESTIONS ARE

THEREFORE NOT WAIVED.

Since Petitioner argued repeatedly in his state

appellate court briefs that he was denied due process,

equal protection and a fair trial it is frivolous for

Respondent to contend that Petitioner waived those

claims in this Court. Thus, Petitioner stated in his II-

linois Appellate Court brief; “The Record clearly shows

that Scott did not receive a fair trial.” (p.15). In his II-

linois Supreme Court brief Petitioner states: “Given the

Report of Proceedings in both Scotts’ and Harris“ trials,

there can thus be no question that they did not receive

fair trials and that the unfairness is directly at-

tributable to the absence of defense counsel.” (p.12).

With respect to Petitioner’s due process and equal

protection claims, he stated in his appellate court brief:

“The constitutional mandates of equal protection and

due process require an objective standard for appoint-

ment of counsel.” (p. 18). Petitioner’s due process and

equal protection claims were addressed explicitly by

both Respondent, Brief in the Appellate Court of Illinois,

14-18, and the Illinois Appellate Court. Appendix to

Petition for Certiorari, 14a-15a, 36 Ill. App.3d 304, 310,

343 N.E.2d 517, 522, Petitioner also presented these

issues to the Illinois Supreme Court. In his Petition For

* The appeal in People v. Harris was consolidated with the

instant case in the Illinois Supreme Court. Harris was tried

for five misdemeanor traffic violations without being notified

of her right to counsel or jury trial. She was fined for three

violations and sentenced to three days in County Jail for one

violation, for which she served one day in jail. The State con-

fessed error because of the failure to advise Harris of the

right to jury trial.

—10—

Appeal As A Matter Of Right Or In the Alternative For

Leave To Appeal, Petitioner argued that “inequities and

further due process violations” would follow from the

determination of the right to counsel on the basis of a

pre-trial prediction of sentence. (p. 17). In his Illinois

Supreme Court brief on the merits, Petitioner argued

that, “inequalities, inefficiencies and arbitrary judicial

decision-making,” would result from such a predictive

determination of the right to counsel. (p. 16). Moreover,

Respondent has previously recognized that Petitioner

has raised a Fourteenth Amendment argument that is

distinct from his Sixth Amendment argument since

Respondent argued in both his brief to the Illinois

Supreme Court (p. 26) and in his Brief in Opposition to

the Petition for Certiorari filed in this Court (p. 12) that

the predictive sentencing determination procedure by

which misdemeanor defendants can be denied the right

to counsel is not a violation of the Fourteenth Amend-

ment.

Pursuant to Illinois Supreme Court Rules 341(e)7),

612(j), Ill. Rev. Stat. ch. 110A, § 341(eX7), 612(j) (1977),

Illinois courts will find issues raised for consideration on

appeal even if they are “buried within the confines of

... [the] argument.” Department of Conservation v.

First National Bank, 36 Ill. App. 3d 495, 505, 344

N.E.2d 11, 19 (1976). Since, as Respondent recognizes,

Illinois law governs the question of whether issues have

been properly preserved for consideration by the State’s

appellate courts, there can be no doubt that Petitioner’s

explicit discussion of the denial of due process, equal

protection and a fair trial in the Illinois courts below

preserves those questions for consideration by this

Court.

Respondent bases its argument that the Petition for

Certiorari did not raise a Fourteenth Amendment claim

independent of a Sixth Amendment claim (Resp. Br. 42),

entirely upon its change in the substance of the question

presented in the Petition. Contrary to Respondent’s

brief, the question presented was not whether “the Sixth

Amendment as applied to the States by the Fourteenth”

guarantees the right to counsel. (Resp. Br. 2) Rather,

the Court accepted certiorari on the question of

“whether the Sixth and Fourteenth Amendments”

guarantee the right to counsel. (Petition for Certiorari,

2) (emphasis added). Since the Court under Supreme

Court Rule 23(1Xc) will consider questions fairly com-

prised within the questions set forth in the Petition, it

was unnecessary for Petitioner to set forth the actual

contents of either the Sixth or the Fourteenth

Amendments as questions presented for review. By

specifying the numerical designation of the Amend-

ments relied upon, rather than quoting their con-

tents, Petitioner also avoided the “unnecessary detail”

proscribed in Supreme Court Rule 23(1)(c). Moreover,

such designation is more definite than the general

reference to unconstitutionality that the Court has

previously found acceptable. See Hampton v. Mow Sun

Wong, 426 U.S. 88, 98-99 (1976); Lefkowitz v. Cun-

ningham, 431 U.S. 801 (1977) (cert. question at 45

U.S.L.W. 3299) (U.S. Oct. 19, 1976).

= Se

Ill.

RESPONDENT'S ARGUMENT THAT MISDE-

MEANOR DEFENDANTS WHO ARE ONLY FINED

ARE PROTECTED BY NEITHER THE SIXTH NOR

THE FOURTEENTH AMENDMENT CONTRADICTS

PRECEDENT AND NULLIFIES THE SUPREMACY

CLAUSE. RESPONDENT’S ALTERNATIVE ARGU-

MENT THAT THE COST OF PROVIDING COUNSEL

OUTWEIGHS DEFENDANT'S INTEREST IN COUN-

SEL IS IRRELEVANT AS A MATTER OF LAW AND

ERRONEOUS AS A MATTER OF FACT.

Since Respondent recognizes, as it must, that misde-

meanor trials are criminal proceedings (Resp. Br. 43),

Respondent’s declaration that “[t]he Sixth Amendment

enumerates a specific right to counsel which applies in

criminal proceedings” (Resp. Br. 42) contradicts the

argument in Part I of Respondent’s brief that the Sixth

Amendment right to counsel does not apply to misde-

meanor trials not resulting in imprisonment. If Respon-

dent did not intend to concede the Sixth Amendment

issue in this fashion, the only alternative rationale for its

argument that neither the Sixth nor the Fourteenth

Amendment applies to Petitioner’s case is that a

misdemeanor trial not resulting in imprisonment is

neither a true criminal proceeding to which the Sixth

Amendment applies nor a true civil proceeding to which

procedural due process applies. It would instead be

depicted as some form of pseudo-criminal proceeding

that is beneath the commands of the Constitution.

Acceptance of this theory, however, would be both

unprecedented and an evasion of the Supremacy Clause

through a definitional abstraction that would hide the

substance and the method of Petitioner’s deprivation.

Regardless of how Illinois chooses to characterize its

misdemeanor prosecutions, they are not immune from

constitutional scrutiny. If Petitioner’s fine-only mis-

demeanor theft prosecution is a criminal prosecution,

—13—

the Sixth Amendment right to counsel applies. If it is

not, it still resulted in a governmental deprivation of

substantial interests in liberty and property (Pet. Br. 23,

42-46); therefore, the due process requirement of fund-

amentally fair fact-finding procedures applies.

Under both Sixth Amendment and procedural due

process theories of the case, Respondent would have the

Court apply a balancing test in order to establish that

the governmental cost of providing counsel outweighs

the defendant’s interest in counsel. Cost is, of course, a

necessary consideration for the state in choosing the

method used to provide indigent defendants with

competent counsel. Cost, however, is not a consideration

in determining the state’s obligation to provide counsel

in order to assure defendants a fair trial. This

distinction in the proper role of governmental cost

considerations under the Sixth Amendment was recently

emphasized in Bounds v. Smith, 430 U.S. 817 (1977),

where the Court pointed out that the fact that the state

must shoulder affirmative obligations to provide pris-

oners with meaningful access to the courts, includ-

ing paying lawyers for indigent defendants at trial, “is

not to say that economic factors may not be considered,

for example, in choosing the methods used to provide

meaningful access.” Jd. at 825. “But,” the Court

cautioned, “the cost of protecting a constitutional right

cannot justify its total denial.” Jd. Therefore, the Court

concluded, the inquiry is neither whether alternatives,

such as jailhouse lawyers, are available nor whether

affirmative state action is required; “the inquiry is

rather whether law libraries or other forms of legal

assistance are needed to give prisoners a reasonably

adequate opportunity to present claimed violations of

fundamental constitutional rights to the courts.” Jd.

Similarly, the inquiry in the instant case is not whether

aside

some defendants can be acquitted without counsel nor

whether the state must pay for counsel: it is, as in

Gideon and Argersinger, whether counsel is an essential

element of a fair criminal trial.

Respondent’s balancing test is no more justified under

a procedural due process theory of the case. Respondent

cites no authority for the proposition that in determining

the due process safeguards essential for fair judicial

decision-making at trial the Court will balance the need

for fair procedures against the governmental cost of

providing such procedures. Jn re Gault, 387 U.S. 1

(1967), stands uncontradicted for the proposition stated

in Petitioner’s brief at 23-24, that in deciding a

defendant’s due process right to counsel in the context of

a criminal-type trie! proceeding, the Court will find

determinative how necessary counsel is for fairness, not

how costly counsel is for the state. Should a balancing

test be applied, however, Respondent misconstrues the

relevant interests on both sides of the balance.

A. Counsel Is As Necessary To A Fair Trial In A

Misdemeanor Prosecutior Not Resulting In Imprisonment

As It Is In A Felony or Misdemeanor Prosecution

Resulting In Imprisonment. Furthermore, A Misdemean-

or Defendant Who Is Not Imprisoned Has Sufficient

parent At Stake To Require The Requisites Of A Fair

rial.

As noted above, pp. 2-6, Respondent’s contention that

counsel is not essential to a fair misdemeanor trial that

does not result in imprisonment is contradicted both by

Court decisions on the significance of defense counsel for

a fair trial and by Illinois law, according to which the

trial of a such misdemeanor is no less formal and no less

complex than the trial of a felony or a misdemeanor that

does result in imprisonment. Moreover, Respondent’s

claim that in practice many judges and prosecutors tend

—15—

to “relax” the procedural formalities in misdemeanor

prosecutions that do not result in imprisonment (Resp.

Br. 22-23, 43) only emphasizes the defendant’s need for

counsel to assure that his procedural rights are not

“relaxed” out of existence.

Respondent’s argument that the deprivation resulting

from a fine-only misdemeanor conviction is not suffi-

ciently significant to warrant the safeguard of counsel

is illogical. Respondent recognizes that the consequence

of such convictions, including disqualification for certain

employment, enhancement of subsequent charges and

sentences and use for subsequent impeachment, may be

significant.5 (Resp. Br. 17-18). Yet, because these

consequences have different actual effects in different

cases, Respondent argues that they provide an unwork-

able standard for determining the right to counsel and

so should be disregarded. (Resp. Br. 18). Petitioner, how-

ever, rather than advocating such an “actual conse-

quence” standard for determining the right to counsel,

has advocated the exact contrary—that the prospect of

such consequences in all! prosecutions for misdemeanors

punishable by imprisonment are sufficiently significant

to require those safeguards essential to a fair trial.

Providing the right to counsel in all prosecutions for

crimes punishable by imprisonment creates a more

5 Respondent does not address the problem of the aggravated

stigma of conviction when a misdemeanor defendant is given

a prison sentence that the Court considers “served.” (Pet. Br.

43 n.24). However, Respondent’s citation of authority that

time served is “the usual sentence for shoplifters in Chicago

Municipal Court,” (Resp. Br. 39 n.34) indicates the per-

vasiveness of this anomaly in the way courts apply the

imprisonment-non-imprisonment criterion for the right to

counsel. Because such time-served sentences are ame |

related to an indigent defendant’s inability to afford bona,

<sone De right to counsel solely because the sentence was

served before rather than after trial has serious equal protec-

tion implications.

—1¢—

rational and consistently appropriate boundary than the

criterion of actual imprisonment advocated by Respon-

dent; for, as the Court found in Mayer v. City of Chicago,

404 U.S. 189, 197 (1971), in certain cases imprisonment

may have less serious effects than the collateral

consequences of a fine-only conviction. Imprisonment is,

of course, a most severe sanction that may not be

imposed without the safeguards essential to a fair trial;

but, Respondent’s argument that the stigma to a

convicted defendant’s good name, the prejudice to his

career opportunities and the limitations on his freedom

incident to probation and suspended sentence are too

insignificant to justify the same fair trial safeguards is

callous and contrary to the Court’s past recognition of

the gravity oi such nonimprisonment consequences of

criminal and quasi-criminal convictions. (See Pet. Br.

42-46).

B. Respondent's Cost Argument Is Purely Speculative,

Contrary To Probability and Erroneous in Sacrificing

The Requisites Of Fairness To ‘The Claims of Economy.

In both its Fourteenth and Sixth Amendment

arguments Respondent relies principally on the conten-

tion that extending the right to counsel to Petitioner’s

circumstances would be too costly for the States to bear.

(Resp. Br. 25-37). Respondent, however, neither ad-

vances reliable statistical support for its cost argument

nor rebuts the argument of Petitioner and Amicus that

the cost of such an extension need not be significantly

greater than the cost of complying with Argersinger.

Most important, there is no evidence to show that the

sixteen to twenty-one states that have already extended

the right to counsel to cases where imprisonment is an

authorized penalty have as a result suffered any signifi-

cant adverse economic impact. Respondent’s assertion

= =

that such an extensicn would impose economic and

social costs “simply too great to permit” (Resp. Br. 35,

and 25-37 generally) therefore fails the test of ex-

perience.®

Respondent’s attempt to quantify the cost of such an

extension also fails the test of reliability because several

critical variables are missing from its extrapolations

from selected Illinois courts’ and public defenders’

caseload statistics. Thus, in speculating about the effect

of an authorized imprisonment standard in Cook County,

Illinois, Respondent compares the public defender’s

current municipal court caseload with the municipal

court’s total caseload without indicating what percen-

tage of that total caseload concerns matters that would

not be affected by adoption of an authorized imprison-

ment standard, including felony preliminary hearings,

probation violations and offenses ha.ing no authorized

imprisonment, such as ordinance violations and petty

offenses. (Resp. Br. 30-31). In estimating the effect of an

authorized imprisonment standard in Brown County, II-

linois (Resp. Br. 27-28), Respondent omits the crucial

statistic of how many of the forty-six accused mis-

demeanants in 1976 were in fact represented by counsel.

Respondent’s assertion that 420 new non-felony cases

would have required appointment of counsel in Brown

County is based upon its inclusion of 853 traffic and

® Not only does Respondent fail to support its contention that

increasing defense representation will congest the courts

(Resp. Br. 34), but it contradicts such contention by asserting

that, according to one study of misdemeanor courts, “even

with appoin counsel present, the trials which were con-

ducted were characterized by lack of formal motions, non-

existent cross-examination and quick disposition of cases.”

(Resp. Br. 23) (footnote omitted). The fact that a meray of

such cases are immediately plea bargained (Resp. Br. 23, n.

16) demonstrates that when the defendant as well as the state

oy 70 an expeditious disposition acceptable to both sides

is likely.

—19—

thirty-four conservation violations, categories of cases

that are not necessarily before the Court in this case.

(See Pet. Br. 16). When such cases are excluded from

Respondent’s calculations, only twenty-two new non-

felony cases would have required appointment of counsel

in 1976 under an authorized imprisonment standard.

Respondent’s assertion that in Birmingham, Alabama

a tenfold increase in expenditures would be required un-

der an authorized imprisonment standard is similarly

misleading. (Resp. Br. 29). Respondent derives this

figure from S. Krantz et al., Right to Counsel in

Criminal Cases: The Mandate of Argersinger v. Hamlin

(1976) at 361. However, the authors of this study admit

that “accurate existing or potential non-felony case

statistics are simply not available at either the national

or local level.” Krantz. at 11. Moreover, the authors

make clear that this tenfold estimated increase is “ex-

traordinary only in light of the present low expen-

diture.” Jd. at 361. Krantz et al. estimate that the pre-

sent cost of misdemeanor defense representation in Bir-

mingham is twenty dollars per case, while their pro-

jected cost under an authorized imprisonment standard

would be fifty dollars per case. Assuming, however, no

change in per case defense cost, the increase from adop-

ting an authorized imprisonment standard, which would

include traffic offenses, would be only fourfold. Even

this cost estimate may be too high. According to

Respondent’s own statistics from the Circuit Court of

Cook County, Illinois, in which the defense cost per mis-

demeanor case is approximately twenty-four dollars, the

increase from adopting an authorized imprisonment

standard would be twofold. (Resp. Br. 31). Moreover,

even this cost estimate may be far too high because it ig-

nores the fact that many misdemeanor defendants waive

counsel (Amicus Br. 10) and because it relies on a forty-

ie

seven percent indigency rate for misdemeanants that

may be more than four times higher than is warranted.’

The absence of reliable statistics is a critical deficiency

in Respondent’s cost argument because the most logical

a priori judgment on the cost question would be that the

increase in the need for appointed counsel from applying

an authorized imprisonment standard would not be

great. Presumably, trial courts have generally

attempted to respect their legislatures’ judgments that

imprisonment is an appropriate potential penalty for

violation of the criminal laws that authorize such penal-

ty. Indeed, the Supreme Courts of Washington’ and Wis-

consin® have found it an improper infringement upon

legislative authority for trial courts to eliminate im-

prisonment as an alternative sentence before trial under

any circumstances. Therefore, assuming proper judicial

deference to legislative intent, it follows that courts have

generally kept the imprisonment option open in the

absence of unusual circumstances that make it clear

before trial that imprisonment could not be an ap-

propriate sentence. Moreover, as the Court has recently

emphasized in United States v. Grayson, ..... US. ....., 98

S.Ct. 2610, 2617 (1978), since rational sentencing cannot

be accomplished without the information about the

defendant that can be gained only during the trial, most

trial courts can be expected to appoint counsel before

trial in order to avoid predetermining the sentence on

’ The National Conference of Commissioners on Uniform

State Laws found that “Because of the much lower cost of

counsel for nonfelony cases, it appears that less than 10% of

nonfelony defendants meet indigency standards, as op to

60-65% of felony defendants.” Uniform Rules of Criminal

Procedure (Approved Draft 1974) 54.

® McInturf v. Horton, 85 Wash. 2d 704, 706, 538 P.2d 499,

500 (1975) (quoted at Pet. Br. 32).

9 State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 556, 249

N.W.2d 791, 795-6 (1977) (quoted at Pet. Br. 33).

—20—

the basis of arbitrary guess-work.'® Thus, in the absence

of contrary statistical evidence, it may be presumed that

trial courts appoint counsel in the great majority of

prosecution for misdemeanors punishable by imprison-

ment because there is no other way to accommodate the

hoiding of Argersinger with both their legislatures’ in-

tent in authorizing imprisonment and their own desire

to perform their sentencing functions rationally.

Even if it were presumed that trial courts were not

now granting the right to counsel in the majority of

prosecutions for offenses punishable by imprisonment,

states can take effective steps to minimize the costs of

requiring the right to counsel in such cases. In this

regard, Respondent does not dispute the arguments of

Petitioner and Amicus that additional costs can be

drastically curtailed and possibly eliminated by replac-

ing or supplementing appointed private counsel with

public defenders (Amicus Br. 11-13) and by

“decriminalization” (elimination of imprisonment as a

possible penalty) of the innumerable minor violations for

which the deterrent effect of a prison penalty is un-

necessary. (Pet. Br. 39; Amicus Br. 4-7).

Respondent argues, however, that the Court cannot

properly consider such cost-cutting measures since their

implementation is within the sole province of the

legislature. (Resp. Br. 33). The fallacy in this argument

is that the due process balancing test requires the Court,

rather than the legislature, to weigh the interests on

both sides of the balance. E.g. Goldberg v. Kelly, 397

U S. 254, 265-266 (1970). By foreclosing the Court from

‘0 Respondent’s argument that prosecutors in m. demeanor

courts can hel judges “to evaluate cases on a rational basis

prior to trial,” (Resp. Br. 38) is belied by Respondent’s own

characterization of such prosecutors as utterly unprepared

before trial. (Resp. Br. 22-23).

affiiun

considering the effect of measures that would enable the

state to reduce the cost of fair fact-finding procedures,

Respondent would have due process depend upon

whatever the state finds most convenient, rather than

upon what the Court deems an appropriate balance

between the interests of the state in avoiding undue cost

and of the individual in being tried fairly.

Moreover, it is noteworthy that Respondent argues

that if the state encounters problems in law enforcement

because of Argersinger’s requirement of the right to

counsel, “appropriate adjustment suitable to the needs of

each particular locality can be made at the local level.”

(Resp. Br. 20). Similarly, if the state should encounter

difficult burdens because the Court now requires

counsel in misdemeanor prosecutions where imprison-

ment is authorized, adjustments, such as decriminaliza-

tion and statewide public defender systems, may also ap-

propriately be made to lighten or even eliminate the

burdens.

In summary, Respondent’s argument that extending

the right to counsel to Petitioner’s category of offense

would be so costly that it outweighs the defendant’s in-

terest in avoiding an unfair conviction rests upon un-

reliable cost estimates and is belied by the inferences as

to appropriate judicial decision-making that may fairly

be drawn from the available evidence. The argument’s

greatest flaw is that it attempts to measure due process

in dollars and cents, a standard upon which the defen-

dant’s interests in being fairly tried cannot be sacrificed.

Taylor v. Hayes, 418 U.S. 488, 500 (1974). Neither can

the state’s interest in this case be quantified in dollars

and cents; for if any cost to the state is to be an element

of a balancing test in this case, the cost that is

paramount is the harm to society when its criminal

trials are unfair. See Brady v. Maryland, 373 U.S. 83,

87 (1963); Pet. Br. 29-31. See also Mayberry v.

—29—

Pennsylvania, 400 U.S. 455, 468 (1971) (Burger C. J.,

concurring) (“A criminal trial is not a private matter;

the public interest is so great that the presence and

participation of counsel, even when opposed by the

accused, is warranted in order to vindicate the process

itself.”).

IV.

PETITIONER’S EQUAL PROTECTION CLAIM

REMAINS UNCONTRADICTED BY RESPONDENT'S

ARGUMENTS.

Respondent has not addressed the merits of

Petitioner’s equal protection claim. (Pet. Br. 47-50).

Moreover, none of Respondent’s Due Process or Sixth

Amendment arguments diminish the force of that claim.

Regardless of how the Court balances the interests in

determining the requisites of due process and regardless

of whether it limits the scope of the Sixth Amendment’s

application in criminal prosecutions, there can be no

doubt that to deny a misdemeanor defendant the right to

appointed counsel at trial results in an equal protection

violation as, if not more, serious than the equal protection

violation found in the denial of the right to appointed

counsel on first appeal in Douglas v. California, 372

U.S. 353 (1963), and in the denial of a free transcript in

the appeal of a fine-only ordinance violation in Mayer v.

City of Chicago, 404 U.S. 189 (1971). (See Pet Br. 48-50).

—2—

CONCLUSION

For the foregoing reasons and the reasons stated in

Petitioner’s initial brief, Petitioner respectfully requests

that the judgment of the Supreme Court of Illinois,

which affirmed the decision of the Appellate Court of II-

linois, First District, which affirmed the conviction of

Petitioner by the Circuit Court of Cook County, Illinois

be reversed.

Respectfully submitted,

JOHN 8S. ELSON

Northwestern University Legal Clinic

360 East Superior Street

Chicago, Illinois 60611

(312) 649-8576

Attorney for Petitioner