# Amicus Curiae Brief — Alabama v. Shelton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0448%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2002 - **Citation:** 535 U.S. 654 ## Text MOTION FILED : OcT 26 200% oot 9 4 200 No. 00-1214 ENKI vy j ~~ In The Supreme Court of the United States STATE OF ALABAMA, Petitioner, V. LEREED SHELTON, Respondent. On Writ of Certiorari To The Supreme Court of Alabama MOTION FOR LEAVE TO FILE UNTIMELY BRIEF AND BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF RESPONDENT STEVEN DUKE* DAVID M. PORTER Yale Law School Co-Chair. NACDL Amicus 127 Wall Street Committee New Haven, CT 06511 801 K Street, 10th Floor (203) 432-4959 Sacramento, CA 95814 (916) 498-5700 THOMAS F. LIOTTI 1001 Franklin Avenue, #300 ADRIAAN LANNI Garden City, NY 11530 Harvard University (516) 739-3700 78 Mt. Auburn Street Cambridge, MA 02138 *Counsel of Record (617) 495-2485 BEST AVAILABLE COPY QUESTION PRESENTED Whether the State of Alabama may subject a defendant to a jury trial of a serious misdemeanor carrying a potential jail sentence of up to one year while denying him counsel and then, upon conviction, impose a suspended thirty-day jail sentence, a fine of $500, and two years’ probation. MOTION FOR LEAVE TO FILE LATE BRIEF Pursuant to Rule 21, Rules of the Supreme Court, the National Association of Criminal Defense Lawyers (NACDL) moves this Court for leave to file this brief amicus curiae in support of the respondent in the above- entitled matter. The brief was due on August 20, 2001. The brief was not filed on time because of a miscommunication between the undersigned and the primary author of the brief, Professor Steven Duke (for which the undersigned accepts full responsibility) regarding who was going to forward the brief to Cockle Printing. Mr. Mills, counsel for respondent, has consented to the late filing of the brief. The undersigned contacted Ms. Morman, counsel for petitioner, to obtain her consent, but has not heard back from her. Good cause for filing this brief amicus curiae out of time exists because Professor Duke and Mr. Liotti have written an excellent brief, and the interests of justice would not be served if the undersigned's oversight prevented the Court from having the benefit of their trenchant analysis. Professor Duke wrote the seminal law review article in this area, The Right to Appointed Counsel: Argersinger and Beyond, 12 Am. Crim. L. Rev. 601 (1975), which was cited twice by the dissent in Scott vy. Illinois, 440 U.S. 367, 380, 383 (1979). He was appointed by the Court to represent the respondent in the landmark case of United States v. Cronic, 462 U.S. 1128 (1984), and he represented the respondent in United States v. Jackson, 390 U.S. 570 (1968), as well. Mr. Liotti - has also written extensively on the right to counsel. See, e.g., Does Gideon Still Make a Difference?, 2 N.Y.C.L. Rev. 105 (1998). As an organization, NACDL files amicus briefs of consistently high quality, which have been cited in numerous opinions of this Court. See, e.g., LN.S. v. St. Cyr, __ U.S. ___, 121 S. Ct. 2271, 2291 n.50 (2001); Texas v. Cobb, 532 U.S. 162, __, 121 S. Ct. 1335, 1342 (2001); Lopez v. Davis, 531 U.S. 230, 244 n.6 (2001); United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999); United States v. Balsys, 524 U.S. 666, 674 n.3 (1998); Bryan v. United States, 524 U.S. 184, 196 (1998); Almendarez- Torres v. United States, 523 U.S. 224, 269 (1998); Montana yv. Egelhoff, 518 U.S. 37, 47 (1996); Ratzlaf v. United States, 510 U.S. 135, 146 (1994); Godinez v. Moran, 509 U.S. 389, 388 (1993); Georgia v. McCollum, 505 U.S. 42, 69 (1992) (dis. opn.); Riggins v. Nevada, 504 U.S. 127, 144 (1992) (conc. opn.). The Court has granted the relief sought here on prior occasions. See, e.g., City of Simi Valley v. Young, 531 U.S. 1104 (2001); American Foreign Service Ass'n v. Garfinkel, 489 U.S. 1050 (1989); Mansell vy. Mansell, 488 U.S. 906 (1988); Booth v. Maryland, 487 U.S. 1081 (1987); United States v. Salerno, 479 U.S. 1015 (1986); Johnson v. Transportation Agency, Santa Clara County 479 U.S. 912 (1986); Arkansas v. Oklahoma, 465 U.S. 1018 (1984); Newport v. Fact Concerts, Inc., 450 U.S. 992 (1981); Flint Ridge Development Co. v. Scenic Rivers Assoc., 425 U.S. 902 (1976); Bonelli Cattle Co. v. Arizona, 414 U.S. 904 (1973); Goldstein v. California, 414 U.S. 883 (1973); Committee for Public Education & Religious Liberty v. Nyquist, 411 U.S. 946 (1973); Hunt v. McNair, 410 U.S. 952 (1973); United States v. Enmons, 409 U.S. 1034 (1972); Almeida-Sanchez v. United States, 409 U.S. 1035 (1972); Heller v. New York, 409 U.S. 1021 (1972); Goldstein v. California, 409 U.S. 976 (1972); Paris Adult Theatre lv. Slaton, 409 U.S. 945 (1972); United States v.12 200-Ft. Reels of Super 8mm Film, 409 U.S. 909 (1972); Roaden v. Kentucky, 409 U.S. 910 (1972); Alexander v. Virginia, 409 U.S. 911 (1972); Victory Carriers, Inc. v. Law, 404 U.S. 908 (1971); Accordingly, NACDL requests the Court grant leave to file this brief amicus curiae out of time. Respectfully submitted, DAVID M. PORTER Co-Chair, NACDL Amicus Committee TABLE OF CONTENTS Page QUESTION PRESENTED .............ccceeeseeee i TABLE OF AUTHORITIES .............0eeeeeees iv INTERESTS OF AMICUS CURIAE ............... 1 PTT TTT TT ITT TTT TTT 2 STATEMENT OF THE CASE ................0.5. 4 SUMMARY OF ARGUMENT ...............00055 5 PPO TET TET T LTTE PETTITTE 6 I. The suspended jail sentence was properly TO eT PeTTTTTeT TTT TT TT ere 11 A. Asuspended jail sentence may not be carried out or executed if the defendant was denied counsel. ..............+. 11 B. A sentence that cannot be carried out without violating the Constitution is itself unconstitutional, or in any event, plainly within the power of the State of Alabama to vacate or decline to impose. ....... 16 Il. Ifasuspended jail term may constitutionally be imposed without providing counsel, and ultimately carried out, then this court should reconsider Scott’s imprisonment-only principle, ii revert to the “serious offense” test of Baldwin and Duncan, and invalidate respondent's conviction or allow the court below to do so. . 17 CONCLUSION TABLE OF AUTHORITIES Page Cases «7US (971). WITTITTIIT ITIL TTT Tree passim bites Udi : 5895 66 (1970)... TUTTI TTT TTT Te 6, 8, 9,11, 17,19 242 Cal. App. 24 73151 Cal Rptr. 771 (1966) ... 7 (n. 3) Banna Cea Nachlaiese 361 US. 165 (1968). peseserenes 6, 8,9, 10,11, 17,19 S72US. 335 (963) pebesencocvecese 5, 6, 7,11, 17 iments. ; 518 US. 322 (1996). pebbeceeeeoesccesess 19 (n. 10) 511 US. 738 0954). poecdcncoecvers 7 (n. 3), 12, 17 sUa Sr WYTTTTTUTILILT TTT TTT eee passim Statutes TE GE co ccccncccaccceccsccsecs 2, 4, 13 SD sccccccccccesvccccsoccece 2, 4, 13 Ala. Code §ISAS-12 20... cc ccesccccccvcceee 2, 4, 13 Ala. Code §13A-22-52 ......... cc cee eeeeeeees 2, 4,13 iv Ala. Code §15-22-24(d) ...........005: 3, 12, 13 (n. 8) Be COOGEE ec ccccccccecéccceccccseee 3,13 Ala. Code §15-22-54(d) ..........00ee eee 12, 13 (n. 8) Conwn. Gem. Statutes $56-S6e 2... ccc ccc ccccccccces 16 8 U.S.C. §1101(a)(43)(F) ...... 6. cee eee eee 18 (n. 9) 8 U.S.C. §1101(a)(48)(B) ........ cee ee eee eee 18 (n. 9) U.S. CONSTITUTION os ee case deeeneeuen 8 (n. 4) OTHER Comment, Right to Counsel: The Impact of Gideon v. Wainwright, on the Fifty States, 3 Creighton L. Rev. 103 SUDO os cccescccevcevcenenpencupeaseceiness 7 (n. 2) S. Duke, The Right to Appointed Counsel: Argersinger and Beyond, 12 Amer. Crim. L. Rev. 601. (1975) 7 (n. 7) S. Krantz, C. Smith, D. Rossman, P. Froyd & J. Hoffman, Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin, 69 (1976) .. 9 (n. 7) T. Liotti, Does Gideon Still Make a Difference?, 2 N.Y.C. L. Rev. 105 (1996) 2... ccccccccccccccccess 17 BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (NACDL) files this amicus curiae brief pursuant to this Court’s Rule 37.3(a) in support of respondent Lereed Shelton’s assertion of rights under the Fourteenth Amendment. Both petitioner and respondent have granted amicus consent to file this brief, and letters of consent have been filed with the Clerk of this Court.’ INTERESTS OF AMICUS CURIAE The NACDL, a nonprofit corporation, is the only national bar association working in the interest of public and private criminal defense attorneys and their clients. NACDL was founded in 1958 to ensure justice and due process for persons accused of crimes; foster the integrity, independence and expertise of the criminal defense profession; and promote the proper and fair administration of justice. NACDL has 10,000 members nationwide -- joined by 80 state and local affiliate organizations with 28,000 members -- including private criminal defense lawyers, public defenders and law professors committed to preserving fairness within America’s criminal justice system. The American Bar Association recognizes NACDL as an affiliate 1. No counsel for any party to this case authored this brief in whole or in part, and no person or entity, other than NACDL, made any monetary contribution to its preparation or submission. See Rule 37.6. The petitioner and respondent have consented to the filing of this brief, and amicus has filed the letters of consent with the Clerk of the Court, pursuant to Rule 37.3(a). 2 organization and awards it full representation in its House of Delegates. In this case, the NACDL is concerned about the denial of counsel to an indigent charged with a serious crime and required to defend himself in a jury trial without the guiding hand of counsel. STATUTES INVOLVED ALABAMA CODE §13A-5-2. Authorized dispositions (c) Every person convicted of a misdemeanor or violation shall be sentenced by the court to: (1) Imprisonment for a term authorized by Section 13A-5-7; or (2) Pay a fine authorized by Section 13A- 5-12; or (3) Both such imprisonment and fine (d) Every person convicted of a felony, misdemeanor or violation may be placed on probation as authorized by law. (e) This article does not deprive a court of authority conferred by law to forfeit property, dissolve a corporation, suspend or cancel a license or permit, remove a person from office, cite for contempt or impose any other lawful civil penalty. Such a judgment, order or decree may be included as part of the sentence. §13A-5-7. Sentence of imprisonment for misdemeanors and violations. (a) Sentences for misdemeanors shall be a definite term of imprisonment in the county jail or to hard labor for the county, within the following se — ee limitations: | (1) For a Class A misdemeanor, not more than one year. § 13A-5-12. Fines for misdemeanors and violations. (a) A sentence to pay a fine for a misdemeanor shall be for a definite amount, fixed by the court, within the following limitations: (1) For a Class A misdemeanor, not more than $2,000.00. §15-22-52. Conditions of probation. The court shall determine and may at any time modify the conditions of probation and may include among them the following or any other condition. Such conditions may provide that the probationer shall: (1) Avoid injurious or vicious habits; (2) Avoid persons or places of disreputable or harmful character; (3) Report to the probation office as directed; (4) Permit the probation officer to visit him at his home or elsewhere; (5) Work faithfully at suitable employments as far as possible; (6) Remain within a specified place; (7) Pay the fine imposed or costs or such portions thereof as the court may determine and in such installments as the court may direct; (8) Make reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court; and (9) Support his dependents to the best of his ability. §15-22-24(d) (2) If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence... kek (4) The court shall not revoke probation and order the confinement of the probationer unless the court finds on the basis of the original offense and the probationer’s intervening conduct, either of the following: a. No measure short of confinement will adequately protect the community from further criminal activity by the probationer. b. No measure short of confinement will avoid depreciating the seriousness of the violation. STATEMENT OF THE CASE Respondent LeReed Shelton was accused of third- degree assault, a class A misdemeanor carrying a possibility of a jail sentence of up to one year (Alabama Code §13A-5-7) and a fine of up to $2,000.00 (Alabama Code §§13A-5-2, 13A-5-7, 13A-5-12). He was not offered counsel if indigent. He elected a jury trial and represented himself before the jury, unsuccessfully. He was sentenced to 30 days in jail, a $500 fine, and restitution. The jail sentence was suspended and he was placed on two years’ probation. The Alabama Supreme Court affirmed his conviction but vacated the suspended jail sentence because respondent had not had or waived counsel and the court believed that the suspended jail sentence was invalid because it could not be carried out consistent with respondent’s Fourteenth and Sixth 5 Amendment right to counsel. This Court granted the State’s petition for a writ of certiorari to consider the constitutional validity of the Alabama court's decision. SUMMARY OF ARGUMENT A jail sentence of any duration cannot be carried out or executed if the defendant was denied counsel for his defense. To do so would clearly “imprison” him contrary to Scott v. Illinois, 440 U.S. 367 (1979) and © involve a “loss of liberty” contrary to Argersinger v. Hamlin, 407 U.S. 25 (1971). Accordingly, it was entirely lawful for the court below to vacate the thirty-day suspended sentence imposed on respondent who was required to defend himself ina jury trial without counsel. Whether it was “unconstitutional” to “impose” such a sham sentence on the accused by suspending it and placing him on probation may be of interest to theoreticians but is not crucial to the correct resolution of this case. Clearly, Alabama was not required by the Constitution to engage in the charade of threatening the defendant with a jail sentence it could not under any circumstances actually inflict. Should this Court conclude that it is constitutionally permissible to impose a suspended jail sentence on an uncounseled defendant and then later revoke probation and send the defendant to jail, it will have ripped the soul out of Gideon v. Wainwright, 372 U.S. 335 (1963) and Argersinger v. Hamlin, 407 U.S. 25 (1971) and invited the States to circumvent the right to counsel by sending defendants to prison in stages without ever subjecting the issue of guilt to serious adversary testing. At the very least, the Court should cap that invitation by revisiting Argersinger and Scott and 6 ruling consistent with Argersinger, Duncan v. Louisiana, 391 U.S. 145 (1968), and Baldwin v. New York, 399 U.S. 66 (1970), that anyone who has a Sixth Amendment right to a jury trial cannot be denied a lawyer to make that right meaningful. A “criminal prosecution” means no less when applied to the right to a jury trial than when applied to the right to assistance of counsel. Therefore, respondent’s conviction, as well as his sentence, was unconstitutional. ARGUMENT The decision of the court below is correct. Alternatively, if a suspended jail sentence (in addition to a substantial fine) can sometimes be imposed on an indigent defendant who is denied counsel, the underlying conviction is invalid where, as here, the defendant faced charges sufficiently serious to guarantee him a Sixth Amendment right to a jury trial. Accordingly, if the Court rejects the rationale of the Alabama Supreme Court, it should invalidate respondent's underlying conviction or remand to permit the court below to do so. Nearly forty years ago, this Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), found the Sixth Amendment right to counsel “fundamental and essential to a fair trial.” Id. at 343. Justice Black, speaking for a unanimous Court, said that lawyers are “necessities, not luxuries.” Id. at 344. He said the “noble ideal” of fair trials “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him,” and declared that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. 7 Although there was nothing in Gideon that limited its rationale to felony charges, many state courts read Gideon as not requiring counsel in misdemeanor cases. Nonetheless, most states in the decade after Gideon did extend the right to counsel to some misdemeanants.” Some even went all the way, extending the right to every indigent accused of any offense, petty or serious.’ This Court returned to the problem in Argersinger v. Hamlin, 407 U.S. 25 (1971). Argersinger had pled guilty in a Florida court to carrying a concealed weapon, an offense punishable by up to six months in jail and a $1,000 fine, without being informed of his right to counsel. He was sentenced to a $500 fine or 90 days in jail. Id. at 26. Alleging that he had been indigent and unable to afford counsel, he sought a writ of habeas corpus. The Florida Supreme Court extended the right of appointed counsel to offenses punishable by more than six months’ imprisonment but, since Argersinger’s offense was just under the line, dismissed Argersinger’s writ. 2. See Comment, “Right to Counsel: The Impact of Gideon v. Wainwright in the Fifty States,” 3 Creighton L. Rev. 103 (1970). 3. Blake v. Municipal Court, 242 Cal. App. 2d 731, 51 Cal. Rptr. 771 (1966). “Apparently, in nine states virtually all misdemeanants have the right to appointed counsel...” Comment, supra note 2, at 124. That still seems to be the case. “[MJany, if not a majority of, States guarantee the right of counsel whenever imprisonment is authorized by statute rather than actually imposed.” Nichols v. United States, 511 U.S. 738, 748 (n. 12) (1994). See also, Brief of Texas, et al., Amici Curiae, 22. Justice Douglas noted for this Court that the Sixth Amendment contains standards for “all criminal prosecutions.” Among the rights guaranteed by that amendment are the right to a speedy and public trial, the right to know the charge, the right of confrontation, and the right to compulsory process.‘ Yet the only right guaranteed by the Sixth Amendment which had been limited by type of offense is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145 (1968), restricted such right to offenses punishable by more than six months in jail (regardless of the actual punishment imposed). See also, Baldwin v. New York, 399 U.S. 66, 69 (1970) (“no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized”). Justice Douglas distinguished Duncan's limitation with the observation that the right to jury trial “has a different genealogy and is brigaded with a system of trial to a judge alone.” Argersinger, 407 U.S. at 29. “While there is historical support for limiting...trial by jury to ‘serious criminal cases,’ there is no such support for a similar limitation on the right to assistance of counsel...” Id. at 30 (citation omitted). The Court 4. The Sixth Amendment provides, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..and to be informed of the nature and cause of the accusation; to be confronted with the Witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence. 9 therefore rejected “ 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.” Id. at 30-31. Putting aside the right to counsel where “loss of liberty is not involved,”* the Court held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial.”° Commentators read Argersinger as creating a two- tiered analysis of the right to counsel in misdemeanor cases.’ The first tier or screen was whether the offense was sufficiently serious to be a“ criminal prosecution” for purposes of the right to a jury trial. That ordinarily meant that any authorized jail term of more than six months was, per Duncan and Baldwin, a sufficient gauge of seriousness to trigger the jury trial right regardless of the sentence actually imposed. If the offense was “serious” under the Duncan/ Baldwin test, Argersinger 5. Id. at 37. 6. Id. 7. See, e.g., S. Krantz, C. Smith, D. Rossman, P. Froyd & J. Hoffman, Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin 69-117 (1976); S. Duke, “The Right to Appointed Counsel: Argersinger and Beyond,” 12 Am. Crim. L. Rev. 601 (1975). Justices Brennan, Marshall and Stevens advocated this approach in Scott, 440 U.S. at 375 (dissenting opinion), as did Justice Blackman, 440 U.S. at 389 (dissenting opinion). 10 left undisturbed the understanding that the charge was not only a “criminal prosecution” for the right to trial by jury but also for all other Sixth Amendment rights, including the right to counsel. Argersinger expressly dealt only with cases in which “loss of liberty was involved.” In such cases, the Court said, there is no need to examine the “seriousness” question, no need to find the right to trial by jury in order to find the right to counsel, for the latter is even more fundamental than the former, and any deprivation of liberty is sufficiently serious to require the crucial help of counsel. Actual loss of liberty, then, was a second screen or second stage of analysis necessary only if no “criminal prosecution” was otherwise found by applying Duncans criteria. This Court took a sharply different approach in Scott _v. Illinois, 440 US. 367 (1979), opining that Argersinger “ did indeed delimit the constitutional right to appointed counsel in state criminal proceedings...[and] [w]e therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” Id. at 373-74 (emph. added). There was, of course, nothing in the Argersinger opinion or in Scott's analysis of it to warrant the injection of “only.” Indeed, if Scott’s dictum were taken literally, a person could be lawfully convicted of murder without counsel so long as he wasn’t imprisoned. As Justice Brennan cogently observed in his Scott dissent, the majority not only misread Argersinger, it ignored the well-established precedents recognizing a constitutional right to a jury trial for people who are not imprisoned but nonetheless face charges upon which imprisonment in excess of sixth S Aewe Rasie in Ae” Rat a Reapers