Amicus Curiae Brief — Argersinger v. Hamlin
Supreme Court brief1972
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FILFH
No fO— 50/5 APR 28 197)
E. ROBERN} SEAVER Cloo
IN THE
Supreme Court of the United States
October Term, 1970
—No--ST3s"
JOHN RICHARD ARGERSINGER,
Petitioner, -
vs.
RAYMOND HAMLIN, Sheriff of Leon County, Florida,
Respondent.
On Writ of Certiorari to the
Supreme Court of the State of Florida
BRIEF OF
THE LEGAL AID SOCIETY OF NEW YORK,
AMICUS CURIAE
Wri ©. HELLERSTEIN
The Legal Aid Society
119 Fifth Avenue
New York, New York 10063
(212) 677-4224
Counse: for Amicus Curiae
TABLE OF CONTENTS
Interest Of Amicus ooo ccccccccccecceeececcceceseeescesecseeessees 1
Summary of Argument oo....0..0.cccccccccccc ccs ccesscscesesseeseescesseee 3
Argument
The due process and equal protection clauses
of the Fourteenth Amendment and the right to
counsel provision of the Sixth Amendment require
that a poor person be guaranteed the assistance
of counsel when charged with any crime for which
he can be imprisoned 2.0.0.0... cccceeeceeceeeeeseteeeen 5)
COnClUsSiON ooooeeeoee cece ceecccccccccecccecceceeesectetteveeteeeeeeseeececeeeeeecee. 26
Appendix A:
American Civil Liberties Union study compar-
ing defended vs. undefended cases in Police
Court, Reno, Nevada .o.....0.0...0cccccccccceeeeeeeeees 27
TABLE OF AUTHORITIES
Cases:
Application of Stevenson, 458 P. 2d 414 (Ore. 1969) 8
Arsenault v. Massachusetts, 393 U.S. 5 (1968) ............ 10
Baldwin v. New York, 399 U.S. 66 (1970) 00.00.0000... 8, 9,11
Barr v. City of Columbia, 378 U.S. 146 (1964) .............. 21
Betts v. Brady, 316 U.S. 455 (1942) ooo. 5, 9
Boddie v. Connecticut, —— U.S. ——, 39 U.S.L.Wk
4294 (March 2, 1971) ooooocclccccceeeecceeece wees 11
Boykin v. Alabama, 395 U.S. 238 (1969) .0.0.000cccce. 24
Burns v. Ohio, 360 U.S. 252 (1959) .............. se eppeenstessenen 7
Callan v. Wilson, 127 U.S. 540 (1888) 2. 12
Chambers v. Maroney, 399 U.S. 42 (1970) 20000000. 10
Chandler v. Fretag, 348 U.S. 3 (1954) 0.0. 10
Chapman v. California, 386 U.S. 18 (1967) 2000000000000... 10
Cheff v. Schnuckenburg, 384 U.S. 373 (1966) 2.000.000... 12
Chewning v. Cunningham, 368 U.S. 443 (1962) ............ 10
Coates v. City cf Cincinnati, No. 1370, October term,
OD pepe nce asnsp ence vaeriedecy aectenapntle iene ate ypleenaeeteratasetaven 19
Cox v. Louisiana, 379 U.S. 559 (1965) 2. 22
DeStefano v. Woods, 392 U.S. 631 (1968) 000000, 10
District of Columbia v. Colts, 282 U.S. 63 (192)) ........ 12
Douglas v. California, 372 U.S. 905 (1963) 2000000000000... 7,11
Duncan v. Louisiana, 391 U.S. 145 (1968) 00... 9g
Eskridge v. Washington State Board, 357 U.S. 214
(1958) ccc cc ccececeeeceeeeseveeeecvevteetaverseseene 7
Evans v. Rives, 126 F. 2d 633 (D.C. Cir. 1942) .............. 24
Fenster v. Leary, 20 N.Y. 2d 309, 229 N.E. 2d 419
(V9GT Yee eee cecceeeeevevevvetvevereeees 21
Fields v. City of Fairfield, 375 U.S. 218 (1963) .............. 21
Garner v. Louisiana, 368 U.S. 157 (1961) 0000... 21
Gideon v. Wainwright, 372 U.S. 335 (1963) ....3, 5, 6, 9, 10, 11
Glasser v. United States, 315 U.S. 60 (1942) 0000000000... 10
Griffin v. Illinois, 351 U.S. 12 (1956) ooo. 7, 11
Groppi v. Wisconsin, 400 U.S. 505 (1971) 20.0... 8
Harvey v. Mississippi, 340 F. 2d 262 (5th Cir. 1965) ... 8
Hill v. Texas, 316 U.S. 406 (1942) oo 11
In re Gault, 387 U.S. 1 (1967) eee 5
James v. Headley, 410 F. 2d 325 (5th Cir. 1969) .......... 8
Johnson v. New Jersey, 384 U.S. 719 (1966) ................ 10
Johnson v. Zerbst, 304 U.S. 450 (1938) ooo... 5
Jones v. Wittenberg, mem. op. #U 70-388 (N.D. Ohio,
| 6 © nee nn ee 26
Kercheval v. United States, 274 U.S. 220 (1927) ..........
Lane v. Brown, 372 U.S. 477 (1968) 0000.0
Long v. District Court, 385 U.S. 192 (1966) 0.000.
-Mapp v. Ohio, 367 U.S. 643 (1961) 0.00.0
Marston v. Oliver, F. Supp. —— (E.D. Va.
2/10/71), 8 Cr. L. Rep. 2457-8 2000.00:
Matter of Hogan v. Rosenberg, 24 N.Y. 2d 207, 247
N.E. 2d 260 (1969), rev’d sub nom, Baldwin v.
New York, 399 U.S. 66 (1970)... ee
Mayer v. City of Chicago, Oct. Term, 1970, No. 6061,
prob. juris, noted, February 22, 1971 ............... a
McConnell v. Rhay, 393 U.S. 2 (1968) .....00000.
McMann v. Richardson, 397 U.S. 759, 771 (1970) ..........
Patterson v. Warden, 372 U.S. 776 (1965) ...0.0.00.
People v. Anderson, 24 N.Y. 2d 12, 246 N.E. 2d 508
GD erect aeeen nso ecneserettenyeipnecenconsesvancasshs
People v. Arthur, 22 N.Y. 2d 325, 739 N.E. 2d 537
(1968) ...... safes Hes teg ae taseserviencsetovteesssaneascaveneseseceerstasterustarss
People v. Beltrand, 63 Misc. 2d 1041, 314 N.Y.S. 2d
276 (Crim. Ct. N.Y. Co. 1970) 0.0.0
People v. Berrios (argued before New York Court of
Appeals, March 2, 1971) oo... ceeeeeeteeteees
People v. Brown, New York Law Journal, October 10,
1969, p. 2, col. 4 (App. t-rm, 1st Dept.) ...000000.
People v. Butterly, 25 N.Y. 2d 159, 250 N.E. 2d 340
(1969) oie cece cet sesesseeeesesetsetsetesteeteteeeess
People v. Delgado, New York Law Journal, Dec. 17,
TOLO, D2, CORD . srceesernnsecesetesntenpsstercsaaria a aseaceetoenrneeiass
People v. Hanna, New York Law Journal, July 19,
1968 (App. Term, 2d & 11th Jud. Dist.) ................
People v. Harris, 64 Mise. 2d 510, 315 N.Y.S. 2d 66
(App. Term, 1st Dept. 1969) 20.0000:
People v. Heins, New York Law Journal, Oct. 26, 1970,
p. 2, col. 3 (App. term, Ist Dept.) 00.00.
eC ee Tee Lm
People v. Johnson, 20 N.Y. 2d 220, 229 N.KE. 2d 180
PAGE
OY 16
People v. Letierio, 16 N.Y. 2d 307, 213 N.E. 2d 670
(1965), cert. den. 384 U.S. 911 2
People v. Markowitz, 18 N.Y. 2d 953, 223 N.E. 2d 572
(1966) ec ceeccccecriveve cevavesveeeaeeaees 22
People v. McCaskill, New York Law Journal, June 26,
1970, p. 2, col. 3 (App. term, 1st Dept.) ................. 21
People v. MeLucas, 15 N.Y. 2d 167, 204 N.E. 2d 846
(1965) | | 18
People v. Nixon, 1 Y, y. 2d 338, 234 N. BE. 2a 687, cert.
den. sub. nom. Robinson v. New York, 393 U.S.
BOG sirens sivetatyraenseiertsatsanpsiadierssenpecdacainiarsniat ewer vteeeiaaaves 25
People v. Pagnotta, 25 N.Y. 2d 333, 253 N.E. 2d 202
OY eciransspseneatiots peste guaoresytiaspntetaseueratacorssameserdevesaen 21
People v. Peters, New York Law Journal, Jan. 7, 1971,
p. 2, col. 1 (App. term 1st Dept.) ooo. 20
People v. Rosemond, 26 N.Y. 2d 101, 257 N.E._2d 23
0.) 23
People v. Salgado, New York Law Journal, April 6,
1970, p. 2, col. 2 (App. term, Ist Dept.) 00000000... 23
People v. Schwartz, New York Law Journal, Dee. 17,
1970, p. 2, col. 1 (App. term, 1st Dept.) 0.000000... 20
People v. Seaton, 19 N.Y. 2d 404, 227 N.E. 2d 294
(1967) on. Geaeoi Aisa eens erar ays aes ag saponin 25
People v. Soto, New York Law Journal, Nov. 3, 1969,
p. 2, col. i (App. Term, 1st Dept.) 000... 23
People v. Tolliver, New York Law Journal, June 17,
1970, p. 2, col. 5 (App. Term, 1st Dept.) .................. 23
People v. White, 16 N.Y. 2d 270, 213 N.E. 2d 438
(1965), cert. den. 386 U.S. 1008 oo... 23
People v. Whitehurst, 25 N.Y. 2d 389, 254 N.E.2d 905 =~
(T9GD) oeseccccccceisccsssetcsssonscnsesssesoserscsseccesacsceeensetensesssboves 23
People v. Williams, 24 N.Y. 2d 274, 248 N.E. 2d 8
(DOG) aseseciscrncscecorercssevavaatoniesnesaacs onaniubsteianiniacenvaninnatecten 16_
People v. Williams, New York Law Journal, April 18, ~
1968, p. 2, COL Qo ccceecececesecscssessvsevsseateesvevsees 22
55
PAGE
People v. Witenski, 15 N.Y. 2d 392, 207 N.E. 2d 358
(1965) cece cc ecsceeveevicvevsevsevetvaters sueeaveeees 2,8
Pickelsimer v. Wainwright, 375 U.S. 2 (1963) .............. 10
Powell v. Alabama, 287 U.S. 45 (19382) o.oo. 5, 6, 9
Reynolds v. Cochran, 365 U.S. 525 (1961) 00.00.00... 10
Rideau v. Louisiana, 373 U.S. 723 (1967) ooo. 5
Schick v. United States, 195 U.S. 65 ( 1%) era peneienies 12
Seals v. Alabama, 380 U.S. 254 (1965) ooo. 7
Shapiro v. Thompson, 394 U.S. 618 (1969) ooo. ooo... 11
Shuttlesworth v. City of Birmingham, 382 U.S. 87
MIG) secieassavtzencccnvoostriiusdaeinrsinyoracasurdiemateesneontocnedeimersos 21
Sibron v. New York, 392 U.S. 40 (1968) ooo. 20, 23
Smith v. Bennett, 365 U.S. 708 (1961) oo. 7
State v. Borst, 154 N.W. 2d 888 (Minn., 1967) .............. 8, 11
Tate v. Short, —— U.S. ——, 39 U.S.L. Wk 4301
(March 2, 1971) oooccccceeceeceeteecsssevevveeveesees 7
Taylor v. Tonisiaun, 370 U.S. 154 (1962) pensar z1
Thompson v. City of Louisville, 362 U.S. 199 (1960) 21
United States v. Barnett, 376 U.S. 681, 748-50 (Mr.
Justice Goldberg dissenting) 00.0.0 00.0. 12
Urited States v. Wade, 388 U.S. 218 (1967) 000000000000... 10
Williams v. Oklahoma City, 395 U.S. 458 (1969) .......... 7
Williams v. United States, —— U.S. —~—, 9 Cr. L.
Rep. 3015, 3017 (April 7, 1971) ooo. 10
White v. Maryland, 373 U.S. 59 (1963) ooo. 10
Statutes:
N.Y. City Crim. Ct. Act, §31 (294A McKinney’s Consol.
Laws of N.Y., 1963) ooocoocccccccccceceesvesseveesesevevsees 2
N.Y. Code Crim. Proc. §520 oooccccccccccccececeesveeseevesee 18
N.Y. County Law, §722-b (11 McKinney’s Consol.
Laws of N.Y.1970) ooo. cccccccccececscsesscscseestssseeeeees 2
isa Sh AAA iNOS TE i AREA OLD IM
N.Y. Fam. Ct. Act, §812 (294A McKinney’s Consol.
Laws of N.Y. 1963)
New York Penal Law:
es
ee eee ee ee eee eee ee ee ee i ee
§240.36
ee ee ee ee er ee i i ray
Miscellaneous Authorities:
Amsterdani, Federal Constitutional Restrictions in
the Punishment of Crimes of Status, Crimes of
General Obnoxiousness, Crimes of Displeasing
Police Officers and the Like, 3 Crim. L. Bull. 205
TSB) aicscnsvaitassernccciesnossaSeomnisaveniusicnencdianrenfaeedarseronst arn
Appellant’s Brief, Baldwin v. New York, 399 U.S. 66,
pp. 26-28, App. C. pp. ©-1-0-6 ooo
Barlow, Patterns of Arrest for Misdemeanor Nar-
- cotics Possession: Manhattan Police Practices,
1960-62, 4 Crim. L. Bull. 549 (1968) ooo...
Douglas, Vagrancy and Arrest on Suspicion, 70 Yale
LJ. 1.( 1960) ooo cccscssssscsssessrecsssssseesserees
Foote, Vagrancy-Type Law, and Its Administration,
104 U. Pa. L. Rev. 603 (1956)
.
Pee eee eee eee eee ee eee ee)
Frankfurter & Corcoran, Petty Federal Offenses and
. the Constitutional Guarantee of Trial by Jury,
39 Harv. L. Rev. 917 (1926) 2.0.0.0 9
Hellerstein, The Importance of the Misdemeanor Case
on Trial and Appeal, 38 Legal Aid Briefcase 151
017 (|) Se 22
James, Crisis in the Courts 4 (1968) 200000... 14
Junker, The Right to Counsel in Misdemeanor Cases,
43 Wash. L. Rev. 685 (1968) 200000. 8, 9
Katz, Municipal Courts—Another Urban IIil., 20 Case
West L. Rev. 87 (1968) 200... 14
Kessler, Judging the Judges, The Wall Street Jour-
nal, Dec. 7, 1967, p. 1, col. Loon. 15
Newman, Conviction 198 (1966) 200.000.0000... hock 24
N.Y. Times, Nov. 2, 1970, p. 49, col. 6 ..0..000.. . 21
N.Y. Times, April 13, 1971, p. 44 oo..cccccccccccceeeees 13
Note, Constitutional Limit:tions in the Conditions of
Fretrial Detention, 79 Yale L.J. 941 (1970) ........ 26
Note: Metropolitan Criminal Courts of First In-
stance, 70 Harv. L. Rev. 320 (1956) .....000000000000.... 14
Order Prescribing Rules of Procedure for the Trial
of Minor Offenses Before Magistrates, 400 U.S.
1031-36 (Statement of Mr. Justice Black) ............ 11
Order Prescribing Rules of Procedure For The Trial
of Minor Offenses Before Magistrates, Rule 3(b),
400 U.S. 1087-42 (Jan. 27, 1971) 00.0. 11
Police Practices in Narcotics Cases, 4 Colum. J. Law
& Soc. Prob. 87 (1968) oo... occccccceeecccceeeeeeeees 24
President’s Commission on Law Enforcement and the
Administration of Justice, Task Force Report:
THe Counts (1967)... eects 12, 13, 15
President’s Commission on Law Enforcement and the
Administration of Justice, THe CHALLENGE OF
CrIME IN A Free Society 128 (1967) 2000000000... 13
Report or THE Nationa Apvisory CoMMISSION ON
Civiz Disorpers 337 (Bantam Ed. 1968) .......... ...
Shaefer, Federalism and State Criminal Procedure,
70 Harv. L. Rev. 1, 8 (1956) ooo.
1 Stephen, A History or THE Criminau Law or Enc-
LAND 123 (1883) ooo. ccccccecceccececceseeeeeeeeeeeees
Wright, The Courts Have Failed the Poor, N.Y. Times
[Magazine] March 9, 1969, p. 100 oo...
IN THE
Supreme Court of the United States
October Term, 1970
No. 5798
Oe
JOHN RicHarpD ARGERSINGER,
Petitioner,
Vs.
Raymonp Hamutn, Sheriff of Leon County, Florida,
Respondent.
On Writ of Certiorari to the
Supreme Court of the State of Florida
_—— OH,
| BRIEF OF
THE LEGAL AID SOCIETY OF NEW YORK,
AMICUS CURIAE
Interest of Amicus *
The Legal Aid Society is a non-profit organization in-
corporated under the laws of the State of New York for
the purpose of providing legal assistance to persons too
poor to afford the services of legal counsel. By virtue
* Letters of Consent have been obtained from petitiorer’s counsel
and from the Attorney General of the State of Florida and are on
file with the Clerk of the Court.
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2
of its contract with the City of New York, the Society has
undertaken to serve, in essence, as the defender agency
for the overwhelming majority of indigent persons charged
with crime in New York City.
The Society presently employs 200 full-time attorneys
in its Criminal Courts Branch and maintains a Criminal
Appeals Bureau comprised of 24 full-time attorneys. Of
the 189,021 criminal cases handled by the Society in 1970,
152,260 involved misdemeanor and lesser offense prosecu-
tions. Of the 1,i70 appeals prosecuted by tue Criminal
Appeals Bureau, 289 were appeals from convictions in the
Criminal Court of the City of New York, the court having
jurisdiction over misdemeanors and lesser offenses. N.Y.
City Crim. Ct. Act, §31 (29A McKinney’s Consol. Laws
of N.Y., 1963). As inyears past, these figures reflected
the heavy involvement of the Society’s Criminal Branch
in the representation of poor people charged with lesser
offenses.’
It is the purpose of this brief to assist petitioner in
persuading the Court that the Sixth and Fourteenth
Amendments must be construed to grarantee the right to
1. Under New York law, representation of indigents accused of
any crime punishable by imprisonment other than a traffic infraction,
is afforded on a state-wide basis. Article 18-i of the New York
County Law, which estahiishes various plans for assigned counsel
systems, defines crime for the purpose of such provision as “a felony,
misdemeanor, or the breach of any law or ordinance of a political sub-
divisicn of «his state, other than one that defines a ‘traffic infraction’
for which a sentence to a term of imprisonment is authorized upon
conviction thereof.” N.Y. County Law, §722-b (11 McKinney’s
Consol. Laws of N.Y., 1970).
The statute is consonant with the right to counsel decreed by the
New York Court of Appeals. Compare, People v. Witenski, 15 N.Y.
2d 392, 207 N.E. 2d 358 (1965) with People v. Letterio, 16 N.Y.
2d 307, 213 N.E. 2d 670 (1965), cert. den. 384 U.S. 911.
wi ee
Be a
3
counsel to all persons facing deprivation of their liberty
because of an accusation of criminal conduct. In support
of our constitutional argument, we will endeavor to convey
to the Court what we have learned experientially from
our intensive involvement over the years in the representa-
tion of indigents accused of misdemeanors and lesser of-
fenses—an involvement which leads us to conclude that
the importance of the right to counsel in such cases is as
critical, and possibly more so, than in felony cases. Be-
cause we so believe, we are also concerned with the effect °
of an adverse ruling in petitioner’s case upou the continued
existence of the extensive guarantees of the assistance of
counsel now provided by New York law.
Summary of Argument
The assistance of counsel in a criminal prosecution,
guaranteed by the Sixth Amendment, is an indispensible
condition of the right to_a fair trial in our adversary
system. Since Gideon v. Wainwright, 372 U.S. 335 (1963)
was decided, this Court has not limited the right to counsel
by virtue of the nature of the crime charged or the length
of sentence that could be imposed. Nor has the Court
permitted a man’s poverty to serve as a basis for denial
of constitutional safeguards mandated for criminal prose-
cutions. The extent of the Sixth Amendment’s guarantee
of counsel is not measurable by the extent of the right to
trial by jury, either historically or functionally. This
Court’s decisions recognize that a trial without a jury can
be fair but conclude otherwise where the right to counsel
is at issue. Moreover, apart from the right to trial by
jury, no other Sixth Amendment guarantee has ever been
@
> —__E—SE—S—S—_—_—_—_—
4
confined to criminal prosecutions for ‘‘serious’’ offenses.
The Court has also consistently refused to accept argu-
ments of Jack of resource’ by States and municipalities
as grounds for limiting the meaning of the Constitution.
For many reasons, the right to counsel in ‘‘petty’’ of-
fense prosecutions is as critical, if not more so, than in
| felony cases. The quality of justice administered at the
lower criminal court level throughout the United States is
far poorer than at the felony level. Inadequate facilities,
procedural laxity and judicial arbitrariness are patent and
4 widespread. Our own experience leads us to conclude that
4 the incidence of legal error and conviction of the innocent
4 is far more prevalent in lesser offense prosecutions than
in felony cases, even when counsel is present. Also, the
legal and constitutional questions involved in this class
of cases are no less complex than in felony matters. Coun-
sel’s assistance is also essential to the guilty plea process
which is the major mode of disposition. The collateral
consequences of minor offense convictions can be serious,
especially to poor persons, since they frequently affect
eligibility for occupational callings and public benefits
such as government housing.
In short, the notion that a fair trial can be had in the
lower criminal courts without counsel is untenable and no
person should be subjected to confinement, in prisons that
are of the poorest quality, without a determination of guilt
that has met the test of our adversary process.
ARGUMENT
The Due Process and Equal Protection Clauses of
the Fourteenth Amendment and the right to counsel
provision of the Sixth Amendment require that a poor
person be guaranteed the assistance of counsel when
charged with any crime for which he can be impris-
oned.
I
At this point in our constitutional history, the signal
importance of the right to counsel in criminal prosecutions
is one of those few issues that can be approached with cer-
tainty. As our system is an adversary one, the right to
counsel is the only means by which all other constitutional
rights can be secured.? Thus, in Rideaé v. Louisiana,
373 U. S. 723 (1963) the Court wrote:
Under our Constitution’s guarantee of due process,
a person accused of committing a crime is vouchsafed
basic minimal rights. Among these are the right to
counsel, the right to plead not guilty, and the right
to be tried in a courtroom presided over by a judge.
373 U.S. at 726-27.
With the exception of Betis v. Brady, 316 U. S. 455
(1942) and its progeny, the essentiality of counsel to the
fair functioning of our system has consistently been de-
clared by the Court—without concern for the nature or
seriousness of the crime charged. Powell v. Alabama, 287
U. S. 45 (1932); Johnson v. Zerbst, 304 U. S. 450, 462
(1938) ; Gideon v. Wainwright, 372 U. S. 335 (1963); Pat-
terson v. Warden, 372 U. S. 776 (1963); In re Gault, 387
2. Shaefer, Federalism and State Criminal Procedure, 70 Harv.
L. Rev. 1, 8 (1956).
.
6
U.S. 1 (1967). Rather, the Court’s many decisions extend-
ing the right to counsel signify the homage paid to Mr.
Justice Sutherland’s exegesis of that right in Powell which,
because of its classic quality, bears repetition:
‘he right to be heard would be, in many cases, of
little avail if it did not comprehend the right to
be heard by counsel. Even the intelligenf and educated
layman has small and sometimes no skill in the science
of law. If charged with crime, he is incapable, general-
ly, of determining for himself whether the indictment
is good or bad. He is unfamiiiar with the rules of evi-
dence. Left without the aid of counsel he may be put
on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the
skill and knowledge adequately to prepare his defense,
even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceed-
ings against him. Without it, though he be not guilty,
he faces the danger of conviction because he does not
know how to establish his innocence. 287 U. S. at
68, 69.%
Thus the recognition in Gideon that,
* * * reason and reflection require us to recognize
that in our adversary 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 him. This seems to us an obvious truth.
372 U.S. at 344.
_ 3. When it is remembered that Mr. Justice Sutherland wrote of
the complexities of the “science of the law” well in advance of what
has come to be known as the “Criminal Law Revolution.” the pre-
science of his observations becomes immeasurable. Later in our brief
we will attempt to show the Court how the wisdom of these observa-
tions is especially manifested in misdemeanor and lesser offense
prosecutions.
| 7
q
3
Of equal significance has been the Court’s consistent
refusai to permit a man’s poverty to serve as the basis for
denying him rights otherwise available to/persons accused
of crime. Griffin v. Illinois, 351 U. 8. 12, 19 (1956) [There
can be no equal justice where the kind of trial a man gets
depends on the amount of money he has.’’]; Eskridge v.
Washington State Board, 357 U. S. 214 (1958); Burns v.
Ohio, 360 U. S. 252 (1959) ; Smith v. Bennett, 365 U. S. 708
(1961) ; Douglas v. California, 372 U. S. 905 (1963) ; Lane
v. Brown, 372 U.S. 477 (1963) ; Seals v. Alabama, 380 U. S.
254 (1965) ; Long v. District Court, 385 U. S. 192 (1966) ;
Tate v. Short, —— U.S. , 89 U.S.L.Wk 4301 (March 2,
1971).
QoQ
Of particular relevance is the recent decision in Williams
v. Oklahoma City, 395 U. S. 458 (1969), in which, on equal
protection grounds, the Court rejected the State’s position
that an indigent could be denied a free transcript of his
conviction for violation of a municipal ordinance for pur-
poses of appeal because it was a ‘‘petty offense.”’
The State of Florida now asks this Court to deny a poor
person the right to the assistance of counsel when punish-
ment for the crime charged would not exceed six months im-
prisonment. Such a result would be entirely inconsistent
with the foregoing principles.
To accept Florida’s position also would require a de-
termination that the right to counsel guaranteed by the
Sixth Amendment is commensurate with only one other
Sixth Amendment right, that of trial by jury. There is
neither historical nor constitutional basis for such an as-
sumption, which many courts, both State and federal, have
8
rejected. E.g. James v. Headley, 410 F. 2d 325, 331-33 (5th
Cir. 1969); Application of Stevenson, 458 P. 2d 414, 418
(Ore. 1969) ; State v. Borst, 154 N.W. 2d 888 (Minn. 1967).
Our own Court of Appeals, which sustained a limitation of
the right to trial by jury in New York City to crimes punish-
able Ly more than one year’s imprisonment,® much earlier
held that ‘‘the right to counsel must be made meaningful
and effective in criminal courts on every level.’? People v.
Witenski, 15 N.Y. 2d 392, 395, 207 N.E. 2d 358 (1965).
Application of the Sixth Amendment’s jury trial stand-
ard as the measure of the right to counsel will simply not
withstand analysis. As the Fifth Circuit has pointed out,
[b]ecause a charge is petty enough to be outside the
jury-trial requirement does not mean that it is also
petty enough to allow suspension of the right to counsel.
The petty-offense exception has not been applied uni-
formly to all Sixth Amendment rights. On the con-
trary, In re Oliver, 1948, 333 U. S. 257, held the Sixth
Amendment right to a public trial to be applicable to
state proceedings although only a 60-day sentence was
involved. An ‘‘accused is at the ver# least entitled to
have his friends, relatives and counsel pres“nt, no mat-
ter with what offense he may be charged.’’ 333 U.S. at
272. James v. Headley, supra, 410 F. 2d at 332.
In Groppi v. Wisconsin, 400 U. S. 505 (1971), the Court
did not premise the right to. an impartial jury on the
4. Many courts have extended the right to counsel for all mis-
demeanors without even considering the limitations of the jury trial
provision. E.g. Harvey v. Mississippi, 340 F. 2d 263 (5th Cir.
1965). For a state by state breakdown see Junker, The Right to
(1908), in Misdemeanor Cases, 43 Wash. L. Rev. 685, 719-734
5. Matter of Hogan v. Rosenberg, 24 N.Y! 2d 207, 247 N.E. 2d
(197 eta rev'd sub nom., Baldwin v. New York, 399 U.S. 66
ID LW EEG I FEE OL OL POE IGE PIE Pa i oS ht A ie a ———
—
9
seriqusness of the crime charged but upon ‘‘the nature of
the jury trial that the Fourteenth Amendment commands,
when trial by jury is what the State has purported to ac-
cord.’’. 400 U. S. at 508. Nor has the Court ever limited to
serious offenses the other guarantees in the Sixth Amend-
ment—to-be informed of the nature of the charges, con-
frontation\ and cross-examination, and compulsory proc-
ess—and we feel safe in concluding that the Court would
decline to do so. See Junker, The Right to Counsel in Mis-
demeanor Cases, 43 Wash. L. Rev. 685, 705-707 (1968).
Historically, the limitation of the right to trial by jury
to non-petty offenses has an independent genealogy un-
related to the development of the right to counsel. See,
Baldwin v. New York, supra, 399 U. S. 66 (1970) ; Duixwcan
v. Louisiana, 391 U. S. 145, 161 (1968) ; Frankfurter & Cor-
coran, Pettu Federal Offenses and the Constitutional Guar-
antee of Trial by Jury, 39 Harv. L. Rev. 917 (1926). No
parallelism exists where the right to counsel is concerned.
The right to assigned counsel actually begins with Powell,
detours with Betts, and flourishes in Gideon. Moreover, a
person who could afford to retain counsel has always been
entitled to do so even though the charge be one of petty
offense. Powell v. Alabama, supra, 287 U. S. at 68.
Why no such parallel can or ought be constitutionally
drawn as to the right to counsel, is, that unlike the right to
trial by jury, the assistance.of counsel is a prerequisite to
the very existence of a fair trial. This functional distinct-
tion was the very basis f..r the disparate treatment afforded
the right to jury trial from the right to counsel when
problems of retroactivity arose. In limiting the application
of Duncan, the Court refused td assume that a trial before
sige pee ate tm ea > A ane oe : , ~e
— LLER DTT ee
PROPS OR here
10
a judge, rather than a jury, could not have been fair, and
concluded, therefore, that the absence of a jury did not
diminish the efficacy of the fact-finding process. DeStefano
v. Woods, 392 U. S. 631 (1968). However, Gideon was
deemed retroactive because of the Court’s belief that the
absence of counsel did affect the integrity of the guilt-
determining process. Pickelsimer v. Wainwright, 375 U.S.
2 (1963); Johnson v. New Jersey, 384 U. S. 719, 727-28 |
(1966); Arsenault v. Massachusetts, 393 U. 8. 5 (1968);
McConnell v. Rhay, 393 U. S. 2 (1968) ; Williams v. United
States, U. S. ——, 9 Cr. L. Rep. 3015, 3017 (April 7,
1971).
That the presence of counsel is part and parcel of a fair
trial is also manifested in thé Court’s persistent refusal to
search the record of a trial for prejudice, once the right to
counsel is shown to have been violated. Glasser v. United
States, 315 U. S. 60, 75, 76 (1942) ; Chandler v. Fretag, 348
U. S. 3 (1954); Reynolds v. Cochran, 365 U. S. 525, 531
(1961) ; Chewning v. Cunningham, 368 U. S. 443, 447 (1962) ;
White v. Maryland, 373 U. S. 59 (1963); United States v.
Wade, 388 U. 8. 218, 236 (1967); Chapman v. California,
386 U.S. 18, 23 (1967) ; but see, Chambers v. Maroney, 399
U.S, 42, 53-54 (1970).
Florida’s position, devoid as it is of constitutional
. strength, thus rests solely on an argument of expedience,
such as that propounded by the majority below—that the
Constitution does not compel the State to ‘‘hand out to
them [the lowest echelons of petty offenders] the free serv-
ices of an elaborate and expensive public defendant system.
* * *°) 236 So. 2d at 444.
In securing to all persons rights guaranteed by the Con-
stitution however, the Court has rejected at every turn,
SERIA My. RENT RUS ee a RNR PO ae: napa eSNG nt Ae eae ens ka Ensen i
il
arguments that have urged limitations in the definition of
constitutional rights based upon assertions of unavailable
resources by the States. Griffin v. ?inois, supra, 351 U.S.
12; Gideon v. Wainwright, supra, 372 U.S. 335; Douglas v.
Califorma, supra, 372 U. S. 353; Baldwm v. New York,
supra, 399 U. S. 66; Shapiro v. Thompson, 394 U. S. 618,
633 (1969); Boddie v. Connecticut, —— U. 8. —-, 39
U.S.L.Wk 4294 (March 2, 1971).
In short, the meaning of the Sixth Amendment and Due
Process Clause does not fluctuate in proportion to the num-
ber of persons who seek otherwise justifiable refuge in
them. The rights afforded by the Constitution are personal
rights ‘‘which the State must respect, the benefit of which
every person may demand. * * * [I]ts safeguards extend to
all.’? Hill v. Texas, 316 U.S. 400, 406 (1942).°
Extending the right to counsel to all misdemeanor con-
victions, the Minnesota Supreme Court observed that
[a] defendant in court on a charge defined as a
misdemeanor is as helpless to defend himself as he
would be if he were charged with a gross misdemeanor
or felony. State v. Borst, supra, 154 N.W. 2d at 893.
6. We are, of course, puzzled and concerned about the thrust of
that portion of the Court’s recent order prescribing rules for the trial
of minor offenses before federal magistrates insofar as those rules are
subject to an interpretation that a poor person charged with a petty
offense other than a minor offense need not be informed of a right
to assigned counsel. Order Prescribing Rules of Procedure For the
Trial of Minor Offenses Before Magistrates, Rule 3(b), 400 U.S.
1037-42 (Jan. 27, 1971). We must assume, however, that the Court
has not conclusively determined that such an interpretation and lim-
itation of the right to counsel is constitutional. 400 U.S. 1031-36
(statement of Mr. Justice Black).
———e a
12
That this pronouncement may, indeed, commit only the
error of understatement can easily be seen from an ap-
preciation of the workings of the criminal process in the
lower crimninal courts, for it is the unsatisfactory nature
of that process that increases, rather than detracts from,
the need for counsel’s presence whenever desired by the
accused, rich or poor.’ .
7. Our discussion of the problem of the lower courts will, at
times, involve courts which have jurisdiction to try cases punishable
by more than six months imprisonment, as does the Criminal Court
of the City of New York. This suggests at the outset that the con-
cept of “petty” offense on a nationwide level is a totally unworkable
one, for it assumes a tolerably certain and stable definition based on
historical notions that offenses punishable by no more than six
months imprisonment involve matters of “small importance,” “tri-
fling nuisances” of a regulatory nature—mala prohibita rather than
mala in se. 1 Stephen, A History oF THE CRIMINAL LAw oF ENG-
LAND 123 (1883); Callan v. Wilson, 127 U.S. 540, 553 (1888) ;
Shick v. United States, 195 U.S. 65, 69 (1904); United States v.
Barnett, 376 U.S. 681, 748-750 (Mr. Justice Goldberg, dissenting) ;
Cheff v. Schnackenberg, 384 U.S. 373 ate Throughout the
country, however, categories of offenses classified as misdemeanors
and felonies vary and an ~ffense which is a felony or serious mis-
demeanor in one state may » a lesser offense in another. See, Presi-
dent’s Commission on L.w Enforcement and the Administration of
Justice, TAsK Force Report: THE Courts 30 (1967) ; District of
Columbia v. Colts, 282 U.S. 63 (1930).
Modern penal law revisions also have not retained common law
concepts and have attached lesser sentences t-: crimes punished much
more seriously at common law. For example, New York law, re-
cently revised, has no six month sentence for any crime and punishes
class A misdemeanors by one years imprisonment and class B mis-
demeanors by three months imprisonment. In the class B category,
however, are crimes such as conspiracy in the fourth degree [P.L.
$105.00], menacing [P.L. §120.15], sexual abuse in the third degree
[P.L. §130.55], criminal tampering in the second degree [P.L.
§145.15], reckless endangerment of property [P.L. §145.25], com-
mercial bribery and bribe-receiving [P.L. §§180.00, 180.05]. Even
violations, punishable by only 15 days imprisonment include such
crimes as harassment [P.L. §240.25] and criminal solicitation in the
third degree: [P.L. §100.00]. These are crimes which of course do
not fall into the malum prohibitum genre and demonstrate that a
constitutional limitation on the right to counsel based on the “petty
offense” concept would bear little relation to any historical under-
standing of the term. See Callan v. Wilson, supra, 127 U.S. at 556.
SR AOE RTS cheshinghitaaumbatie Lawns cna
13
A tragic truth about the lower criminal courts through-
out the United States, especially in urban areas, is the
degree to which ineptitude, chaos and patent unfairness
has become rampant.
In 1967, the President’s Commission on Law Enforce-
ment and the Administration of Justice expressed its
shock at what it had observed in these courts and it called
attention to the ‘‘cramped and noisy courtrooms, undig-
nified and perfunctory procedures and badly trained per-
sonnel’’ which were representative.* a
The Commission also spoke of ‘‘assembly-line justice’”
and trial procedures that bore little resemblance to those
_ usually associated with due process, characterized by an
informality that would not be tolerated in a felony trial.’
The Commission further pointed out that the extremely
poor quality of justice in the lower courts was not a recent
phenomenon but that ‘‘[s]tudy commissions have pointed
out the scandal of the lower criminal courts for over a
century.’’!
8. President’s Commission on Law Enforcement and the Admin-
istration of Justice, THz CHALLENGE oF CRIME IN A Free Society
128 (1967). Only recently, a judge of the New York City Criminal
Court tendered his resignation because of these conditions, N.Y.
Times, April 13, 1971, p. 44.
9. THE CHALLENGE OF CRIME IN A FREE SOCIETY, supra, n. 8
at 127-128.
10. President’s Commission on Law Enforcement and the Ad-
ministration of Justice, TASK Force Report: THE Courts, supra,
n. 7 at 30.
11. Tur CHALLENGE OF CRIME IN A FREE SOCIETY, supra, n. 8
at 129,
oe ua tes baa Niele a RR CR le a PRT RAR AI OD KS , me TEES eRe noma
14
Although the vast majority of Americans have contact
with the criminal process only at the lower criminal court
level,’* the quality of the judiciary is exceptionally low.
That a substantial portion of municipal court judges are
chosen neither for their legal talent nor their compassion
but for their service to local political machines is well-
known.** |
The author of a recent study has stated:
If my sampling is a fair indication (I simply sat
down in courtrooms selected at random around the
country and listened) perhaps half of the trial judges
are, for one reason or another, ‘infit to sit on the bench.
[I]n states like Pennsylvania, New York, Ken-
tucky, Texas, Oklahoma, and Indiana where court
problems are especially acute (lawyers, prosecutors,
policemen and judges) complain that my estimate of
the percentage of incompetent judges is far too low.
James, CrIsIs IN THE Courts 4 (1968)
In describing the manner in which ‘‘petty offenses’* are
handled in these courts, the Commission’s Task Force
found that,
Judges sometimes seem annoyed at being required
to preside in these courts. Defendants are treated
with contempt, berated and laughed at, embarrassed,
and sentenced to serve their time or work off their
fines. Observers have sometimes reported difficulty
in determining what offense is being tried in a given
12. Note: Metropolitan Criminal Courts of First Instance, 70
Harv. L. Rev. 320 (1956).
13. Katz, Municipal Courts—Another Urban IIl, 20 Case West
L. Rev. 87, 121 (1968).
Spa er Re eR tp etme eotercemr
i
PIP YOSSI A ONO
eee ws
15
case and instances have come to light in which the
disposition bears little relationship to the original
charge. A trial of a defendant charged by police with
drunkenness consisted of this exchange:
Macistrate: ‘‘Where do you live?’’
DEFENDANT: ‘‘Norfolk.’’
MacistraTeE: ‘‘What are you doing in Philadel-
phia?’’
DEFENDANT: ‘‘ Well, I didn’t have any work down
there, so | came up here to see if I could find * * *”’
MacistraTtE (who had been shaking his head):
‘‘That story’s not good enough for me. I’m going to
have you investigated. You’re a vagrant. Three
months in the House of Correction.’’
Task Force Report: THe Courts, supra, at 31.
Even when judges are well trained’ and/or well-inten-
tioned, the demands placed upon them by persistently heavy
caseloads and inadequate auxiliary resources create the
threat of their becoming case-hardened and ill-tempered.
A student of the New York City Criminal Court thus has
written that,
Lawyers and others who observe Criminal Court
say that many judges vecome cynical, bored or weary
after years on the bench, that some of them demean
rather than uplift the dignity of the proceedings, that
many use bail as a punitive weapon and that a decision
may depend less on the merits of the case than on the
judge’s mood, his opinion of the lawyers involved or
the idiosyncrasies of his personality.
Kessler, Judging the Judges, The Wall Street
Journal, Dec. 7, 1967, p. 1, col. 1.
14. In some states, such as North Dakota, a municipal judge in
some instances need not have any legal training at all. N.D. Cent.
Code §40-18-01 (1968) [In cities under 3,000 versons no training
required and if attorney is unavailable in cities of more than 3,000,
then layman may act as a municipal judge]. i
eat Be PE ALBIN
16
In 1970, the Legal Aid Society was assigned to 164,461
misdemeanor and lesser offense cases. Of this number,
29,824 were dismissed, 1,593 were transferred to Family
Court,* and 38,386 resulted in pleas of guilty. Trials were
held in 3,100 cases, with 1,400 acquittals and 1,700 convie-
tions.*® 4
\
By contrast, in 1970, the Society was- assigned to 12,301
felony cases of which 530 were dismissed and 15 transferred
to Family Court. Pleas of guilty were entered in 5,709
cases. Trials were held in 138 cases with 88 convictions and
50 acquittals.’”
At the outset, these figures indicate that when an urban
defender agency does not close its doors to persons charged
with less serious offenses, it is called upon to render its
greatest service in that area. That such an allocation of
legal resources is warranted is observable from the next
conclusion our figures entitle us to draw: that an over-
15. Under New York law, the Family Court has original juris-
diction over various criminal acts “between spouses or between parent
and child or between members of the same family or household.”
N.Y. Fam. Ct. Act, §812 (29A McKinney’s Consol. Laws of N.Y.
1963). The meaning of the section has been the subject of consider-
able litigation. E.g. People v. Williams, 24 N.Y. 2d 274, 248 N.E.
2d 8 (1969) ; People v. Juhnson, 20 N.Y. 2d 220, 229 N.E. 2d 180
(1967). Many of the criminal acts which would divest the Criminal
Court of jurisdiction are punishable by less than six months impris-
onment. The technical complexity of the statute amply demonstrates
the need for counsel so as to avoid an unwarranted application of the
criminal process to a family dispute.
16. 35,166 cases were disposed of in miscellaneous fashion and
do not here concern us since they did not deal with the merits of the
charges; 1.¢., cases in which the Society was relieved of its initial
assignment or where pleas were entered under other charges.
17. 3,891 cases were disposed of in miscellaneous fashion. See
n. 16 above.
ser ? ee i “ ‘; . aE Bp st i ak laing NES | PLOT SE BRS REO A ite IPT RM Mee names ie sential
17
whelmingly greater proportion of persons charged with less
serious offenses [45%] either have their cases dismissed or
are acquitted than is the case with felony prosecutions
[9%]. Thus we know that the prevalence of legal insuf-
ficiency and outright innocence is far greater in the lesser
offense category.*®
With respect to cases which resulted in conviction, our
figures compar-ng our results on appeal in lesser offense
cases with felony convictions for the yeats 1969 and 1970
also tell us-much about the lesser offense process:
1969 1970
Appeals to Appellate Divisions
resulting in decision (felony) 412 481
Affirmed 376 430
Reversed or modified 36 51
Percent reversed or modified 9% 11%
* * ~
1969 1970
Appeals to Appellate Terms
resulting in decision
(misdemeanor and violation) 187 228
Affirmed 107 149
Reversed or modified 80 79
Percent reversed or modified 42% 35%
18. Our figures, of course, do not indicate what the results would
be in a system where counsel was not furnished. As New York has
long afforded counsel to lesser offenders except for traffic infractions
[see n. 1 supra], we have no way of making a comparative analysis.
For the Court’s interest, however, we are annexing as Appendix A,
a study made by the American Civil Liberties Union of Nevada
which does offer some comparative analysis of defended vis a vis un-
defended cases—the subject of the study being the Police Court in
Reno, Nevada.
18
it is evident therefore, that the incidence of reversal on
| appeal from a misdemeanor or violation conviction is far
greater than in felony cases, signifying that (1) the occur-
| rence of legal error in the trial of a lesser offense is far
more frequent than in a felony trial; (2) the chances of
imprisonment based upon legal error is three to four times
as great in lesser offense prosecution; (3) the chance that
an innocent person will be convicted in the lower court far
exceeds that in a felony case. [In not one of the 87 Ap-
pellate Division reversals above, was the ground for
reversal the failure of the People to prove the defendant’s
guilt beyond a reasonable doubt. Of the Appellate Term
reversals over the two years, approximately 40% were
on the ground that the prosecution failed to establish guilt
beyond a reasonable doubt.j; (4) as each defendant was
represented by counsel, the ground for reversal was often
_ protected, thereby signifying the critical role of counsel.”
Our experience with lesser offense prosecution enables
us to make a number of other observations about the crim-
inal court process that renders the need for counsel im-
perative.
The majority of the defendants in the lower criminal
courts are the urban poor and mainly of minority extraction.
In New York, the minority groups most heavily involved
19. Even where specific objection was not made, cross-examina-
tion of the People’s witnesses developed the record so as to enable
counsel to advance grounds for reversal for the first time on appeal.
New York law is liberal on this aspect of its practice. Code Crim.
Proc. §520; People v. McLucas, 15 N.Y. 2d 167, 204 N.E. 2d 846
(1965) ; People v. Arthur, 22 N.Y. 2d 325 239 N.E. 2d 537 (1968).
Of course, the importance of counsel on appeal in less serious of-
fenses is an independent issue and we would respectfully urge the
relevance of our appeals data to the issue presented in Mayer v. City
« oe Oct. Term, 1970, No. 6061, prob. juris. noted, Feb. 22,
EE Pg IAL SL 1 IY Sicig DITA ae te pews mncerpmecoune ste
19
are, of course, those of black and Puerto Rican heritage.
The Criminal Court thus plays a very large part in the
lives of many of the urban poor, and even with counsel
guaranteed by New York law, the belief is widespread
among the impoverished and minority group residents of
the City’s ghettos who enter the courtrooms of the Criminal
Court either as defendants or as relatives and friends of
defendants, that justice is dispensed on an assembly-line
basis. We doubt that the perpetuation throughout the
country of systems where not even counsel is present can
be a step towards improving this unsatisfactory state of
affairs.
A sampling of the appeals which the Criminal Appeals
Bureau handled during the past ‘wo years also points up
various aspects of the lesser offense process which render
Mr. Justice Sutherland’s appraisal of the role of counsel
especially applicable to this category of cases.
1. Many of the crimes prosecuted are of the ‘‘low
visibility’? variety—police crimes such as loitering, va-
grancy and disorderly conduct, which, by their very nature,
are replete with serious legal issues ranging from the
sufficiency of the evidence to the constitutionality of the
statute involved.”!
20. See, REPoRT OF THE NATIONAL ApDvisory COMMISSION ON
Civic Disorpers 337 (Bantam Ed. 1968) ; Wright, The Courts
a Failed the Poor, N.Y. Times [Magazine] March 9, 1969, p-
100.
21. See, Douglas, Vagrancy and Arrest on Suspicion, 70 Yale
L.J. 1 (1960) ; Foote, Vagrancy-Type Law and its Admunistration,
104 U. Pa. L. Rev. 603 (1956) ; Amsterdam, Federal Constitutional
Restrictions on the Punishment of Crimes of Status, Crimes of Gen-
eral Obnoxiousness, Cri tspleasing Police Officers, and the
Like, 3 Crim. L. Bull. 205 ); see also, Coates v. City of Cin-
cimnati, No. 1370, October Term, 1969.
EE ees
20
In Sibron v. New York, 392 U. S. 40 (1968), the Court
specifically adverted to this aspect of the criminal process:
Many deep and abiding constitutional problems are
encountered primarily at a level of ‘‘low visibility’’ in
the criminal process—in the context of prosecutions for
minor offenses which carry only short sentences. We
do not believe that the Constitution contemplates that
people deprived of constitutional rights at this level
should be left utterly remediless and defenseless
against repetitions of unconstitutional conduct. 392
U. S. at 53.
Accordingly, many reversals have been obtained because
of the fertile ground provided in these cases for legal
error.”2. And on numerous occasions, constitutional chal-
lenges to the statutes themselves have been made by trial
22. In People v. Peters, New York Law Journal, Jan. 7, 1971,
p. 2, col. 1’(App. Term, 1st Dept.), the court reversed a conviction
for public lewdness, a class B misdemeanor [P:L. §245.00] on the
ground that proof of guilt was not established beyond a reasonable
doubt. The function performed by trial counsel was critical because
the reversal was based upon inconsistencies between the arresting
officer’s testimony at trial and his entries on his arrest card which
were brought out on cross-examination.
In People v. Schwartz, New York Law Journal, Dec. 17, 1970,
p. 2, col. 1 (App. Term, 1st Dept.), a conviction for disorderly con-
duct [P.L. §240gg0] was reversed because the People failed to prove
that defendant’s conduct was sufficient to establish a risk of public in-
convenience or harm. Here, the defendant had originally pleaded
guilty without counsel, which plea was vacated by counsel imme-
diately upon his assignment.
In People v. Heins, New York Law Journal, Oct. 26, 1970, p. 2,
col. 3 (App. Term Ist Dent.) the defendant’s loitering conviction
was overturned, the court finding that his lingering in a restroom
was neither unduly long, nor tainted with conduct indicative of pro-
hibited activity. The defendant had been reading a newspaper while
awaiting his turn to use the toilet.
In People v. Brown, New York Law Journal, Oct. 10, 1969, p.
2, col. 4 (App. Term, Ist Dept.), another loitering conviction was
SE IAT LE ELLY LOZENGES HON LET EE MOI A SAE REE a YE 2 OM Ke ANID RAY Te SN 8 Oe ra om ——
P . ORL PS PLIERS ae oe .
21
and/or appellate counse) ** This Court, of course, has had
its own opportunities to observe, at close Hand, the manner
in which statutes of this kird are utilized. See, Thompson
v. City of Lowismle, 362 U. S. 199 (1960) ; Garner v.
Louisiana, 368 U. S. 157 (1961); Taylor v. Lomsiana, 370
U.S. 154 (1962); Fields v. City of Fairfield, 3%5 U. S. 218
(1963); Barr v. City of Columbia, 378 U. S. 146 (1964);
Shuttlesworth v. City of Birmingham, 382 U. 8.87 (1965).
overturned with a holding that “no iaw brands one as a loiterer who
enters a subway station and fails to take the first train to his desti-
nation * * *,” N
In People v. McCaskill, New York Law Journal, June 26, 1970,
p. 2, col. 3 (App. Term, Ist Dept.), a conviction for obstructing vehi-
cular traffic was reversed [P.L. §240.20(5)] where the defendant,
while crossing the street was brushed by a car driven by a ‘plain-
clothes detective who did not take kindly to the surprise and anger
expressed by the defendant. At trial, counsel was able to establish
that this had been the basis for the filing of the complaint.
23. In People v. Beltrand, 63 Misc. 2d 1041, 314 N.Y.S. 2d 276
(Crim. Ct. N.Y. Co. 1970) trial counsel challenged the constitu-
tionality of a section of New York’s loitering statute [P.L: §240.35
(6)] which makes it a crime to “loiter * * * in or about a place
without apparent reason and under circumstances which justify SUSy
picion that he may be engaged ur about to engage in crime.” The
trial court declared the statute unconstitutional. An appeal by the
Attorney General is pending.
In People v. Harris, 64 Misc. 2d 510, 315 N.Y.S. 2d 66 (App. >
Term, Ist Dept., 1969) a challenge to New York’s fraudulent ac-
costing statute [P.L. §165.30] was sustained. See, also, Fenster v.
Leary, 20 N.Y. 2d 309, 229 N.E. 2d 419 (1967) [New York’s
vagrancy statute held unconstitutional] ; but see, People v. Pagnotta,
25 N.Y. 2d 333, N.E. 2d 202 (1970) sustaining the constitutionality
of New York’s former loitering for the purpose of using narcotics
statute. However, on November 2, 1970, the five New York City
District Attorneys told the Police Department that a vast majority
of the arrests made under the successor statute [P.L. §240.36] have
been “unwat ranted and unlawful.” The New York County District
Attorney’s office dismissed 89 per cent of 1,802 narcotic loitering
arrests in three months. N.Y. Times, Nov. 2, 1970, p. 49, col. 6.
»
.E
7
TTT MC on er ee a ag
BLA Shs
Phil HR Raabe
te ce aie ae
22
2. Apart from the fact that in many lesser offense prose-
eutions the defendant is actually innocent, it is also true
that most frequently the court has before it a person who
is not a hardened criminal. The defendant might be a per-
son who became involved in a little neighborhood scuffle,
or looked a little slovenly in a subway station, or picked a
garment from a department store counter intending to pay
for it’on another floor.2*»-It is to these persons that the
criminal court process can be most traumatic and disrup-
tive. See, Hellerstein, The Importance of the Misdemeanor
Case on Tricl and Appeal, 38 Legal Aid Briefcase 151, 153
(1970).
3. In many cases, procedural and substantive coim-
plexities are as prevalent as in felony cases. This is espe-
cially true in les: -r sex offense cases, cases with difficult
problems of statu.ory construction, and all cases where the
24. Again several of our recent cases are representative. In
People v. Markowitz, 18 N.Y. 2d 953, 223 N.E. 2d°572 (1966), the
defendant, without counsel, was convicted of selling scorecards in
front of Yankee Stadium without a license and fined $6.00. Assigned
to the appeal, our office pointed out that the defendant had actually
applied for a license but had been told that he didn’t need one_be-
cause he was selling printed matter and urged that it was improper
to convict a person who makes a bona fide attempt to comply with
the law. The Court of Appeals reversed unanimously on due proc-
ess grounds citing the decision of this. Court in Cox v. Louisiana,
379 U.S. 559 (1965).
In People v. Williams, New York Law Journal, April 18, 1968,
p. 2, col. 2 (App. Term, lst Dept.), the defendant was convicted for
loitering in a subway station. He testified that he had been pulled
from a telephone booth after placing a call to his employer. In re-
wittal, the officer testified that there was no phone booth on that
platform. On appeal, counsel obtained certification from the Transit
Authority that indeed there were two phone booths at the station.
The conviction was reversed.
£ 3%
legality of police conduct pertaining to searches and sei-
zures or confessions is involved.”°
4. In many instances, the People’s ease is based upon
perjured police testimony and counsel has a significant role
in protecting the defendant against its use. This is par-
ticularly true of minor narcotic prosecutions, where to ec..-
25. ‘In People v. Hanna, New York Law Journal, July 19, 1968
(App. Term, 2d & 11th Jud. Dist.), a conviction for sexual abuse
in the third degree, a class B misdemeanor [P.L. $130.55] was re-
versed because the complainant testified to an uncorroborated rape.
The record was protected by trial counsel’s timely motion for dis-
missal for lack of corroboration. Similar results were reached in
People v. Tolliver, New York Law Journal, June 17, 1970, p. 2. col.
5 (App. Term, Ist Dept.) and People v. Soto, New York Law Jour-
nal, Nov. 3, 1969, p. 2, col. 1 (App. Term, Ist Dept.). That an
unrepresented defendant would have known of this complex aspect
of the law is highly dubious. ‘
In People v. Salgado, New York Law Journal, April 6, 1970,
p. 2, col. 2 (App. Term, Ist Dept.), a conviction for endangering
the welfare of a minor was reversed because guilt had not been es-
tablished beyond a reasonable doubt, the court pointing out that the
People’s case rested upon the uncorroborated testimony of a minor.
With respect to issues of illegal search and seizure, no case is
more representative than Sibron v. New York, 392 U.S. 40 (1968).
an appeal which involved a New York City Criminal Court con-
viction for possession of narcotics. Indeed, it was in Stbron that the
Court also noted the seriousness of a misdemeanor conviction with
respect to the question of mootness. 392 U.S. at 56. See also, Peo-
ple v. White, 16 N.Y. 2d 270, 213 N.E. 2d 438 (1965), cert. den.
386 U.S. 1008 (Warren, Douglas, Fortas of the ov. cert. should
be granted). Of course, many cases in the Criminal Court continue
to present either new Fourth Amendment issues [¢.g. People v. -
Whitehurst, 25 N.Y. 2d 389, 254 N.E. 2d 905 (1969); People v.
Anderson, 24 N.Y. 2d 12, 246 N.E. 2d 508 (1969) ; People v. Rose-
mond, 26 N.Y. 2d 101, 257 N.E. 2d 23 (1970) ; People v. Butterly,
25 N.Y. 2d 159, 250 N.E. 2d 340 (1969)] or instances where trial
judges refuse to comply with appellate court decisions. People v.
Delgado, New York Law Journal, Dec. 17, 1970, p. 2, col. 1 (App.
Term, Ist Dept.) is of particular relevance because it is another ex-
ample wherein trial counsel was instrumental in laying the ground
for reversal when he renewed a motion to suppress at trial after it
became clear that the police officer had given different testimony on
the issue of abandonment at the suppression hearing.
nig RE i,
PST AOE ALS PRON TID NSS TR gS ft
SPIN ML StS ee, ss phon
ce A tp
dca ee
blind LED GMO AER BETES PUA A tas
24
cumvent this Court’s decision in Mapp v. Ohio, 367 US.
643 (1961), police officers have resorted to what has come to
be as ‘‘dropsy’’ testimony—statements to the effect
that upon the officer’s approach, the defendant dropped
narcotics to the ground, constituting an abandonment and
thereby giving the officer probable cause to arrest him.”
5. Counsel is also integral to any process which relies
heavily upon the entry of guilty pleas. Evans v. Rives, 126
F. 2d 633, 637 (D.C. Cir. 1942) As our own figures demon-
strate, the overwhelming number of convictions in the
lesser offense area as well as in felony cases are secured
through guilty pleas. As long as our system depends upon
this manner of disposition to avoid even greater calendar-
clogging, the guiding hand of counsel is essential. Ker-
cheval v. United States, &/4 U.S. 220, 223 (1927) ; Boykin v.
Alabama, 395 U.S. 238 (1969). It is counsel who provides
expert evaluation of the appropr’:.teness of the guilty plea
and assistance to the defendant in obtaining charge and
sentence leniency by plea negotiation. Counsel’s skills are
as important in plea negotiation as they are at trial. New-
man, Conviction, 198 (1966). Indeed, counsel’s involve-
ment in the plea process has frequently permitted a
Court to feel secure in the belief that a plea had properly
26. Presently pending before the New York Court of Appeals
are a series of appeals prosecuted by the Society’s Appeals Bureau in
which the court is asked to shift to the People the burden of proof
at a suppression hearing where they rely on “dropsy” testimony.
The District Attorney for New York County has conceded that per-
jury is. blatant in these types of cases, as well as others and has
joined in our request for relief. People v. Berrios (argued before
the New York Court of Appeals on March 2, 1971). See Barlow,
Patterns of Arrests for Misdemeanor Narcotics Possession: Man-
hattan Police Practices, 1960-62, 4 Crim. L. Bull. 549 (1968) ; Po-
lice Practices in Narcotics Cases, 4 Colum. J. Law & Soc. Prob. 87
(1968).
25
been entered. Compare, People v. Nixon, 21 N.Y. 2d 338,
234 N.E. 2d 687, cert. den. sub nom., Robinson v. New York,
393 U.S. 1067 with People v. Seaton, 19 N.Y. 2d 404, 227
N.E. 2d 294 (1967); see McMann ¥. Richardson, 397 U.S.
759, 771 (1970).
There are, no doubt, still additional reasons why coun-
sel should not be denied an indigent facing a charge pun-
ishable by imprisonment and the factors discussed in this
brief should not be deemed exhaustive. For example,
the collateral consequences of lesser offenses are frequent-
ly as severe to a poor person as are those which attend a
conviction for felony since they affect a person’s qualifica-
tions for various occupational callings and eligibility for
public housing. See Appellant’s Brief, Baldwin v. New
York, supra, 399 U.S. 66, pp. 26-28, Appendix ©, pp. C-1-
C-6. As one federal court has recently also observed,
‘‘[a]ny incarceration of over thirty days, more or less, will
usually result in loss of employment, with a consequent
substantial detriment to the defendant and his family.’’
Marston v. Oliver, F. Supp. —— (E.D. Va. 3/10/71)
8 Cr. L: Rep. 2457-8.
The need for counsel’s assistance to secure release on
bail pending appeal is also critical, especially in view of the
high percentage of reversals that is obtainable upon ap-
peals in these types of cases.
_ In sumi, the key issue is whether, given the hard facts
about the lower criminal courts in our country, with their
poor processes and high incidence of miscarriage of jus-
tice, this Court can still feel assured that without counsel,
the fairness of the trial process, which is the matrix of our
. m . ‘ ™ * ig PRR E RO 1 Ot eee ‘ee, ra ERA), pete 38 SR pies 7 r
me RE LE ae LET LE TLE EE IS BI IT OF LIL TAMER EL ETE LL ES BER RENE: - * T ATRL TRE SEASON I TRCN AG I ICS
w,
2,
om
¥
BRE ih Ri CREAR RES SB eS ESE SS AI TSE
26
entire system, will, nonetheless, be secured to the indigent.
For the reasons stated above, we think this is impossible
and thus, that no man should be condemned to prison” for
as long as six months without a fair trial, for which the
assistance of counsel is an indispensable precondition.
Conclusion
It is respectfully submitted that the judgment of.
the Court below should be reversed.
Respectfully submitted,
Wituisau E. HELLERSTEIN
The Legal Aid Society
Counsel for Amicus Curiae
27. Another fact of lite at this level is the atrocious conditions
that exist in County and Municipal Jails where most lesser sentences
are served. See, Note, Covistitutional Limitations in the Conditions
of Pretrial Detention, 79 Yale L.J. 941, 943-47 (1970); Jones v.
Wittenberg, mem. op. ##C70-388 (N.D. Ohio, 1971).
27
j
Appendix A
American Civil Liberties Union Study Comparing
Defended vs. Undefended Cases in Police Court,
Reno, Nevada
Se RMN URI eS sgt ar ar eas ner er eee? ng
BEES APEC SORENESS PYLE I ae ai
ATTIRE NO aE
A PRELIMINARY Report
LEGAL COUNSEL FOR MISDEMEANANTS
A Comparison of Defended vs. Undefended Cases
in Police Court
Reno, Nevada October-December 1970
5 A Study by the :
qi American Civil Liberties Union of Nevada :
Misdemeanants represented by attorneys are five times :
as likely to emerge from police court with all charges dis- 5
missed as are defendants who face similar charges without
counsel. r
This finding emerged from a 10-week observation of ¥
proceedings in the Reno Municipal Court from October into E
December 1970. An extensive analysis of the several thou- :
sand hearings and trials will be completed later in 1971. E
In the meantime a preliminary comparison of defended vs. :
undefended cases is presented here. [
In order to make valid comparisons, each person with t
a defense attorney was matched with undefended cases of ;
like sex, age and race who faced the same charges. Special
characteristics such as beards or long hair were also taken f
into account in the matching process whenever possible.
Of the 72 cases who had legal counsel which reached
conclusion during the observation period, 50 involved one
charge, nine persons had two charges against them, and 13
faced three or more charges. Matching cases were not only
equated for type of charge but also for the number of
charges.
a ee RE saree BET FS ee
i
heres ecc emer corres coe
eRe...
Py. 2 2 es
oc aa
E a
NonTRAFFIC CHARGES
Misdemeanors in the nontraffic category include such
charges as public intoxication, vagrancy, disorderly person,
disturbing the peace, resisting arrest, interfering with an
officer, assault and battery, obscene language, contributing
to the delinquency of a minor, petty theft and the like.
Chief finding was that 46. percent cf the people who had
~ lawyers, but only five percent of the undefended comparable
~ nontraffic cases were dismissed, or a favorable ratio for
defended cases of 9-to-1. (Table 1)
TRAFFIC CHARGES
Having a lawyer in court made less difference to the
cliert in the disposition of traffic cases. All defendants
were considerably more likely to be given an immediate
~ penalty for traffic violations. Defended persons were twice
_as likely as undefended to have all charges dismissed.
“(Table 2)
- Percent given immediate penalties in traffic and non-
traffic cases are compared below for the defended and the
undefended :
~ Percent Given Immediate Penalty
Traffic Nontraffic
. : Charges Charges
~ Defended cases 62% 37%
Undefended cases 84 57
PLEAS
Guilty pleas were made by only four percent represented
by counsel in contrast to 68 percent among those without
attorneys. (Table 3)
Twenty-eight percent of the pleas entered through at-
torneys were changed from not guilty to guilty compared
with only eight percent of those undefended, perhaps evi-
dence of greater plea bargaining by counsel.
29
One-third of the defended charges compared to three-
quarters of the undefended eventually resulted in guilty
leas. .
: But even when like pleas are compared, it pays a de-
fendant to have an attorney in court. Not only did attor-
neys present more non-guilty pleas, but got more of them
dismissed. Of all the not-guilty pleas, 71 percent of the
defended, but only 37 percent without counsel resulted in
the charges being dismissed. (Table 4)
SUMMARY
The following figures summarize the effects of legal
representation on the disposition of all types of misde-
meanor cases in this police court:
Attorney Comparable
Defended Undefended
Charges were: Cases Cases
Dismissed 35% 7%
No immediate penalty 15 29
Immediate penalty 50 64
Total percent 100% 100%
’ £ 5
%e
MANO SON NC Eee ett al Py ek nes ee cage
DISPOSITION OF NONTRAFFIC CHARGES IN ReENo MUNICIPAL Court
Comparison of Defended vs. Comparable Undefended Cases*
30°
TABLE 1
me
Percent of Persons
——|,
Attorney Comp
Defended Undef
Disposition of Charges Cases
All charges were: ;
ht a ee er eer er eestor nt trite 46% 5% |
Given time Served oo... sesccsesscseeeesecensenenees - 9
Either dismissed, given time served,
OF COMIMUCK ionic eee ceeeeecteeeceetteeees 8 2 r
Continued with possible penalty ......0..0........4. 9 27 :
-Torat Nor Given IMMEDIATE PENALTY .......... 63% |
One or more charges were given: £
Fe ONY cscs cieeerec espero prrrenreenedensnmnnestionst 3% 1% FF
Die Ot TQ A PAE) eset ete: 28 41
Fine or time, plus mandatory time ..................0. 6 7
THRE QO. inte cea ndsoneieenmeinene 8
Tora GIVEN IMMEDIATE PENALTY ................-. 37
TOTAL PORCENT nes cacenaeyn arene 100%
ToTraL NUMBER OF PERSONS ............::::ceee 35 .
* Defended cases were matched to other cases on the following factors, and in
priority shown:
Number and type of charge
Race
Sex
Age
Facial foliage of men,
TABLE 2
DISPOSITIONS OF TRAFFIC CHARGES IN RENo MUNICIPAL Court
Comparison of Defended vs. Gomparable Undefended Cases*
Percent of Persons
Attorney Comparable
Defended Undefended
Disposition of Charges Cases Cases
All charges were:
Dismissed oo... leeeccceececceeceeececeeeebececeecc. 24% 12%
_ Suspended, dismissed or continued .................... 14 4
_ ToraL Nor Given IMMEDIATE PENALTY .......... 38% 16%
Qne or more charges were given:
Reduced charge and penalty 2000000... 5% ~
‘Some dismissed, some penalized ........................ 11 ( 4%
‘Forfeited bath oo... cee cccceeeeteeeeseesseveseees 8° 1
Pine omy ooo. ceccceaeecesesveseestes sevesveeeeese, ~ 1
Fine or time in jail oo cccceceeceeeeeeee 22 50
Penalty including mandatory traffic school ........ 13 24
_License suspended plus penalty 20.0000... 3 1
ToraL Given IMMEDIATE PENALTY 200.000.000.000... 62 84
TOTAL PERCENT ooo... cece, Seri bet nena caption 100% 100% :
/ToraL NUMBER OF PERSONS ....000.00000000000......... 37 121
Defended cases were matched to enter cases on the following factors, and in the ~
Priority shown:
(1) Number and type of charge
(2) Race -
(3) Sex
(4) Age
(5) Facial foliage of man
32
TABLE 3
PLEAS TO TRAFFIC AND NONTRAFFIC CHARGES IN RENO MUNICIPAL Covurr
Comparison of Defended vs. Comparable Undefended Cases
TRAFFIC NONTRAFFIC TOTAL
De- Unde- De- — Unde- — De- Uni
Pleas jended fended fended fended fended _ jenj
Not guilty 20000. 30% 10% 33% 11% 31% II
Changed from not
guilty to guilty ...... 26 5 30 11 28 g
Guilty oo ee 2 65 6 70 + 68
All other pleas 2.0.0 8 3 2 - ¢ ?
No plea, plea unknown ...... 34 17 29 6 32 lI
TOTAL PERCENT |.....0.......... 100% 100% 100%. 100% 100% 10!
Comparison of Defended vs. Comparable Undefended Cases
33
TABLE 4
PENALTY BY PLEA IN RENO MUNICIPAL CouRT
Percentage of Pleas
Changed
Not Not Guilty
Penalty Guilty to Guilty Guilty
\ONTRAFFIC
Jefended cases
PUSSIES stir oredr eos ttoeacetends 78% — a
No immediate penalty 20.000... 6 40% a
Immediate penalty ....... desteeuteasaadeinietotsapeeet: 16 60 a
TR DECOY geist rtveerteceeer ese 100% 100% 100%
‘ndefended cases
Dismissed 20.0.0... ccc cece ee 62% 3% 4%
No immediate penalty .00.....0.0000.00cccce. 21 47 40
Immediate penalty 2.0.00... 17 50 56
Total perceitt ....0...6.00 0 ceceecceeeeseseteeeeeeeees 100% 100% 100%
RAFFIC
efended cases
PISSEG, sins sSeeevckorressaersatdnsteeadcirenoss 65% 25% a
No immediate penalty ...0..0...00.00..00.0.eeee, 6 25 a
Immediate penalty .0...0.0.000.0.000.00ccceeceeeee. 29 50 a
Total percemt 20.0020... oeceecceceeeeceeeteeteeees 100% 100% 100%
indefended cases
DPISSOG, cece sveecnseveccceser scan sicenr on sete ees 18% 4%
No immediate penalty 2.000000 0.00een. 5 43% 1
Immediate penalty .............. ne esnsceetgeonesaen 77 57 95
Thal POCCONE cick. sei ceias. « cicevresivermeemerixermnarnns 100% 100% 100%
LL TypE CASES
efended cases
Dismissed 2.200.000.0000... cece ccceeeeeceeeecteeteceeens 719% 13% a
No immediate penalty ........ ees rere : 6 32 a
Immediate penalty 00....0..0.00c eects. . 2 55 a
Total percent 2.0.0.0... cece eteeceeeees 100% 100% 100%
ndefended cases
Dismissed 20.20.00... cg ececcccceeceeceeeneeesseessecseeeseeees 37 % 2% 4%
No immediate penalty ..........0.00.000..:.cccn. 15 46 22
Immediate penalty .................0:00cccceceseseees 48 52 74
Total percent ...... aie ten taeseesceae eeneteaeeeens 100% 100% 100%
a. Too few cases.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.