Amicus Curiae Brief — Argersinger v. Hamlin

Supreme Court brief1972

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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

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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

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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...

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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.

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