Petitioners Brief — Argersinger v. Hamlin
Supreme Court brief1972
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1970
a ) | E, ROBERT SCAMCR,
No-3798™"
JON RICHARD ARGERSINGER,
Petitioner,
V.
RAYMOND HAMLIN,
Respondent.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA
BRIEF FOR THE PETITIONER
J. MICHAEL SHEA
P.O. Box 2742
Kennedy at Franklin
Tampa, Florida 33601
BRUCE S. ROGOW
P. A. HUBBART
Public Defender
Justice Building
1351 N.W. 12th Street 622 N.W. 62 Street
Miami, Florida Miami, Florida 33150
Of Counsel Counsel for Petitioner
Washington, D C. - THIEL PRESS - 202 - 393-0625
(i)
TABLE OF CONTENTS
Page
OPINION BELOW ............ 00... 0c e eee eee eee 1
JURISDICTION ............. 00. cece cece cece eens 1
QUESTION PRESENTED................0000000000- 2
CONSTITUTIONAL PROVISIONS INVOLVED ........... 2
STATEMENT OF CASE .............. 000000 e ee eeee 3
SUMMARY OF ARGUMENT ...................-0-. 4
ARGUMENT:
I. The Sixth and Fourteenth Amendments to the
Constitution Require that Every Person Facing
Incarceration for the Commission of an Offense,
No Matter What Its Designation, Is Entitled to be
Advised of his Right to Counsel and in the Case
of an Indigent Have Counsel Appointed toHim ....... 7
II. The Equal Protection Clause of the Fourteenth
Amendment Requires that Every Person Facing
Incarceration for the Commission of an Offense,
No Matter What Its Designation, Is Entitled to be
Advised of His Right to Counsel and Have Counsel
Appointed for Him if He Is an Indigent ............. 36
Ill. Extending the Right to Counsel to all Who Face
the Loss of Liberty Would Benefit Our Judicial
EC | | a ee 38
CONCLUSION ............. 00. c eee ce eee cee 41
TABLE OF AUTHORITIES
Cases:
Argersinger v. Hamlin, 236 So.2d 442 (Fla. 1970) ...... 15, 28, 39
Baker v. City of Fairfax, 471 P.2d 386 (Alas. 1970)......... 12
Baldwin v. New York, 399 US. 66 (1970) .............. 31, 37
Barber v. Page, 390 U.S. 719 (1968) ................... 32
sane)
(ii)
~
Beck v. Winters, 239 Ark. 1151, 397 S.W.2d 364 (1965)
407 F.2d 125 (8th Cir. 1969).......00000.........
Bennett v. Hurley, 315 F. Supp. 1131 (E.D.N.C. 1967)
Blak v. Municipal Court, 242 Cal. App.2d 857, 51 Cal.
Rptr. 771 (1966) .............0-- 00 eee ‘Seeewa
Boyer v. City of Orlando, 402 F.2d 966 (Sth Cir. 1968)
2 © © © © © © © © © we
_ Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250 (1951)
Bramlett v. Peterson, 307 F. Supp. 1311 (M.D. Fla. 1969)... .. 10
Brinson v. Florida, 273 F. Supp. 840 (S.D. Fla. 1967) oe 10, 28
Burrage v. Superior Court, 105 Ariz. 53, 459 P.2d 314
Pe 13
Cabeleon v. State, 243 Ark. 351, 420 S.W.2d 534 (1967) ..... 14
City of Toledo v. Frazier, 10 O. App.2d 51,
226 N.E.2d 7:77 (1967) 2.2... eee. 23
Coleman v. Alabama, 399 US. 1 (1970)................. 8
Conn v. State, 251 M. 488, 170 So.2d 20 (1964)........... 20
Cortinez v. Flournoy, 249 La. 714, 190 So.2d 909,
cert. den. 385 US. 925 (1966) ..................... 18
DeStefano v. Woods, 392 US. 631 (1968) ............... 31
Dist:ict of Columbia v. Colts, 282 US. 63 (1930) ......... 31
Douglas v. California, 372 U.S. 353 (1963) ............... 36
Duncan v. Louisiana, 391 U.S. 145 (1968) .............. 30, 31
Escobedo v. Illinois, 378 U.S. 478 (1964) ............... 8, 29
Evans v. Rives, 126 F.2d 633 (C.A.D.C. 1942) ........... 9
Fish v. State, 159 So.2d 866 (Fla. 1964) ................ 15
Gideon v. Wainwright, 372 US. 335 (1962) ............ passim
Gilbert v. California, 388 U.S. 263 (1967) ............... 8, 29
Goldberg v. Kelly, 397 US. 254 (197Q) ..............05. 32
Goslin v. Thomas, 400 F.2d 594 (Sth Cir. 1968) ........... 18
Grannis v. Ordean, 234 US. 385 (1914)... ....0......... 8
Greene v. McElroy, 360 U.S. 474 (1959) .. ce 32
(iii)
Page
Griffin v. Iilinois, 351 U.S. 12 (1956) ..........---.- 6, 36, 37
Groppi v. Wisconsin, _U.S.__, 91 S.Ct. 409 (1971) ..... 32
Harvey v. Mississippi, 340 F.2d 263 (Sth Cir. 1965) ...... 9, 15, 20
Hendrix v. City of Seattle, 76 Wash. 142, 456 P.2d 696
(1969)... cece ee cece eee ee eee mi eanvestenes 27
Hunter v. State, 288 P.2d 425 (Okla. Crim. 1965) ......... 23
In re Gault, 387 U.S. 1 (1967) ........ 02. eee eee ee ees 4,8
In re Johnson, 62 Cal.2d 325, 398 P.2d 420 (1965)......... 14
In re Oliver, 333 U.S. 257 (1948) ........ 00-2 eee ee eee 5, 41
Irvin v. State, 44 Ala. App. 101, 203 So.2d 283 (1967) ..... 11
James v. Headley, 410 F.2d 325 (1969) ............ 5,9, 15, 28
Johnson v. Zerbst, 304 U.S. 458, 462 (1938) ............. 7
Klovfer v. North Carolina, 386 U.S. 213 (1967) ........... 32
MacDonald v. Moore, 353 F.2d 106 (Sth Cir. 1965)........ 15, 28
MacDonnel v. Commonwealth, 230 N.E.2d 82! (Mass. 1967) ... 19
Manning v. State, 237 Md. 349, 206 A.2d 563 (1965) ....... 19
Marston v. Oliver, _F. Supp.___, 8 Crim. L. Rptr.
1094 (E.D.Va. 1971)... 2... ee ee eee ee eee 26, 37
Massiah v. United States, 377 U.S. 200 (1964) ...... ee 8, 29
Mempa v. Rhay, 389 U.S. 128 (1967) .....--------+-5- 8
Miranda v. Arizona, 384 US. 436 (1966) .......... 6, 8, 29, 36
Moats v. Janco, 8 Crim.L.Rptr. 2285 (W.Va. 1971) .. 2.0.2... 27
Patterson v. Purdy, __F. Supp.__(S.D. Fla.
No. 69-957-Civ-Je, 1970)... 2... eee ee ee ee ee eee 5, 10
People v. Dupree, 42 Ill.2d 249, 246 N.E.2d 281 (1969) ..... 16
People v. Lettorio, 16 N.Y.2d 307, 213 N.E.2d 670,
(1965) cert. den. 384 US. 911 (1965).......-.----00-- 22
People v. Lewis, 15 Mic.App. 225, 166 N.W.2d 491 (1968)... . . 19
People v. Mallory, 378 Mic. 538, 147 N.W.2d 66 (1967) ..... 19
People v. Witenski, 15 N.Y.2d 392, 207 N.E.2d 358 (1965) ... 22
Petition of Thomas, 261 F. Supp. 263 (W.D. La. 1966) ..... 18
Phillips v. Cole, 298 F. Supp. 1049 (NLD. Miss. 19€8) ....... 10
}nstenses ere RR Ag 8 SRA Re Ee VS BLE BRS AEG
( iv)
Pickelsimer v. Wainwright, 373 US. 2 (1963) .............
Pip v. MacDougall, 245 S.C. 98, 138 S.E.2d 840 (1964)
Pointer v. Texas, 380 US. 400 (1965)
Powell v. Alabama, 287 US. 45 (1932) ...............
Sallerwhile v. State, 423 S.W. 592 (Tex. Crim. 1958)
*_* © © © © © © © © © © © © © ws
Teer 26
Shapior v. Thompson, 394 US. 618 (1969) ............. 6, 37
Sheppard v. Jordan, 425 F.2d 1174 (Sth Cir. 1967) ......... 16
Speight v. State, 239 Ind. 157, 155 N.E.2d 752 (1959) ..... 17
State ex. rel. Taylor v. Warden of Orange County Prison
Farm, 193 So.2d 606 (Fla. 1967) ................... 15
State ex. rel. Tlutshack v. State Dept. of Health and
Social Services, 37 Wis.2d 713, 155 N.E.2d 549 (1968) ... 27
State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964) ....... 13
State v. Angelo, 251 La. 250, 203 So.2d 710 (1967) ....... 18
State v. Borst, 154 N.W.2d 888 (Minn. 1967) .......... 5, 20, 30
State v. Cowart, 251 S.C. 360, 162 S.E.2d 535 (1968) ....... 25
State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970) ....... 23
State v. Heasley, 180 N.W.2d 242 (N.D. 1970) ........... 23
State v. Hickman, ——N.C.App. __, 176 S.E.2d 910
UOT) sce ae eee en bee bem nceneeestass 23
State v. Morris, 275 N.C. 50, 165 S.E.2 245 (1959) ....... 23
State v. Rockeymore, 253 La. 101, 216 So.2d 828 (1968) ... 18
State v. Simmonds, 5 Conn. Cir. 178, 247 A.2d 502 (1968) .. 15
Stevenson v. Holzman, 89 O. 27, 458 P.2d 414 (1969)....... 24
Tacoma v. Heater, 67 Wash. 733, 409 P.2d 867 (1966)....... 26
Tate v. Short, U.S.___, 91 S.Ct. 668 (1971) ........... 41
Taylor v. City of Griffin, 113 Ga.App. 589, 149
S.E.2d 177 (1966) 6. ee ee 16
US. v. Wade, 388 U.S. 218 (1967) ..........0......... 8, 29
Wall v. Purdy, 321 F. Supp. 367 (S.D. Fla. 1970) ......... 10
Washington v. Texas, 388 US. 14 (1967) ............... 32
Watkins v. Morris, 179 So.2d 348 (Fia. 1965)
(v)
Page
Wooley v. Consolidated City of Jacksonville, 433 :
F.2d 980 (Sth Cir. 1970)... 66. ee eee ee ee ee eee 9, 38
Wright v. Denato, 178 N.W.2d 339 (1970) ogee we sce oh os 17
Constitutions and Statutes:
Ala. Code Title 15,§318 (1958) ........ 0.0000 eee eee 11
Alaska Mag. Crim. R.1(j) (Supp. 1968) ......-.----+---: 12
Alaska R. of Crim. P. 39(b) (1963) 2... 0-220 e eee eee 12
Alaska R. of Crim. P. 3%(b) & (c) (Supp. 1968) ...... heeds 12
Ark. Stat. Ann. $43-1203.............-. pueeneueeees 14
Col. Rev. Stat. Ann. §39-21-3 (1969 Supp.) ........-...-.. 14
Del. Justice of the Peace Crim. Rules, Rule 26 ........... 15
Mia SEOTIAT ocak uses chore eva ss Caw ee pees nee
SFR NG Hoa en ei eee ee eee tweed e ses
ae 7 | | re ee ee eer er eee ee a ]
§790.01(1) (1969)... see eee eee eee eee 3
Ga. Code Ann. §27-3001 .......... 0 eee ee ee ee eee 16
Hawaii St. Const. (1968) Art. 1,811 ..............-00-. 16
Idaho Code Ann. § 19-851 (1969 Supp.) ............-.--- 16
Idaho Code Ann. § 19-852 (1969 Supp.) .........-.------ 16
Ill. Ann. Stat. Ch. 38 §133 (Supp. 1971) ..........-00-. 16
Ind. Ann. Stat. §9-3501 (Supp. 1971)... 2... ee ee ee eee 17
Iowa Code Ann. §775.4 2... ... eee ee ee ee ees 17
STIS.S noe ee wen eee bn 4s eee ae PERE 17
Kan. Gen. State. Ann. §22-4503 (1970 Supp.)............. 17
Ky. Crim. Pro. Rule 8.04 ........... 00-0 eee. ee eens 17
La. xev. Stat. Titl. 15, Art. 141(F)
Me. Rev. State Ann. Title 15 §810
Me. R. Crim. P.44 2.0... cc cc cee eee e reer eens
AG; RUNG 719 OG) TD pe oo eee teehee eee ea eea es
(b) 2(a)......... abet e cece nen aenees
Be scetenc.: Gd eV arth
(vi)
Mass. Sup. Jud. Ct. Rule 3:10 2.2... 00... 19
Mich. Comp.L.§775.16 ........ 0.000000... 19
Mis. Code Ann. §2505 (1967 Supp.) ................... 20
Mo. Op. Att; . Gen. No. 207, Young 6-2163 ............. 21
Mo. Rev. Stat. §545.820 ........020 0000 .000..0........ 20
Mo. R. Crim. P. 29.01.02... 20.0.0. 00000000. eee, 20
Mont. Rev. Code Ann. §95-1001 ...................., 21
§95-1003 2.2... ee, 21
Neb. Rev. Stat. Sec. 29-1803 (1967) ..........00....... 21
Nev. Rev. Stat. §171.188 .... 2.20.00. 0000000 .000.0..0..... 21
Oy OR i, | 2]
BS TOF oe i he ee be ee eG ee bd aan 21
NH. Rev. Stat. Ann. §604-A:1 2.0... ee. 22
§604-A:2 (1970 Supp.) .........00.. 22
NJ. Rules 3:27-1 2... ee 22
N.M Stat. Ann. §41-22-2 and 3 ate i) ea y)
N.D. Code 29-07-1.10 2... 0. 23
Ohio Rev. Code 2937.02 ......... 0.0000 .0000.....05. 3
Okla. Stat. Ann. Tit. 11 §959.1) 2.0... ee, 3
§959.3 (1967-71, Supp.) .. 2.2... 23
Penn. R. CrimP., Rule 318 ......................... 24
R.1. Gen. Laws Ann. 12-15-30 2... ee 24
AS hs ee 24
. M2Sel gis eee ee hs ee ee snes tees 24
S.C. Code Ann. §17-507 .. 0... 2.0.2... 0.000000. 0000. 25
S.D. Comp. Laws Ann. Secs. 23-2-1 ............0..0... 25
23-2-3 (1970 Supp.) ......... 25
Tenn. Code Ann. §40-2002 (1955) .......20020.200.0000.. 25
S40 2003 C1955) eek oe hs ee eee e ns 25
§40-2017 (Supp. 1970) ............... 25
§40-2018 (Supp. 1970) ............... 25
(vii)
Page
Tex. Code Crim. Proc. $26.04 ....... 2.2 cece ee eee - 26
Utah Code Ann. §77-64-2 (Supp. 1969)... ...........-4.. 26
Vt. Stat. Ann. Titl. 13 §6503 (1970 Supp.)........ aeueees 26
Va. Code Ann. §19.1-241.1 (1970 Supp.) ............... 26
Wash. Rev. Code Ann. §10.01.110 (Supp. 1970) ........... 26
Wyo. Crim. RP. Rule 6 (1969 Supp.) .....-.---------- 28
Sixth Amendment, U.S. Constitution ............. 2, 4,5, 9, 36
Fourteenth Amendment, U.S. Constitution ....... 2, 4, 6, 8, 9, 36
Title 18 US.C.§3006A ................ 5, 14, 21, 29,337,358
Wile 28 USC. 81207) 6 sees e nc ee eseess Beea eens 2
Miscellaneous Authorities:
Criminal Court of the City of New York, Annual
Report of 1969)... cs knew eens chs cee ee eg tee sees 40
The Criminal Justice Bill: Text and Commentary, |
(Report Title 18 US.C.§3006A) ...........-----55- 33
Decker and Lorigan, Right to Counsel: the Impact of
Gideon v. Wainright in the 50 States. 3 Creighton .
Lev TOR CGT) ns ee ee eee ee ea teas 11
Judicial Council of Florida, Sixteenth Annual Report,
Vt Bol) i ee ee ee ee 30
Juz:.er, The Right to Counsel in Misdemeanor Cases,
43 Wash. L. Rev. 685 (1968) ........... 2.022 eee eee 38, 41
Kamisar and Choper, The Right to Counsel in Minnesota:
Some Field Findings and Legal Policy Observations,
48 Minn. L. Rev. 1 (1963)... 2.2.2.2... 05002. e eee ee ees 41
McRae, The Administration of Justice in Federal
District Courts, 23 U.Fla.L. Rev. ..........--220055 10, 38
Menninger, The Crime of Punishment, Viking Press,
NY 1968 oo ecw ow ee ee re we Oe 4 ee Ses SES c
Metropolitan Court, Dade County, Florida, 1970
Apmeal Ronit .c55 045446555 0eecen sen theese esa: 40
Misdemeanant’s Right to Counsel Imprisonment Standard,
21 U-Fla. L. Rev. 421 (1969) ............2..-0 000085 41
g stiches sginbttep asline
(viii)
36 Mont. L. Rev. 1 (1964) ...................
New York Times, March 12, 1971, p. 18
Oaks, “Regort on the Criminal Justice Act in the
Federal District Courts,” (1969) ...............
Phelfs, Senior Research Project, Northwestern University
School of Law (1971, unpublished) .............
President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report:
The Courts (1967) 2... ee
Rules of Procedure for the Trial of Minor Offenses
Before Magistrates, U.S.__, 36 U.S. L.W. 3330
Speiser, Lawrence, Testimony of, Hearings Before the
Subcommittee on Constitutional Rights
US. Congressional and Administrative News,
Conference Report 1709 (88th Cong. 2nd Sess.)
1964 Vol. H p. 3000..........02000.........
US. Congress, Senate Committee on the Judiciary,
Hearings Before the Subcommittee on Constitutional
Rights, 91st Cong. Vol.9 22... ee.
ee © © &
ee © ee
7 © © © ee
' 8 © © ee
eeeeEEEEEEE——EEEEeEEEEEEEEE>E—EEE>E>E—————— EEE
3
IN THE
Supreme Court of the United States
OCTOBER TERM, 1970
No. 5798
JON RICHARD ARGERSINGER,
Petitioner,
v.
RAYMOND HAMLIN,
Respondent.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA
BRIEF FOR THE PETITIONER
OPINION BELOW
The opinion of the Florida Supreme Court is reported at
236 So.2d 442 (Fla. 1970), and (A. 8).
JURISDICTION
Theyudgment of the Florida Supreme Court was entered
on June 3, 1970. A petition for rehearing was denied on
July 7, 1970. A petition for writ of certiorari was filed on
~ ™
September 1, 1970. Certiorari was granted on February 22,
1971. The surediction of the Court rests on 28 USC.
§ 1257(3).
QUESTION PRESENTED
Whether the Sixth and Fourteenth Amendments guaran-
tee the right to counsel to an indigent defendant who upon
conviction, faces a maximum penalty which does not exceed
six months imprisonment and a one thousand dollar ($1,000)
fine.
CONSTITUTIONAL PROVISION INVOLVED
Amenément Six—Jury trials for crimes, and procedural
rights.
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime.sha"
have been committed, which district shall have been
previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.
(Emphasis added)
Amendment Fourteen, Section 1.
. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
|
STATEMENT OF THE CASE |
JON RICHARD ARGERSINGER was arrested on Janu-
ary 12, 1970, in Leon County, Florida, and charged with
the offense of carrying a concealed weapon, an offense
carrying a maximum punishment of six months imprison-
ment or one thousand dollars ($1,000.00) or both.! He
was atraigned and plead guilty the next day, January 13,
197C. and was sentenced by a judge of the county court
to pay a fine of $500 and in default of such payment to
be imprisoned in the county jail, Leon County, Florida, for
a period of three months. (A. 1, 2, 4, 5)
On January 20, 1970, an original petition for writ of
habeas corpus was filed in the Florida Supreme Court, alleg-
ing that ARGERSINGER was tried and convicted by the
Leon County Court without first having been advised of his
right to counsel or that counsel would be appointed for him
if he could not afford an attorney. (A. 1, 2)
The Supreme Court of Florida ordered petitioner released
on a $500 appearance bond on January 20, 1970, and
ordered the State of Florida to show cause why the petition
for writ of habeas corpus should not be granted. (A. 3)
There is no dispute regarding the question of whether or
not any attempt was made to advise petitioner of his right .
to counsel. It is clear that no advise as to counsel was given.”
On June 3, 1970 the Florida Supreme Court, in a four to
three decision, discharged the writ of habeas corpus and
remanded ARGERSINGER to the custody of the respond-
ent, HAMLIN. That decision limited the right to counsel
in non-felony cases in the State of Florida to misdemeanors
which carry a maximum punishment in excess of six months
imprisonment. Since the maximum penalty which ARGER-
'Fia. St. §790.01(1) (1969).
>The lower court record consisted of Commitment Order of the
County Judge, Exhibit A, of Response to Writ of Habeas Corpus filed
in the Florida Supreme Court January 29, 1970 (A. 7).
we ah |
Waleed,
PAR NN alt Se ae) 8
RY
Ss DSi oe eT ee Tee eT
a
4
SINGER could have received was six months imprisonment
and a $1,000 fine, the Supreme Court of Florida held that
he was not entitled to counsel under the Sixth and Four-
teenth Amendments.
On September 8, 1970, this Court, by order of Mr. Jus-
tice Black, allowed the petitioner to remain at liberty upon
the posting of bail in the amount of five hundred dollars
($500).
The federal question presented was raised in the original
habeas corpus proceeding brought in the Florida Supreme
Court. That question, i.e., right to counsel, was the sole
contention raised in the petition. The June 3, 1970 deci-
sion was based solely and explicitly upon the issue of the
right to counsel as guaranteed by the Sixth and Fourteenth
Amendments to the Constitution of the United States.
SUMMARY OF ARGUMENT
A. The decisions of this Court, from Powell y. Alabama,?
to Gideon v. Wainwright,* and In re Gault, support the
Proposition that any accused defendant cannot be deprived
of his liberty unless he has, or intelligently waives, the assist-
ance of counsel.
While those decisions do not speak directly to the ques-
tion of counsel in a case involving a maximum penalty of
six months or less, they do recognize counsel a3 being fun-
damental to due process and an essential element of our
adversary system of justice. Moreover, the Sixth and Four-
teenth Amendments do not limit the mandate of due process
and assistance of counsel only to “serious offenses.”’ Thus
whenever a loss of liberty is threatened, the right to counsel
must be extended.
287 US. 45 (1932).
4372 US. 335 (1962).
°387 US. 1 (1967).
5
Relying upon Gideon v. Wainwright,® several state and
federal courts have concluded chat the right to counsel
extends to all who face the possibility of incarceration.
State v. Borst:” James v. Headley ;® and Patterson v. Purdy.?
B. No sound constitutional theory has been advanced
that would justify limiting the right to counsel only to
offenses which carry a potential punishment of over six
months incarceration. The cases which reach that conclu-
sion do so by erroneously seeking to equate the right tc
counsti with the right to a jury trial because both guaran-
tees reside in the Sixth Amendment, and by utilizing the
standards for compensated counsel set forth in Title 18
U.S.C. §3006A.
The jury trial analogy fails to comsider the inherent
differences between the two rights, i.e., that fair trials can
be had before a judge alone, while the assistance of counsel
is a prerequisite to fairness. Moreover, the analogy disregards
the decisions of this court which have never limited other
Sixth Amendment rights only to “serious offenses.” '°
The attempt to fashion a “petty offense” rule from the
Criminal Justice Act, 18 U.S.C. §3006A (as amended) is.
also without merit. That section provides standards only
for the compensation of counsel in the federal system, not
for the extent of the constitutional guarantee. The legisla-
tive history of the act in fact supports the conclusion that
petty offenses are within the guarantee of counsel.
C. The failure to provide counsel for indigent persons
charged with “‘minor offenses,” while allowing counsel to
those who can afford a lawyer constitutes an invidious dis-
crimination in violation of the Equal Protection Clause of
®Supra, n. 4.
7154 N.W.2d 888 (Minn. 1967).
8410 F.2d 325 (1969).
9 _F. Supp.__(S.D. Fla. No. 69-957-Civ-Je, 1970).
10 In re Oliver, 333 US. 257 (1948).
Seat Satan reat
i
f
4 6 .
the Fourteenth Amendment. Griffi.: v. Ilinois:! Cf.
Miranda v. Arizona.'* No “compelling interest” exists which
justifies the irrational classification created by the failure to
piovide counsel. Cf. Shapiro v. Thompson.'3
D. The decisions which limit the right to counsel to
“serious oifenses” do so out of fear that a general exten-
sion of counsel would cripple our system of justice. Those
decisions envision required counse] for jaywalkers, sidewalk i
spitters and overtime parkers—a vision which portrays the |
courts being burdened with long, costly proceadings in what |
are essentially de minimus offenses.
The petitioner submits that this fear bespeaks a lack of
faith in the resiliency and imaginetiveness of our system.
The vast majority of minor offenses carry no real threat of
serious penalty—either jail or heavy fine. Thus reclassifica-
tion of those offenses to reflect the true nature of the pos-
sible punishment would exclude those cases from the cate-
gory requiring counsel. Other offenses—the victimless crimes
—could be reclassified so that they too would reflect either
the true potential punishment or possibly even be eliminated
from consideration as “‘crimes.”” Law students can be uti-
lized to represent persons in minor kinds of cases. Para-legal
personnel could fulfill similar functions.
Extending the right to counsel would not create chaos,
it would create a speedier, more just and equitable court
system.
;
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8
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4
3
1351 US. 12 (1956).
12354 US. 436 at 472-473 (1966).
‘394 US. 61°, 638 (1969).
—— Lee eee
a
ARGUMENT
THE SIXTH AND FOURTEENTH AMENDMENTS T9
THE CONSTITUTION REQUIRE THAT EVERY PERSON
FACING INCARCERATION FOR THE COMMISSION OF
AN OFFENSE, NO MATTER WHAT ITS DESIGNATION,
IS ENTITLEL TO BE ADVISED OF HIS’ RIGHT TO
COUNSEL AND IN THE CASE OF AN INDIGENT
HAVE COUNSEL APPOINTED TO HIM.
A. The Cases Decided by This Court; By Various
Federal Courts and by Various State Appellate
Courts Compel the Conclusion that the Petitioner
Should Have Been Afforded the Right to Counsel.
1. Gideon v. Wainwright. '4
Any examination of the right to counsel must begin with
Gideon v. Wainwright.'* In Gideon this Court held that a
defendant, charged with a felony, could not be assured a
fair trial unless counsel was provided for hini. The opinion
was written in language that recognized the essential nature
of counsel:
In our adversary system of criminal justice, any per-
son haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel
is provided for him.’®
The decision in Gideon drew its strength from earlier cases
which regardea the right to counsel as “fundamental.”
Powell v. Alabama,'7 Johnson v. Zerbst.'®
4 Supra, n. 4.
5 Supra, n. 4.
°373 U.S. at 344. -
'7287 U.S. at 68 (1932). The historical background of the right
to counsel is explored at 287 US. 60-65. At common law a right to
counsel existed for misdemeanors and civil matters, but not for felonies.
Of interest is the fact that Florida, prior to Gideon, and to the pres-
ent, has always provided for counsel in eminent domain proceedings
by constitutionally guaranteeing reasonable aitorney fees to the land-
owner’s lawyer. See, Fla. St. 8§ 73.11, 73.16 and 74.10.
18304 U.S. 458. 462 (1938).
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Gideon gave birth to iater holdings which extended the
Tight to counsel to an individual suspect subjected to ~ r-
repetitious interrogation, Massiah v. United States;'® to the
suspected offender, Escobedo v. Illinois;° to the in-custody
suspect, Miranda v. Arizona;*' to probation revocations,
Mempa v. Rhay;*? to juveriles, In re Gauit;?> to lineups,
U.S. v. Wade,* Gilbert v. California;?5 to preliminary hear-
ings, Coleman v. Alabama.*®
Thus counsel, or at least the right to counsel, has become
the sine qua non of fairness at every stage of a felony pro-
ceeding in order to protect the integrity of the fact finding
process of trial. No constitutional theory justifies limit: ng
that protection to “‘serious offenses.”
The Constitution does not condition its guarantees upon
the number of days a person may spend in ja’.
The Fourteenth Amendment states in part “. . . Nor shall
any state deprive any person of life, liberty or property,
without due process of law .... “The fundamental
requisite of due process of law is the opportunity to be
heard,” Grannis v. Ordean.*” Mr. Justice Sutherland wrote
in Powell v. Alabama: ‘The right to be heard would be in
many cases, of little avail if it did not comprehend the right
to be heard by counsel.” 78
19377 U.S. 200, 205 (1964).
2378 U.S. 478, 487 (1964).
21384 U.S. 436, 472-473 (1966).
22°389 U.S. 128, 134 (1967).
3387 US. 1 (1967). |
* 388 U.S. 218 (1967).
A 5388 US. 263 (1967).
399 U.S. 1 (1970).
. 21234 US. 385, 394 (1914).
287 US. at 68-69.
9
The decisions of this court lead inexorably to the conclu-
sion that depriving a man of his liberty without affording _
him a right to a lawyer is violative of the Sixth and Four-
teenth Amendments. It is a conclusion which other courts
have already drawn from Gideon and its progeny.
2. The Federal Cases Extending Gideon.
Nearly thirty years ago the United States Court of Appeals
for the District of Columbia faced the question of whether
the right to counsel applied only to “serious offenses.”
Evans v. Rives.?? The Court unanimously responded:
Insofar as the right to the assistance of counsel is
concerned, the Constitution draws no distinction
between loss of liberty for a short period and such
_loss for a long one.*°
The Fifth Circuit has held that the right to counsel applied ©
to a defendant charged with a misdemeanor carrying 90 days
and a $500 fine, Harvey v. Mississippi;3! to two traffic
offenses punishable by a total of 90 days and a $750 fine,
Bohr v. Purdy;?? to municipal court defendants facing 90
days or a $500 fine, Wooley v. Consolidated City of Jack-
sonville. 33
In James ». Headley,* the Court reversed a district court
decision which would have limited the right to counsel only
to “serious offenses” i.e., those carrying a penalty in excess
of six months. The decision was based on Harvey v. Missis-
sippi.*> Judge Wisdom went further:
9126 F.2d 633 (D.C. Cir. 1942).
0126 F.2d at 638.
1340 F.2d 263,(5th Cir. 1965).
412 F.2d 324 (Sth Cir. 1969).
9433 F.2d 980 (Sth Cir. 1970).
*410 F.2d 325 (Sth Cir. 1969).
5Supra, n. 31, At least 250 Florida court convictions foi “minor 7
offenses” have been set aside by the United States District Courts for —
the Middle and Southern Districts of Florida in the past two years,
based on the Harvey line of decisions. See, William A. McRae, Jr.,
S335
RES PA ERE SRE See Ss
29 PSAAPRORE
SS AP TR: NE TT TN ks Te
f _
I start with the general principle that the Sixth
Amendment establishes the right to counsel in all
criminal prosecutions. There is no distinction
between felonies and misdemeanors, between gross
and petty offenses, between the loss of liberty for
181 days and the loss of liberty for 180 or fewer
days.*°
Although voicing concern over the impact of affording
counsel to de minimus offenses, Judge Wisdom wrote:
I take the position that regardless of labels, an
offense is serious enough to require appointment of
counsel if it may result in a loss of liberty for any
period of time.>”
In Patterson v. Purdy,*® the Court decided that a woman
convicted of a traffic offense carrying a possible 30 day sen- |
tence was entitled to be advised of her right to counsel no
matter the number of days she could have received.
Except for Brinson v. Florida*® an¢ its offspring, Wall v.
Purdy® and a footnote in Beck v. Winters,*" lower courts
have concluded that the Sixth and Fourteenth Amendments
mean what they say—the right to counsel lives, even in the
low visibility of the criminal process.
The Administration of Justice in the Federal District Courts, 23 U.
Fla. L. Rev. No. 2, at Appendix P. (to be published, May 1971).
See aiso, Bramlett v. Peterson, 307 F. Supp. 1311 (M.D. Fia. 1969)
where Justice of the Peace Courts in Volusia County, Florida were
enjoined from trying misdemeanors without first advising them of their
right to counsel and see, Phillips v. Cole, 298 F. Supp. 1049 (N.D.
Miss. 1968) where a similar injunction was entered.
36410 F.2d at 334. (Emphasis in original).
37410 F.2d at 334. é
38 F. Supp.__(S.D. Fla. No. 69-975-Civ-Je, 1970).
273 F. Supp. 840 (S.D. Fla. 1967). \
4321 F. Supp. 367 (S.D. Fla. 1970). F
41407 F.2d 125, 130 & n. 13 (8th Cir. 1969). ;
5 sirens as sina cstarncc dole Pies sontcooe ester > siti achaecset NT BAS ida
11
3. The State cases extending Gideon.
The trend of recent decisions has been towards recogniz-
ing the right to counsel in misdemeanors. It is very difficult
to make any comparison because of the differences between
state laws. In addition, there is a great deal of differ-
ence between the application of even similar laws in the
states. Then there are conflicts within states, and between
the existing state law and the Federally administered law
within a given state. And the federal law itself is conflict-
ing.
The states can be broken down into three groups as to
the application of Gideon:*? those that only appoint counsel
for felonies,*? those that appoint counsel for felonies and
“serious crimes” and those which appoint counsel for all ,
or most misdemeanors.*>
ALABAMA
Before Gideon in Alabama, counsel was only appointed
in capital cases.*° In applying Gideon, Alabama has followed
the “serious crime” doctrine.*” This is because of the word-
“Two articles were of great help in the computation of the vari-
ous states: Decker and Lorigan, Right to Counsel: the Impact of
Gideon v. Wainright in the 50 States, 3 Creighton L. Rev. 103 (1970);
Phelfs, Senior Research Project, Northwestern University School of _
Law (1971, Unpublished).
43 Alaska, Arkansas, Kansas, Kentucky, Louisiana, Maine, Mississippi,
Montana, Nebraska, Ohio, Rhode Island, Tennessee, Virginia, Washing-
ion.
“ Alabama, Arizona, Florida, Idaho, Maryland, Missouri, Nevada,
New Mexico, North Carolina, South Carolina (although questionable),
Utah, Wisconsin.
California, Colorado, Connecticut, Delaware, Georgia, Hawaii,
Illinois, Indiana (but only as to large counties), lowa, Massachusetts,
Michigan, Minnesota, New Hampshire, New Jersey, New York, North
Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Ver-
mont, West Virginia, Wyoming.
* Ala. Code Title 15, §318 (1958).
“Irvin v. State, 44 Ala. App. 101, 203 So.2d 283 (1967).
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ing of their statute which covers only “‘serious crimes” and
not because of any constitutional grounds. The State
Supreme Court in /rvin v. State*® pointed out a number of
factors that should be considered by a court in determining
if a “serious crime” has been committed, but did not draw
any concrete lines as to the limits. The trial judge must
determine in each case, by considering the circumstances of
the case, whether or not counsel should be appointed.
Alabama is in the Fifth Circuit but, there do not seem
to be any significant Federal cases which have applied the
Sth Circuit Rule to Alabama.
ALASKA
Prior to Gideon, Alaska only recognized the right to
counsel as to felons. The Alaskan Rules of Criminal Proce-
dure presently state that upon appropriate request, a |
defendant who is unable financially to afford counsel will
be appointed counsel by the court.5' However, the Mag-
istrate’s Criminal Rules specifically makes this provision
inapplicable in the lower courts.5? Therefore, only mis-
demeanors which are tried in the Superior Court are afforded
the right.
The Alaska Supreme Court recently rejected the “petty
offense” standard for jury trials.5* Some have taken the
dicta, in reference to right of counsel in the case, as an
indication that the court would rule the same on that point
as well. A closer reading of the court’s opinion would
not necessarily lead to such a conclusion.
- ‘ ST See a, Ae) oe Be a ale ag ate It Per Seg aps Ret
5 pis Sie Ra lB Mek SNE OLGA ONL GEIR ADELA LER I ELLIE LEAL LOLA ALOR LES AB. LBS
48 Id.
” Alaska R. of Crim. P. 39 (b) (1963).
*% Alaska R. of Crim. P. 39 (b) (Supp. 1968).
5! Alaska R. of Crim. P. 39 (c) (Supp. 1968).
52 Alaska Mag. Crim. R. 1(j) (Supp. 1968).
53 Baker v. City of Fairfax, 471 P.2d 386 (Alas. 1970).
Id. at 395.
ARIZONA
In 1964 the Arizona Supreme Court announced that
counsel was required in “‘serious misdemeanors” and left to
the trial judges the determination of a “‘serious misde-
meanor.”°> Then Burrage v. Superior Court*® was concluded
and the court further defined their prior holding. The
Burrage case dealt with defendants who were charged with
crimes where the maximum punishment was five months in
jail or $500, or both. The court ruled that “‘a reasonable
interpretation of the Constitution (U.S.) does not require
that there be legal representation for all misdemeanors.” *”
The court also looked to the Federal Rules and stated that
lawyers are required for all except “‘petty offenses” which
they define as those where the penalty may exceed six
months or a fine of $500.°° At this point the court went
on to hold:
... counsel for indigent misdemeanants must be pro-
vided in all cases where the maximum punishment
exceeds $500 in fines or six months imprisonment,
or both, and may be provided if the trial court in
its discretion believes that the complexity of the
case is such that the ends of justice require legal
representation.*?
Thus Arizona is a state with a six-month rule, based upon
the Federal Rules.
ARKANSAS
The Beck v. Winters® case which became the 8th Circuit
Rule came from this state. This case has often been cited
S State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964).
©105 Ariz. 53, 459 P.2d 314 (1969).
‘Tid. at 315.
818 U.S.C. §3006 A.
® Burrage v. Superior Court, supra, n. 56, at p. 315.
239 Ark. 1151, 394 S.W.2d 364 (1965), cert. den. 385 U.S. 907
(1966); See also 407 F.2d 125 (8th Cir. 1969).
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14
as an indication that this Court feels that the right should
not be extended to misdemeanors. However, the case did
not stop ‘vith the denial of certiorari by this Court from
the Supreme Court of Arkansas. That court had denied the
right to counse! in misdemeanors.®! The case continued con-
fusing matters when action was filed in the federal court sys-
tem and the right to counsel was granted by the lower
federal court and upheld by the 8th Circuit.®* This case
then was once again appealed to this Court, which denied
certiorari fur the second time. The only thing that can be
positively concluded about Beck v. Winters is that in Arkan-
sas the state courts are still enforcing Beck v. Winters (the
state proceeding),®? and thus only providing counsel for
indigents “‘about to be arraigned upon an indictment for a
felony;’™ while at the same time the federal courts of the
same state follow Beck v. Winters (8th Circuit proceeding)
which held there was a right to counsel in at least some
misdemeanors.°*
CALIFORNIA
The California Supreme Court held in Jn re Johnson ®
that the right to counsel covers all misdemeanors, including
municipal and other lower courts, even traffic violations.®’
COLORADO
Colorado has a Public Defender system, and they are
required by statute®® to represent indigents charged with
municipal ordinance vioiations.
$1 Iq.
62 Beck v. Winters, 407 F.2d 125 (8th Cir. 1969). |
63 Also see Cabeleon v. State, 243 Ark. 351,420 S.W.2d 534 (1967).
® ark. Stat. Ann. §43-1203 (repl. 1964).
© Supra, n. 41.
© 62 Cal.2d 325, 398 P.2d 420 (1965).
©7 Blak v. Municipal Court, 242 Cal. App.2d 857, 51 Cal. Rptr. 771
(1966).
Col. Rev. Stat. Ann. §39-21-3 (1969 Supp.). 4
15 3
CONNECTICUT
In the case of State v. Simmonds,® the court held that
the right to counsel applies to misdemeanors (the defendant
there was charged with the breach of the peace) and requires
a knowing waiver of the right.
. DELAWARE
The Rules of the Justice of the Peace Courts of this State
require the appointment of counsel “if the defendant desires
counsel and is unable to obtain counsel.’ ”°
FLORIDA
The state courts in Florida, up until Argersinger v. Hamlin™
had adhered to the felony rule,”* but held in Argersinger that
counsel must be provided where the potential penalty
exceeds six months imprisonment, and notice mr st be given.
The federal courts in Florida follow the 5th Circuit Rule
and this lead to a great deal of confusion.”? In practice
some lower state courts and municipal courts provide the
right and others do not.”
5 Conn. Cir. 178, 247 A.2d 502 (1968).
*Rule 26, Del. Justice of the Peace Crim. Rules.
1236 So.2d 442 (Fla. 1970).
” Fish v. State, 159 So.2d 866 (Fla. 1964), Watkins v. Morris, 179
So.2d 348 (Fla. 1965), State ex rel Taylor v. Warden cf Orange County
Prison Farm, 193 So.2d 606 (F’a. 1967).
® Harvey vy. Mississippi, 340 F.2d 263 (Sth Cir. 1965), also see
Boyer v. City of Orlando, 402 F.2d 966 (Sth Cir. 1968), MacDonald A
v. Moore, 353 F.2d 106 (Sth Cir. 1965), James v. Headley, 410 F.2d
325 (Sth Cir. 1965), and Bohr v. Purdy, 412 F.2d 321 (Sth Cir. 1969).
™ In Miami Beach, counsel is provided for all misdemeanors and in
Tampa some Municipal Judges give notice of the right and other judges
do not. In Tallahassee the right is not practiced (Information from per-
sonal experience of Petitioner’s counsel).
16 ST
GEORGIA
By Statute in Georgia, counsel is appointed in felony
cases’> but the courts in Georgia have held that the right
does extend to misdemeanors and has implied it might
extend to ordinance violations.” The same court also
stated in dictum that the right was not absolute as to mis-
demeanors.’”” However, the right does not seem to be evenly
administered in Georgia.7®
HAWAII
The State Constitution requires copointment of counsel
in indigent cases where the accused could receive a sentence
of imprisonment for more than sixty days.”?
IDAHO
By statute in Icaho, ‘‘needy persons are required to be
represented by counsel, if they are charged with a serious
crime.”® “Serious crimes” are defined as felonies or mis-
demeanors for which the penalty includes confinement for
more than six months or a fine of $300.*!
ILLIMOIS
By statute in Illinois, if the defendant is indigent and
desires counsel, in all cases, except where there is only a
fine, the public defender is appointed.®* But in one confus-
ing case it was held that the courts do not have to inform
the defendant of his right to counsel.®3
Ga. Code Ann. §27-3001.
* Taylor v. City of Griffin, 113 Ga. App. 589, 149 S.E.2d 177 (1966),
cert. den. 385 U.S. 1016 (1967).
7 Id., 149 S.E.2d at 178.
See Shephard v. Jordan, 425 F.2d 1174 (Sth Cir. 1967).
” Hawaii St. Const. (1968), Art. I, §11.
Idaho Code Ann., §19-852 (1969 Supp).
8! Idaho Code Ann., §19-851 (1969 Supp).
® 111. Ann. Stat. Ch. 38 §133 (Supp. 1971).
People v. Dupree, 42 Ill.2d 249, 246 N.E.2d 281 (1969).
INDIANA
The law pertaining to right to counsel in this state is
difficult to understand. The case law requires the right of
counsel in misdemeanors as far back as 1951,™ but this was
-ever widely followed. Then the state enacted a public
defender program for the large counties. This act was later
extended *° but it does not seem to have changed the fact
that the right to counsel is practiced only in the large counties.
IOWA
The State Supreme Court held last year that counsel must
be appointed for indigents accused of any indictable offense
(punishable by imprisonment for more than thirty days) and
the def€ndant must be advised of his rights. This holding
was baged ‘upon a state statute.*” Although the Sixth and
Fourteenth Amendment arguments were raised, the court
ruled it was not basing the decision on them specifically.**
KANSAS
Kansas only appoms counsel and recognizes the right to
counsel as to felonies.*?
KENTUCKY
The Kentucky Rules of Criminal Procedure require the
appointment of counsel before arraignment in cases where
the defendant is charged with a crime for which the punish-
ment is a fine of more than $500, or confinement for more
than twelve months, or confinement in the penitentiary.”°
* Bolkovac v. State, 229 Ind. 254, 98 N.E.2d 250 (1951); also see
Speight v. State, 239 Ind. 157, 155 N.E.2d 752 (1959).
‘Sind. Ann. Stat. §9-3501 (Supp. 1971).
© Wright v. Denato, 178 N.W.2d 339 (Iowa 1970).
5’ Towa Code Ann., §775.4 and 8.
88 Supra, note 86.
Kan. Gen. Stat. Ann. §22-4503 (1970 Supp.).
Ky. Crim. Pro. Rule 8.04.
TOE cea pope ae
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18
The Rule states that the appointed, counsel should represent
the defendant in all future Stages obthe proceeding and it
would seem to include all aspects of appeals as well as the
trial.?! |
LOUISIANA
Louisiana statutes require the appointment of counsel
only in felony cases.°? The state court decisions have not
extended the right any further,?? but Louisiana’s federal
courts, like Florida’s and other staie’s, have extended the
right thus leaving a conflict.”
MAINE
|
4
3
The Maine courts are required to inform defendants of
their right to counsel, but the appointment is not so clear.?5
All defendants charged with felonies are required to be
advised of their right to counsel at the beginning of any
proceeding, and be provided counsel if indigent,” but in
misdemeanor cases the court “‘may” appoint counsel.%”
MARYLAND
At all stages of court proceedings the accused must be
informed of his right to counsel®® and provided counsel if
the offense carries a penalty of imprisonment for 6 months |
or more or a fine of $500 or both.” The court may also |
=i
La. Rev. Stat. Titl. 15, Art. 141-(F).
% State v. Rockeymore, 253 La. 101, 216 So.2d 828 (1968) (indig-
ency was not a factor); State v. Angelo, 251 La. 250, 203 So.2d 710
(1967) (indigency was not a factor); Cortincz v. Flournoy, 249 La.
714, 190 So.2d 909, cert. den. 385 U.S. 925 (1966).
Petition of Thomas, 261 F. Supp. 263 (W.D. La. 1966) Affd
sub. nom., Goslin v. Thomas, 400 F.2d 594 (5th Cir. 1968).
Me. Rev. Stat. Ann. Title 15 §810, Compare Me. R. Crim. P. 44.
%Me. R. Crim. P. 44.
Md.
%Md. Rule 719 (b) 1.
Md. Rule 719 (b) 2(a).
PRIM LOG SOE REE RNC ERA ad ete OL oy
19
assign counsel in any other case where the _omplexity of
the case, the youth, inexperience or mei.ial ability of the
accused warrant it.!° In addition, the Maryland rules pro-
vide that if an accused is indigent he may request the
~ assistance of counsel himself.!®
MASSACHUSETTS
The Supreme Court held in MacDonnel v. Common- +
wealth '® that the court rules!® of the state required advice :
of counsel in minor misdemeanor cases, but that there
would be “proceedural problems” as to the bar in attempt-
ing to extend the right of counsel to all of these cases.!% [
However, the test of MacDonnel is a possibility of imprison- ©
ment and if this exists, counsel must be appointed. j
MICHIGAN
Michigas, has followed the “three month rule.” If the
charge facing a defendant is punishable by more than 3
months in jail and the person is indigent, he ‘is entitled to
course] and must be informed of his right.1°° Although a
defendant charged with a crime having a lesser penalty is
not entitled to counsel at the trial level, he is afforded the
right on appeal.!°° The ‘‘three month rule” seems to be a
line that has been arbitrarily drawn because of the jurisdic-
tion of the Justice of the Peace Courts, which in Michigan
have jurisdiction up to this point, and not because of any
constitutional grounds.!®
SRS Age Oe OF he See Ot TE Se
BS os ab tie Sk
'See Manning v. State, 237 Md. 349, 206 A.2d 563 (1965).
101Md. Rule 719 (b) 3.
102230 N.E.2d 821 (Mass. 1967).
18 Mass. Sup. Jud. Ct. Rule 3:10.
' Supra, n. 102 at p. 823.
'° People v. Mallory, 378 Mich. 538, 147 N.W.2d 66 (1967).
174 and People v. Lewis, 15 Mich. App. 225, 166 N.W. 2d 491 |
(1968). ~ . , :
'™Mich. Comp. L. §775.16.
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MINNESOTA
Minnesota is the leading state following the rule expounded
by the petitioner here. A defendant faced with a possibility
of incarceration has the right to counsel and if it is deter-
mined (that he is) an indigent, he must be appointed counsel.
The Minnesota Supreme Court ruled in 1967 that counsel
must be appointed to represent an indigent defendant if the
offense he was charged with could result, upon conviction,
in incarceration.'°* The court there pointed to Gideon for
the basis of its ruling,’ and stated that “. . . to insure the
fair administration of justice, we decided that counsel should
be provided in any case, whethcr it be a misdemeanor or
not, which may lead to incarceration in a penal institu-
tion,” !!°
MISSISSIPPI
By statute in Mississippi the courts are required to appoint
counsel in all capital -ases, and may appoint counsel in
felony cases less than capita! cases.''! However the case
law has required appointment in all felonies based upon
Gideon.""* Mississippi is also the home of the “90-day rule,”
resulting from the decision of the Sth Circuit in Harvey vy.
Mississippi''* thus making a conflict in the federal and state
law in Mississippi.
MISSOURI
By statute and rules in Missouri, counsel must be afforded
anyone arraigned for a felony.''* However, an Attorney
18 State v. Borst, 278 Minn. 388, 154 N.W.2d 888 (1967).
1 Id. at p. 894.
107g
‘1 Miss. Code Ann. § 2505 (1967 Supp.).
"Conn v. State, 251 M. 488, 170 So.2d 20 (1964).
13340 F.2d 263 (Sth Cir., 1965).
4Mo. Rev. Stat. §545.820, and Mo. R. Crim. P. 29.01.
21
General’s opinion has stated that counsel may be appointed
in Magistrate Court, and all coming before that Court should
be advised of their right to appear by counsel. The same
opinion also rules that counsel must be appointed in all mis-
demeanor cases “. . . of more than minor significance and
in a case where prejudice might result.”'‘5 The state rule
is therefore in conflict with that set out by the 8th Circuit.!!°
MONTANA
By statute ‘n Montana, counsel must be appointed any-
one charged with a felony'*” and this includes all appeals
as well.''® But the practice is to appoint counsel for some
misdemeanors as well.''?
NEBRASKA
Nebraska, by statute, requires appcintment of counsel
for anyone charged with a felony and brought before a
magistrate.'*° Here again there is a conflict between the
state law and the federal law because Nebraska lies within
the 8th Circuit.'?!
NEVADA
In Nevada, persons must be informed of the right to
counsel when brought before a magistrate'?? and provided
with counsel if indigent and charged with a misdemeanor
punishable by more than six months in jail or more than a
$500 fine or both.!??
'ISMo. Op. Atty. Gen. No. 207, Young 6-21-63.
'©See Beck v. Winters, supra, n. 60.
'l7Mont. Rev. Code Ann. §95-1001.
'8Mont. Rev. Code Ann. §95-1003.
"1936 Mont. L. Rev. 1, at 3 (1964).
12Neb. Rev. Stat. Sec. 29-1803 (1967).
» 121 See Beck v. Winters, supra, n. 60.
12Nev. Rev. Stat. 171.370. .
'3Nev. Rev. Stat. Sec. 171.188 and 193.104 (1969).
4 22
NEW HAMPSHIRE
By statute in New Hampshire, every defendant charged
with a crime where incarceration is a possibility, or a fine
of more than $500 may be levied, is entitled to be repre-
sented by counsel and be advised of such right.!”4
- NEW JERSEY
| -The New Jersey Revised Rules provide that “‘every per-
son charged with an indictable offense shall be advised by
the court of his right to retain counsel and to have the
Office of the Public Defender represent him if he is indi-
gent.”!?5 The right seems to be an absolute one, because
non-indictable offenses are not crimes in New Jersey.
NEW MEXICO
SAE Ba eA ALS iy te a a
By statute in New Mexico any indigent charged with a
“serious crime’”’ which is defined as including any felonies
and misdemeanors which carry a possible penalty of impris-
onment for more than six months,'2° must be afforded the
right to counsel.
NEW YORK
In New York the defendant must be advised of his right
to have counsel and if indigent he must be provided coun-
sel, if he so desires,'?” except for traffic offenses.'28
NORTH CAROLINA
The state court has held that persons charged with crimes
punishable by more than six months in jail or more than
i PES AS eee. AVS aa
ire TS
Yr
'*N.H. Rev. Stat. Ann. Sec. 604-A:1, 604-A:2 (1970 Supp.).
125N J. Rules 3:27-1.
'26N M. Stat. Ann. §41-22-2 and 3 (Supp. 1969).
'27People v. Witenski, 15 N.Y.2d 392, 207 N.E.2d 358 (1965).
128 People v. Lettorio, 16 N.Y.2d 307, 213 N.E.2d 670, cert. den.
384 US. 911 (1965).
23
$500 fine, and who are indigent, are entitled to counsel and
must be so advised.'??
NORTH DAKOTA
In a recent case the Supreme Court in North Dakota held
that the statutes of that state'%° require appointment of
counsel for defendants if the charge is criminal in nature
whether the offense is a misdemeanor or a felony.'*!
OHIO
Ohio courts have ruled that because of their statutes!*?
an accused must be informed as to his right to counsel and
this is not limited to felonies. But the same court also ruled
that this does not require the appointment of counsel if the
accused is indigent, unless it is a felony—therefore limiting
the right only to indigent felons.'*?
OKLAHOMA
Even before Gideon, Oklahoma had extended the right
to counsel to misdemeanors,!™ but the case was not followed
in practice. Recently, the state legislature has passed legis-
lation which allows a Public Defender program to be set up
for municipalities for indigents charged with municipal ordi-
nance violations. This is an optional program.’
129 State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1959) also Ben-
nett v. Hurley, 315 F. Supp. 1131 (ED.NC., 1967); State v. Green,
277 N.C. 188, 176 S.E.2d 756 (1970); State v. Hickman, __ NC.
App.___, 176 S.E.2d 910 (1970).
130N D. Code 29-07-1.1.
131 State v. Heasley, 180 N.W.2d 242 (ND. 1970).
IR Ohio Rev. Code 2937.02.
, '8 City of Toledo v. Frazier, 10 O. App.2d 51, 226 N.E.2d 777
1967).
'* Hunter v. State, 288 P.2d 425 (Okla. Crim. 1965).
'SQkla. Stat. Ann. Tit. 11 Sec. 959.1 and 959.3 (1967-71, Supp.).
24
OREGON
The Oregon Supreme Court has ruled in an extensive
holding that
. . . MO person may be deprived of his liberty who
has been denied the assistance of counsel guaranteed
by the Sixth Amendment. This hoiding is applicable
to all criminal prosecutions, including prosecutions
for violations for municipal ordinances.'**
PENNSYLVANIA
The Rules of Criminal Procedure of Pennsylvania require
appointment of counsel for all indigents charged with indict-
able offenses.'*7_ The Rules also provide for the assignment
of counsel “. .. whenever the interest of justice requires it.”
The comments after the Rule point out that this may even
be in the case where the defendant is not an indigent.'*®
The Rules also provide for counsel on appeal.'°?
RHODE ISLAND
Rhode Island statutes provide that the Public Defender
is “*... . to represent and act as attorney for indigent defend-
ants in those cases referred to him by the Supreme Court, and
by the Superior Courts.”!“° But in practice this means few,
if any, indigents charged with misdemeanors are represented
by counsel. This is because most misdemeanors are not
tried in either of the above mentioned courts, but are with-
in the jurisdiction of the District Courts, thus in practice,
counsel is limited to felonies in Rhode Island.'*!
13% Stevenson v. Holzman, 89 O. 27, 458 P.2d 414 (1969).
137Penn. R. Crim. P., Rule 318.
138 7q
197g
40R I. Gen. Laws Ann. 12-15-3.
141 Compare, R.I. Gen. Laws Ann. §8-2-15 and §12-3-1.
i
25
SOUTH CAROLINA
South Carolina still has on its books a statute that only
extends the right of counsel to capital offenses.1*? The case
law of the State now extends to non-capital offenses.!43
And in stil] another case, the Supreme Court of the State
confusec the issue even further by holding that the right
extends to “criminal prosecutions’”’ and implied that this
was to include lesser offenses, but the case before the:n
was a felony and the Court did not clarify the Ruling.!“
SOUTH DAKOTA
. State statutes require that counsel be provided in ‘“‘any
criminal action.” '** This state is another state in the 8th
Circuit and, thus seems to differ somewhat from that rule.!
TENNESSEE
Tennessee is the only state which has moved backwards.
At the time of Gideon, the State statutes provided for
appointment of counsel for ‘“*. . . every person accused of
any crime or misdemeanor whatsoever.”'*7 But after
Gideon the-State enacted a new statute which only provides
counsel “‘. . . in all felony cases.’!4® Counsel also has been
provided for felony appeals as well.'*9
TEXAS
State statutes have been enacted in Texas which would
require appointment of an attorney for “*. . . an accused
1425 C. Code Ann. § 17-507.
143 Pip v. MacDougall, 245 S.C. 98, 138 S.E.2d 840 (1964).
'4 State v. Cowart, 251 S.C. 360, 162 S.E.2d 535 (1968).
1455 D. Comp. Laws Ann. Secs. 23-2-1 and 23-2-3 (1970 Supp.).
46 Beck v. Winters, supra, n. 60.
7Tenn. Code Ann. §40-2002 and §40-2003 (1955).
'8Tenn. Code Ann. §40-2017 (Supp. 1970).
Tenn. Code Ann. §40-2018 (Supp. 1970).
: Bt 2 “aul cid aia dls Xe tnt ctncas
REST CIEE IE PATER NRE
26
charged with a felony or misdemeanor punishable by
imprisonment.” '5°
UTAH
Utah, by statute, provides for assignment of counsel when
the crime charged could result in “. . . confinement for more
than six months in jail or prison.” !5!
VERMONT
Vermont requires assignment of counsel “. . . in a criminal
proceeding where the person is charged with a crime punish-
able by imprisonment for more than sixty days or by a fine
of more than $1,000.”'5? The right applies to appeals,
extre-ordinary proceedings, and habeas corpus as well.!53
VIRGINIA
By statute in Virginia, the right to counsel is only extende2
to persons who are charged with felonies.'** But like many
other states mentioned before, the state law in Virginia is
in conflict with a Federal District Court decision which has
recently held that the right extends to misdemeanors.'*5
WASHINGTON
By statute, one accused of a felony is guaranteed the right
to counsel in Washington’ but the State Supreme Court
seems to extend the right to misdemeanors in Tacoma v.
Heater'*” by saying “. . . the Gideon case means that every
‘Tex. Code Crim. Proc. §26.04 and Sallerwhite v. State, 423 S.W.
592 (Tex. Crim. 1958).
'S! Utah Code Ann. §77-64-2 (Supp. 1969).
"Vt. Stat. Ann. Tit. 13, Sec. 6503 (1970 Supp.).
ae
'*Va. Code Ann. Sec. 19.1-241.1 (1970 Supp).
"SS Marston v. Oliver, __F.Supp.__, 8 Crim. L. Rptr. 2457 (E.
D. Va. 1971).
"Wash. Rev. Code Ann. §10.01.110 (Supp. 1970).
15767 Wash. 733, 409 P.2d 867 (1966).
‘
re i _.
27
defendant has a constitutional right to counsel in all criminal
prosecutions.”'5* But the court began to vacillate and
seems now to be trying to back-step with a very confusing
decision in Hendrix v. City of Seattle'** which purports to
hold that the right to counsel, though it extends to misde-
meanors, does not require the appointment of public coun-
sel if the defendant cannot afford one.!®
WEST VIRGINIA
In Moats v. Janco'®' the West Virginia Supreme Court of
Appeals extended the right to counsel to misdemeanants fac-
ing incarceration. However, the decision was recently with-
' drawn,'® partly because of-the granting of certiorari in this
case. Thus, the status of counsel in West Virginia awaits
the decision of this Court.
WISCONSIN
Because of a lack of specific standards by either their
legislature or this Court,'®* the Supreme Court of Wiscon-
sin has used the Federal Criminal Justice Act as a guideline. |
The right in Wisconsin thus extends to indigents charged
with misdemeanors where the potential penalty is more than
six months imprisonment.!™
WYOMING
“Every defendant who is unable to obtain counsel shali
be entitled to have counsel assigned to represent him at
1587q at 869.
"9976 Wash. 142, 456 P.2d 696 (1969).
'©The opinion was by J. Hale with the Chief Justice concurring
and three judges concurring in the result only and four judges dis-
senting.
'*! Moats v. Janco, 8 Crim. L. Rept. 2285 (W.Va. 1971).
"2 Moats v. Janco, 9 Crim. L. Rept. 2038 (W.Va. 1971).
163 State ex rel. Tlutshack v. State Department of Health and Social
Services, 37 Wis.2d 713, 155 N.E.2d 549 (1968).
1 Supra, n. 58.
ANE
AREA aR BRE RCN ser arcee 5
Mey
SPORTS EAT HUE A A PU MO RY STH RAMAN EN
28
Orhan
every stage of the proceedings from his initial appearance
befoie the Commissioner or the Court, through appeal, unless
he waives the appointment.’’!®5
ed Sah MRR reat as SO ee
eae
B. The Decisions Which Limit the Guaranty of
Counsel to Offenses Which Carry a Possible
Punishment of Over Six Months Are Incorrect.
In the decision below, Argersinger v. Hamlin,'© the
Florida Supreme Court adopted the ‘“‘excess of six months”
standard advanced in Brinson v. Florida.'*7
The Eighth Circuit in Beck v. Winters'®® was careful not
to formulate a hard and fast rule to determine application
of the right to counsel. But it did refer the reader to Brin-
son for direction.
4 So Brinson has emerged as the leading precedent for limit-
_ ing the right to counsel only to “‘serious offenses,” meaning
those which carry more than.a six months jail term as pun-
ishment. It is interesting to note that in McDonald vy.
Moore'®® the Fifth Circuit anticipated such a theory and
found “‘. . . it would be difficult to sustain on any legal
ground.”’ And in reversing the district court opinion in James |
v. Headley,'” the Fifth Circuit abil rejected Brinson:
See James v. Headley.'7
SEIT Rs Bk LAs Ra IH wm
Brinson and the decision on review in this case are based -
on the following assumptions:
(1) The right to counsel must be equated with the right
to a jury trial;
Taker * ROS GR
4
ad
3
'SWyo. Crim. R. P. Rule 6 (1969 Supp.). |
16 Supra, n. 71. |
167 Surpa, n. 39.
168 Supra, n. 60.
19353 F.2d 106 at 109, n. 4 (Sth Cir. 1965). |
1281 F. Supp. 588 (S.D. Fla. 1968). |
17 Supra, n. 8.
29
(2) Since both guarantees reside in the Sixih Amend-
ment, the same standards must apply to both, and;
(3) The Federal Petty Offense Standard in 18 U.S.C.
Section 1 and the Criminal Justice Act of 1964!” limit the
right to counsel to serious offenses in the federal system,
thus the same resuit must be obtained in the state system.
Each of these points is without merit and is discussed
below.
. The Right to Counsel Cannot Be Equated a the Right
to a Jury Trial.
Throughout the right to counsel decisions in Gideon,'”
Massiah,'™" Miranda,'”* Escobedo,’ Wade,'” Gilbert,’
and Coleman? there runs the thread of recognition that
counsel is essential to protect the integrity of the fact find-
ing processes at the trial itself.
The President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: The Courts
(1967) commented:
Counsel is needed to maintain effective and efficient
criminal justice. Ours is an adversary system of jus-
tice, which depends for its vitality upon vigorous
and proper challenges to assertions of governmental
authority and accusations of crime. Reliance upon
the judge or prosecutor to protect the interests of
defendants is an inadequate substitute for the advo-
cacy of conscientious counsel. Limiting the right to
12.18 U.S.C. §3006A.
13 Supra, n. 4.
1 Supra, n. 19.
15 Supra, n. 12.
'® Supra, n. 20.
17 Supra, n. 24.
1% Supra, n. 25.
'? Supra, n. 26.
eq
of
=
B:
Fs
ts
vd
4
ESET RT SL Re EIT SE BENIN ULL BIE BR LM IIA TE TRAE NBM NERNEY
ns denigrate ee
iz SRR eager etna eens
" 30 |
3
counsel ‘greatly endangers judicial search for truth’.” |
At pp. 52-53
The jury trial plays a different role in our system. It |
does not control the presentation of facts, but merely decides ;
whether or not those facts constitute a violation of the law.
The same role is played by judges in bench trials. Indeed,
thousands of felony cases are tried each year in our courts
without juries." No claim can be made that these bench
trials per se deny defendants a fair trial. Since Gideon
there is no doubt that a felony trial without a lawyer (where
there has been no waiver), is invalid on its face.
Indeed, the Court has noted “We would not assert, how-
’ + Aes
a Re FORE EME
ee RRA es
oO RR EEE REED ETH NEVE &
ay SE cheat
ever, that every criminal trial—or any particular trial—held
before a judge alone is unfair or that the defendant may
_ never be as fairly treated by a-judge as he would be by a
_ jury. Duncan y. Louisiana.'*' But in Gideon, the Court
did hold that every trial of a felony defendant without the
benefit of counsel is unfair.
The Supreme Court of Minnesota, commenting on the :
analogy between counsel and jury trials wrote:
But even though the two rights derive from the same
provisions of the Federal Constitution, they are not
of equal significance when it comes to the matter of
obtaining a fair trial. It is conceivable that a fair
trial may be had before an impartial judge without
a jury, but it is hardly conceivable that a person
ignorant in the field of law can adequately defend
himself without the assistance of counsel. Conse-
quently, we do not consider the cases involving the
right to a jury trial controlling this area.'®
Ae ERP Aes
Ba iat RES, ek ane al a 9k RLS. HOD. Nees Rha
11, the calendar year 1970, in the Courts of Record, the Criminal
Courts of Record, Civil and Criminal Courts of Record and Magistrate
Courts in Florida, 1,880 cases were disposed of by jury trials, while 4
7,173 were non-jury cases. See Sixteenth Annual Report, Judicial [3
Council of Florida, April 1971, Schedule F, p. 38.
181391 U.S. 145, 148 (1968).
1&2 State v. Borst, 154 N.W.2d at 894.
31
Nor has this Court placed the two guarantees on an equal
plane. Gideon was made retroaction in Pickelsimer v. Wain-
wright.'® But the right td a jury trial was not made retro-
active. DeStefano v. Woods.'™
Finally, it cannot even besflatly stated that the right to
a jury trial is inextricably bound to a maximum punishment
in excess of six months. In Baldwin v. New York,'®5 the
Court commented: “
Decisions of this Court have looked to both the
nature of the offense stated, District of Columbia
v. Colts, 282 U.S. 63 (1930), as well as of the maxi-
mum potential sentence, Duncan v. Louisiana, 391
U.S. 145 (1968), in determining whether a particu-
lar offense was so serious as to require a jury trial.
In this case we decide only that a potential sentence
in excess of six-months imprisonment is sufficiently
serious of itself to take the offense out of the cate-
gory of ‘petty.’
2. Even if Baldwin », New York Presents an Inflexible Rule
for Jury Trials, There Is No Authority To Support the Prop-
osition That That Rule Governs All Sixth Amendment
Guarantees.
In addition to a jury trial and the right to counsel, the
Sixth Amendment promises an accused (1) the right to a
speedy trial; (2) the right to a public trial; (2) the right to
know the nature and cause of the accusation; (4) the right
to be confronted with witnesses against him; (S) the right
to compel favorable witnesses to attend his trial.
It is inconceivable that any court would tolerate the
limitations of those rights only to “serious offenses.” In
In re Oliver,’ the Court made it clear that a public trial
13373 U.S. 2 (1953).
1% 392 U.S. 631 (1968).
18399 US. 66, 69, n. 6 (1970).
1% Supra, n. 10.
32
was a basic guarantee to an accused “‘no matter with what
offense he may be charged” and that the right to examine
the witnesses against him, to offer testimony, and to be
represented by counsel are essential to our system of jus-
tice.'®7 (Emphasis supplied.)
Oliver had been summarily punished for contempt and
faced a maximum penalty under Michigan law of sixty days
imprisonment and a $100 fine. While the decision was
reached on Fourteenth Amendment due process grounds it
denotes a clear recognition that some Sixth Amendment
rights are so fundamental that they are not subject to
quibbling.
With the exception of the jury trial issue, this Court has
never limited the application of Sixth Amendment guaran-
tees to “serious offenses.”’ The right to a speedy trial was
guaranteed to a state defendant in Klopfer v. North Caro-
lina.'** Barber v. Page,'®® and Pointer v. Texas,'®° estab-
iished the right to confront witnesses. Washington v. Texas,
secured a state defendant’s right to compulsory process for
obtaining witnesses. The right to an “impartial jury”’ was
recently guaranteed to a misdemeanant. Groppi v. Wiscon-
sin.‘ In no way did those decisions intimate that the
results hinged upon the gravity or nomenclature of the
the offense.'”*
191
187 1d, at 273.
18386 U.S. 213 (1967).
19390 U.S. 719 (1968).
19380 U.S. 400 (1965).
191388 US. 14 (1967).
12 US.___, 91 S.Ct. 490 (1971).
13 Indeed, some Sixth Amendment rights have been carried over
to non-criminal proceedings as an aspect of due process. Compare the
need for confrontation and cross examination set forth in Greene v.
McElroy, 360 U.S. 474 (1959) and see also, Goldberg v. Kelly, 397
US. 254 (1970).
ware ee < FE TE LOE MED OE
a
33
3. The Criminal Justice Act and the Right to Counsel.
Title 18 U.S.C. §3006A, the Criminal Justice Act of
1964, established a method by which counsel could be
compensated for representing indigent defendants in federal
courts. In an early draft the Act provided for appointment
and compensation of counsel for indigent ¢~fendants “‘in
every criminal case in which the defendant appears without
counsel.” !™
While the bill was changed later te exclude petty offenses
under 18 U.S.C. $1, the change was not meant to limit the
constitutional right to counsel, but merely to limit the cases
in which counsel would be paid.!%
The amended 83006A '* provides for different means of
providing representation, but it does not limit the right to
counsel either.
Professor Dallin Oaks, upon whose report the Congress
relied heavily in passing the new Act!” wrote:
The legislative history is clear on the reason for the
exclusion of petty offenses from the Criminal Jus-
tice Act. The framers of the act did not doubt—
14Report, Appendix II, “The Criminal Justice Bill: Text and Com-
mentary” at 147.
«Tie bill as passed by the Senate is restricted in scope to felonies
and misdemeanors other than petty offenses. The House version of the
bill would cover all criminal cases, including petty offenses .... The
constitutional mandate of the Sixth Amendment is wizhout doubt
applicable to petty offenses, but it is the view of the conferees that |
adequate representation may be afforded defendants in such cases
_Wwithout the need for providing for compensation for counsel. In this
way, money appropziated under the act will not be dissipated from
the areas of greatest need, cases involving representation for crimes
punishable by more than six months imprisonment.” Conf. Rept.
1709, U.S. Cong. and Admin. News (88th Cong. 2nd Sess.) 1964 Vol.
Il, p. 3000. [Emphasis supplied.]
‘Pub. L. 91-452, 84 Stat. 926, 1970.
'’Qaks, “Report on the Criminal Justice Act in the Federal Dis-
trict Courts” (1969).
34
although prominent courts do—that the Sixth Amend-
ment right to counsel guarantees applied to misde-.
meanors and petty offenses as well as felonies.
Rather, they excluded petty offenses as a matter of
priority of expenditures . . .1%°
A close reading of the new act reveals that it was written
so that it would encompass the inclusion of petty offenses,
once this Court concluded they were within the Sixth
Amendment for counsel purposes.'”
This inclusion was not an oversight. It was made to pro-
vide flexibility sé as to be able to incorporate what one
subcommittee witness called -‘‘the progression of the exten-
sion of the right to counsel.’
1981) S. Congress, Senate Committee on the Judiciary, Hearings
Before the Subcommittee on Constitutional Rights, 91st Cong. Vol. 9
(extract from “Report on Criminal Justice Act”) p. 328.
1 18 U.S.C. §3006A(a) Choice of Plan—Each United States distr'ct
court, with the approval of the judicial council of the circuit, shzil
place in operation throughout the district a plan for furnishing ‘epre-
sentation for any person financially unable to obtain adequate repre-
sentation (1) who is charged with a felony or misdemeanor ‘other
than a petty offense as defined in Section 1 of this title) or with
juvenile delinquency by the commission of an act which, if cor imitted
by an adult, would be such a felony or misdemeanor or with: a viola-
tion of probation, (2) who is under arrest, when such representation
is required by law, (3) who is subject to revocation of parole, in cus-
tody as a material witness, or seeking collateral relief, as provided in
subsection (g), or, (4) for whom the Sixth Amendment to tite Consti-
tution requires the appointment of counsel, or for whom, in a case in
which he faces loss of liberty, any Federal law requires the appoint-
. ment of counsel. [Emphasis supplied.]
29 Hearings Before the Subcommittee on Constitutional Rights, Op.
Cit. p. 224, Testimony of Lawrence Speiser, Washington Director of
the American Civil Liberties Union.
a ee
35
4. The Rules of Procedure for the Trial of Minor Offenses
Before United States Magistrates and Their Impact on the
Right to Counsel.
On January 27, 1971, Rules of Procedure for the Trial
of Minor Offenses Before Magistrates were promulgated by -
the Court.7°! The dissenting opinion by Mr. Justice Black,
states that “by strong negative pregnant they [the rules]
suggest there exists no right to jury trial or assigned coun-
sel for ‘petty offenses’.”’?°
It is interesting to note that the new rules mark a severe
departure from Rule 44 of the Federal Rules of Criminal
Procedure. The Advisory Committee Note on that rule
states:
Like the original rule the amended rule [44] pro-
vides a right’ to counsel which is broader in two
respects that that for which compensation is pro-
vided in the Criminal Justice Act of 1964: (1) The
right extends to petty offenses to be tried in the
district courts, and (2) the right extends to defend-
ants unable to obtain counsel for reasons other than
financial. [Emphasis supplied. ]
If indeed Mr. Justice Black is correct, and the Court did |
intend to settlé the issue of counsel through the new rules,
then all is lost for the petitioner.
Hopefully, the\rules do not stand for that proposition.
m1 US.__, 39 US.LW. 3330.
2239 US.LW. at 3331.
LIPO OIEISE O00 INS E
36
Il. THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES THAT
EVERY PERSON FACING INCARCERATION FOR
THE COMMISSION OF AN OFFENSE, NO MAT-
TER WHAT ITS DESIGNATION, IS ENTITLED TO
BE ADVISED OF HIS RIGHT TO COUNSEL AND
HAVE COUNSEL APPOINTED FOR HIM IF HE IS
AN INDIGENT.
The issue presented in this case has typically been dis-
cussed in the context of the Sixth Amendment and the
Due Process Clause of the Fourteenth Amendment. But
a strong equal protection thread runs through the theory
of guaranteeing counsel to indigent defendants charged
with-oeffenses carrying penalties of less than six months.
Griffin v. Illinois?®? and Douglas v. California? present
compelling equal protection arguments applicable to ‘the
counsel issue herein. In Miranda v. Arizona* the Court
commented:
Denial of counsel to the indigent at the time of
interrogation while allowing an attorney to those
who can afford one would be no more supportable
by reason or logic than the similar situation at trial
and appeal struck down in Gideon v. Wainwright,
and Douglas v. California.”
That view is as valid in this case as it was in Miranda.”
There is no doubt that the petitioner could have brought
counsel to his trial if he could have afforded an attorney.
Can he be denied counsel at that trial because he is indigent?
Since the right to counsel has been deemed a fundamental
right, it cannot be denied to poor persons unless the state can
23 Supra, n. 11.
24372 US. 353 (1963).
205 Supra, n. 12.
25 384 US. 436 at 472-473.
27 Supra, n. 12.
37
show a “compelling interest” in that classification. Shapiro v.
Thompson.”°® The desire to save money is not sufficient to
justify the exclusion of indigents from the right to be assisted
by a lawyer.”
The so called “petty offenses” for which counsel is now
denied in Florida have a far greater impact upon the poor
than the rich. A conviction which sends a poor man to
jail for even a few days has consequences which reach far
beyond the loss of liberty. A poor man may well lose his __
job if he misses. work for several days. The loss of a job
may result in no income, thence eviction, repossession of
furniture, welfare for his family, ad infinitum. The mind
boggles at the possibilities which confront a poor man whose
job (and life) depend upon his daily appearance at work.?!°
The poor man is not well qualified to conduct his own
defense, to cross examine the witnesses against him and to
invoke the rules of evidence. He, most of all, requires “the
guiding hand of counsel at every step in the proceedings
against him.” Powell v. Alabama.*"" ree
If the kind of trial a man receives cannot be mets "
depend upon the amount of money he has, Griffin v.
Illinois,?'* then a fortiori counsel must be provided for poor
28 Supra, n. 13.
<The saving of welfare costs cannot justify an otherwise invidi-
ous classification.” Shapiro v. Thompson, supra, n. 13 at 633.
210Cf, Baldwin vy. N.Y., 399 US. 66, 73 (1970) and Marston v.
Oliver, 8 Cr. L. Rptr. 2457 (D.C.-E. Va. March 10, 1971).
211287 U.S. at 69. The impact of counsel is apparent from a
study made of the City of Miami Municipal Court in 1967. Approxi-
mately two-thirds of the defendants with counsel did not go to jail,
while over three-fourths of the unrepresented were incarcerated.
aoe The Crime of Punishment, Viking Press, N.Y. 1968 at p.
212 Supra, n. 11.
38
people in cases where a monied man can, and would be
represented .?!>_
Il. EXTENDING THE RIGHT TO COUNSEL TO ALL
WHO FACE THE LOSS OF LIBERTY WOULD
BENEFIT OUR JUDICIAL SYSTEM.
Although ARGERSINGER faced a maximum punishment
of six months incarceration, he urges that the issue pre- _
sented must be decided in the broader framework of a
defendant facing a loss of liberty for any period of time.
For if the court decides this case only in the context of
the punishment to which ARGERSINGER was exposed, it
will open the flood gates for litigation posing the right to
counsel issue in 175-day cases, or 150-day cases and so on
until a firm guideline is set.
Such a result is already clear from the plethora of habeas
corpus cases brought in Florida seeking to establish a defin-
itive standard. In one jurisdiction a court attempted to set
a guide of 90 days or a $500 fine, only to see the city
council reduce the maximum penalty to 75 days or a $450
fine in an effort to escape the effect of the decision. Thus
the litigation continues.?'*
Clearly no valid consitutional basis exists for holding that
the right to counsel is required in a 90-day case, and not
necessary in a 75-day or 30-day case. As shown above, no
practical purpose is served by augmenting such rules.
213 There is some data to support the conclusion that even the rich
choose to proceed without counsel in some types of cases. Junker,
The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev. 685,
713-714 (1968). This would also butress the argument for reclassifi-
cation of offenses according to the actual threat of imprisonment dis-
cussed in Part III of this brief.
24 See, Wooley v. Consolidated City of Jacksonville, 433 F.2d 980
(Sth Cir. 1970) upholding the district court decision setting a 90-day
or $500 fine rule. Then see McRae, The Administration of Justice in
Federal Courts, 23 U. Fla. L. Rev. No. 2, (at Appendix) (to be pub-
lished May, 1971).
39
The reluctance to extend counsel arises from a fear that.
jaywalkers, sidewalk spitters and overtime parkers will
demand lawyers, grinding our judicial system to a halt.
Argersinger v. Hamlin.?"5 Carried to their logical extremes,
those fears are sobering, but that argument is actually
specious. For it assumes that state and local governments
will, of their own paralysis, fail to take actions which
would make a constitutional decision workable.
A similar argument was advanced in enposition to
Gideon.?*© But the states, especially Florida, responded
with appropriate legislation and financing to make the
Gideon mandate a reality. :
There are solutions available should the court make the
right to counsel applicable to all defendants who face a loss
of liberty. In fact some of these solutions may bring about
the long needed judicial reform urged by President Nixon
in his address to the National Conference on the Judiciary
in Williamsburg, Virginia on March 11, 1971. He said:
What can be done to break the logjam of justice |
today, to insure the right to a speedy trial—and to
enhance respect for the law. We have to find ways
to clear the courts of the endless stream of ‘victim-
less’ crimes that get in the way of serious considera-
tion of serious crimes. There are more important
matters for highly skilled judges and prosecutors
than minor traffic offenses, loitering and drunke-
ness.
The most workable solution would be to reclassify offenses —
_ $0 that the actual threat of punishment would be realistically
stated.
Many offenses or crimes do not actually carry the threat
of jail as punishment. While the ordinance or statute might
specify a potential jail sentence, in practice, offenders are |
215 Supra, n. 71.
216 Supra, n. 4.
217New York Times, March 12, 1971, p. 18.
40
not incarcerated for their violations. The best examples are
jaywalking, sidewalk spitting and overtime parking. Unless
a defendant is a scofflaw, he is not going to be jailed for
such offenses. Nor will he be for mere traffic offenses
unless he has an extremely bad driving record or has engaged
in some type of aggravated driving misconduct.?!®
Once the appropriate legislative body designated the
offenses which should actually carry jail potential, computers
or court personnel could process those cases into an adver-
sary division of the court where defendant’s counsel would
be available. The other cases, which might carry only a
fine, could be processed in a non-adversary manner, possibly
even by non-judicial personnel.
Reclassification can serve a secondary purpose of saving
court time and police officers’ time.”!?
The reclassification procedure advocated would merely
reflect the actual community standards about the serious-_
ness of offenses. It is consistent with what the ABA’s
Project on Minimum Standards for Criminal Justice, Stand- |
ards Relating to Providing Defense Services, Section 4.1 k
(tentative draft, 1967) called for:
218 FoF instance, in New York in_ 1969, 1,803.049 people were con-
victed of violations including jaywalking and speeding and other traffic
infractions. Of this number a total of forty (40) persons were fined
and imprisoned, given a suspended sentence, or incarcerated or sent
to a reformatory. Source: Criminal Court of the City of New York
Annual Report of 1969, p. 13, Table 3, line 11. The same table, at
line 20, reflects that of “s 18,615 convictions of vehicular mis-
demeanors: driving while intoxicated, reckless driving, leaving the
scene of an accident, 332 or 1.8% were incarcerated in some —
2191970 Annual Report, Metropolitan Court, Dade County, Florida,
reflects at page 35 that 21,489 speeding arrests were made by the
Dade County Public Safety Department in the greater Miami area in
1970. 51 of these cases involved accidents. A total of 15,372 per-
sons entered guilty pleas. Assuming that each guilty plea and its dis-
position took only three minutes, a total of 46,116 minutes, or over
ninety-six eight-hour work days, were spent in 1970 by the judges and
police officers in Metropolitan Court accepting guilty pleas from
speeders. “ts 3
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41
Counsel should be provided in all criminal proceed-
ings for offenses punishable by loss of liberty, except
those types of offenses for which such punishment
is not likely to be imposed, regardless of their denom-
ination as felonies, misdemeanors or otherwise.
(Emphasis supplied.)?”° —
The Sixth and Fourteenth Amendments.of the Constitu-
tion demand, at the least, the adoption of this standard.
~~
CONCLUSION
For the foregoing reasons, the Petitioner respectfully
requests this Court to hold that persons charged with offenses
_ which may result in a loss of liberty are entitled to be
#
”~
Compare the discussion in Kamisar and Choper, The Right to
in Minnesota: Some Field Findings and Legal Policy Obser-
vations, 48 Minn. L. Rev. 1, 62-84 (1963). And see especially, Jun-
ker, The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev.
685, 708-715 (1968). Also, Misdemeanor’s Right to Counsel: Impris-
onment Standard, 21 U. Fla. L. Rev. 421, 424-425 (1969). Note that
some jurisdictions have in effect reclassified offenses, limiting the
punishment to fines only. Tate v. Short, _ US. ,91 S.Ct. 668,
669 n. 2 (1971).
42
' advised of their right to counsel, and to have counsel
appointed if they are indigent. The Petitioner requests that
the decision of the Florida Supreme Court be reversed and
his conviction vacated.
Respectfully submitted,
J. MICHAEL SHEA
P. O. Box 2742
Kennedy at Franklin
Tampa, Florida 33601
BRUCE S. ROGOW
622 N.W. 62nd Street
Miami, Florida 33150
P. A. HUBBART
Public Defender -
Justice Building
1351 N.W. 12th Street
Miami, Florida
OR re rE en, at ne ett AP Oe of *bObwes
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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.