Amicus Curiae Brief — Argersinger v. Hamlin

In the Supreme Court of the Uni

OCTOBER TERM, 1970

Supreme Court, U.S.

FILED

SEP 1°27 197)

E. ROBBRT SEAVER, CLE®

Oa

Jo- SOS

JON RICHARD ARGERSINGER,

Peticioner,

Vs.

RAYMOND HAMLIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

MORTON fen hinbeebde BRIEF

AS AMICUS CURIAE

LAUREN BEASLEY

Chief Assistant Attorney General

State of Utah

DN DEX

Page

INTEREST OF AMICUS sce iste 1

QUESTION PRESENTED .................... Meat ste he Rehan, 2

BUMNIATCY OP ARGUNEN 1 22 2e 2s es. cere 3

NEE Og Oey Digs Bee es Soo Joh) ee el Oe ea yO 4

I. THE PRACTICE OF THE STATE OF FLORIDA

WHICH PROVIDES COUNSEL FOR INDI-

GENTS FACED WITH A POSSIBLE INCAR-

CERATION OF MORE THAN SIX MONTHS

IS IN HARMONY WITH THE SIXTH AMEND-

MENT AND DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION .................... 4

A. Neither the Constitution Nor the Decisions of

this Court Require Counsel for an Indigent

Defendant Charged With a Misdemeanor ........ 5

B. The Right to Trial by Jury, the Criminal Jus-

tice Act of 1964, and the Rules of Procedure

for ‘Trial of Minor Offenses before United

States Magistrates, all Use Six Months as a

Basis to Distinguish Petty Offenses From Ser-

Ed GS cna. eee eS en ne ae ee 13

Il. TO EXTEND GIDEON TO CRIMES WITH A

MAXIMUM SENTENCE OF SIX MONTHS UR

LESS WOULD CAST AN OVERWHELMING

ADMINISTRATIVE BURDEN UPON THE

Sh Us Oca dee ited pM na ee 18

Ill. THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT DOES NOT

REQUIRE THE APPOINTMENT OF COUN-

SEL FOR INDIGENT DEFENDANTS FACING

A MAXIMUM PUNISHMENT OF LESS THAN

3) BGR Jo th bo fc ARR ee ee en 22

e

i

‘

:

PMT SIE Yee FORE RIS eS gs

TAN ISMN

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INDEX—Continued |

| Page

(0x 0) (0) BOs) (0) 4

TABLE OF AUTHORITIES

| CASES

Anders v. California, 386 U. S. 738 (1967) 2-0-0 24

Baldwin v. New York, 399 U. S. 66 (1970) 20.0.2... 3,14

Beck v. Winters, 407 F. 2d 125 (8th Cir. 1969) .............. 14

Bel ts v. Brady, 316 U.S. 445 (1942) 000. 6

Brinson v. State of Florida, 273 F. Supp. 840 (1967) ... 8

of Toledo v. Frazier, 10 Ohio App. 2d 51, 226 N. E.

Dd TTT (VOGT oo oececcecccccceeeceecccsesecvssvesesvssvesesesnuesssesnneesseee 10

De v. United States, 341 U. S. 494 (1950) _...... 8

Douglas v. California, 372 U. S. 353 (1963) -.........0........ 22, 24

Duncan v. Louisiana, 391 U. S. 145 (1968) ~....0000222.... 13, 15

Dyett v. Turner, 20 Utah 2d 403, 439 P. 2d 266 (1968).. 10

Gideon v. Wainwright, 372 U. S. 335 (1963) .......... 3, 6, 7, 8,9

Griffin v. Illinois, 351 U. S. 12 (1956) 00.0022... 23, 24

Hendrix v. City of Seattle, 76 Wash. 142, 456 P. 2d 696

2) a rs ee Sone en ee an 12, 15

Hortencio v. Fillis, 25 Utah 2d 73, 475 P. 2d 101 (1970) 2

In Re Gault, 387 U. S. 1 (1967) 20.2... 3,7

Ker|v. California, 374 U. S. 23 (1963) _....000000 12

Mempa v. Rhay, 389 U. S. 12 (1967) -..0...20.20.e. eee 3,7

Morgan v. Devine, 237 U. S. 632 (1915) ...000.. eee 11

Patterson v. State, 227 Md. 194, 175 A. 2d 746 (1961) . 9

INDEX—Continued

Page

Patterson v. Warden Maryland Penitentiary, 372 U. S.

0A (Ta © hs) 9

Powell v. Alabama, 287 U. S. 45 (1932) 00.0000. 6

Reynolds v. United States, 98 U. S. 145 (1878) .............. 3

State v. Borst, 154 N. W. 2d 888 (Minn. 1967) ................ 14

Truax v. Corrigan, 257 U. S. 312 (1921) -.0000e ee. 13

Wall v. Purdy, 321 F. Supp. 367 (1971) 00.00.0222. 12

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI o.oo... occ eee cece ee neces 5

U.S. Const. Amend. Xoo. eece eee eceeceeeeeeeeeeeeeees 10

U.S. Const. Amend. XIV ooo0...00.22. occ cceeceeeceeeeeee eee 7, 22

STATUTES

Criminal Justice Act 18 U. S. C. Sec. 1 (1964) ....3, 14, 16, 17

Criminal Justice Act 18 U. S. C. Sec. 3006 (b) (1964) .. 16

Federal Rules of Procedure for the Trial of Minor

Offenses Before United States Magistrates, U. S.

C. A. 572, (Supp. 1971) oo... ceeceseeceeeeeeeeeeeeceeeeeees 3, 17

Utah Code Ann. Sec. 77-64-2 (Supp. 1969) .................... 1

SECONDARY AUTHORITIES

Allen, The Supreme Court, Federalism and State Sys-

tems of Criminal Justice, 8 DePaul L. Rev. 213

CL 1) ee ene ere 5

Beaney, Right to Counsel (1955) ...........2..220.-.2:cesceeeeeenes 5

Friendly, The Bill of Rights as a Code of Criminal Pro-

cedure, 53 Calif. L. Rev. 929 (1965) ...........0.2....2.---- 11

as

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i

é INDEX—Continued

4 Page

; Hearing on H. Res. 17, 91st Cong. 1st Sess. 629-33

: (1969) eeccsssvssvsssevesesvtstevssvnsvnsinetetnenstveteseenee ul

Junker, The Right to Counsel in Misdemeanor Cases,

: 43 Wash. L. Rev. 685 (1968) 200.2... eee 9, 15, 23

i Note, Dollars and Sense of an Expanded Right to Coun-

sel, 55 Ia. L. Rev. 1249 (1970) .0....2.2..2ceeeceeceteeeeeeeeeees 19

President’s Commission on Law F'nforcement and Ad-

ministration of Justice, Task Report: The Courts

CTOGT) wcncxeieessatesracestveststexvecensendevesnsnnecantnenicansusmassancan 18, 19, 20

Silverstein, Defenses of the Poor in the Criminal Cases

in American State Courts (1965) .0..0.......2:c.c:ccceee 19

‘th the Supreme Court of the United States

OCTOBER TERM, 1970

No. 5798

JON RICHARD ARGERSINGER,

Petitioner,

vs.

RAYMOND HAMLIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

The Attorney General of the State of Utah respectfully

moves the Court for permission to file this brief as Amicus

Curiae.

INTEREST OF AMICUS

Utah Code Ann. § 77-64-2 (S:pp. 1969) provides “that

assigned counsel shall represent every indigent person who

is under arrest for a crimc in which the penalty to be im-

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posed could be confinement for more than six months in

either jail or prison.” The Legislature of the State of Utah,

while recognizing that an accused has the right to counsel,

has stated that the State is under no duty to provide coun-

sel for an indigent charged with a misdemeanor. Recently,

in Hortencio v. Fillis, 25 Utah 2d 73, 475 P. 2d 1011 (1970)

the Supreme Court concluded that it should be left to the

legislature if it so desires to expand the system of assigned

counsel and to provide for the expenditure of public funds.

The State of Utah agrees: with and fully endorses the

position taken by the Attorney General of the State of

Florida in their stand against the requirement of counsel

where an indigent defendant, upon conviction, faces a maxi-

mum penalty which does not exceed six months imprison-

ment and a one thousand dollar fine. Furthermore, there

are compelling interest of the tate of Utah involved in the

ultimate outcome of this case. An adverse ruling in: this

case would cause an unbearab!e burden upon the State of

Utah in the form of financial shortages, lack of available

personnel and inefficient court administration.

QUESTION PRESENTED

Should the right of counsel be extended to require pub-

licly funded counsel for an indigent defendant who upon

conviction of a crime faces a maximum penalty which does

not exceed six months imprisonment and a one thousand

dollar fine.

SUMMARY OF ARGUMENT

The State of Florida does not provide counsel for in-

digents charged with an offense which entails a possib'e

incarceration of more than six months in jail. This practice

is in accord with the Constitution of the United States as

interpreted by this Court. In Gideon v. Wainwright, 372

U. S. 335 (1963) the Court held that counsel must be ap-

pointed for indigents charged with a felony. Later, In Re

Gault, 387 U. S. 1, 29 (1967) and Mempa v. Rhay, 389 U. S.

12, 34 (1967) the Court held that there was an absolute

right to appointment of counsel in felony cases. This Court

should adhere to the felony-misdemeanor standard to render

respect for Stat’ legislative judgments concerning tive ser-

iousness and consequences attached to various crimes. The

“Due Process Clause” of the Fourteenth Amendment should

not be used as a tool to enforce a federally dictated code of

criminal procedure upon the states.

In the alternative, the “six month” limitation for the

appointment of counsel for indigents as practiced by the

State of Florida should be adhered to. The right to “trial

by jury” is analogous to the right to the asistance of counsel.

In Baldwin v. New York, 399 U. S. 66 (1970) this Court

drew the line between petty offenses and serious crime®

holding that a “possible six month penalty is short enough

to permit classification of the offense ‘as petty’.” Id. at 69.

This “six month standard” is also followed in Criminal Jus-

tice Act of 1964 and the Federal Rules of Procedure for the

Trial of Minor Offenses before United States Magistrates,

which rules were promulgated by this Court.

:

ee

4

To decide, as pétitioner contends, that the appointment

of counsel! should be extended to any time a deprivation of

liberty is possible, would cause an unbearable burden upon

the majority of the states: The monetary costs of appointed

counsel in addition to the manpower requirements are stag-

gering. Consideration must also be given to the taxed court

systems. Counsel for “misdemeanants” would also become

a. vast spawning ground for writs of habeas corpus. This

Court must consider the indirect expense of allocating such

a massive amount of its legal and judicial resources to this

singular area of concern.

Finally, the Equal Protection Clause does not require

appointment of counsel for indigent defendants facing a

maximum punishment of less than six months. In the vast

majority of “misdemeanors” which entail a possible jail

sentence, people who can afford counsel usually do not do

so. The more advantages society extends to the indigent,

the more apparent is the comparative disadvantage of being

of modest means. Equal protection of the law cannot be

advanced by promising more than it can deliver. No mat-

ter how much the State elects to furnish, persons with

money can buy more.

ARGUMENT

I,

THE PRACTICE OF THE STATE OF FLOR-

IDA WHICH PROVIDES COUNSEL FOR IN-

DIGENTS FACED WITH A POSSIBLE INCAR-

CERATION OF MORE THAN SLX MONTHS

aa

)

IS INHARMONY WITH THE SIXTH AMEND-

MENT AND DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION.

A. Neither the Constitution Nor the Decisions of this

Court Require Counsel for an Indigent Defendant

Charged With a Misdemeanor.

The Sixth Amendment to the Constitution of the

United States provides in part, “In all criminal prosecu-

tions, the accused shall enjoy the right to a speedy and

public trial . . . and to have the Assistance of Counsel for

his defense.” “This provision in the Sixth Amendment to

the Constitution emerged in an atmosphere of silence con-

cerning the intentions which produced it.” Beaney, Right

to Counsel 25, (1955). There was a general understanding

that the federal courts would have jurisdiction of an in-

significant number of criminal proceedings and, therefore,

“The logical assumption is that no great thought was given

to the precise nature of the federal right to counsel.” Id.

at 25.

It is clear, however, that lawyers at common law were

not permitted full participation in criminal cases. Not until

1836 did “ngland afford full recognition to the defense law-

yer’s role in felony prosecutions. Allen, The Supreme Court,

Federalism, and State Systems of Criminal Justice, 8 De-

Paul L. Review 218, 224 (1959). The right to counsel which

the Sixth Amendment provides, meant to insure that when

a sion had secured a lawyer to represent him, the

SA EREP ALLA GME POLIS BLED

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latter would be permitted to participate in the proceedings

and speak in the defendant’s behalf.

Beginning with Powell v. Alabama, 287 U. S. 45 (1932)

this Court held that the assistance of a lawyer was neces-

sary for a fair trial in cases involving possible capital pun-

ishment. Ten years later in Betts v. Brady, 316 U. S. 455

(1942) the Court held that the Sixth Amendment right of

counsel was applicable only to the Federal Government.

However, the “Fourteenth Amendment prohibits the con-

viction and incarceration of one whose trial is offensive to

the common and fundamental ideas of fairness and right

. . we cannot say that the Amendment embodies an inex-

orable command that no trial for any offense or in any court,

can fairly be conducted and justice accorded a defendant

who is not represented by counsel.” Id. at 473.

Of course, in Gideon v. Wainwright, 372 U. S. 335

(1963) this court held that the Sixth Amendment was ap-

plicable to the states through the Fourteenth Amendment,

thus overruling the “special circumstances” rule of Betts.

In Gideon the petitioner was charged in a Florida state

court with a felony. Justice Black in writing the opinion of

the court stated:

“That government hires lawyers to prosecute

and defendants who have the money hire lawyers to

defend are the strongest indications of the wide-

spread belief thac lawyers in criminal courts are nec-

essities, not luxuries.” Id. at 344.

7

Justice Harlan, concurring in Gideon, noted:

“The special circumstances rules has been form-

' ally abandoned in capital cases, and the time has

now come when it should be similarly abandoned in

noncapital cases, at least as to offenses which, as

the one involved here, carry the possibility of sub-

stantial prison sentence. (Whether the rule should

extend to all criminal cases need not now he de-

cided.) Id. at 351. (Emphasis added.)

Justice Marshall in speaking for a unanimous court in

Mempa v. Rhay, 389 U. S. 12 (i967) said:

“In Gideon v. Wainwright . . . however, Betts

was overruled and this court held that the Sixth

Amendment as applied through the Due Process

Clause of the Fourteenth Amendment was applicable

to the States, and accordingly, that there was an

absolute right to appointment of counsel in felony

cases. Id. at 34. (Emphasis added.)

Also this Court in In Re Gault, 387 U. S. 1 (1967)

stated that Gault would be entitled to have the state pro-

vide counsel “at least if a felony were involved.” Id. at 29;

and if his parents were unable to afford counsel. It is clear

that on the basis of past precedents this court has declared

that the right to cuunsel in state courts extends only to

felonies. This reasoning is soundly based. The Fourteenth

Amendment provides that “. . . Nor shall any state deprive

any person of life, liberty, or property without due process

of law .. .” In Gideon, Justice Black, speaking for the

Court, stated, “We accept Betts v. Brady’s assumption,

based as it was on our prior cases, that a provision of the

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Bill of Rights which is fundamental and essential to a fair

trial is made obligatory upon the States by the Fourteenth

Amendment.” Id. at 342. Certainly, the duty of the State

to provide counsel for indigents charged with a misdemeanor

cennot in any sense of the word be termed a “fundamental”

right.

As stated in Brison v. State of Florida, 273 F. Supp.

810 (1967) the right to counsel guaranteed by the Sixth and

Fourteenth Amendments is not an absolute right, nor are

any of the rights guaranteed by the Constitution. Thus, the

right to free exercise of the religion of one’s choice is on its

face avsolute, but in application is limited since a religion

requiring illegal activities would not be constitutionally

protected. Reynolds v. United States, 98 U. S. 145 (1878).

The absolute right to free speech has been qualified and

curtailed by libel and slander laws. Such right on occasion

must be subordinated to other values and consideration.

Dennis v. United States, 341 U. S. 494 (1950). Likewise,

the “absolute right’ to counsel in all criminal prosecutions

must be qualified by practical exigencies and unless this is

done:

“(t)he necessities of sound judicial administra-

tion would be disregarded and the administration of

justice thrown into senseless chaos.” Brinson v. State

of Florida, 273 F. Supp. 840, 847 (1967).

Indeed, the petitioner does not contend that the Four-

teenth Amendment must be applied absolutely, but argues

that persons charged with offenses which may result in a

loss of “liberty” are to have counsel appointed if they are

Raed |

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indigent. (Petitioner’s brief for Certiorari at 41-2). Yet,

the Fourteenth Amendment also declares that a State shall

not deprive any person of “property” without due process

of law. Therefore, in accord with the petitioner’s “absolute”

construction, the states should afford counsel for indigents

charged with a $2 parking violation. Junker, The Right to

Counsel in Misdemeanor Cases, 43 Wash. L. Rev. 685, 712

(1968).

The traditional state classification of crimes as felonies

or misdemeanors should be continued, as the line where

appointment of counsel is requized. There are extreme cir-

cumstances where the felony-misdemeanor distinction might

undermine Gideon. However, cases such as Patterson v.

State, 227 Md. 194, 175 A. 2d 746 (1961) are the rare ex-

ception. In Patterson, the defendant was convicted of mis-

demeanors having a maximum penalty of 2 years or $1000

fine. The lower court refused to appoint counsel because

the charges were not “serious” within the statutory defini-

tion. The State Supreme Court affirmed. On certiorari,

Patterson v. Warden Maryland Penitentiary, 372 U. S. 776

(1963), the judgment was vacated and the case remanded

for further consideration in the light of Gideon. It is cb-

vious that a 2 year jail sentence based upon several misde-

meanors would violate Gideon; however, the vast majority

of crimes classified as misdemeanors would not entail such

© severe penalty.

One of the basic reasons this Court should adhere to the

felony-misdemeanor standard set forth in Gideon is respect

_—

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10

for State

ness of

legislative considerations of the relative serious-

various crimes. As every school boy knows, the

framers jf the Constitution established a federal government

with limited powers. As the Tenth Amendment declares,

“The powers not delegated to the United States by the

he St ncr prohibited by it to the States, are reserved

to the States respectively, or to the people.” Indeed, the

Bill of Rights was intended to be a limitation upon the fed-

eral government and not upon the states. To what extent

the Fourteenth Amendment through the “due process

clause” incorporates the Bill of Rights guarantees is a sub-

ject of considerable controversy. However, apart from the

theory, 2 immediate thrust of the “due process clause”

has had profound consequences on state criminal procedure.

As stated in City of Toledo v. Frazier, 10 Ohio App. 2d 51,

226 N. E.|2d 777 (1967).

“Today a pervasive system instituted by the Su-

pme Court of the United States covers almost

ry aspect of state criminal law enforcement from

est through trial and sentence to appeal. All

limitations have been developed by the United

of law and equal protection of the laws.” Id. at 782.

The Supreme Court of the State of Utah in Dyett v.

Turner, 20 Utah 2d 403, 489 P. 2d 266 (1968) has raised

a “hue and cry” over this Court’s interpretation of the “due

process” clause as applicable to criminal procedure:

“As a result of the recent holdings of that Court,

the sovereignty of the States is practically abolished

11

and the erstwhile free and independent states are

now in effect and purpose merely closely supervised

units of the federal government ...” Jd. at 267.

The implications of petitioner’s argument to provide

counsel for whenever a loss of liberty is threatened is in di-

rect contradiction of the concept of federalism as envisioned

by the framers of the Constitution. Petitioner contends

that crimes should be reclassified so that the actual threat

of punishment should actually reflect community standards

about che seriousness of the offenses. (Petitioner’s brief at

39.) Traditionally, the process of defining crimes and se-

lecting appropriate sentences has been vested with the leg-

islative branch of government. Morgan v. Devine, 237 U. S.

632, 639 (1915). Therefore, it is sclely the prerogative of

State legislatures to define crimes and establish attendant

penalties for violation.

The State’s classification of felony or misdemeanor

reflects the decision of State legislatures as to the relevant

consequences or seriousness of a particular crime. There is

no constitutional requirement that the criminal laws of the

various states must be in unison or harmony, nor is the due

process clause the appropriate device to impose a national

standard of criminal law or procedure. See Hearings on H.

Res. 17,-91st Cong. 1st Sess. 629-33 (1969), Friendly, The

Bill of Rights as a Code of Criminal Procedure, 53 Calif. L.

Rev., 929 (1965).

Misder-- ~ors are usually associated with trivial of-

fenses desc_.ced as malum prohibitum rather than malum

rr

12

in se as are most felonies. Misdemeanors have none of the

sanctions in addition to fine or imprisonment associated |

with felonies. “A conviction of a felony is punished not only

by imprisonment but also by the forfeiture of civil rights

such as the right to vote, to serve o1. a jury, and to hold

public office. And not infrequently, such a conviction will

prove to be an insurmountable barrier to desirable employ-

ment.” Wall v. Purdy, 321 F. Supp. 367, 371 (1971).

It may well be that “Mapp sounded no death knell for

our federalism ... that a healty federalism depends upon

the avoidance of needless conflict between state and federal

courts .. . by recognition of their now mutual obligation to

respect the same fundamental criteria in their approaches.”

Ker v. California, 374 U. S. 23, 31 (1963). If petitioner’s

contentions were to prevail, what was once termed a mutual

obligation to respect, will become another militant com-

mandment to obey federally dictated criminal law and pro-

cedure.

As stated by the Supreme Court of the State of Wash-

ington in Hendrix v. City of Seattle, 76 Wash. 142, 456 P.

2d 696 (1969).

“The traditional line drawn between felonies and

lesser crimes has persisted from our colonial begin-

nings to the present time and no authoritative deci-

sions to the contrary have been presented to us

which eradicate that distinction.” Id. at 700. (Em-

phasis added.)

The right to have counsel is not the exact constitutional

equivalent of the right to free counsel. The rule should re-

13

main that counsel for indigents should be supplied at the

public expense only for felonies as defined by state law.

One of this Court’s greatest members declared, “De-

lusive exactness is a source of fallacy throughout the law.”

Holmes’ dissent in Truax v. Corrigan, 257 U. S. 312, 342 *

(1921). The Sixth Amendment only provides that an ac-

cused shall have the right to the “Assistance of Counsel.”

To hold that this provision was “absolute,” applicable to

every violation of a crime which could result in a loss of

liberty, would undermine State legislated criminal law and

procedure.

B. The Right to ‘irial by Jury, the Criminal Justice

Act of 1964, and the Rules of Procedure for Trial

of Minor Offenses before United States Magis-

trates, all Use Six Months as a Basis to Distinguish

Petty Offenses From Serious Crimes.

1. Right to Trial by Jury

The phrase “all criminal prosecutions” applies not only

to the right of counsel but also to the right to a jury trial.

In Duncan v. Louisiana, 391 U. S. 145, 149 (1968), this

Court held that trial by jury in criminal cases is “. . . (f) un-

damental to the American scheme of justice” and that the

“Fourteenth Amendment guarantees a right of jury trial in

all criminal cases which — were they to be tried in a federal

court — would come within the Sixth Amendment’s guar-

antee.” This Court concluded that a +:.:y trial is guaranteed

in all “serious offenses” but does not extend to “pettv

crimes.” The Court did hold on the facts before it where

14

a crime punished by two years in prison is a serious crime

and not a petty offense.

However, in Baldwin v. New York, 399 U. S. 66 (1970),

the Court “drew the line” between petty offenses and ser-

ious crimes so that a “possible six-month penalty is short

enough to permit classification of the offense as ‘petty.’ ”

Id. at 69. The significance of Baldwin is that the Court

_ looked to various guides to determine whether the length

of the authorized prison term or the seriousness of other

punishment is enough to require a jury trial. The first guide

was “the existing laws and practices in the Nation.” Id. at

70. This Court noted that in the federal system petty of-

fenses have been defined as those punishable by no more

than six months in prison and a $500 fine. 18 U.S. C. Sec.

1 (1964). The Court also looked to State law and de-

termined that in every jurisdiction hut New York crimes

triable without a jury were also generally punishable by no

more than a six month jail term.

Both the right to trial by jury and the right to counsel

of the Sixth Amendment are phrased in absolute language.

Logically, the phrase “all criminal prosecutions” should be

accorded the same meaning as applied to both protections.

Beck v. Winters, 407 F. 2d 125, 128 (8th Cir. 1969). The

statement in State v. Borst, 154 N. W. 2d 888 (Minn. 1967)

that, “It is conceivable that a fair trial may be had before

an impartial judge without a jury, but it is hardly conceiv-

able that a person ignorant in the field of law car ade-

quately defend himself without the assistance of counsel.”

15

Id. at 894; is a gross exaggeration. From the beginning of

our colonial history the people of this country have seen a

need within the framework of their government for courts

of limited jurisdiction designed to handle the lesser offenses

speedily. “At the time of adoption of our federal constitu-

tion there existed in the country justice of the peace courts

.” Hendrix v. City of Seattle, 76 Wash. 142, 456 P. 2d

6986, 703 (1969).

In many parts of the country, including Utah, jus-

tices of the peace are not even lawyers. What is “inconceiv-

able” is the fact that a defendant would not be able to ade-

quately defend himself in the relatively nom-complex pro-

ceeding in a justice court. Aside from proceeding in justice

of the peace courts, the legal issues involved in the usual °

misdemeanor are less complex than those involved in a ser-

ious offense or felony. The skills necessary to defend a

speeding violation are less involved than those required to

defend a charge of first-degree murder.

In Duncan, supra, Justice White stated that “Provid-

ing an accused with the right to be tried by a jury of his

peers gave him an inestimable safeguard against the cor-

rupt or overzealous prosecutor and against the compliant,

biased, or eccentric judge. Id. at 156. Similarly, the right

to counsel protects against arbitrary action and conduct

of judge and prosecutor. Moreover, as stated in Junker,

The Right to Counsel in Misdemeanor Cases, 43 Wash. L.

Rev. 685, 707 (1958), what the right to counsel and the

right to trial by jury have in common that largely dis-

16

tinguishes them from other Sixth Amendment rights, is

that both require large out-of-pocket expenditures of public

funds.

The second guide in Baldwin concerned the fact that

every State (with the exception of New York) provided

a jury trial for a crime punishable by imprisonment for

longer than six months. The reverse is true in the case of

the right to counsel, for only a handfui of states provide

counsel for any crime which wouid result in imprisonment.

Therefore, crimes punishable by a penalty of six months or

less should not require the appointment of counsel.

2. Criminal Justice Act of 1964

itie 18 U. S. C. Sec. 1 (1964) (1) provides that any

offerise punishable by death or imprisonment for a term

exceeding a year is a felony, (2) any other offense is a mis-

demeanor, (3) any misdemeanor, the penalty of which does

not exceed imprisonment for a period of six months or a

fine of not more than $500 or both, is a petty offense. Title

18 U. S. C. Sec. 3006 (b) provides for the appointment of

counsel, “In every criminal case in which the defendant is

charged with a felony or a misdemeanor (other than a petty

offense defined in section 1 of this title) .. .”

These crimes were defined solely in terms of the sever-

ity of the penalty and as is clearly seen, the federal stand-

ard provides for the appointment of counsel in federal pros-

ecutions of indigent defendants in all cases other than

those in which “petty offenses” are involved. The congres-

|

17

sional enactment was preceded by study and research and

reflects the legislative recognition of the necessity of rep-

resentation of indigent defendants within the limits of prac-

ticglity.

3. Rules of Procedure for the Trial of Minor

Offenses before United States Magistrates

These rules as promulgated by this Court govern the

procedure and practice for the trial of minor offenses (in-

cluding petty offenses) before United States Magistrates

under Title 18 U. S. C. Sec. 3401, and for appeals in such

cases to judges of district courts. Rule 2 provides that the

magistrate shall inform a defendant charged with a minor

offense other than a petty offense “of his right to retain

counsel” and of “his right to request the assignment of

counsel.” But for petty offenses under Rule 3, the Magis-

trate shall state to the defendant the charge against him

and shall inform the defendant of his right to counsel and

to a trial in the district court. Thus, as Justice Black states

in dissent, the rules appear to safeguard the rights of trial

by jury and assignment of counsel for minor offenses but

not for petty offenses.” Of course, 18 U. S. C. Sec. 1 (1964)

defines a petty offense as any misdemeanor, the penalty of

which does exceed imprisonment for a period of six months

or a fine of $500. This Court, as well as Congress, has held

that an offense with a maximum penalty of six months is

a “petty offense which counsel need not be appointed.” Al-

though this Court should affirm the felony-misdemeanor

distingtion except in unusual cases where the penalties for

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the misdemeanors are compounded together, in the alterna-

tive, the six month standard should be utilized for the neces-

sity of appointment of counsel. |

II.

TO EXTEND GIDEON TO CRIMES WITH A

MAXIMUM SENTENCE OF SIX MONTHS

OR LESS WOULD CAST AN OVERWHELM-

ING BURDEN UPON THE STATES.

Sty te ea 0d Be Retin thnk ei ene eY

An extension of appointed counsel to an indigent de-

fendant who upon conviction faces a maximum penalty

which does not exceed six month imprisonment would cause

an unbearable burden upon the States as well as the Fed-

eral Government. In the President’s Commission on Law

Enforcement and Administration of Justice, Task Report:

The Courts, 55 (1967) states that approximately 60 percent

of all felony defendants and between one quarter and one

nalf of all misdemeanor defendants are unable to contrib-

ute anything to the cost of their defense, and “it is reason-

able to assume that at least 50 percent of the defendants

in appeals and postconviction proceedings need appointed

counsel.” Jd. at 56. Data collected in 1966 by the American

Bar Foundation indicates that governmental contributions

for defense of the poor in State Courts, primarily for felony

cases alone are approximately $17 million a year, with pri-

vate contributions from local communities or charitable

foundations providing an additional $1 million. In the Fed-

eral System, Congress has appropriated $3 million per year

to provide compensation for counsel representing about

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19

15,000 to 20,000 defendants including some charged with

misdemeanors at trial or on appeal.

In L. Silverstein, Defenses of the Poor in the Criminal

Cases ut American State Courts, 123 (1965) estimates that

there are 5 million non-traffic misdemeanor cases brought

annually in the United States. The President’s Commission,

Task Force Report: The Courts, similarly state: “It seems

reasonable to assume, therefore, that there are between 4

and 5 million adult misdemeanor court cases each year, ex-

clusive of traffic offenses.” Id. at 55. ™ Note, Dollars and

Sense of an Expanded Right to Counsel, 55 Ia. L. Rev. 1249,

1260 (1970) estimates, although no authoritative statistics

are available, that there are another 50 million traffic offen- —

ders per year. If “it is necessary to provide representation

for 1 million to 1.25 million indigent misdemeanants an-

nually, compensating assigned counsel .. . would necessi-

tate a total expenditure of between $50 million and $62.5

million annually.” Jd. at 1263. “If a public defender system

were utilized, the defense of these same misdemeanants

would cost $31.5 million to $46 million. To provide ap-

pointed counsel to the 12.5 million indigent traffic offenders

at $25 per case would require an annual outlay of $312.5

million. To compensate the 10,417 public defenders neces-

sary for the presentation of indigent traffic offenders er

would cost 208,340,000 dollars.” Jd. at 1263-1264. While

the article considers office expenditures as part of the total,

additional expenses should also be considered such as in-

creased court expenditures brought about by additional;

facilities, judges, prosecutors, court reporters, secretaries,

etc,

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Purely from a monetary standing, petitioner’s proposal

to provide counse! for persons charged with offenses which

may result in a loss of liberty staggers the imagination.

In the same article Note, Dollars and Sense of an Ex-

pended Right to Counsel, 55 Ia. L. Rev. 1249, 1265 (1970)

to ‘represent the non-traffic misdemeanor, 1,014 full time

public defenders would be needed, and the 12.5 million in-

digent traffic offenders would require 10,417 public offend-

ers. L. Silverstein, Manpower Requirements in the Admin-

istration of Criminal Justice in Task Force Report, The

Courts (1967) states:

“.. . there remains a large number of relativeiy

poor States and individual counties that cannot be

expected to provide adequate compensation for coun-

sel, or defender systems, no matter how hard they

try. These States and counties have such limited

financial resources and so many other demands for

public expenditures that it is practically impossible

for them to provide adequate financial support for

defense of indigents either now or in the foreseeable

future.” Id. at 159.

Not only would allowing counsel for misdemeanors

cause a severe manpower and financial strain upon the

States, but the orderly administration of the Courts would

suffer. The Task Force Report: The Courts (1967) states:

“ . . Undue delay is as inconsistent with the

goals of the system as a hasty process in which de-

cisions are made without opportunity for delibera-

tion ... The courts’ inability to handle their volume

of cases has many deleterious effects. Most criminal

21

cases are disposed of by dismissal or by plea of guilty

. . . Defendants often manipulate the system to ob-

tain sentencing concessions in return for guilty pleas

.-.” Id. at 80.

The report further summaries that delay may under-

mine the public’s confidence in the system. Despite im-

portant advances made in a dozen or more States, the oper-

ation of many of the courts in this country remains cumber-

some and disjointed. As a specific example, in Passaic and

Essex Counties, New Jersey, during March of 1965, the

median times in felony cases from accusation to trial were

approximately 13 and 12 months respectively. The report

states that “these jurisdictions are not singled out as an

extreme. Indeed, the fact that delay statistics are available

at all indicates a degree of administrative management not

available in many courts. Id. at 80. The decision to provide

counsel for misdemeanants would require further time for

trial and would create a severe strain on an already taxed

court system.

The State of Utah urges this Court io consider other

ramifications of a decisicn to extend counsel to misdemean-

ants. By extending counsel to misdemeanants, the case load

on public defenders would be so great as to prevent ade-

quate preparation. In view of the phenomenal increase in

writs of habeas corpus alleging such complaints as ineffec-

tive counsel, involuntary guilty pleas, unintelligent waiver

of counsel — counsel for indigent misdemeanants would be

a vast new spawning ground for writs of habeas corpus.

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Finally, in view of the steadily increasing crime rates,

this Court should weigh the beneficial aspects of a require-

ment of counsel for every possible incarceration against the

great need for effective law enforcement. Consideration

must be \given to the indirect expense of allocating such a

massive nate int of its legal and judicial resources to this

singular drea of concern.

III.

THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT DOES NOT

REQUIRE THE APPOINTMENT OF COUN-

SEL FOR INDIGENT DEFENDANTS FACING

A MAXIMUM PUNISHMENT OF LESS THAN

SIX MONTHS.

The language of equa! protection clause of the Four-

teenth Amendment provides “. .. (n)or shall any State...

deny to any person within its jurisdiction the equal protec-

tion of laws.” However, meritorious the claim that “all

men are created equal” this Court is not the proper forum

to alleviate all social inequality throughout the Nation.

Justice Harlan’s dissent joined by, Justice Steward in Doug-

las v. California, 372 U. S. 353 (1963) declared in part:

The Equal Protection Clause does not impose

on the States “an affirmative duty to lift the handi-

caps flowing from differences in economic circum-

tances. To so construe, it would be foreign to many

f our basic concepts of the proper relation; between

overnment and society.” id. at 362.

23

No matter how much the State elects to furnish, persons

with money can buy more.

Underlying the expansive view of the scope of equal

protection is the theory that all defendants must be given

an equal opportunity to be represented by counsel; that

opportunity, self provided by the financially able, must be

government provided .r the indigent. According to Griffin

v. Illinois, 351 U. S. 12 (1956) what is forbidden is allowing

“the kind of trial a man gets” to depend “on the amount

of money he has.” Id. at 19. As stated in Junker, The Right

to Counsel in Misdemeanor Cases, 43 Wash. L. Rev. 685

713 (1968) “that result is mandatory only if it can be shown

that the financially able hire counsel in all such cases; for

if they do not, financial ability is clearly irrelevant to the

trial of such cases.” In the vast majority of “misdemean-

ors” which also may entail a possible jail sentence, people

who can afford attorneys do not do so.

Indeed, if counsel were extended to an indigent charged

with a misdemeanor, it would be a denial of equal protec-

tion of laws to a non-indigent. The more advantages society

extends to the indigent, the more apparent is the compara-

tive disadvantage of being of modest means. Indigents who

are provided with trial counsel, investigative services, trial

expenses, and services for expert witnesses, are already re-

ceiving more than many non-indigents can afford. To ex-

tend counsel to indigents charged with a misdemeanor

would be providing another substantial service, which those

of modest means could not begin to afford.

—_—~

24

Both Griffin and Douglas, supra, were cases challeng- ~

ing appellate procedures. While the financially able may 4

be able to insist upon full prosecution of a frivolous appeal, ~

in Anders v. California, 386 U. S. 738, 744 (1967) this Court

held that the indigent is entitled only to counsels’ “con- /

scientious examination” of his case and to a brief referring |

to anything in the record that might arguably support the ,

appeal. If equality on appeal need be attained only “as |

nearly as practicable,” Id. at 745, equality at trial surely |

requires no more.

Equal protection of the law cannot be advanced by —

promising more than it can deliver. As previously stated, ©

it is impossible to ignore the financial and manpower de- —

mands on the legal system that an “absolute” interpreta- d

tion of the equal protection clause would impose. Further- ~

more, with crimes punishable by a maximum term of six —

months, the disparity referable to the absence of counsel —

is insubstantial.

CONCLUSION

The judgment of the Supreme Court of the State of

Florida should be a‘irn.2d.

Respectfully submitted,

LAUREN BEASLEY ae

Chief Assistant Attorney General —

State of Utah ,