# Amicus Curiae Brief — Argersinger v. Hamlin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0032%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 407 U.S. 25 ## Text 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 | "| | 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 | 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- x ee a a ie wreee et ha AFT Sih ALAS APD © Sith EM ot tL. ge eae SERRE ee ee 2 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 sage pst MSE MR ae TONE as eat Yai Pre eile IE 6 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 *: y =} AD Se OE LS a NCAR EEN cia ea 2 er Ba lita |) ad Oe dans nl a . m > DEEN Tie ERG IE ale a ‘os > AN Se BEDS ae eat NRE eh pe a 8 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 | ae 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 _— ~ rhs , —- 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 —_ a cone = _ ” seaestiaimninmnes —- 7 . RPT OE ey ET Lee ig digs ud ke Sor Ae iS 18 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 phat Dy tide AS gata Bead Sch chattel ek oc og Hea a i 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, nha ici ee eee - ere: eS ‘citi phe REAM WR tad VBI. EAD TR eee a hacgtesiy Bene i RPTL aS ERAN RTE Raed hie AER BG BR saa ly TE 20 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. on. "i . E 4$ iz : he bs 4 % —_ 4 4 ab g it ¥ &, ts en roe toe WARES Sea a cht ah a ee AS Bane VAS OPERA AMEN EIN 22 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 , --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0032%3A07. Public record. Not legal advice.