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Supreme Court Rulings: Circumstances That Do And Do Not Warrant The Death Penalty, Right To Effective Counsel, Appeals Based

SUPREME COURT RULINGS: CIRCUMSTANCES THAT DO AND DO NOT WARRANT THE DEATH PENALTY, RIGHT TO EFFECTIVE COUNSEL, APPEALS BASED ON NEW EVIDENCE, AND CONSTITUTIONALITY OF EXECUTION METHODS

CIRCUMSTANCES FOUND NOT TO WARRANT THE DEATH PENALTY

Rape and Kidnapping

On June 29, 1977, a 54 divided U.S. Supreme Court ruled in Coker v. Georgia (433 U.S. 584) and in Eberheart v. Georgia (433 U.S. 917) that the death penalty may not be imposed for the crime of raping an adult woman that does not result in death. The Court stated:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which ''is unique in its severity and irrevocability,'' is an excessive penalty for the rapist who, as such, does not take human life.

Chief Justice Warren Burger (19071995), joined by Justice William H. Rehnquist (19242005), dissented. The justices stated:

A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process . . . . Rape is not a mere physical attackit is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this in turn may have a serious detrimental effect upon her husband and any children she may have . . . . Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are ''unharmed,'' or to classify the human outrage of rape, as does Mr. Justice Powell, in terms of ''excessively brutal,'' versus ''moderately brutal,'' takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.

The Court also held that kidnapping did not warrant the death penalty. Even though the victims usually suffered tremendously, they had not lost their lives. (If the kidnapped victim was killed, then the kidnapper would be tried for murder.)

An Unconstitutionally Vague Statute

During a heated dispute with his wife of twenty-eight years, Robert Godfrey threatened her with a knife. Mrs. Godfrey, saying she was leaving her husband, went to stay with relatives. That same day she went to court to file for aggravated assault. Several days later she initiated divorce proceedings and moved in with her mother. During subsequent telephone conversations, the couple argued over the wife's determination to leave Godfrey permanently.

About two weeks later Godfrey killed his wife and mother-in-law. Godfrey told police that his wife phoned him, telling him she expected all the money from the planned sale of their home. She also told Godfrey she was never reconciling with him. Godfrey confessed that he went to his mother-in-law's nearby trailer and shot his wife through a window, killing her instantly. He then entered the trailer, struck his fleeing eleven-year-old daughter on the head with the gun, and shot his mother-in-law in the head, killing her. Godfrey believed his mother-in-law was responsible for his wife's reluctance to reconcile with him.

Godfrey was convicted of killing his wife and mother-in-law and of the aggravated assault of his daughter. The Georgia Code permits the imposition of the death penalty in the case of a murder that ''was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated brutality to the victim.'' Aware of this law, the jury sentenced Godfrey to die. He appealed, claiming that the statute was unconstitutionally vague. After the Georgia Supreme Court upheld the lower court decision, the case was appealed to the U.S. Supreme Court.

The Supreme Court, in Godfrey v. Georgia (446 U.S. 420, 1980), noted that the victims were killed instantly (i.e., there was no torture), the victims had been ''causing [Godfrey] extreme emotional trauma,'' and he acknowledged his responsibility. The high court concluded that, in this case, the Georgia law was unconstitutionally vague. Moreover, the Georgia Supreme Court did not attempt to narrow the definition of ''outrageously and wantonly vile.'' In a concurring opinion, Justice Thurgood Marshall (19081993), joined by Justice William J. Brennan (19061997), found this an example of the inherently arbitrary (subject to individual judgment) and capricious (unpredictable) nature of capital punishment, because even the prosecutor in Godfrey's case observed many times that there was no torture or abuse involved.

CRIMINAL INTENT

On April 1, 1975, Sampson Armstrong and Jeanette Armstrong, on the pretext of requesting water for their overheated car, tried to rob Thomas Kersey at home. Earl Enmund waited in the getaway car. Kersey called for his wife, who tried to shoot Jeanette Armstrong. The Armstrongs killed the Kerseys. Enmund was tried for aiding and abetting in the robbery-murder and sentenced to death.

In Enmund v. Florida (458 U.S. 782, 1982), the Supreme Court ruled 54 that, in this case, the death penalty violated the Eighth and Fourteenth Amendments to the U.S. Constitution. The majority noted that only nine of the thirty-six states with capital punishment permitted its use on a criminal who was not actually present at the scene of the crime. The exception was the case where someone paid a hit man to murder the victim.

Furthermore, over the years juries had tended not to sentence to death criminals who had not actually been at the scene of the crime. Certainly, Enmund was guilty of planning and participating in a robbery, but murder had not been part of the plan. Statistically, because someone is killed in one out of two hundred robberies, Enmund could not have expected that the Kerseys would be murdered during the robbery attempt. The Court concluded that, because Enmund did not kill or plan to kill, he should be tried only for his participation in the robbery. The Court observed:

We have no doubt that robbery is a serious crime deserving serious punishment. It is not, however, a crime ''so grievous an affront to humanity that the only adequate response may be the penalty of death'' [from Gregg v. Georgia , 428 U.S. 153, 1976]. It does not compare with murder, which does involve the unjustified taking of human life . . . . The murderer kills; the [robber], if no more than that, does not. Life is over for the victim of the murderer; for the [robbery] victim, life . . . is not over and normally is not beyond repair.

Writing for the minority, Justice Sandra Day O'Connor (1930) concluded that intent is a complex issue. It should be left to the judge and jury trying the accused to decide intent, not a federal court far removed from the actual trial.

Enmund Revisited

However, just because a person had no intent to kill does not mean that he or she cannot be sentenced to death. In the early morning of September 22, 1978, Crawford Bullock and his friend Ricky Tucker had been drinking at a bar in Jackson, Mississippi, and were offered a ride home by Mark Dickson, an acquaintance.

During the drive an argument ensued over money that Dickson owed Tucker, and Dickson stopped the car. The argument escalated into a fistfight, and, outside the car, Bullock held Dickson while Tucker punched Dickson and hit him in the face with a whiskey bottle. When Dickson fell, Tucker smashed his head with a concrete block, killing him. Tucker and Bullock disposed of the body. The next day police spotted Bullock driving the victim's car. After his arrest Bullock confessed.

Under Mississippi law a person involved in a robbery that results in murder may be convicted of capital murder regardless of ''the defendant's own lack of intent that any killing take place.'' The jury was never asked to consider whether Bullock in fact killed, attempted to kill, or intended to kill. He was convicted and sentenced to death as an accomplice to the crime. During the appeals process the Mississippi Supreme Court confirmed that Bullock was indeed a participant in the murder.

In January 1986 a divided U.S. Supreme Court modified the Enmund decision with a 54 ruling in Cabana v. Bullock (474 U.S. 376). The Court indicated that even though Enmund had to be considered at some point during the judicial process, the initial jury trying the accused did not necessarily have to consider the Enmund ruling. The high court ruled that even though the jury had not been made aware of the issue of intent, the Mississippi Supreme Court had considered this question. Because Enmund did not require that intent be presented at the initial jury trial, only that it be considered at some time during the judicial process, the state of Mississippi had met that requirement.

The four dissenting justices claimed that it was difficult for any appeals court to determine intent from reading a typed transcript of a trial. Seeing the accused and others involved was important in helping determine who was telling the truth and who was not. This was why Enmund must be raised to the jury so it could consider the question of intent in light of what it had seen and heard directly.

''Reckless Indifference to the Value of Human Life''

Gary Tison was a convicted criminal who had been sentenced to life imprisonment for murdering a prison guard during an escape from the Arizona State Prison in Florence, Arizona. Tison's three sons, his wife, his brother, and other relatives planned a prison escape involving Tison and a fellow prisoner, Randy Greenawalt, also a convicted murderer.

On the day of the planned escape in July 1978, Tison's sons smuggled guns into the prison's visitation area. After locking up the guards and visitors, the five men fled in a car. They later transferred to another car and waited in an abandoned house for a plane to take them to Mexico. When the plane did not come, the men got back on the road. The car soon had flat tires. One son flagged down a passing car. The motorist who stopped to help was driving with his wife, their two-year-old son, and a fifteen-year-old niece.

Gary Tison then told his sons to go get some water from the motorists' car, presumably to be left with the family they planned to abandon in the desert. While the sons were gone, Gary Tison and Randy Greenawalt shot and killed the family. Several days later two of Tison's sons and Greenawalt were captured. The third son was killed, and Tison escaped into the desert, where he later died of exposure.

The surviving Tisons and Greenawalt were found guilty and sentenced to death. The sons, citing Enmund, appealed, claiming that they had neither pulled the triggers nor intended the deaths of the family who had stopped to help them. In Tison v. Arizona (481 U.S. 137, 1987), the Supreme Court ruled 54 to uphold the death sentence, indicating that the Tison sons had shown a ''reckless indifference to the value of human life [which] may be every bit as shocking to the moral sense as an 'intent to kill.'''

The Tisons may not have pulled the triggers (and the Court fully accepted the premise that they did not do the shootings or directly intend them to happen), but they released and then assisted two convicted murderers. They should have realized that freeing two killers and giving them guns could very well put innocent people in great danger. Moreover, they continued to help the escapees even after the family was killed.

''These facts,'' concluded Justice O'Connor for the majority, ''not only indicate that the Tison brothers' participation in the crime was anything but minor; they also would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life.'' Unlike the situation in the Enmund case, they were not sitting in a car far from the murder scene. They were direct participants in the whole event. The death sentence would stand.

Writing for the minority, Justice Brennan observed that had a prison guard been murdered (Gary Tison had murdered a prison guard in a previous escape attempt), then the Court's argument would have made sense. The murder of the family, however, made no sense and was not even necessary for the escape. The Tison sons were away from the murder scene getting water for the victims and could have done nothing to save them. Even though they were guilty of planning and carrying out an escape, the murder of the family who stopped to help them was an unexpected outcome of the escape.

Furthermore, the father had promised his sons that he would not kill during the escape, a promise he had kept despite several opportunities to kill during the actual prison escape. Therefore, it was not unreasonable for the sons to believe that their father would not kill in a situation that did not appear to warrant it. Justice Brennan concluded that ''like Enmund, the Tisons neither killed nor attempted or intended to kill anyone. Like Enmund, the Tisons have been sentenced to death for the intentional acts of others which the Tisons did not expect, which were not essential to the felony, and over which they had no control.''

In 1992 the Arizona Supreme Court overturned the death penalty sentences for the Tison sons. They were subsequently sentenced to life in prison.

RIGHT TO EFFECTIVE COUNSEL

In 1989 Kevin Eugene Wiggins received a death sentence for the 1988 drowning of an elderly Maryland woman in her home. The Maryland Court of Appeals affirmed his sentence in 1991. With the help of new counsel, Wiggins sought postconviction relief, challenging the quality of his initial lawyers. Wiggins claimed his lawyers failed to investigate and present mitigating evidence (evidence that may lessen responsibility for a crime) of his horrendous physical and sexual abuse as a child. The sentencing jury never heard that he was starved, that his mother punished him by burning his hand on the stove, and that after the state put him in foster care at age six, he suffered more physical and sexual abuse.

In 2001 a federal district court concluded that Wiggins's first lawyers should have conducted a more thorough investigation into his childhood abuse, which would have kept the jury from imposing a death sentence. However, the U.S. Court of Appeals for the Fourth Circuit reversed the district court decision, ruling that the original attorneys had made a ''reasonable strategic decision'' to concentrate their defense on raising doubts about Wiggins's guilt instead.

On June 26, 2003, the U.S. Supreme Court threw out the death sentence. In Wiggins v. Smith (No. 02-311), the Court ruled 72 that Wiggins's lawyers violated his Sixth Amendment right to effective assistance of counsel. The Court noted, ''Counsel's investigation into Wiggins' background did not reflect reasonable professional judgment. . . . Given the nature and extent of the abuse, there is a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing, and that a jury confronted with such mitigating evidence would have returned with a different sentence.''

When Does the Right to Counsel End?

Joseph Giarratano was a Virginia death row prisoner. He received full counsel for his trial and for his initial appeal. Afterward, Virginia would no longer provide him with his own lawyer. He went to court, complaining that because he was poor the state of Virginia should provide him with counsel to help prepare postconviction appeals. Virginia permitted the condemned prisoner the right to use the prison libraries to prepare an appeal, but it did not provide the condemned with his own personal attorney.

Virginia had unit attorneys, who were assigned to help prisoners with prison-related legal matters. A unit attorney could give guidance to death row inmates but could not act as the personal attorney for any one particular inmate. This case became a class action in which the federal district court certified a class comprising ''all current and future Virginia inmates awaiting execution who do not have and cannot afford counsel to pursue postconviction proceedings.''

The federal district court and the federal court of appeals agreed with Giarratano, but the Supreme Court, in Murray v. Giarratano (492 U.S. 1, 1989), disagreed. Writing for the majority, Chief Justice Rehnquist concluded that even though the Sixth and Fourteenth Amendments to the Constitution ensure an impoverished defendant the right to counsel at the trial stage of a criminal proceeding, they do not provide for counsel for postconviction proceedings, as the Court ruled in Pennsylvania v. Finley (481 U.S. 551, 1987). Because Finley had not specifically considered prisoners on death row, but all prisoners in general, the majority did not believe the decision needed to be reconsidered just because death row prisoners had more at stake.

Chief Justice Rehnquist agreed that those facing the death penalty have a right to counsel for the trial and during the initial appeal. During these periods the defendant needs a heightened measure of protection because the death penalty is involved. Later appeals, however, involve more procedural matters that ''serve a different and more limited purpose than either the trial or appeal.''

In dissent, Justice John Paul Stevens (1920), who was joined by Justices Brennan, Marshall, and Harry A. Black-mun (19081999), indicated that he thought condemned prisoners in Virginia faced three critical differences from those considered in Finley. First, the Virginia prisoners had been sentenced to death, which made their condition different from a sentence of life imprisonment. Second, Virgin-ia's particular judicial decision forbids certain issues to be raised during the direct review or appeal process and forces them to be considered only during later postconviction appeals. This means that important issues may be considered without the benefit of counsel. Finally, ''unlike the ordinary inmate, who presumably has ample time to use and reuse the prison library and to seek guidance from other prisoners experienced in preparing . . . petitions . . . a grim deadline imposes a finite limit on the condemned person's capacity for useful research.''

He continued, quoting from the district court's decision on the matter, an ''inmate preparing himself and his family for impending death is incapable of performing the mental functions necessary to adequately pursue his claims.''

Federal Judges Can Delay Executions to Allow Habeus Corpus Reviews

In 1988 Congress passed the Anti-Drug Abuse Act, which guaranteed qualified legal representation for poor death row defendants wanting to file for habeas corpus (a prisoner's petition to be heard in federal court) so that the counsel could assist in the preparation of the appeal. In 1994 this law was brought to question before the Supreme Court by death row inmate Frank McFarland.

In November 1989 a Texas jury found McFarland guilty of stabbing to death a woman he had met in a bar. The state appellate court upheld his conviction, and two lower federal courts refused his request for a stay (postponement) of execution. The federal courts ruled that they did not have jurisdiction to stop the execution until McFarland filed a habeas corpus. The inmate argued that without the stay, he would be executed before he could obtain a lawyer to prepare the petition.

The Supreme Court granted a stay of execution. In McFarland v. Scott (512 U.S. 849, 1994), the Court ruled 54 to uphold the 1988 federal law. Once a defendant requested counsel, the federal court could postpone execution so the lawyer would have time to prepare an appeal. Justice Blackmun stated that ''by providing indi-gent [poor] capital defendants with a mandatory right to qualified legal counsel in these proceedings, Congress has recognized that Federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty.''

Does the Right to Counsel Extend to Crimes That Have Not Been Charged?

In 1994 Raymond Levi Cobb confessed to burglarizing the home of Lindsey Owings the previous year. He claimed no knowledge, however, of the disappearances of Owings's wife and infant at the time of the burglary. The court subsequently assigned Cobb a lawyer to represent him in the burglary offense. With the permission of Cobb's lawyer, investigators twice questioned Cobb regarding the disappearance of the Owings family. Both times Cobb denied any knowledge of the missing pair.

In 1995, while free on bond for the burglary and living with his father, Cobb told his father that he killed Margaret Owing and buried her baby, while still alive, with her. The father reported his son's confession to the police. When brought in, Cobb confessed to the police and waived his Miranda rights, which include the right to counsel. Cobb was convicted of the murders and sentenced to death. On appeal, Cobb claimed that his confession, obtained in violation of his Sixth Amendment right to counsel, should have been suppressed. He argued that his right to counsel attached (went into full effect) when he was reported for the burglary case, and despite his open confession to the police, he never officially gave up this right to counsel.

The Texas Court of Criminal Appeals reversed Cobb's conviction, ordering a new trial. The court considered Cobb's confession to the murders inadmissible, holding that ''once the right to counsel attaches to the offense charged [burglary], it also attaches to any other offense [in this case, murder] that is very closely related factually to the offense charged.''

The state appealed to the U.S. Supreme Court. In Texas v. Cobb (532 U.S. 162, 2001), the Court, in a 54 decision, stated, ''The Sixth Amendment right [to counsel] is . . . offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information, or arraignment'' (citing McNeil v. Wisconsin, 501 U.S. 171, 1991).

This means that Cobb's right to counsel did not extend to crimes with which he had not been charged. Because this right did not prohibit investigators from questioning him about the murders without first notifying his lawyer, Cobb's confession was admissible.

CASES INVOLVING ERROR BY THE PROSECUTION

Coerced Confessions

Oreste C. Fulminante called the Mesa, Arizona, police to report the disappearance of his eleven-year-old step-daughter, Jeneane Michelle Hunt. Fulminante was caring for the child while his wife, Jeneane's mother, was in the hospital. Several days later Jeneane's body was found in the desert east of Mesa with two shots to the head, fired at close range by a large-caliber weapon. There was a ligature (a cord used in tying or binding) around her neck. Because of the decomposed state of her body, it was not possible to determine whether she had been sexually assaulted.

Fulminante's statements about the child's disappearance and his relationship to her included inconsistencies that made him a suspect in her death. He was not, however, charged with the murder. Fulminante left Arizona for New Jersey, where he was eventually convicted on federal charges of unlawful possession of a firearm by a felon.

Even though incarcerated, he became friendly with Anthony Sarivola, a former police officer. Sarivola had been involved in loan-sharking for organized crime, but then became a paid informant for the Federal Bureau of Investigation (FBI). In prison he masqueraded as an organized crime figure. When Fulminante was getting some tough treatment from the other inmates, Sarivola offered him protection, but only on the condition that Fulminante tell him everything.

Fulminante was later indicted in Arizona for the first-degree murder of Jeneane. In a hearing before the trial, Fulminante moved to suppress the statement he had made to Sarivola in prison and then later to Sarivola's wife, Donna, following his release from prison. He maintained that the confession to Sarivola was coerced and that the second confession was the ''fruit'' of the first one.

The trial court denied the motion to remove the statements from the record, finding that, based on the specified facts, the confessions were voluntary. Fulminante was convicted of Jeneane's murder and subsequently sentenced to death.

In his appeal Fulminante argued, among other things, that his confession to Sarivola was coerced and that its use at the trial violated his rights of due process under the Fifth and Fourteenth Amendments to the Constitution. The Arizona Supreme Court ruled that the confession was coerced, but initially determined that the admission of the confession at the trial was a harmless error because of the overpowering evidence against Fulminante. In legal terms, harmless error refers to an error committed during the trial that has no bearing on the outcome of the trial, and as such, is not harmful enough to reverse the outcome of the trial on appeal.

After Fulminante motioned for reconsideration, however, the Arizona Supreme Court ruled that the U.S. Supreme Court had set a precedent that prevented the use of harmless error in the case of a coerced confession. The harmless-error standard, as stated in Chapman v. California (386 U.S. 18, 1967), held that an error is harmless if it appears ''beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'' The Arizona Supreme Court reversed the conviction and ordered that Fulminante be retried without the use of his confession to Sarivola. Because of differences in the state and federal courts over the admission of a coerced confession with regard to harmless-error analysis, the U.S. Supreme Court agreed to hear the case.

In Arizona v. Fulminante (499 U.S. 279, 1991), Justice Byron R. White (19172002), writing for the majority, stated that even though the question was a close one, the Arizona Supreme Court was right in concluding that Fulminante's confession had been coerced. He further noted, ''The Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed. Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, 'coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.'''

Justice White further argued that the state of Arizona had failed to meet its burden of establishing, beyond a reasonable doubt, that the admission of Fulminante's confession to Sarivola was harmless. He added, ''A confession is like no other evidence. Indeed, 'the defendant's own confession is probably the most probative [providing evidence] that can be admitted against him. . . . The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so''' (from Bruton v. United States, 391 U.S. 123, 1968).

Presumption of Malice

Dale Robert Yates and Henry Davis planned to rob a country store in Greenville County, South Carolina, in February 1981. When they entered the store, only the owner, Willie Wood, was present. Yates and Davis showed their weapons and ordered Wood to give them money from the cash register. Davis handed Yates $3,000 and ordered Wood to lie across the counter. Wood, who had a pistol beneath his jacket, refused.

Meanwhile, Yates was backing out of the store with his gun pointed at the owner. After being told to do so by Davis, Yates fired two shots. The first bullet wounded Wood; the second missed. Yates then jumped into the car and waited for Davis. When Davis did not appear, Yates drove off. Inside the store, although wounded, Wood pursued Davis. As the two struggled, Wood's mother, Helen, came in and ran to help her son. During the struggle Helen Wood was stabbed once in the chest and died at the scene. Wood then shot Davis five times, killing him.

After Yates was arrested and charged with murder, his primary defense was that Helen Wood's death was not the probable natural consequence of the robbery he had planned with Davis. He claimed that he had brought the weapon only to induce the owner to give him the cash and that neither he nor Davis intended to kill anyone during the robbery.

The prosecutor's case for murder hinged on the agreement between Yates and Davis to commit an armed robbery. He argued that they planned to kill any witness, thereby making homicide a probable or natural result of the robbery. The prosecutor concluded, ''It makes no difference who actually struck the fatal blow, the hand of one is thehandofall.''

The judge told the jury that under South Carolina law murder is defined as ''the unlawful killing of any human being with malice aforethought either express or implied.'' In his instructions to the jury, the judge said, ''Malice is implied or presumed by the law from the willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse. In its general signification, malice means the doing of a wrongful act, intentionally, without justification or excuse . . . . I tell you, also, that malice is implied or presumed from the use of a deadly weapon.''

The judge continued to instruct the jury on the theory of accomplice liability. The jury returned guilty verdicts on the murder charge and on all other counts in the indictment. Yates was sentenced to death.

Yates petitioned the South Carolina Supreme Court, asserting that the jury charge that ''malice is implied or presumed from the use of a deadly weapon'' was an unconstitutional burden-shifting instruction. The case was twice reviewed by the South Carolina Supreme Court, which agreed that the jury instructions were unconstitutional, but that allowing the jury to presume malice was a harmless error, one that had no bearing on the outcome of the trial. The South Carolina court found that the jury did not have to rely on presumptions of malice because Davis's ''lunging'' at Helen Wood and stabbing her were acts of malice.

The U.S. Supreme Court, in Yates v. Evatt (500 U.S. 391, 1991), reversed the decisions of the South Carolina Supreme Court and remanded the case (sent it back to the lower court for further proceedings). Justice David H. Souter (1939), writing for the high court, ruled that the state supreme court failed to apply the proper harmless-error standard as stated in Chapman. ''The issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.''

Justice Souter concluded by stating that there was clear evidence of Davis's attempt to kill Wood because he could have left the store with Yates but stayed to pursue Wood with a deadly weapon. The evidence that Davis intended to kill Helen Wood was not as clear. The record also showed that Yates heard a woman scream as he left the store but did not attempt to return and kill her.

The jury could have interpreted Yates's behavior to confirm his claim that he and Davis had not originally intended to kill anyone. Even the prosecutor, in summa- tion, conceded that Helen Wood could have been killed inadvertently by Davis.

APPEALS BASED ON NEW EVIDENCE

Newly Discovered Evidence Does Not Stop Execution

On an evening in late September 1981 the body of Texas Department of Public Safety Officer David Rucker was found lying beside his patrol car. He had been shot in the head. At about the same time, Officer Enrique Carrisalez saw a vehicle speeding away from the area where Rucker's body had been found. Carrisalez and his partner chased the vehicle and pulled it over. Carrisalez walked to the car. The driver opened his door and exchanged a few words with the police officer before firing at least one shot into Carrisalez's chest. The officer died nine days later.

Leonel Torres Herrera was arrested a few days after the shootings and charged with capital murder. In January 1982 he was tried and found guilty of murdering Carrisalez. In July 1982 he pleaded guilty to Rucker's murder.

At the trial Officer Carrisalez's partner identified Herrera as the person who fired the gun. He also testified that there was only one person in the car. In a statement by Carrisalez before he died, he also identified Herrera. The speeding car belonged to Herrera's girlfriend, and Herrera had the car keys in his pocket when he was arrested. Splatters of blood on the car and on Herrera's clothes were the same type as Rucker's. Strands of hair found in the car also belonged to Rucker. Finally, a handwritten letter, which strongly implied that he had killed Rucker, was found on Herrera when he was arrested.

In 1992, ten years after the initial trial, Herrera appealed to the federal courts, alleging that he was innocent of the murders of Rucker and Carrisalez and that his execution would violate the Eighth and Fourteenth Amendments. He presented affidavits (sworn statements) claiming that he had not killed the officers, but that his now dead brother had. The brother's attorney, one of Herrera's cellmates, and a school friend all swore that the brother had killed the police officers. The dead broth-er's son also said that he had witnessed his father killing the police officers.

In Herrera v. Collins (506 U.S. 390, 1993), the U.S. Supreme Court ruled 63 that executing Herrera would not violate the Eighth and Fourteenth Amendments. The high court said that the trialnot the appeals process judges a defendant's innocence or guilt. Appeals courts determine only the fairness of the proceedings.

Writing for the majority, Chief Justice Rehnquist stated:

A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt . . . . Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears . . . . Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is ''innocent,'' but on the contrary as one who has been convicted by due process of two brutal murders.

Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent . . . .

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for [court] relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings . . . .

This rule is grounded in the principle that [appeals] courts sit to ensure that individuals are not imprisoned in violation of the Constitutionnot to correct errors of fact.

Rehnquist continued that states all allow the introduction of new evidence. Texas was one of seventeen states that require a new trial motion based on new evidence within sixty days. Herrera's appeal came ten years later. The chief justice, however, emphasized that Herrera still had options, saying, ''For under Texas law, petitioner may file a request for executive clemency . . . . Executive clemency has provided the 'fail safe' in our criminal justice system . . . . It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.''

The majority opinion found the information presented in the affidavits inconsistent with the other evidence. The justices questioned why the affidavits were produced at the very last minute. The justices also wondered why Herrera had pleaded guilty to Rucker's murder if he had been innocent. They did note that some of the information in the affidavits might have been important to the jury, ''but coming 10 years after petitioner's trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim [to decide for a retrial].''

Speaking for the minority, Justice Blackmun wrote:

We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas' astonishing protestation to the contrary . . . . I do not see how the answer can be anything but ''yes.''

The Eighth Amendment prohibits ''cruel and unusual punishments.'' This proscription is not static but rather reflects evolving standards of decency. I think it is crystal clear that the execution of an innocent person is ''at odds with contemporary standards of fairness and decency.'' . . . The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced.

Claim of Miscarriage of Justice

Lloyd Schlup, a Missouri prisoner, was convicted of participating in the murder of a fellow inmate in 1984 and sentenced to death. He had filed one petition for habeas corpus, arguing that he had inadequate counsel. He claimed the counsel did not call fellow inmates and other witnesses to testify that could prove his innocence. He filed a second petition, alleging that constitutional error at his trial deprived the jury of crucial evidence that would again have established his innocence.

Using a previous U.S. Supreme Court ruling (Sawyer v. Whitley, 505 U.S. 333, 1992), the district court claimed that Schlup had not shown ''by clear and convincing evidence that but for a constitutional error no reasonable jury would have found him guilty.'' Schlup's lawyers argued that the district court should have used another ruling (Murray v. Carrier, 477 U.S. 478, 1986), in which a petitioner need only to show that ''a constitutional violation has probably resulted in the conviction of one who is actually innocent.'' The appellate court affirmed the district court's ruling, noting that Schlup's guilt, which had been proven at the trial, barred any consideration of his constitutional claim.

The U.S. Supreme Court, on appeal, reviewed the case to determine whether the Sawyer standard provides enough protection from a miscarriage of justice that would result from the execution of an innocent person. In Schlup v. Delo (513 U.S. 298, 1995), the Court observed, ''If a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial . . . the petitioner should be allowed to . . . argue the merits of his underlying claims.''

The justices concluded that the less stringent Carrier standard, as opposed to the rigid Sawyer standard, focuses the investigation on the actual innocence, allowing the Court to review relevant evidence that might have been excluded or unavailable during the trial.

Schlup v. Delo Revisited in House v. Bell

In 2006 the Supreme Court heard a case involving Tennessee prisoner Paul House, who had been convicted in 1985 of murdering Carolyn Muncey. The prosecution alleged that House, a paroled sex offender, murdered Muncey during an attempted rape. He was convicted based on circumstantial evidence and forensics tests that showed semen stains on Muncey's clothing were of House's blood type. More incriminating were small blood stains found on House's blue jeans that matched Muncey's blood type.

In 1996 House's lawyers filed a habeas corpus petition in U.S. District Court and presented new evidence, including deoxyribonucleic acid tests showing the semen on Muncey's clothing was from her husband, not House. Several witnesses testified that Hubert Muncey Jr. had since confessed while drunk to committing the murder and had a history of beating his wife. In addition, the original blood evidence came into question, due to allegations of the mishandling of blood collected during the autopsy. The defense attorneys argued that some of the autopsy blood spilled on House's pants before they were tested at the FBI laboratory in Washington, D.C. The state admitted that the autopsy blood was improperly sealed and transported and spilled, but argued that the spill occurred after the pants were tested. The district court ruled that the new evidence did not demonstrate actual innocence as required under Schlup v. Delo and failed to show that House was ineligible for the death penalty under Sawyer v. Whitley. The ruling was eventually upheld on appeal.

In House v. Bell (No. 04-8990, 2006), the U.S. Supreme Court ruled 53 that House's habeas petition should proceed, because the new evidence constituted a ''stringent showing'' under Schlup v. Delo. The Court concluded:

This is not a case of conclusive exoneration. Some aspects of the State's evidenceLora Muncey's memory of a deep voice, House's bizarre evening walk, his lie to law enforcement, his appearance near the body, and the blood on his pantsstill support an inference of guilt. Yet the central forensic proof connecting House to the crimethe blood and the semenhas been called into question, and House has put forward substantial evidence pointing to a different suspect. Accordingly, and although the issue is close, we conclude that this is the rare case wherehad the jury heard all the conflicting testimonyit is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.

As of November 2007, House remained on Tennessee's death row. He has contracted multiple sclerosis and is confined to a wheel chair. Supporters of his innocence, including members of the state legislature, have petitioned the governor for a pardon.

Suppressed Evidence Means a New Trial

Curtis Lee Kyles was convicted by a Louisiana jury of the first-degree murder of a woman in a grocery store parking lot in 1984. He was sentenced to death. It was revealed on review that the prosecutor had never disclosed certain evidence favorable to the defendant. Among the evidence were conflicting statements by an informant who, the defense believed, wanted to get rid of Kyles to get his girlfriend. The state supreme court, the federal district court, and the Fifth Circuit Court denied Kyles's appeals. The U.S. Supreme Court, in Kyles v. Whitley (514 U.S. 419, 1995), reversed the lower courts' decisions. The high court ruled, ''Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a 'reasonable probability' that, had the evidence been disclosed to the defense, the result of the proceeding would have been different . . . .[The] the net effect of the state-suppressed evidence favoring Kyles raises a reasonable probability that its disclosure would have produced a different result at trial.''

The conviction was overturned. Four mistrials followed. On February 18, 1998, after his fifth and final trial ended with a hung jury, Kyles was released from prison. He had spent fourteen years on death row.

CHALLENGING THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996M

The Antiterrorism and Effective Death Penalty Act (AEDPA) became law in April 1996, shortly after the first anniversary of the Oklahoma City bombing. The AEDPA aims in part to ''provide for an effective death penalty.'' After passage of the law the lower courts differed in their interpretations of certain core provisions. For the first time, on April 18, 2000, the U.S. Supreme Court addressed these problems.

Federal Habeas Corpus Relief and the AEDPA

The AEDPA restricts the power of federal courts to grant habeas corpus relief to state inmates who have exhausted their state appeals. Through the writ of habeas corpus, an inmate could have a court review his or her conviction or sentencing. The AEDPA bars a federal court from granting an application for a writ of habeas corpus unless the state court's decision ''was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.'' The idea was to curtail the amount of habeas reviews filed by convicts and thus save the overbooked federal courts time and money.

In 1986 Terry Williams, while incarcerated in a Danville, Virginia, city jail, wrote to police that he had killed two people and that he was sorry for his acts. He also confessed to stealing money from one of the victims. He was subsequently convicted of robbery and capital murder.

During the sentencing hearing the prosecutor presented many crimes Williams had committed besides the murder for which he was convicted. Two state witnesses also testified to the defendant's future dangerousness.

Williams's lawyer, however, called on his mother to testify to his being a nonviolent person. The defense also played a taped portion of a psychiatrist's statement, who said that Williams admitted to him of removing bullets from a gun used during robbery so as not to harm anyone. During his closing statement, however, the lawyer noted that the jury would probably find it hard to give his client mercy because he did not show mercy to his victims. The jury sentenced Williams to death, and the trial judge imposed the sentence.

In 1988 Williams filed a state habeas corpus petition. The Danville Circuit Court found Williams's conviction valid. The court found, however, that the defense lawyer's failure to present several mitigating factors at the sentencing phase violated Williams's right to effective assistance of counsel as prescribed by Strickland v. Washington (466 U.S. 668, 1984). The mitigating circumstances included early childhood abuse and borderline mental retardation. The habeas corpus hearing further revealed that the state expert witnesses had testified that if Williams were kept in a ''structured environment,'' he would not be a threat to society. The circuit court recommended a new sentencing hearing.

In 1997 the Virginia Supreme Court rejected the district court's recommendation for a new sentencing hearing, concluding that the omitted evidence would not have affected the sentence. In making their ruling, the state supreme court relied on what it considered to be an established U.S. Supreme Court precedent.

Next, Williams filed a federal habeas corpus petition. The federal trial judge ruled not only that the death sentence was ''constitutionally infirm'' but also that defense counsel was ineffective. However, the Fourth Circuit Court of Appeals reversed the federal trial judge's decision, holding that the AEDPA prohibits a federal court from granting habeas corpus relief unless the state court's decision ''was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.''

On April 18, 2000, the U.S. Supreme Court, in Williams v. Taylor (529 U.S. 362, 2000), reversed the Fourth Circuit Court's ruling by a 63 decision. The Court concluded that the Virginia Supreme Court's decision rejecting Williams's claim of ineffective assistance was contrary to a Supreme Courtestablished precedent (Strickland v. Washington ), as well as an unreasonable application of that precedent. This was the first time the Supreme Court had granted relief on such a claim.

On November 14, 2000, during a court hearing Williams accepted a plea agreement of a life sentence without parole after prosecutors agreed not to seek the death penalty.

Federal Evidentiary Hearings for Constitutional Claims

Under an AEDPA provision, if the petitioner has failed to develop the facts of his or her challenges of a constitutional claim in state court proceedings, the federal court shall not hold a hearing on the claim unless the facts involve an exception listed by the AEDPA.

In 1993, after robbing the home of Morris Keller Jr. and his wife, Mary Elizabeth, Michael Wayne Williams and his friend Jeffrey Alan Cruse raped the woman and then killed the couple. In exchange for the state's promise not to seek capital punishment, Cruse described details of the crimes. Williams received the death sentence for the capital murders. The prosecution told the jury about the plea agreement with Cruse. The state later revoked the plea agreement after discovering that Cruse had also raped the wife and failed to disclose it. After Cruse's court testimony against Williams, however, the state gave Cruse a life sentence, which Williams alleged amounted to a second, informal plea agreement.

Williams filed a habeas petition in state court, claiming he was not told of the second plea agreement between the state and his codefendant. The Virginia Supreme Court dismissed the petition (1994), and the U.S. Supreme Court refused to review the case (1995).

In 1996, on appeal, a federal district court agreed to an evidentiary hearing of Williams's claims of the undisclosed second plea agreement. The defendant had also claimed that a psychiatric report about Cruse, which was not revealed by the prosecution, could have shown that Cruse was not credible. Moreover, a certain juror might have had possible bias, which the prosecution failed to disclose. Before the hearing could be held, the state concluded that the AEDPA prohibited such a hearing. Consequently, the federal district court dismissed Williams's petition.

When the case was brought before the U.S. Court of Appeals for the Fourth Circuit, the court, interpreting the AEDPA, concluded that the defendant had failed to develop the facts of his claims. On April 18, 2000, in Williams v. Taylor (529 U.S. 420), a unanimous U.S. Supreme Court did not address Williams's claim of the undisclosed plea agreement between Cruse and the state. Instead, the high court held that the defendant was entitled to a federal district court evidentiary hearing regarding his other claims. According to the Court, ''Under the [AEDPA], a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel . . . . We conclude petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in collateral proceedings before the Virginia Supreme Court.''

High Court Upholds Restriction on Federal Appeals

Even though the Supreme Court ruled in favor of new resentencing hearings for Terry Williams and Michael Williams, it stressed that the AEDPA places a new restriction on federal courts with respect to granting habeas relief to state inmates. The Court noted in Williams v. Taylor (529 U.S. 362) that under the AEDPA:

The writ may issue only if one of the following two conditions is satisfiedthe state-court adjudication resulted in a decision that (1) ''was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,'' or (2) ''involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.'' Under the ''contrary to'' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the ''unreasonable application'' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

METHODS OF EXECUTION

The Role of the U.S. Food and Drug Administration

The injection of a deadly combination of drugs has become the method of execution in most states permitting capital punishment. Condemned prisoners from Texas and Oklahoma, two of the first states to introduce this method, brought suit claiming that even though the drugs used had been approved by the U.S. Food and Drug Administration (FDA) for medical purposes, they had never been approved for use in nor tested for human executions.

The FDA commissioner refused to act, claiming serious questions whether the agency had jurisdiction in the area. The U.S. District Court for the District of Columbia disagreed with the condemned prisoners that the FDA had a responsibility to determine if the lethal mixture used during execution was safe and effective. The court noted that decisions by a federal agency not to take action were not reviewable in court.

A divided Court of Appeals for the District of Columbia reversed the lower court ruling. A generally irritated U.S. Supreme Court agreed to hear the case ''to review the implausible result that the FDA is required to exercise its enforcement power to ensure that States only use drugs that are 'safe and effective' for human execution.''

In Heckler v. Chaney (470 U.S. 821, 1985), the unanimous Court agreed that, in this case, the FDA did not have jurisdiction.

Is Execution by Hanging Constitutional?

Washington state law imposes capital punishment either by ''hanging by the neck'' or, if the condemned chooses, by lethal injection. Charles Rodham Campbell was convicted of three counts of murder in 1982 and sentenced to death. Campbell, in challenging the constitutionality of hanging under the Washington statute, claimed that execution by hanging violated his Eighth Amendment right because it was a cruel and unusual punishment. Furthermore, the direction that he be hanged unless he chose lethal injection was a cruel and unusual punishment. He claimed that such instruction further violated his First Amendment right by forcing him to participate in his own execution to avoid hanging.

In Campbell v. Wood (18 F.3d. 662, 9th Cir. 1994), the U.S. Court of Appeals for the Ninth Circuit noted, ''We do not consider hanging to be cruel and unusual simply because it causes death, or because there may be some pain associated with death . . . . As used in the Constitution, 'cruel' implies 'something inhuman and barbarous, something more than the mere extinguishment of life.' . . . Campbell is entitled to an execution free only of 'the unnecessary and wanton infliction of pain.'''

According to the court, just because the defendant was given a choice of a method of execution did not mean that he was being subjected to a cruel and unusual punishment: ''We believe that benefits to prisoners who may choose to exercise the option and who may feel relieved that they can elect lethal injection outweigh the emotional costs to those who find the mere existence of an option objectionable.''

Campbell argued that the state was infringing on his First Amendment right of free exercise of his religion. He claimed that it was against his religion to participate in his own execution by being allowed to elect lethal injection over hanging.

The court contended that Campbell did not have to choose an execution method or participate in his own execution. ''He may remain absolutely silent and refuse to participate in any election.'' The death penalty statute does not require him to choose the method of execution; it simply offers a choice. On appeal (Campbell v. Wood, 511 U.S. 1119, 1994), the U.S. Supreme Court decided not to hear the case. In 1994 Campbell was executed by hanging. He refused to cooperate during the execution and had to be pepper sprayed and strapped to a board to carry out the hanging.

Is Execution by Lethal Gas Constitutional?

On April 17, 1992, three California death row inmatesDavid Fierro, Alejandro Gilbert Ruiz, and Robert Alton Harrisfiled a suit on behalf of themselves and all others under sentence of execution by lethal gas. In Fierro v. Gomez (790 F. Supp. 966 [N.D. Cal. 1992]), the inmates alleged that California's method of execution by lethal gas violated the Eighth and Fourteenth Amendments. Harris was scheduled to be executed four days later, on April 21, 1992an execution that was carried out.

The district court prohibited James Gomez, the director of the California Department of Corrections, and Arthur Calderon, the warden of San Quentin Prison, from executing any inmate until a hearing was held. On appeal from Gomez and Calderon, the U.S. Court of Appeals for the Ninth Circuit vacated (annulled) the district court's ruling. On his execution day Harris had filed a habeas corpus petition with the California Supreme Court, challenging the constitutionality of the gas chamber. The court declined to review the case, and Harris was put to death that day. In the aftermath of Harris's execution, the California legislature amended in 1993 its death penalty statute, providing that, if lethal gas ''is held invalid, the punishment of death shall be imposed by the alternative means,'' lethal injection.

In October 1994 a federal district judge, Marilyn Hall Patel (1938), ruled that execution by lethal gas ''is inhumane and has no place in civilized society'' (865 F. Supp. at 1415). She then ordered California's gas chamber closed and that lethal injection be used instead. This was the first time a federal judge had ruled that any method of execution violated the Eighth and Fourteenth Amendments. Even though the state of California maintained that cyanide gas caused almost instant unconsciousness, the judge referred to doctors' reports and witnesses' accounts of gas chamber executions, which indicated that the dying inmates stayed conscious for fifteen seconds to a minute or longer and suffered ''intense physical pain.''

Gomez and Calderon appealed Judge Patel's ruling on the unconstitutionality of the gas chamber before the U.S. Court of Appeals for the Ninth Circuit. The court also appealed the permanent injunction against the use of lethal gas as a method of execution. In February 1996, in Fierro v. Gomez (77 F.3d. 301, 9th Cir.), the appellate court affirmed Judge Patel's ruling.

Gomez and Calderon appealed the case to the U.S. Supreme Court. In October 1996 a 72 Supreme Court, in Gomez v. Fierro (519 U.S. 918), vacated the appellate court's ruling and returned the case to the appellate court for additional proceedings, citing the death penalty statute amended in 1993 (lethal injection as an alternative to lethal gas). As of November 2007, Fierro remained on death row. Ruiz died of natural causes in early 2007.

Does Electrocution Constitute a Cruel and Unusual Punishment?

In the 1990s, even though Florida had three botched executions using the electric chair, the state supreme court ruled each time that electrocution does not constitute a cruel and unusual punishment. In 1990 and 1997 flames shot out from the headpiece worn by the condemned man. On July 8, 1999, Allen Lee Davis developed a nosebleed during his execution in the electric chair. Thomas Provenzano, who was scheduled to be electrocuted after Davis, challenged the use of the electric chair as Florida's sole method of execution. In Provenzano v. Moore (No. 95973, 1999), the Florida Supreme Court ruled 43 that the electric chair was not a cruel and unusual punishment. The court further reported that Davis's nose-bleed occurred before the execution and did not result from the electrocution.

Subsequently, the court, as it routinely does with all its rulings, posted the Provenzano decision on the Internet. Three photographs of Davis covered with blood were posted as part of Justice Leander J. Shaw Jr.'s (1930) dissenting opinion. The photographs brought public outcry worldwide. Justice Shaw claimed that Davis was ''brutally tortured to death.''

In October 1999, for the first time, the U.S. Supreme Court agreed to consider the constitutionality of electrocution. The death row inmate Anthony Braden Bryan asked the Court to review his case, based on the unreliability of the electric chair. Before the high court could hear the case, however, the Florida legislature voted in a special session to replace electrocution with lethal injection as the primary method of execution, but allowed a condemned person to choose the electric chair as an alternative.

On January 24, 2000, the Supreme Court dismissed Bryan v. Moore (No. 99-6723) as moot (irrelevant), based on Florida's new legislation. Governor Jeb Bush (1953) agreed to sign the bill in conjunction with a second bill that limits, in most cases, death row inmates to two appeals in state courts, with the second appeal to be filed within six months of the first. This provision cut in half the time limit for the second appeal.

In 2001 the Georgia Supreme Court became the first appellate court to rule a method of execution unconstitutional. On October 5 the court held that electrocution was a cruel and unusual punishment in violation of the state constitution. In 2000 the Georgia legislature had passed a law making lethal injection the sole method of execution. Before the state supreme court ruling in October 2001, that law applied only to those sentenced after May 1, 2000.

Challenging the Form of Execution

In April 2006 the Supreme Court considered a case in which the Florida inmate Clarence E. Hill challenged the state's form of lethal injection as unnecessarily painful and thus a violation of his Eighth Amendment rights. Hill was convicted in 1983 for the capital murder of Officer Stephen Taylor and sentenced to death. After exhausting his state appeals, he filed for a federal writ of habeas corpus, which was denied. As Hill's execution loomed in January 2006, his lawyers filed a new challenge, this time against the lethal injection procedure itself. A trial court dismissed the claim, because Hill had already exhausted his federal habeas corpus appeals. Federal law prohibits multiple appeals of this type. The ruling was upheld by the Florida Supreme Court.

In Hill v. McDonough (No. 05-8794, 2006), the U.S. Supreme Court issued a unanimous 90 opinion that Hill's challenge of the form of execution did not constitute a second habeas corpus appeal, but was a new action of a different type. The decision came only minutes before Hill was to be executed. He was already strapped to a gurney and hooked up to intravenous lines. However, the reprieve proved to be temporary. Florida courts refused to hear Hill's challenge, arguing that it was presented too late. His execution date was reset and the Supreme Court denied a second appeal. In September 2006 Hill was executed by lethal injection.

DOES EXTENDED STAY ON DEATH ROW CONSTITUTE A CRUEL AND UNUSUAL PUNISHMENT?

In 2002 Charles Kenneth Foster, a Florida inmate, asked the U.S. Supreme Court to consider whether his long wait for execution constitutes a cruel and unusual punishment prohibited by the Eighth Amendment. Foster had been on death row since 1975 for a murder conviction. In 1981 and again in 1984 the defendant was granted a stay of execution to allow his federal habeas corpus petition.

Justice Stephen G. Breyer (1938) dissented from the Court's refusal to hear the case (Foster v. Florida, No. 01-10868, 2002). Justice Breyer pointed out that the defend-ant's long wait on death row resulted partly from Florida's repeated errors in proceedings. The justice added, ''Death row's inevitable anxieties and uncertainties have been sharpened by the issuance of two death warrants and three judicial reprieves. If executed, Foster, now 55, will have been punished both by death and also by more than a generation spent in death row's twilight. It is fairly asked whether such punishment is both unusual and cruel.''

Concurring with the Court opinion not to hear Foster's case, Justice Clarence Thomas (1948) observed that the defendant could have ended the ''anxieties and uncertainties'' of death row had he submitted to execution, which the people of Florida believe he deserves. As of November 2007, Foster remained in Florida prison on death row.

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Right to Counsel

RIGHT TO COUNSEL

The legal responsibility for the government to provide every defendant in a criminal action withlegal representationthat also must be deemed effective.

The sixth amendment to the U.S. Constitution holds, in part, "In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence." This clause grants to all defendants the right to an attorney from the moment they are taken into police custody.

The decisions of the U.S. Supreme Court have also construed this Right to Counsel Clause to mean that an impoverished, or indigent, defendant has the constitutional right to the presence of a court-appointed attorney at critical stages in the criminal proceedings. These critical stages include custodial interrogation, post-indictment lineups, preliminary hearings, arraignment, trial, sentencing, and the first appeal of conviction.

The Right to Counsel Clause was a reaction against the English practice of denying the assistance of an attorney in serious criminal cases and requiring defendants to appear before the court and defend themselves in their own words. The 1586 trial of Mary Stuart, Queen of Scots, illustrates the harshness of denying the assistance of counsel in a criminal case. Queen Mary was charged with treason for allegedly conspiring to assassinate Queen Elizabeth I. Mary asked for the assistance of counsel, pleading that "the laws and statutes of England are to me most unknown; I am destitute of counsellors … and no man dareth step forth to be my advocate" (Winick 1989, 787). Her requests were denied, and Mary was summarily convicted and executed by decapitation.

The Framers of the U.S. Constitution considered the deprivation of counsel repugnant to basic principles of criminal justice. According to the Framers, the assistance of counsel was a critical element in maintaining an accusatorial system of justice. (An accusatorial system places the burden on the prosecution to establish the guilt of the defendant. This is opposed to an inquisitorial system, wherein guilt or innocence is determined through interrogation of the defendant.)

For 150 years, the Right to Counsel Clause was construed as simply granting to a defendant the right to retain a private attorney. This did not mean that an impoverished criminal defendant had the right to a court-appointed attorney without cost. In 1932, the U.S. Supreme Court began to reverse this interpretation in powell v. alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. In Powell, nine black youths were accused of raping a white girl in a train going through Alabama on March 25, 1931. A sheriff's posse rounded up the youths and held them in custody. The youths were not from Alabama, and they were not given the opportunity to contact their family.

The youths were indicted on March 31. On April 6, they were tried with the assistance of unprepared counsel and convicted, and subsequently sentenced to death. The youths thereafter received the assistance of counsel for their appeals. The Supreme Court of Alabama affirmed the convictions. The U.S. Supreme Court reversed the convictions and returned the case to the Alabama state court. According to the Court, the trial court's appointment of an unprepared attorney in a capital case is a violation of the defendant's due process rights.

The Powell decision did not mandate the appointment of an attorney for all impoverished defendants. The Court in Powell merely held that due process requires the appointment of prepared counsel to indigent defendants in a case that involves the death penalty. Powell did, however, provide the basis for the requirement of free counsel for defendants faced with serious federal charges.

In Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the U.S. Supreme Court held that an indigent federal criminal defendant who faces a serious criminal charge, such as a felony, is entitled to an attorney at the expense of the government. According to the Court, the right to counsel is "one of the safeguards …deemed necessary to insure fundamentalhuman rights of life and liberty." In making this decision, the Court noted "the obvious truth that the average defendant does not have the professional legal skill to protect himself."

Significantly, the Johnson opinion did not force states to provide the right to counsel for all indigent criminal defendants in state court; this right to counsel applied only to indigent defendants facing serious charges in federal court. In state court, by virtue of the Powell opinion, only indigent defendants accused of capital crimes had the right to a court-appointed attorney. Many states did provide for the right to an attorney for accused felons through statutes; other states did not. In 1963, the Supreme Court corrected these inequalities in gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.

In Gideon, defendant Clarence Gideon was charged in a Florida state court with breaking and entering a poolroom with the intent to commit a misdemeanor. Under Florida law, this was a felony. Gideon valiantly represented himself, but he was found guilty and sentenced to five years in prison.

On appeal to the U.S. Supreme Court, Gideon was represented by abe fortas, who had been appointed by the Court. Through Fortas, Gideon argued that the right to counsel was a fundamental right and essential to a fair trial. The Court agreed, stating that the "noble ideal" of a fair trial cannot be achieved "if the poor man charged with a crime has to face his accusers without a lawyer to assist him." The Court reversed Gideon's conviction, holding that all states must provide counsel to indigent defendants who face serious criminal charges. The legal basis for the decision was the Due Process Clause of the fourteenth amendment to the U.S. Constitution. This clause forbids states to enact laws denying due process of law to citizens of the United States. On retrial, represented by appointed counsel, Gideon was acquitted.

In a companion case decided the same day as Gideon, the U.S. Supreme Court created the right to counsel for indigent defendants on appeal. In Douglas v. California, 372 U.S. 353, 82 S. Ct. 814, 9 L. Ed. 2d 811 (1963), defendants William Douglas and Bennie Will Meyes, represented by a single public defender, were tried jointly in a California state court and convicted of various felonies. Both defendants appealed to the California District Court of Appeal. This first appeal was granted as a matter of right to all criminal defendants. Under California law, however, indigent defendants did not have the right to an appointed attorney for the first appeal.

Douglas and Meyes, both indigent, prepared and filed their own appeal briefs. The District Court of Appeal affirmed the convictions. Meyes petitioned to the California Supreme Court for himself and on behalf of Douglas. That court denied the petition without a hearing.

On appeal to the U.S. Supreme Court, Douglas and Meyes, this time represented by Supreme Court-appointed counsel, argued that they deserved the right to an attorney on their appeal. The Court agreed, lecturing that "there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has" (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). According to the Court in Douglas, the equal protection and Due Process Clauses of the Fourteenth Amendment prevent states from granting criminal appeals in such a way as to discriminate against poor people.

Thus, under the Douglas decision, a state must provide free counsel to indigent defendants on appeal, if the state offers an appeal as a matter of right. All states do allow one appeal as a matter of right. For discretionary appeals, or appeals that are not granted as a matter of right—such as appeals to the state's highest court in states with a lower reviewing court, and appeals to the U.S. Supreme Court—there is no right to counsel. However, many states maintain laws that provide free counsel to indigent defendants even for these discretionary appeals.

A year after Gideon and Douglas, the Supreme Court decided two more cases that further extended a defendant's right to counsel. In massiah v. united states, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), defendant Winston Massiah was indicted by a federal grand jury on narcotics charges. Massiah retained a lawyer and pleaded not guilty. While free on bail, Massiah was contacted by a codefendant, Jesse Colson. Unbeknownst to Massiah, Colson was cooperating with federal law enforcement authorities. Massiah and Colson met and spoke in an automobile for several hours about the case, and Massiah made incriminating statements that were transmitted by radio to a federal agent located a few blocks away. The statements were used as evidence in Massiah's trial. Massiah was convicted and sentenced to nine years in prison.

On appeal to the Supreme Court, Massiah argued that he had the right to counsel while being interrogated by law enforcement, even when the interrogation was not conducted in person by an officer. The Court agreed and reversed Massiah's conviction. The Court in Massiah established that the police may not interrogate someone who has been indicted unless the person's attorney is present or the person has knowingly waived the right to have counsel present.

Approximately one month later, the Supreme Court extended Massiah in escobedo v. illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In Escobedo, defendant Danny Escobedo was arrested and taken to police headquarters for questioning regarding the recent murder of his brother-in-law. Escobedo was not indicted for the crime. However, he was held in police custody and was not free to leave. Escobedo's retained attorney arrived at police headquarters while Escobedo was being questioned, but the police prevented the two from speaking to each other. Under interrogation, Escobedo admitted to some knowledge of the murder. Eventually, Escobedo confessed to having participated in the crime.

At trial, Escobedo's statements were admitted as evidence, and Escobedo was convicted of murder. On appeal, the Supreme Court overturned Escobedo's conviction. The Court specifically held that where an investigation is "no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect," the suspect is effectively in custody and has the right to consult a lawyer. Citing the prolific legal theorist Dean john henry wigmore, the Court warned that any criminal justice system that relies on "compulsory self-disclosure as a source of proof must itself suffer morally thereby." The Escobedo opinion established that when a suspect asks to speak with an attorney, the police must comply with the request, even before formal charges have been filed against the suspect.

After this slew of right-to-counsel cases, it remained for the Supreme Court to decide what criminal charges required the availability of free counsel. Under Johnson and Gideon, a defendant had the right to counsel for all "serious" cases, but this standard proved difficult to apply. To clarify this aspect of the right to counsel, the Court seized on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

In Argersinger, the defendant, Jon Richard Argersinger, an indigent person, was charged in a Florida state court with carrying a concealed weapon. The offense carried a punishment of up to six months in prison and a $1,000 fine. Proceeding without counsel, Argersinger was convicted and sentenced to 90 days in jail.

On appeal, the Supreme Court vacated Argersinger's conviction. The Court concluded that "the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial." Under the rule formulated in Argersinger, an indigent defendant who is not offered the services of a court-appointed attorney at trial may not be sentenced to prison, even if the defendant is convicted of a crime for which incarceration is an authorized punishment.

The apparent fairness of the rule established in Argersinger can be deceiving. In Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), defendant Kenneth O. Nichols pleaded guilty in federal court to conspiracy to distribute cocaine. Nichols was sentenced to 19 years and seven months imprisonment. To justify this lengthy term, the sentencing court relied on a previous misdemeanor conviction that resulted from a trial in which Nichols was not represented by counsel. When Nichols appealed the sentence, the Supreme Court held that it is not a violation of the Sixth and Fourteenth Amendments to enhance punishment based on a prior conviction in which an indigent defendant was not afforded an attorney.

The Supreme Court has, at times, displayed considerable latitude in deciding various right-to-counsel issues. The Court has held that an indigent defendant has the right to counsel in deciding whether to submit to a psychiatric examination when statements made during that examination may be used at trial (Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 [1981]). Under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), an indigent defendant has the right to have appointed counsel present during post-indictment identification lineups. Under the Sixth Amendment, juveniles have the right to an attorney when their liberty is at stake (Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]).

The Court has also read the Sixth Amendment to mean that a criminal defendant is entitled to effective legal counsel. This means that a defendant has the right to conscientious, meaningful representation. If a defendant does not receive effective assistance of counsel at trial, the conviction will be reversed. However, the standard of proof for the defendant is high. Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has to prove not only that the attorney's performance was less than reasonable but that this sub-standard performance changed the outcome of the trial. The second factor is very hard to prove, especially when the evidence of guilt is overwhelming. Nevertheless, courts will overturn convictions when it finds that a defense lawyer was asleep during critical parts of the proceedings. Claims of ineffective counsel are often made against court-appointed lawyers, whether they are members of a public defender office or individuals chosen by a trial judge. Absent egregious behavior by a lawyer such claims are usually unsuccessful because a liberal attitude would lead to second-guessing the decisions of trial counsel by appellate courts.

The Supreme Court has been less generous on other issues. Generally, an indigent defendant has no right to counsel in a proceeding after conviction (Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 [1987]). An indigent defendant does not have an absolute right to counsel for revocation of parole or probation hearings (Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 [1973]). If the parolee or probationer denies committing the offense or if there are mitigating circumstances that may limit the parolee or probationer's guilt, the court may appoint an attorney. An indigent defendant has no constitutional right to an attorney for a habeas corpus petition (Finley) unless the defendant faces death, in which case he or she is entitled to an attorney for a habeas corpus petition (McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L. Ed. 2d 666 [1994]).

An indigent defendant has the right to appointed counsel during pre-indictment identification lineups conducted by the police (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). Kirby would seem to contradict Escobedo, where the defendant was entitled to counsel after arrest but before indictment. However, Escobedo has been limited to its facts and has been construed as upholding the defendant's right against self-incrimination more than the right to counsel.

The Supreme Court has carved out other exceptions to the right to counsel after an arrest. It has allowed law enforcement officials to have ex parte contacts with defendants to determine whether the defendant is in fact represented by counsel. It has also allowed ex parte communications that are made with the consent of defendant's counsel; those made pursuant to discovery procedures, such as subpoenas; communications in the course of a criminal investigation; communications necessary to protect the life or safety of another person; and those made by a represented person, so long as the person has knowingly, intelligently, and voluntarily waived the right to have counsel present. These exceptions apply to all persons, regardless of whether they can afford their own attorney.

Finally, law enforcement officials need not advise criminal suspects of their right to an attorney until those suspects are actually taken into custody or are not free to leave the presence of the officers. This rule gives law enforcement the freedom necessary to conduct reasonable investigations for the safety of the general public.

Congress sought to restrict the ability of convicted defendants to successfully argue that they received ineffective counsel when it passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Public Law 104-132, 1996). A provision of this act states that federal courts may not grant habeas petitions unless they find that the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." The Supreme Court has ruled that "clearly established federal law" means a decision it has rendered. In Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), the Court had to decide which of its precedents constituted "clearly established federal law." It ruled that its more stringent precedent in Strickland v. Washington controlled in this case, signaling that it wished to limit successful death penalty appeals.

further readings

Sonneborn, Liz. 2004. Miranda v. Arizona: The Rights of the Accused. New York: Rosen.

Tomkovicz, James J. 2002. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, Conn.: Greenwood Press.

cross-references

Criminal Law; Criminal Procedure; Gault, In re; Juvenile Law; Miranda v. Arizona.

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Right to Counsel

Right to Counsel

Sections within this essay:

Background
What the Sixth Amendment Guarantees
The Miranda Case
Invoking the Right
Judicial Proceedings Before Trial
Custodial Interrogation
Lineups and Other Identification Situations
Post-Conviction Proceedings
Adequate Representation or Ineffective Assistance of Counsel
Additional Resources
Organizations
Federal Defender's Association (FDA)
Legal Services Corporation (LSC)
National Association of Criminal Defense Lawyers (NACDL)
National Legal Aid & Defender Association (NLADA)

Background

During the colonial period and the early years of the Republic the practice in the United States was varied with respect to providing counsel to suspects in criminal cases. The practice varied from the English method, where no counsel was provided to defendants of felony charges, but counsel was made available for defendants of misdemeanor charges. Rules in a few states allowed for the appointment of counsel where defendants could not afford to retain a lawyer. The Sixth Amendment to the U.S. Constitution states: "in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." At the time the Sixth Amendment was ratified, Congress enacted two laws that appeared to indicate an understanding that the Sixth Amendment guarantee was limited: counsel would not be denied to those who wished for and could afford a lawyer. Much later—in 1930s—the Supreme Court began to expand the clause to its present scope.

Police officers ask questions of victims, witnesses, and suspects. If individuals feel that they are suspects in a criminal investigation or even that they could later be considered a suspect, they should speak with a lawyer before they speak with law enforcement officers. What they say to their lawyer is confidential and cannot be used against them. However, what they say to the police can be used against them, even if there is no recorded or written record of that conversation.

Individuals can always inform the police officer that they wish to speak with a lawyer before they answer any questions. If they are in custody (have been arrested or otherwise detained), the police must stop their questioning and they will be given an opportunity to speak with a lawyer. The police may return and begin to ask them questions again after a reasonable amount of time. If they have not yet spoken with a lawyer when the police return to question them, they may continue to refuse to answer any questions until they have obtained legal assistance.

What the Sixth Amendment Guarantees

The Sixth Amendment guarantees the right to legal counsel at all significant stages of a criminal proceeding. This right is so important that there is an associated right given to people who are unable to pay for legal assistance to have counsel appointed and paid for by the government. The federal criminal jus-tice system and all states have procedures for appointing counsel for indigent defendants. The Sixth Amendment right to counsel has been extended to the following:

  • the interrogation phase of a criminal investigation
  • the trial itself
  • sentencing
  • at least an initial appeal of any conviction

If individuals are arrested in the United States they have a range of rights that give them certain protections, even if they are not a citizen of the United States. These rights include the following:

  • A trial by a jury (in most cases)
  • The jury to hear all of the witnesses and see all of the evidence
  • Presence at the trial and while the jury is hearing the case
  • The opportunity to see, hear, and confront the witnesses presenting the case against them
  • The opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appear
  • The chance to testify themselves should they choose to do so
  • The option to refuse to testify
  • Access to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trial
  • The right to cross-examine the witnesses giving testimony against them
  • The right to compel the state to prove its case against them beyond a reasonable doubt.

A judge will appoint an attorney for an indigent defendant; this attorney will be compensated at government expense if at the conclusion of the case the defendant could possibly be imprisoned for a period of more than six months. In reality, judges almost always appoint attorneys for indigents in practically every case in which a jail sentence is a possibility—regardless of how long the sentence may be. Generally, a judge will appoint the attorney for an indigent defendant at the defendant's first court appearance; for most defendants, the first court appearance is an arraignment or a hearing to set bail.

The Miranda Case

In 1966, the United States Supreme Court decision in Miranda v. Arizona ushered in a period of court-imposed restraints on the government's ability to interrogate suspects it takes into custody. This famous decision focused on Fifth Amendment protections against self-incrimination, but it also spoke to the right to counsel. One of the most important restraints enumerated in the Miranda decision is the prohibition against the government's interrogation of suspects or witnesses after the suspect has invoked the right to counsel. Here's what the Miranda warnings generally say:

  • You have the right to remain silent.
  • Anything you say can be used against you in a court of law.
  • You have the right to have an attorney present now and during any future questioning. The right to have counsel present at a custodial interrogation is necessary to protect the Fifth Amendment privilege against self-incrimination. A suspect detained for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.
  • If you cannot afford an attorney, one will be appointed to you free of charge if you wish. The Supreme Court found it necessary to mandate notice to defendants about their constitutional right to consult with an attorney. They went one step further and declared that if a defendant is poor, the government must appoint a lawyer to represent him.

The Court further instructed the police that if a suspect says he wants a lawyer, the police must cease any interrogation or questioning until an attorney is present. Further, the police must give the suspect an opportunity to confer with his attorney and to have the attorney present during any subsequent questioning.

Individuals need to remember that they can be arrested without being advised of their Miranda Rights. The Miranda rights do not protect individuals from being arrested, but they help suspects keep from unwittingly incriminating themselves during police questioning.

All the police need to arrest a person is probable cause to believe a suspect has committed a crime. Probable cause is merely an adequate reason based on the facts or events. Police are required to read or give suspects their Miranda warnings only before questioning a suspect. Failing to follow the Miranda rules may cause suspects' statements to be inadmissible in court; the original arrest may still be perfectly legal and valid.

Police are allowed to ask certain questions without reading the Miranda rights, including the following:

  • name
  • address
  • date of birth
  • Social Security number
  • Or other questions necessary to establishing a person's identity.

Police can also give alcohol and drug tests without Miranda warnings, but individuals being tested may refuse to answer questions.

Invoking the Right

Because the invocation of Miranda rights, particularly the right to counsel, has created significant burdens on law enforcement's ability to conduct effective interrogations, several recent court decisions have begun to limit a custodial suspect's ability to invoke that right. Specifically, the Court wants to ensure that a suspect's invocation of rights is not frivolous. To do this, courts require that suspects invoke their right to counsel be made unequivocally, as well as in a timely manner.

If individuals are arrested or questioned, the burden is on them to invoke their right to counsel in a clear and unequivocal manner. They should receive notice that they have the right to an attorney, but law enforcement is not required to ask them whether they want an attorney, nor do they need to ask them clarifying questions if they are unclear in their request for an attorney. Not only must invoking the right to counsel be unequivocal, but courts also have begun to insist that invocations of the Miranda right to counsel be made in a timely manner. Individuals should not wait to be asked if they want a lawyer, nor should they expect the police to read them Miranda warnings before they ask for counsel.

Judicial Proceedings Before Trial

Generally, defendants are entitled to counsel from the time of their arraignment until the beginning of their trial. This is because the defendant's need for consultation, investigation, and preparation are critically important for a fair trial. The courts have gradually expanded this idea to the point that there is a legal concept of "a critical stage in a criminal proceeding" that indicates when a defendant must be represented by counsel.

Custodial Interrogation

Defendants who have been taken into custody and have invoked their Sixth Amendment right to counsel with respect to the offense for which they are being prosecuted may not later waive that right. However, defendants may waive their right under Miranda not to be questioned about unrelated and uncharged offenses.

What happens if the police violate the right to counsel? The remedy for violation of the Sixth Amendment rule is that any statements obtained from defendants under these circumstances will be excluded from the evidence at trial. There is one important exception to the Sixth Amendment exclusionary rule: evidence obtained from defendants held in custody that violates the Sixth Amendment may be used for the sole purpose of impeaching the defendants' testimony at trial.

Lineups and Other Identification Situations

Lineups are considered to be "critical stage" and the prosecution may not admit into evidence in-court identification of defendants based on out-of-court lineups or show-ups if they were obtained without the presence of defendant's counsel. Courts have found that a defendant's counsel is necessary at a lineup because the lineup stage is filled with much potential for both intentional and unintentional errors. Without the defendant's attorney present at the lineup, these errors may not be discovered and remedied prior to trial.

This rule does not apply to other methods of obtaining identification and other evidentiary material relating to the defendant, including the following:

  • blood samples
  • DNA samples
  • handwriting samples
  • vocal samples

In these cases, there is far less chance that the absence of counsel at the time the evidence is obtained from the defendant might prevent the defendant from getting a fair trial.

The Sixth Amendment does not guarantee the presence of the defendant's counsel at a pretrial proceeding unless the physical presence of the defendant is involved. Furthermore, the defendant's presence must be required at a trial-like confrontation at which the defendant requires the advice and assistance of counsel.

Post-Conviction Proceedings

In a criminal trial, the law requires a lawyer for defendants to be present at the sentencing stage of the trial. If individuals are convicted of a crime and are placed on probation, they still have the right to counsel at a later hearing on the revocation of their probation and imposition of the deferred sentence. Due process and equal protection rather than Sixth Amendment rights, however, will apply in the following three post-trial hearings:

  1. for granting parole or probation
  2. for revoking parole when parole was imposed after sentencing
  3. for prison disciplinary hearings

Adequate Representation or Ineffective Assistance of Counsel

Indigent defendants who are represented by appointed lawyers and defendants who can afford to hire their own attorneys are both entitled to adequate representation. But "adequate representation" does not mean perfect representation. However, an incompetent or negligent lawyer can so poorly represent a client that the court is justified in throwing out a guilty verdict based on the attorney's incompetence.

If a defendant's lawyer is ineffective at trial and on direct appeal, the defendant's Sixth Amendment right to a fair trial has been violated. In analyzing claims that a defendant's lawyer was ineffective, the principal goal is to determine whether the lawyer's conduct so undermined the functioning of the judicial process that the trial cannot be relied upon as having produced a just result. Proving this requires two steps:

  1. The defendant must show that his own lawyer's job performance was deficient. The defendant must prove that his counsel made errors so serious that the lawyer did not function as the counsel guaranteed the defendant by the Sixth Amendment.
  2. The defendant must show that the deficient performance unfairly prejudiced the defense. The defendant must show that his lawyer's errors were so serious as to wholly deprive the defendant of a fair trial.

Unless a defendant proves both steps, the conviction or sentence cannot be said to result from a breakdown in the judicial process such that the result is unreliable. When courts review a lawyer's advocacy of a defendant, they are deferential. Courts are bound by a strong presumption that any given lawyer's conduct falls within the range of reasonable professional assistance.

Additional Resources

"Consumer's Guide to Legal Help on the Internet". American Bar Association, 2002. Available at http://www.abanet.org/legalservices/public.html

Gideon's Trumpet Lewis, Anthony, Vintage Books, 1989.

Miranda v. Arizona: The Rights of the Accused (Famous Trials) Hogrogian, John G., Lucent Books, 1999.

The Right to the Assistance of Counsel: A Reference Guide to the United States Tomkovicz, James J. Greenwood House, 2002.

The Sixth Amendment in Modern American Jurisprudence: A Critical Perspective (Contributions in Legal Studies) Garcia, Alfredo, Greenwood Publishing Group, 1992.

Organizations

Federal Defender's Association (FDA)

8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Fax: (310) 397-1001
E-Mail: [email protected]
URL: http://www.afda.org/

Legal Services Corporation (LSC)

750 First Street NE, Tenth Floor
Washington, DC 20002-4250 USA
Phone: (202) 336-8800
Fax: (202) 336-8959
E-Mail: [email protected]
URL: http://www.lsc.gov/

National Association of Criminal Defense Lawyers (NACDL)

1025 Connecticut Ave. NW, Suite 901
Washington, DC 20036 USA
Phone: (202) 872-8600
Fax: (202) 872-8690
E-Mail: [email protected]
URL: www.nacdl.org

National Legal Aid & Defender Association (NLADA)

1625 K Street NW, Suite 800
Washington, DC 20006-1604 USA
Phone: (202) 452-0620
Fax: (202) 872-103
E-Mail: [email protected]
URL: http://www.nlada.org/

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Right to Counsel

RIGHT TO COUNSEL

The constitutional right to counsel in American law encompasses two broad categories of rights: first, rights of persons to retain and employ counsel in official proceedings and, second, rights of persons who because of financial incapacity or other reasons are unable to procure the assistance of lawyers, to have counsel appointed in their behalf.

The modern rights to counsel are the product of a historical evolution extending over a half-millennium. English criminal procedure in the early modern era diverged sharply from today's institutions of adversary criminal justice. In the Tudor and Stuart regimes, legal proceedings in which the crown's interests were strongly implicated were heavily tilted in favor of the state and against the accused. Thus it was only in the least serious cases, those involving misdemeanors, that the privilege of the accused to present his defense by counsel was recognized. Not until the end of the seventeenth century was a similar right granted defendants in treason trials (along with the right to have counsel appointed by the court when requested).

Over 140 years were to elapse before Parliament recognized the right of the accused to retain and employ counsel in felony trials. The earlier recognition of the right to counsel in treason cases reflects the fact that members of Parliament were themselves frequent targets of treason prosecutions launched by the crown. Throughout the eighteenth century the incongruity of a system that recognized counsel rights in misdemeanor and treason cases but withheld them in felony cases at a time when as many as 150 felonies were punishable by death was widely perceived and sometimes protested.

In the American colonies there was great variation in practices and statutory provisions relating to rights of counsel in criminal cases. By 1776, however, the right of attorneys retained by the accused to perform defense functions in courts appears to have been widely conceded, and in several of the colonies practices were considerably in advance of those then prevailing in England. In Pennsylvania, for example, the appointment of counsel for impoverished defendants in capital cases was mandated by statute; and in Connecticut even more liberal practices of appointment were established in the quarter-century before the American revolution.

Rights to counsel entered American constitutional law through provisions included in the early state constitutions and with the ratification of the Sixth Amendment to the federal Constitution in 1791. Seven of the original states and Vermont adopted constitutional provisions relating to the rights to counsel, and the right so protected was that to retain and employ lawyers in criminal trials. By the beginning of the nineteenth century only two states, Connecticut and New Jersey, appear clearly to have recognized a right in the accused to request appointment of counsel in all serious cases; and in neither was the privilege created by a constitutional provision.

Included in the Sixth Amendment, upon which most of the modern law of counsel rights depends, is the following clause: "In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense." There is no direct evidence of the framers' intentions in drafting the language or of the understanding of those who ratified the amendment. Yet the general assumption until well into the present century was that the right constitutionally protected was one to employ counsel, not to have counsel assigned.

One of the most remarkable features of Sixth Amendment history is the paucity of judicial authority on the counsel clause for nearly a century and a half after the amendment's ratification. There was no comprehensive exegesis in the Supreme Court, and only a scattering of holdings in the lower federal courts. The relative absence of authoritative interpretation may be explained in part by the long delay in establishing a system of federal criminal appeals and the strict limitations applied to the habeas corpus remedy in the federal courts. The landmark decision in johnson v. zerbst was not handed down until 1938, six years after the Court had begun its delineation of the rights to counsel protected by the due process clause of the fourteenth amendment in state criminal prosecutions. (See powell v. alabama.) Johnson was comprehensive and far-reaching. The Court, through Justice hugo l. black, without pausing to canvass the historical understanding of the counsel clause, held that a federal trial court lacked power "to deprive an accused of his life and liberty unless he has or waives the assistance of counsel." Second, the assistance of counsel "is an essential jurisdictional prerequisite" to a federal court's power to try and sentence a criminal defendant. Hence the habeas corpus remedy may be invoked by a prisoner to set aside his conviction if the Sixth Amendment right to counsel was withheld at his trial. Third, although the right to have counsel assigned may be waived, allegations of waiver will be closely scrutinized. waiver of constitutional rights involves "an intentional relinquishment of a known right or privilege." The trial judge has a "protecting duty" to see that the accused understands his rights to legal assistance, and if the judge determines that the defendant has waived his rights, the record of the trial should clearly reveal the judge's determination and the basis for it.

In holding that the counsel clause not only creates a right to make use of a retained lawyer in federal criminal proceedings but also mandates the assignment of counsel for an accused otherwise unable to procure legal assistance, Johnson v. Zerbst upset the long-prevailing understanding to the contrary. Yet the decision did not immediately produce a major alteration in the actual practices of federal criminal justice. Many federal district courts before 1938, with the active encouragement of the Department of Justice, had been assigning counsel to indigent defendants in felony cases. The lawyers so appointed typically received no compensation for their services and were hampered in having no resources for pretrial investigations of their cases or for many other incidents of trial. Johnson v. Zerbst did little to improve this situation. It was not until a quarter-century later that Congress enacted the Criminal Justice Act of 1964 and for the first time provided, however inadequately, a system of compensated legal assistance in the federal courts.

In the celebrated case of Powell v. Alabama, decided in 1932, the Supreme Court made its first significant contribution to the constitutional law of counsel rights in Fourteenth Amendment cases. Powell, in addition, was one of the great seminal decisions in the Court's history and strongly influenced the development of the entire modern constitutional law of criminal procedure. The decision arose out of one of the most famous of twentieth-century criminal prosecutions, that of the Scottsboro defendants. Seven illiterate young blacks were arrested on the charge of raping two white women. After indictment the accused were divided into groups and tried in three separate trials. No lawyer having come forward to represent the defendants, the trial judge appointed "all the members of the bar" to assist in the arraignment, an act later described by the Supreme Court as merely "an expansive gesture." At the trial no lawyer was designated to assume personal responsibility for protecting the defendants' interests. Each trial was completed in a single day, and in each the jury convicted the accused and sentenced them to death. The convictions were affirmed in the Alabama Supreme Court, the chief justice vigorously dissenting.

At the time of the Powell decision, the Supreme Court had rarely employed the federal judicial power to upset state criminal prosecutions. (See moore v. dempsey.) The determination of the Court that the procedures in the Alabama trial had violated the accused's rights to due process of law protected by the Fourteenth Amendment was, therefore, an event of portentous significance. The Court held that both the right of the defendants to retain counsel and the right to have counsel assigned in their behalf had been nullified. The speed with which the Scottsboro defendants had been rushed to trial and conviction deprived them of an opportunity to secure legal assistance, and the arrival of lawyers eager to provide representation for the defendants shortly thereafter indicated that the haste was seriously prejudicial. Beyond this, the Court found that the failure to make an effective appointment of counsel in behalf of the accused, given the circumstances of the case, constituted a denial of due process.

The constitutional theory of Justice george sutherland's opinion for the court is important, for it dominated thought about the rights of counsel for the next three decades. Whatever else the protean phrase "due process of law" contemplates, argued the Court, it encompasses the requirement of notice and hearing in criminal cases. a fair hearing, in turn, encompasses the right to counsel. In one of the Court's best-known obiter dicta, Justice Sutherland wrote: "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. [Even the intelligent and educated layman] requires the guiding hand of counsel at every step of the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Although the Powell decision was placed on a broad constitutional base, one susceptible of future doctrinal development, the actual holding of the case was narrowly drawn. Thus the right of the accused to receive an assignment of counsel in Powell was made to rest on such considerations as that the charge was a capital offense, that the defendants were young, inexperienced, illiterate, and the like. The question that immediately became pressing was how far the Powell precedent would be extended when one or more of the circumstances in that case were absent. It was widely assumed that the Fourteenth Amendment might require the state to appoint counsel for an indigent defendant in any capital case, even though a considerable interval elapsed before the proposition was authoritatively stated in Bute v. Illinois (1948). The more important question, however, was whether a "flat requirement" of counsel similar to the Sixth Amendment rule imposed on the federal courts in Johnson v. Zerbst would also be found applicable to state prosecutions by reason of the Fourteenth Amendment. A definitive negative answer came in betts v. brady (1942).

In Betts the defendant was convicted of robbery, a noncapital felony. At his trial in the state court, the accused, an unemployed farm hand said by the Supreme Court to be "of ordinary intelligence," requested the appointment of counsel to assist in his defense. The request was denied by the trial judge, and the accused participated in the defense by examining his own witnesses and cross-examining those of the prosecution. When, after conviction, defendant was denied habeas corpus relief in the state courts, he took his case to the Supreme Court alleging that the denial of counsel at his trial violated due process of law. Justice owen roberts for the Court denied that due process required the assignment of counsel for indigent defendants in every state felony case. There was, in the view of the Court's majority, nothing in historical or contemporary practice to validate the claim. Rather, the question in each case was whether in the totality of circumstances presented, appointment of counsel was required to insure the accused a fair hearing. In the present case, the Court said, there was no such necessity. The issue upon which the defense rested, that of alibi, was simple and straightforward. There were no special circumstances of mental incapacity or inexperience that placed defendant at a serious disadvantage in maintaining his defense.

Criticism of the Betts decision began with Justice Black's vigorous dissent in that case and was promptly amplified in the press and the writings of legal commentators. Two principal reasons for the reluctance of the Court's majority to impose the obligation of assigning counsel in all state felony prosecutions can be identified. First, the prevailing opinion in Betts reflected the Court's deference to state autonomy, a deference widely believed at the time to be mandated by the nature of American federalism. The administration of criminal justice was an area in which state powers of self-determination were thought to be particularly broad. Second, there was the related concern that the states were poorly prepared suddenly to assume the obligation of providing legal aid for unrepresented defendants in all state felony cases. The problem was not only that lawyers and resources would have to be supplied in pending and future cases, but also that hundreds of state prisoners had been convicted in trials in which no assistance of counsel was received. The concern was freely articulated by Justice felix frankfurter when in Foster v. Illinois (1947) he wrote: "Such an abrupt innovation … would furnish opportunities hitherto uncontemplated for opening wide the prison doors of the land."

Nevertheless, with the passage of time opinion increasingly supported the overturning of Betts and recognition of a "flat requirement" of counsel in state as well as federal prosecutions. The Betts rule, far from strengthening federalism, exacerbated the relations of state and federal courts. Because under Betts the requirement of appointing counsel depended on the unique circumstances of the particular case, the resulting decision often provided little guidance to state judges dealing with cases in which the facts were significantly different. Many state judges came to favor the broader rule of Johnson v. Zerbst because of its greater certainty. It became apparent to many state officials that ultimately Betts v. Brady would be overruled, and in anticipation of the event they created systems of legal aid on their own initiative, supplying counsel for unrepresented defendants in all serious state cases. Meanwhile it had become increasingly difficult for the states to protect convictions in the Supreme Court when defendants argued that "special circumstances" had required appointment of counsel at the trial. In the thirteen years before Betts was overruled in gideon v. wainwright (1963), no state conviction was upheld by the Court against a claim of special circumstances. It is significant also that when the Gideon case was pending before the Court, the attorneys general of twenty-two states filed amicus curiae briefs asking that Betts be overruled and the broader rule of appointment recognized.

Although the opinion of Justice Black for the court is unprepossessing, Gideon v. Wainwright marked a new era in the constitutional law of counsel rights. Portions of the opinion appear to pay deference to the older theories of fair hearing, and others seem to suggest that counsel must be assigned to unrepresented defendants on grounds of equality. Ultimately, however, Gideon's constitutional basis is the Sixth Amendment: the Sixth Amendment is "subsumed" in the provisions of the Fourteenth Amendment, and hence the same obligations relating to assignment of counsel for the indigent accused in federal courts are also owed in state prosecutions. Since the Gideon case there has been a flowering of constitutional doctrine relating to counsel rights in many important areas of the criminal process.

Although the prevailing opinion in the Gideon case did not specifically limit its holding to felony trials, most observers believed that the right to counsel for indigent defendants would not apply in all misdemeanor cases. Following Gideon, state and lower federal courts devised various formulas for dealing with counsel rights in small-crime prosecutions. The state of Florida, borrowing from cases involving the constitutional right to jury trial, provided that counsel rights should not attach in prosecutions for "petty offenses," i.e., crimes punishable by not more than six months' imprisonment. (Cf. baldwin v. new york, 1970.) In argersinger v. hamlin (1972), nine years after Gideon, the Supreme Court rejected Florida's use of the petty-offense concept. In effect, the Court ruled that any deprivation of liberty, even for a few days, is a sanction of significant gravity. Accordingly, no unrepresented defendant may be jailed for any term unless he has waived counsel at the trial. The Argersinger holding dramatically expanded the legal aid obligations of state systems of criminal justice. Adequate practical implementation of counsel rights in small-crimes courts is yet to be fully attained in many jurisdictions.

The right recognized in Argersinger was defined further in Scott v. Illinois (1979). In the latter case an unrepresented defendant was sentenced for an offense which under state law was punishable by both fines and imprisonment. The sentence actually imposed, however, was a monetary fine. The Court, through Justice william h. rehnquist, ruled that because the unrepresented accused was not actually sentenced to jail, his constitutional rights had not been denied. Ironically, Scott's rights were given less protection than he would have received if the Court had adopted the petty-offense formula in Argersinger; that formula would have looked to the penalties authorized by a statute, not solely to those actually imposed.

Because of the comparative modernity of criminal appeals in Anglo-American legal history, the Supreme Court's consideration of constitutional rights of representation in appellate proceedings was not preceded by extensive common law experience. The first substantial discussion of constitutional rights to counsel on appeal occurred in douglas v. california (1963) decided on the same day as the Gideon case. A California rule of court authorized the state intermediate appellate court to scrutinize the record in a pauper's appeal "to determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed." Pursuant to this authority the court denied counsel to defendant, adjudicated his appeal, and affirmed his criminal conviction. In the Supreme Court the defendant successfully asserted that the California procedures violated his Fourteenth Amendment rights.

In reaching its result the Court relied primarily on an obligation in the state to accord equal treatment to rich and poor appellants and revived an earlier dictum of Justice Black in griffin v. illinois (1956): "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Here the obligation of equal treatment was not met. Had defendant been able to retain his own lawyer, his appeal, regardless of its merits, would have been presented by counsel. Because of his poverty and the decision of the appellate court not to assign a lawyer to him, he was unrepresented on appeal. Whatever the implications of the Court's theory, the obligation of the state to provide "equal treatment" to the poor does not necessarily mean that the treatment must be identical to that meted out to appellants able to hire their own lawyers. Thus, the opinion asserts, "absolute equality is not required." In illustrating this possibility, the Court strongly implied that the constitutional obligation to assign counsel involved in Douglas may apply only to the first appeal. If an indigent represented by an assigned counsel is unsuccessful in the intermediate appellate court and decides to seek further review in the state's highest court, he may submit to the latter the brief prepared by counsel in the intermediate court, but the highest court may not be under obligation to assign a lawyer to conduct the second appeal. A decade later the Court made explicit what had been suggested in the Douglas case. In ross v. moffitt (1974) the Court sustained the validity of North Carolina procedures that provided the indigent with counsel in the first appeal but denied his requests for representation when he sought a discretionary review in the state supreme court and later, when seeking a writ of certiorari in the United States Supreme Court.

The limitations recognized by the Court, however, do not appear to have seriously inhibited the availability of appellate remedies to indigent defendants. Arguably, this may be true in part because the Court was essentially correct in concluding that the decencies of fair hearing and reasonable equality of treatment can be accorded such appellants without offering counsel in all stages of the appellate procedure. Also, many jurisdictions have gone beyond the constitutional minima and supply counsel throughout the review process. Perhaps of equal importance is a series of cases that have overcome many of the difficulties that earlier confronted impoverished criminal litigants in the appellate courts. As early as 1956, the Court in Griffin v. Illinois held that a convicted defendant may not be denied access to an appellate remedy because of his poverty. Under state law the appellant could perfect his appeal only by use of a stenographic transcript of the trial proceedings, the latter being unavailable to him because he had no funds to purchase it. Under these circumstances, the Court ruled, the state must furnish the prisoner with a transcript. In the years following, the Griffin principle was broadly applied. (For example, Burns v. Ohio, 1950; see wealth discrimination.)

Recognition of counsel rights and the removal of obstacles to review for indigent prisoners have greatly widened opportunities for appellate regulation of the trial process. They have, at the same time, created substantial problems for the administration of justice in the appellate courts. Economic constraints may operate on appellants "paying their own way" so as to deter the filing of frivolous appeals. No such constraints influence the indigent prisoner. The resulting problems go beyond the swelling of the dockets of appellate courts and also include certain difficulties for lawyers assigned by the courts to represent indigent appellants. Many such attorneys believe, often rightly, that the appeals of their clients cannot be supported on any substantial legal grounds. Yet efforts by the lawyers to withdraw from representation may, on occasion, prejudice the interests of their clients and, in some instances, may be motivated by the lawyers' design to escape onerous and unprofitable obligations. Efforts to balance such considerations have not as yet resulted in a satisfactory resolution. The rule announced by the Supreme Court requires the appointed lawyer seeking to be relieved of the case to allege that it is "wholly frivolous." The motion must be accompanied by a brief referring to anything in the record that might arguably support the appeal. How matters may be both "arguable" and "wholly frivolous" is not explained, and the effect of the rule must be to induce the lawyer to remain in the case regardless of his professional judgment of frivolity. The Massachusetts Supreme Judicial Court, in Commonwealth v. Moffett (1981) recognizing this effect, simply refused to permit counsel to withdraw solely on grounds of absence of merit in the appeal.

Other questions relating to counsel rights have arisen in the postconviction criminal process. As early as Mempa v. Ray (1967) a unanimous Court held that an indigent defendant, who had been placed on probation after conviction and given a deferred sentence, was entitled to be represented by counsel when his probation was revoked and he was sentenced to imprisonment. In Gagnon v. Scarpelli (1973), however, the Court ruled that although due process requires a hearing whenever a probation or parole is revoked, counsel need not be appointed unless special circumstances dictate the need for legal representation. This dubious resurrection of the Betts v. Brady doctrine, long since rejected at the criminal trial, was justified in part by the need to preserve "flexibility" in procedures leading to revocation. The American Bar Association in its Standards of Criminal Justice repudiated the Gagnon rule and called for appointment of counsel in such cases.

One of the most striking characteristics of the warren court was its allegiance to the adversarial system of criminal justice. This dedication inevitably resulted in the expansion of constitutional rights to counsel. Thus, the adversary system was strengthened in areas where it already existed, such as the criminal trial, and also extended to other areas where it had had little or no operation, such as pretrial police interrogations. Clearly the Court's attitudes toward a rejuvenated adversarial process reflected some of its deepest convictions about the proper containment of state power in the administration of criminal justice. Introducing lawyers into the interrogation rooms of police stations, for example, was intended to achieve values going beyond those ordinarily associated with counsel rights. In addition to advising his client, the lawyer could serve as a witness to police interrogatory activity and a deterrent to police abuse. His presence might often be indispensable to the preservation of the suspect's right against self-incrimination and other constitutional rights.

Concern with proper representation of defendants' interests in the pretrial phases of the criminal process was expressed by the Supreme Court in its earliest cases involving rights to counsel. Even in Powell v. Alabama (1932) the Court had referred to the pretrial preparation of the defense as "the most critical" period in the criminal proceedings. Before the decision of Gideon v. Wainwright (1963) the Court had begun mandating the appointment of counsel for unrepresented accused persons at various "critical stages of the proceedings." Thus in Hamilton v. Alabama (1961) the murder conviction of the indigent accused was reversed because of the absence of defense counsel at the pretrial arraignment.

The more difficult problems, however, were those of the accused's rights after arrest but before formal commencement of the judicial proceedings by bringing the accused into court for preliminary hearing or arraignment. The issues were squarely drawn in the companion cases of Crooker v. California and Cicenia v. La Gay (1958). In the former, petitioner, who was under sentence of death, complained that the confession introduced against him at his trial had been obtained in a period of incommunicado questioning during which time he was denied the opportunity to confer with his own attorney. A narrowly divided Court affirmed the conviction, Justice tom c. clark emphasizing the "devastating effect" of the presence of counsel in the interrogation room on criminal law enforcement.

Crooker and Cicenia were overruled in escobedo v. illinois (1964) which represented the high-water mark of judicial protection of Sixth Amendment counsel rights in the pretrial interrogatory process. In a 5–4 decision the Court ruled that at the point in questioning when suspicions of the police have "focused" on the party being interrogated, even if this occurs before defendant is indicted for a criminal offense, the right of the party to consult with an attorney cannot constitutionally be denied. Two years later the Court decided the famous case of miranda v. arizona (1966), holding that whenever a suspect has been taken into custody he may not be interrogated until he has been given the "fourfold" warning: the arrested party must be advised that he has a right to remain silent, that he is entitled to consult with a lawyer, that the lawyer may be present at the interrogation, and that if he is unable to hire an attorney, counsel will be supplied. (See miranda rules.)

Although the prevailing opinion in Miranda reaffirmed the holding of the Escobedo case, the impact of the latter was considerably modified. Thus, use of the "focus" concept, while not expressly rejected, was for practical purposes abandoned. Again, although the Miranda opinion reaffirmed the existence of Sixth Amendment counsel rights in pretrial interrogation, the emphasis of the opinion is significantly different. The dominant view regarded the right to counsel in the interrogation situation as an incident to and a necessary means for protection of the Fifth Amendment's right against self-incrimination. The emphasis on that right is so dominant that the rights to representation recognized in Miranda have sometimes been referred to as Fifth Amendment rights to counsel.

The Miranda case did not bring lawyers into interrogation rooms so frequently as was hoped or feared at the time the decision was handed down. One principal weakness of the prevailing opinion was its failure to insist that a suspect's decision to waive the presence of counsel must itself be made only with the advice of a lawyer. In consequence, rights to counsel are frequently waived by persons in police custody. One study published shortly after the Miranda ruling revealed as few as seven percent of the suspects requesting stationhouse counsel. The tendency toward widespread waiver of Miranda rights appears to have continued in the intervening years.

Even before Escobedo, the Court had contributed another important strand to counsel doctrine in massiah v. united states (1964). After the defendant in that case had been indicted for a narcotics offense, government agents induced an accomplice of Massiah to draw him into conversation in an electronically "bugged" automobile. Incriminating admissions made by the defendant were overheard by the agents and introduced against him at the trial. In reversing Massiah's conviction, the Court ruled that the electronic eavesdropping violated defendant's rights to counsel, which rights had "attached" when the indictment against him was returned. Contemporary reaction to the Massiah decision was generally critical. Many commentators believed that if a wrong had been done to Massiah it consisted not of a denial of counsel rights, but rather an invasion of his Fourth Amendment right to privacy, or perhaps of the introduction of an "involuntary" confession against him. Again, to conceive of the rights to counsel attaching only at the return of the indictment leaves open to police officials an opportunity of frustrating the rule by simply delaying the indictment or information.

After the decision of Escobedo it was widely assumed that the Massiah precedent had been drained of vitality. Yet in the widely noted case of brewer v. williams (1977) Massiah was invested with renewed significance. Although Brewer might readily have been decided by an application of the Miranda rule, the Court chose instead to reverse the conviction on the grounds of denial of counsel, reliance being placed on the Massiah precedent. Later decisions, building on Massiah, appear to assert a right in the defendant not to be approached by the government for evidence of his own guilt in the absence of counsel, once judicial proceedings are initiated by return of an indictment or other in-court proceedings (United States v. Henry, 1980). In New York the state courts have transcended the Massiah precedent by interpreting state law to mean that whenever a lawyer enters a case in behalf of the defendant, even when this occurs before indictment, the accused in custody may not waive his right to counsel in the absence of his lawyer (People v. Hobson, 1976). Although the New York rule alleviates the restrictions imposed by the Supreme Court on the Massiah doctrine, it is of limited value to indigent defendants, who ordinarily do not acquire counsel before the commencement of judicial proceedings.

A final area of pretrial counsel rights involves lineups. Misidentification of the accused by prosecution witnesses constitutes perhaps the most prolific source of erroneous convictions; police lineups and other identification procedures often spawn such errors. In united states v. wade (1967) the Court responded to these problems by designating the pretrial identification confrontation between witnesses and the accused as a "critical stage" of the proceedings and hence one requiring the presence of the accused's attorney. An identification made at a lineup in which the suspect's right to counsel was not honored may not be introduced at the criminal trial. An in-court identification is not summarily barred, but before it can be employed as evidence, the prosecution must establish by "clear and convincing evidence" that it was based on observations other than those made at the flawed lineup. After this promising beginning the Court backed away, and the view appears established that unless the identification evidence was obtained by methods so defective as to deny due process of law, an identification obtained in the absence of counsel may be introduced in court if the lineup occurred before return of an indictment. (See kirby v. illinois.) Limiting rights of counsel to the postindictment period is especially devastating in these areas because identification efforts are typically undertaken before formal charges are made. In united states v. ash (1973) the Court has also refused to supervise other identification procedures, such as those involving the use of photographic files. The problems of convicting the innocent through misidentification persist, and the Court has relegated their solutions largely to administrative and legislative action.

Basic to the rights of counsel is the quality of the legal representation supplied the criminal accused. Yet growth of the law in this area is inhibited by the fear that close judicial scrutiny of the competency of such representation will provide numerous and unwarranted opportunities for disappointed criminal litigants to attack their convictions. Such administrative concerns resulted in the once widely recognized rule that convictions were not to be reversed on incompetency grounds unless the performance of defense counsel constituted a "mockery of justice." The formula employed in the Supreme Court today is considerably more demanding: counsel's advice must not fall "outside the range of competence demanded of attorneys in criminal cases" (Tollet v. Henderson, 1953). The application of the "ordinary competence" test, however, results in the reversal of comparatively few criminal convictions. Thus in United States v. Decoster (1979) the District of Columbia Court of Appeals refused to upset a conviction in which a court-appointed lawyer failed to interview his client's co-defendants or any other witnesses before trial. Failures to achieve the objective of adequate defense in criminal cases are often not the product of the professional incompetence of lawyers. In many cases the court-appointed lawyer is on the staff of an inadequately funded legal aid agency that must impose wholly unrealistic case loads on its attorneys. Similar problems also often affect the privately retained lawyer who because of the economics of criminal law practice may be under pressure to accept more cases than he can adequately handle. The courts alone cannot be expected to solve problems of this sort, but it is doubtful that instances of inadequate defense will be significantly abated until the courts articulate and apply specific minimum standards of counsel performance.

The right of an indigent litigant to demand appointment of counsel from the state in noncriminal proceedings has received comparatively little judicial consideration or development. In the famous case of in re gault (1967) the Court recognized a right to counsel in a state juvenile court delinquency proceeding. Some courts have held that, where necessary to a fair hearing, a similar right is possessed by an indigent petitioner in an habeas corpus action. Since juvenile court and habeas corpus proceedings, although "civil" in form, are analogous or intimately related to the criminal process, the precedents in neither category represent a significant expansion of counsel rights into noncriminal areas.

In Lassiter v. Department of Social Services (1981) the question was whether counsel must be appointed to represent an indigent mother in a proceeding brought by the state to terminate her parental rights. In such a proceeding the defendant faces a sanction often considered more severe than a sentence of imprisonment, and, given the nature of the issues, the defendant's need for professional assistance is at least as great as that of the accused in many criminal cases. Although recognizing these considerations, the Court's majority limited the right to counsel to the situation in which all the circumstances in a particular case make legal representation necessary for a fair hearing, and it concluded that such considerations were not shown to be present in the Lassiter case. This latter-day revival of the Betts v. Brady precedent is regrettable in view of the needs for counsel in these proceedings and the comparatively small social costs involved in making counsel available routinely in all such cases. Like Betts, however, the Lassiter holding may represent a step toward a more satisfactory ultimate result.

In the development of the modern constitutional law of criminal procedure, questions of the rights of counsel have held a central position. This centrality is not surprising; counsel rights are integral to an adversarial system of justice, and the expansion and refurbishing of that system have been a dominant objective of constitutional procedural law from the decision of Powell v. Alabama in 1932 to the present. In the intervening years, issues of counsel rights have continued to emerge in a variety of contexts. It may be anticipated that this course of constitutional events will continue so long as the Supreme Court places significant reliance on the adversarial system as the principal mechanism to control and order the applications of state power in the criminal process.

Francis A. Allen
(1986)

(see also: Nix v. Williams.)

Bibliography

Allen, Francis A. 1975 The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases. Illinois Law Forum 1975:518–542.

Attorney General ' s Committee 1963 Poverty and the Administration of Federal Criminal Justice. Washington: Government Printing Office.

Beaney, William A. 1955 The Right to Counsel in American Courts. Ann Arbor: University of Michigan Press.

Holtzoff, A. 1944 Right to Counsel under the Sixth Amendment. New York University Law Review 20:1–22.

Kamisar, Yale 1962 Betts v. Brady Twenty Years Later. Michigan Law Review 61:219–282.

——1978 Brewer v. Williams, Massiah and Miranda: What Is Interrogation? When Does It Matter? Georgetown Law Journal 67:1–101.

Levine, F. and Tapp, J. 1973 The Psychology of Criminal Identification: The Gap from Wade to Korley. University of Pennsylvania Law Review 121:1079–1131.

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