The Constitution of the United States of America: Analysis and Interpretation Part 206

[810] Lanzetta _v._ New Jersey, 306 U.S. 451, 455 (1939).

[811] Minnesota _v._ Probate Court, 309 U.S. 270 (1940).

[812] Hurtado _v._ California, 110 U.S. 516, 520, 538 (1884); Brown _v._ New Jersey, 175 U.S. 172, 175 (1890); Maxwell _v._ Dow, 176 U.S. 581, 602 (1900); Graham _v._ West Virginia, 224 U.S. 616, 627 (1912); Jordan _v._ Ma.s.sachusetts, 225 U.S. 167, 176 (1912).

[813] Lem Woon _v._ Oregon, 229 U.S. 586, 590 (1913).

[814] Gaines _v._ Washington, 277 U.S. 81, 86 (1928).

[815] Norris _v._ Alabama, 294 U.S. 587 (1935). _See also_ Hale _v._ Kentucky, 303 U.S. 613 (1938); Pierre _v._ Louisiana, 306 U.S. 354 (1939); Smith _v._ Texas, 311 U.S. 128 (1940); Shepherd _v._ Florida, 341 U.S. 50 (1951).

[816] Powell _v._ Alabama, 287 U.S. 45, 66, 71 (1932).

[817] Palko _v._ Connecticut, 302 U.S. 319, 324-325 (1937).

[818] 287 U.S. 45 (1932).

[819] Ibid. 71.

[820] 287 U.S. 45, 71 (1932).--The Court presently seems to be holding that in capital cases, notwithstanding the absence even of other circ.u.mstances prejudicial to the defendant, the right to counsel is unqualified. _See_ the later cases discussed herein, especially Tomkins _v._ Missouri, 323 U.S. 485 (1945); Williams _v._ Kaiser, 323 U.S. 471 (1945); Hawk _v._ Olson, 326 U.S. 271 (1945); and the Court's summary of its rulings in Uveges _v._ Pennsylvania, 335 U.S. 437 (1948), _supra_, p. 1108.

[821] 308 U.S. 444 (1940).

[822] Ibid. 446-447.

[823] 312 U.S. 329 (1941).--In a post mortem comment on this case appearing in the later decision of Betts _v._ Brady, 316 U.S. 455, 464 (1942), there is contained the intimation that the mere failure to appoint counsel, alone, in the absence of the proof of other facts tending to show that the whole trial was "a mere sham and a pretense,"

would not have sufficed to support a finding of a denial of due process.

[824] 316 U.S. 455, 462-463 (1942).

[825] Ibid. 462, 473.

[826] In Powell _v._ Alabama, 287 U.S. 45 (1932); Avery _v._ Alabama, 308 U.S. 444 (1940); and Smith _v._ O'Grady, 312 U.S. 329 (1941), a State law required the appointment of counsel.

[827] 316 U.S. 455, 461-462, 474-476 (1942).--Dissenting, Justice Black, with whom Justices Douglas and Murphy were in agreement, acknowledged regretfully that the view that the "Fourteenth Amendment made the Sixth applicable to the States * * * has never been accepted by a majority of this Court," and submitted a list of citations showing that by judicial decision, as well as by const.i.tutional and statutory provision, a majority of States require that indigent defendants, in noncapital as well as capital cases, be provided with counsel on request. This evidence, he contended, supports the conclusion that "denial to the poor of a request for counsel in proceedings based on serious charges of crime," has "long been regarded throughout this country as shocking to the 'universal sense of justice.'"

[828] 323 U.S. 471 (1945).

[829] 323 U.S. 485 (1945).

[830] 287 U.S. 45, 69, 71 (1932).

[831] 323 U.S. 471, 476 (1945).

[832] 324 U.S. 42 (1945). _See also_ White _v._ Ragen, 324 U.S. 760 (1945).

[833] 326 U.S. 271 (1945).

[834] 324 U.S. 42, 46 (1945).

[835] 324 U.S. 786 (1945).

[836] 327 U.S. 82 (1946). Justices Murphy and Rutledge dissented, the former contending that "the right to counsel means nothing unless it means the right to counsel at each and every step in a criminal proceeding."--Ibid. 89.

[837] 329 U.S. 173 (1946).

[838] Rice _v._ Olson, 324 U.S. 786 (1945), was distinguished on the ground that the record in the older case contained specific allegations bearing on the disabilities of the accused to stand prosecution without the aid of counsel and the complete absence of any uncontested finding, as in the instant case, of an intelligent waiver of counsel.

Dissenting for himself and Justices Black and Rutledge, Justice Douglas declared that, under the authority of Williams _v._ Kaiser, 323 U.S.

471, 476 (1945), "if * * * [the] defendant is not capable of making his own defense, it is the duty of the Court, at least in capital cases, to appoint counsel, whether requested so to do or not."--329 U.S. 173, 181 (1946). In a separate dissent, Justice Murphy observed that while "legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us," facts which emphasize the absence of any intelligent waiver of counsel, "the result certainly does not enhance the high traditions of the judicial process."--Ibid. 183.

[839] 329 U.S. 663, 665 (1947).

[840] 332 U.S. 134 (1947).

[841] 332 U.S. 145 (1947).

[842] 332 U.S. 134, 136 (1947).--Acknowledging that the decision is in line with the precedent of Betts _v._ Brady, Justice Black, who was joined by Justices Douglas, Murphy, and Rutledge, lamented that the latter was a "kind of precedent [which he] had hoped that the Court would not perpetuate." Complaining of the loss of certainty occasioned by the Court's refusal to read into the Fourteenth Amendment the absolute right to counsel set out in the Sixth Amendment, Justice Black contends that the fair trial doctrine as enunciated in this and in the Adamson _v._ California case (_see_ p. 1115) decided on the same day is "another example of the consequences which can be produced by the subst.i.tution of this Court's day-to-day opinion of what kind of trial is fair and decent for the kind of trial which the Bill of Rights guarantees."--Ibid. 139, 140.--In a second dissenting opinion meriting the concurrence of Justices Black, Douglas, and Murphy, Justice Rutledge, who also is of the opinion that the absolute right to counsel granted by the Sixth Amendment should be enjoyed in State criminal trials, insisted that even under the fair trial doctrine, the accused had not been accorded due process.

[843] 332 U.S. 145 (1947).

[844] 332 U.S. 561 (1947).

[845] 332 U.S. 596 (1948).

[846] _See_ p. 1103.

[847] 333 U.S. 640, 678, 680-682 (1948).--As against the a.s.sertion of the majority that the due process clause of the Fourteenth Amendment does not of its own force require appointment of counsel for one simply because he would have a const.i.tutional right to the a.s.sistance of counsel in a comparable federal case, the minority, consisting of Justices Black, Murphy, and Rutledge speaking through Justice Douglas, declared that "the Bill of Rights is applicable to all courts at all times"; for, otherwise, "of what value is the const.i.tutional guarantee of a fair trial if an accused does not have counsel to advise and defend him." Noting that all members of the Court were in accord on the requirement of counsel in capital offenses, the minority contended that the considerations inducing such unanimity were "equally germane [in noncapital cases] where liberty rather than life hangs in the balance."

Conceding that "it might not be nonsense to draw the Betts _v._ Brady line somewhere between that case and the case of one charged with violation of a parking ordinance, and to say the accused is ent.i.tled to counsel in the former but not in the latter," the minority concluded as follows: "* * * to draw the line between this case and cases where the maximum penalty is death is to make a distinction which makes no sense in terms of the absence or presence of need for counsel. Yet it is the _need_ for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. And the need for counsel, even by Betts _v._ Brady standards, is not determined by the complexities of the individual case or the ability of the particular person who stands as an accused before the Court. That need is measured by the _nature_ of the _charge_ and the _ability_ of the _average_ man to face it alone, unaided by an expert in the law."

[848] 334 U.S. 672, 683 (1948).

[849] 334 U.S. 728, 730, 731 (1948).

[850] 334 U.S. 736 (1948).

[851] Ibid. 740.--The majority also observed that "trial court's facetiousness casts a somewhat somber reflection on the fairness of the proceeding * * *"

Although Chief Justice Vinson and Justices Reed and Burton dissented without an opinion in Townsend _v._ Burke, four Justices, Black, Douglas, and Murphy speaking through Justice Rutledge filed a vigorous dissent in Gryger _v._ Burke, 334 U.S. 728, 733, 736 (1948). Justice Rutledge declared his inability to "square * * * [this] decision in this case with that made in Townsend _v._ Burke. I find it difficult to comprehend that the [trial] court's misreading or misinformation concerning the facts of [the] record [Townsend _v._ Burke] vital to the proper exercise of the sentencing function is prejudicial * * *, but its misreading or misconception of the controlling statute, [Gryger _v._ Burke] in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. Perhaps the difference serves only to ill.u.s.trate how capricious are the results when the right to counsel is made to depend not upon the mandate of the Const.i.tution, but upon the vagaries of whether judges, * * * will regard this incident or that in the course of particular criminal proceedings as prejudicial."

[852] 335 U.S. 437, 438-442 (1948).

[853] 337 U.S. 773, 780 (1949).

[854] 342 U.S. 184 (1951); _See also_ Per Curiam opinion granting certiorari in Foulke _v._ Burke, 342 U.S. 881 (1951).

[855] 339 U.S. 660, 665 (1950).

[856] 342 U.S. 55 (1951).