Right to Counsel: Where did it come from?

The right to counsel is as old as the Constitution itself:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

~ Bill of Rights, Sixth Amendment

However, it has not always been afforded to a criminal defendant.  In 1942 the Supreme Court heard the case of an indignant man named Betts.  He had been arrested in Carrol County Maryland and charged with armed robbery.  Betts requested the assistance of legal counsel.  However, the trial judge denied his request for a state provided lawyer.  The presiding judge told Betts that in it is customary to only provide the assistance of counsel to the defendant only in cases of rape and murder.  Betts refused to waive his right to counsel and pled not-guilty.  Forced to act as his own lawyer, at trial Betts found guilty and sentenced to eight years.

Betts appealed his conviction first to the state appeal courts then to the Unites States Supreme Court, BETTS v. BRADY, 316 U.S. 455 (1942)  based on the assertion that he was denied his right to counsel in the trial court.  He asserted  the Fourteenth Amendment guaranteed his right to Due Process both in state and federal courts.  At every level his appeal was denied.  The Supreme Court eventually ruled that the Constitutionally guaranteed right to counsel only applied to federal courts, not state courts.

However, 1963 that the Supreme Court reversed itself.  In a unanimous decision, the Court overturned BETTS.

During the Panama City, Florida trial the defendant, Clarence Earl Gideon, who was charged with breaking into a pool hall, smashing a soda machine and a juke box, and stealing money from a cash register, requested an attorney.  The trial judge denied his request.

“The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

"The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel."

In GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963), the Supreme Court ruled that the BETTS Court erred when it relied on customary practice to rule that Betts was not entitled to counsel at trial.

“The fact is that in deciding as it did - that [appointment of counsel is not a fundamental right, essential to a fair trial] - the Court in Betts v. Brady made an abrupt break with its own well-considered precedents….”

As a result of the GIDEON ruling, though Gideon himself was not freed, he was granted a new trial, upwards of two thousand defendants convicted at trial without the aid of an attorney were set free.  Upon retrial, Gideon was acquitted of the original charges and set free.  In 1972, Gideon died of cancer.

The GIDEON ruling did more though than guarantee the right to counsel.  Following the decision, Florida required all state trial courts to have a public defender assigned to the court.  Several states followed suit.  It can be said then that the GIDEON ruling also created the public defender system in the states courts systems.

Due Process: What is it?

Due Process sets forth the requirement that the law of the land serves to confine the government by preventing the violation of the rights of an individual by the state.  In a criminal court case, Due Process guarantees the defendant that their Constitutional Rights are not trampled upon.

Due process dates back to Medieval England.  For generations, English kings had allowed barons to hold lands belonging to the monarchy under a pledge of loyalty, obedience, to pay taxes and the promise to supply knights in times of war and upheaval.    Due to King John’s persistent bad luck with military campaigns, time and again he taxed the barons leading them to revolt against him.  In 1215 John and the feudal barons entered into an agreement known as the Magna Carta.  From this document due process was first established.

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

~Section (39), Magna Carta of 1215

The first mention of Due Process for citizens of the United Sates was set forth in the original Bill of Rights by the Fifth Amendment, but only in the context of federal actions.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

~ Fifth Amendment

In practice only whites were afforded Due Process.  It had never been applied to slaves.  In fact in affirming Dred Scott v. Sandford, 60 U.S. 393 (1857) the Supreme Court made excluding slaves the law of the land.  It was not until July 9, 1968 as a part of a reconstruction package of Amendments was Due Process extended to cover actions by the several states and as a right granted to all citizens of the United States, regardless of heritage.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

~Section 1 of the Fourteenth 14th Amendment

Though the Fourteenth Amendment extended the right of Due Process to all citizens regardless of race, in both Federal and the States,  The Court did not formally recognize this right until 1949 when it decided Wolf v. Colorado, 338 U.S. 25.

In the next article we look explore the right to counsel and it’s history.



Evidence Obtained by other than Law Enforcement

In this article we explore the use of evidence presented to a court that has been obtained by someone other than a law enforcement officer.  We also look at the disposition of such evidence without regard to the method, legal or not, in which the evidence was collected.

So far as is necessary for our consideration certain facts from the record may be stated. which company is a holding company, having control of various oil and gas companies

McDowell was a director of both Quapaw Gas Company and that company’s holding company Cities Service Company.  Henry L. Doherty & Company of New York were operating managers of Cities Service Company.  Quapaw Gas Company leased the office space occupied by McDowell from Farmers Bank of Pittsburgh.  According to court records, McDowell was employed by Doherty & Company as the head of the natural gas division of the Cities Service Company, but terminated for alleged unlawful and fraudulent conduct in the course of the business.

In March of 1920, an officer of Doherty & Company and the Cities Service Company went to Pittsburgh to take possession of the company's office.  In doing so, in the presence of detectives, two safes were blown open.  One belonged to the bank, the other to Henry L. Doherty & Company.  In the larger or the safes, papers belonging to McDowell were found. The desk was also forced open, and all the papers found was confiscated and shipped to Doherty & Company’s office in New York.

McDowell petitioned the United States District Court for the Western District of Pennsylvania for return of his property, which was in possession of Burdeau, a special assistant to the Attorney General of the United States.  In his petition, McDowell claimed that Burdeau and his associates planned to present to a grand jury certain private property belonging to him that had been obtained by Burdeau were unlawfully seized and stolen.  McDowell further argued that the presentation to the grand jury of his private property would deprive him of his constitutional rights secured to him by the Fourth and Fifth Amendments to the Constitution of the United States.

In Burdeau v. McDowell, 256 U.S. 465 (1921), the United States Supreme Court ruled that the Exclusionary Rule did not apply to evidence not collected by agents of the government.  In essence, this ruling created a crack in the wall of the Exclusionary Rule.  I allowed the prosecution to present evidence to a trial court no matter that the evidence was obtained through an illegal search and seizure. 

The District Court Judge ruled that neither the government, Burdeau nor any of his associates had been a party to any unlawful act to gain the property claimed by McDowell.  The District Court Judge did rule however, that the property had been unlawfully taken from McDowell and as such to use them against him would be a gross violation of the Fourth and Fifth Amendments.

On appeal, The Supreme Court reversed the District Court Judge.  The Court found that the seizure of evidence is restricted by the fourth and fifth Amendments only when an agent of the government undertakes such a seizure.  Evidence seized by a private citizen, whether legally or illegally seized is still admissible in court so long a the seizure was not orchestrated by an agent of the government.

For more article on the admissibility of evidence, return to the home page.

Exclusionary Rule: The Beginning

In the first article in the series, I introduced the topic of Admissibility, or more importantly the ability to have evidence ruled inadmissible which is very important to a defendant in a criminal court case.  Likewise it is very important to the state that all evidence collected to be used in a criminal trial be untainted.  As stated in a previous article, lack of evidence usually means the district attorney will be unwilling to pursue criminal charges against a defendant.  Therefore, whenever possible, counsel for the defendant will attempt to have evidence against their client ruled inadmissible.  To do so, the defense lawyer will rely on two landmark United States Supreme Court rulings as a starting point.

The first one Weeks v. United States, 232 U.S. 383 (1914).  In Weeks the United States Supreme Court by unanimous decision ruled that the warrantless seizure of items from a private residence violates an individual’s Fourth Amendment right against unreasonable searches and seizures by federal officers and evidence against said defendant cannot be used against him/her in federal prosecutions.  The second case is Mapp v. Ohio, 367 U.S. 643 (1961).  In Mapp, the Court extended the protections granted in the Weeks ruling to defendants in state and lower courts.

In essence these two cases require the presiding judge to exam how the evidence was acquired.  To do so, the question of whether or not a warrant was issued for the collection of the evidence must.  If one was issued, was the search for and subsequent collection of evidence within the boundaries of the warrant?  If not, then an attorney should be successful having the court rule the evidence as inadmissible.

Upon challenge from defense counsel, the judge must rule whether or not the evidence to be presented was lawfully obtained.  Absent certain exceptions to the exclusionary rule, evidence collected by a law enforcement officer without a valid warrant cannot be presented against a defendant in a criminal trial.

In addition, the defense lawyer will seek to have the evidence thrown out if a police officer or prosecutor obtained the evidence as a result of a confession gained in violation of the a defendants right against self incrimination as outlined in the fifth amendment.  Also, any evidence obtained from a confession made absent a defense lawyer if a defendant has requested advice of counsel, but denied access to one during questioning.

Another tactic used by defense counsel is to show that the evidence to be used by the prosecutor was collected in violation of the fourth, fifth or sixth amendments.  If the evidence collected in that case tainted, then it is always tainted and cannot be used to prosecute a different.

The other method defense attorneys employ to have evidence excluded from trial is to show that the manor in which the evidence was demonstrates a violation of the due process clause.

Next time we will start looking at exceptions to the Exclusionary Rule.

Evidence: 101

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

~ 4th Amendment to the United States Constitution

The criminal case process is a long one with many steps.  It begins with the actual complaint, which results in the filing of criminal charges against someone.  In order to make a criminal case, probable cause must be established.  Once established, charges can be brought against an individual or group of individuals leading to their arrest and detention while they await trail based on the merits of the case.

Assuming probable cause is established then a sworn law enforcement officer can lawfully detain, arrest and subsequently book a person into a local jail.  Absent probable cause, a person can be booked into a jail on a warrant or some other court order such as a remand.  Once booked usually the next step is a bail hearing.

A bail hearing is just that a bail hearing, nothing more, nothing less.  This is not the time to proclaim guilt, innocence or mental illness.  This is the opportunity for a judge to determine if a bail is to be granted based solely on the arrest document and charges as outlined in the criminal complaint against a person and if so, how much.

Following the bail hearing, the person being charged must arraigned.  This is usually when the district attorney get involved in a case for the first time.  Arraignment may or may not happen at the same time as the bail hearing.  The purpose of the arraignment is to formally charge an individual with a criminal violation.  This will generally be the first time a defendant hears from the state’s attorney in a specific case.  Based on the evidence presented to the prosecutor, at an arraignment hearing he/she will notify the court of the actual violations the state wishes to pursue against a defendant.  Accordingly, the charges may be upgraded from the original arrest document, kept the same, reduced or even dismissed.

Once arraigned, the next time a defendant appears in court for that specific case will be a preliminary or evidentiary hearing.  This is when the prosecuting attorney notifies the trial judge and the defendant of the nature of evidence collected, how it was collected and what the actual evidence is.  It is this hearing that in serious cases is the most important to a defendant because any evidence used to make a case against an individual who is a criminal defendant in any court room, be it federal, state or municipal, must be collected pursuant to the 4th amendment to the United States Constitution and subsequent court decisions regarding it.  Any evidence collected outside this can and will be excluded.  If the state’s case is contingent on evidence that is tainted by that process, then the state’s case is weakened to the point of being non-existent.

Based on the Exclusionary Rule, the United States Supreme Court has held that evidence can be excluded under four circumstances:

(1)             Evidence obtained through a search or seizure in violation of the fourth amendment must be excluded;

(2)             Confessions that were obtained in violation of the fifth and sixth amendments;

(3)             Testimony which identifies a defendant in violation of the fourth, fifth and sixth amendment; and

(4)             Any evidence that was obtained in a way that violates the due process clause.

In the next article we will learn more about exceptions to the Exclusionary Rule.