Early Doctrine on Right to Have Counsel Appointed

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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 defence.

The Court began to develop its doctrine on the right to have counsel in Powell v. Alabama,1 a 1932 opinion in which the Court set aside the convictions of eight Black youths sentenced to death in a hastily carried-out trial without benefit of counsel.2 The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel.3 Noting circumstances including the “ignorance,” “illiteracy,” and youth of the defendants; their lack of access to friends and family; the consequences they faced; and the “public hostility” surrounding the trial, the Court concluded that the trial court’s failure to make an effective appointment of counsel was “a denial of due process within the meaning of the Fourteenth Amendment.” 4

The holding in Powell was narrow. The Court stated that in a case in which the defendant faces the death penalty; does not have a lawyer; and is unable to mount his own defense because of intellectual disability, illiteracy, or a similar condition, “it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.” 5 Despite this narrow scope, the Court in Powell made some more general statements about the importance of the right to counsel. Due process, the Court said, always requires observance of certain fundamental personal rights associated with a hearing, and “the right to the aid of counsel is of this fundamental character.” 6 In addition, noting the limited legal skill and training of even “the intelligent and educated layman,” the Court observed that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” 7 Without the “guiding hand of counsel at every step in the proceedings against him,” the Court noted, even an innocent defendant “faces the danger of conviction because he does not know how to establish his innocence.” 8

In 1938, the Court expanded its jurisprudence on the right to have counsel appointed in Johnson v. Zerbst.9 In Zerbst, the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer.10 According to the Zerbst Court, the right to assistance of counsel, “is necessary to insure fundamental human rights of life and liberty.” 11 Without distinguishing between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Court quoted Powell’s invocation of the necessity of legal counsel for even the intelligent and educated layman. The Court stated: “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” 12 Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel.13

In the 1942 case Betts v. Brady, the Supreme Court rebuffed an effort to obtain the same rule in the state courts in all criminal proceedings.14 The Court observed that the Sixth Amendment applied only to trials in federal courts.15 In state courts, the Due Process Clause of the Fourteenth Amendment “formulates a concept less rigid and more fluid” than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might “in certain circumstances” be a violation of due process.16 The relevant question according to the Court was whether the Sixth Amendment right to appointment of counsel in federal courts “expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.” 17 Examining the common-law rules, the English practice, and the state constitutions, laws and practices, the Court concluded that it was the “considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial.” 18 Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule.19

1: See Wheat v. United States, 486 U.S. 153, 159 (1988) (explaining that “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment,” the “ Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects” ).
2: 486 U.S. 153 (1988).
3: Id. at 159.
4: Id.
5: Id.
6: 491 U.S. 617, 619, 626 (1989).
7: 21 U.S.C. §§ 848, 853.
8: Caplin & Drysdale, 491 U.S. at 626.
9: The statute was interpreted in United States v. Monsanto, 491 U.S. 600, 602, 607 (1989), as requiring forfeiture of all assets derived from the covered offenses, and as making no exception for assets the defendant intends to use for his defense.
10: See Caplin & Drysdale, 491 U.S. at 628 ( “There is no constitutional principle that gives one person the right to give another’s property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right.” ).
11: Monsanto, 491 U.S. at 615 ( “Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent’s possession, based on a finding of probable cause, when we have held that . . . the Government may restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.” ). A subsequent case held that where a grand jury had returned an indictment based on probable cause, that conclusion was binding on a court during forfeiture proceedings and the defendants do not have a right to have such a conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to pay for their counsel.
12: 578 U.S. 5, 8–9, 12–13 (2016) (plurality opinion). The Court in Luis split as to the reasoning for holding that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. Four Justices employed a balancing test, weighing the government’s contingent future interest in the untainted assets against the interests in preserving the right to counsel—a right at the “heart of a fair, effective criminal justice system” —in concluding that the defendant had the right to use innocent property to pay a reasonable fee for assistance of counsel. See id. at 16–23 (Justice Stephen Breyer, joined by Chief Justice John Roberts, Justices Ruth Bader Ginsburg & Sonia Sotomayor). Justice Clarence Thomas, in providing the fifth and deciding vote, concurred in judgment only, contending that “textual understanding and history” alone suffice to “establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure a potential forfeiture.” See id. at 25 (Thomas, J., concurring); see also id. at 33 ( “I cannot go further and endorse the plurality’s atextual balancing analysis.” ).
13: United States v. Gonzalez-Lopez, 548 U.S. 140, 144–45 (2006).
14: Gonzalez-Lopez, 548 U.S. at 148–50 (citing Arizona v. Fulminante, 499 U.S. 279, 282 (1991)).
15: 422 U.S. 806, 807, 817 (1975). Although the Court acknowledged some concern by judges that Faretta leads to unfair trials for defendants, in Indiana v. Edwards the Court declined to overrule Faretta. 554 U.S. 164, 178 (2008). Even if the defendant exercises his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. See Faretta, 422 U.S. at 834 (explaining that “[i]t is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage,” and that “although he may conduct his own defense ultimately to his own detriment, his choice must be honored” ). A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel. Id. at 834–35 n.46. The Court, however, has not addressed what state aid, such as access to a law library, might need to be made available to a defendant representing himself. Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (per curiam). Related to the right of self-representation is the right to testify in one’s own defense. See Rock v. Arkansas, 483 U.S. 44, 52, 62 (1987) (holding that per se rule excluding all hypnotically refreshed testimony violates right).
16: See, e.g., Godinez v. Moran, 509 U.S. 389, 396 (1993) (explaining that a criminal defendant “may not waive his right to counsel or plead guilty unless he does so ‘competently and intelligently’” (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)).
17: The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Edwards, 554 U.S. at 177–78. Mental competence to stand trial, however, is sufficient to ensure the right to waive the right to counsel in order to plead guilty. Godinez v. Moran, 509 U.S. 389, 398–99 (1993).
18: Faretta, 422 U.S. at 834 n.46.
19: Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152, 154 (2000). The Sixth Amendment itself “does not include any right to appeal.” Id. at 160.