Right to an Attorney in Utah
Utah Criminal Defense
While the Sixth Amendment has never changed, our interpretation of the right to counsel has changed significantly. To properly understand where our right to an attorney derives from, you first have to understand the legal system and the legal tradition the United States originated from. In England, the practice of prohibiting felony defendants from being represented by counsel was common place. The English prohibition extended to any legal representation, but especially if you could not afford an attorney. The one exception to this rule was to allow a defendant to receive representation for points of law that had not yet been decided by the courts. Our Founding Fathers disagreed with the English tradition of prohibiting defendants from receiving representation and shortly after the Revolution congress extended the right of representation to those accused of a crime. However, it was unclear whether a defendant who is too poor to retain private counsel has the right to a lawyer paid at public expense. We have a way to go to help the poor receive proper legal counsel, but we have come a long way from a government body not letting us have any legal representation at all.
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The Bill of Rights was ratified in 1791 which made the first ten amendments to the Constitution law. Since the ratification, the Federal Courts have been entrusted over the years with the task of determining how to interpret the rights and protections found within the Bill of Rights. People representing themselves in court was a common occurrence at the time of our nation’s founding, but attorney representation became increasingly more frequent during the nineteenth century. The legal system has always tried to not allow poverty be the reason someone was denied legal assistance; and cases were litigated to determine whether lawyers who volunteered to defend the poor would have a case for fees against public authorities. The Sixth Amendment to the United States Constitution guarantees that the accused shall enjoy the right in criminal prosecutions to have the assistance of counsel for their defense but what that guarantee has meant over the years has evolved.
In some locations in our country, lawyers were compensated at public expense but there was not a national consensus. In fact, in Indiana the Indiana Supreme Court in 1853 recognized a right to an attorney at public expense for an indigent person accused of a crime. The Indiana Supreme court founded the right to an attorney on the principles of a civilized society and not in constitutional or statutory law. The Founding Fathers valued the right to counsel but their focus was narrowed on removing obstacles for privately retained attorneys by defendants who could afford lawyers. This focus left those who could not afford an attorney to their own devices and it was not until the Supreme Court held that the Sixth-Amendment required court-appointed counsel in 1938 that defendants too poor to pay for private counsel would receive representation. Fortunately, programs to help the poor accused of crimes were implemented in cities across the country, but those programs were largely through pro bono efforts. The 1938 case of Johnson v. Zerbst established the right to appointed counsel in federal cases and not state cases. Unfortunately, up until 1963 approximately three percent of the nation’s counties had public defender programs and because the Zerbst case only established the right to attorney in federal cases, some states refused to provide appointed counsel for indigent individuals accused of state crimes. Some cases contemplating the right to counsel in state cases had reached the Supreme Court but the Supreme Court reviewed the cases under the Due Process Clause of the Fourteenth Amendment and not the Sixth Amendment. The first case the Supreme Court reviewed was the Powell v. State of Alabama case. In the Powell case, the Supreme Court decided that the due process clause required that the right to counsel in the state cases only applied to capital cases, and in felony cases where special needs for legal advice were presented. While the Powell and Zerbst cases were two steps in the right direction the court took one step back with its decision in the Betts v. Brady case. In the Betts case, the Supreme Court determined that states only had to appoint counsel in noncapital cases under what they referred to as special circumstances. Basically Betts stood for the proposition that a right to an attorney in a state case was mandated when the defendant was mentally handicapped or otherwise incapacitated.
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Up until 1963 with the Supreme Court’s review of Gideon v. Wainwright, the right to appointed counsel was not available for most state cases. Gideon may have been convicted as a petty thief but he will live forever as the plaintiff who helped form the current U.S. law concerning the Sixth Amendment’s right to counsel. Linda Monk wrote, “The right to counsel is the most important in the Sixth Amendment, because without it the defendant is unable to assert any other rights he has. It is almost impossible for a layperson to navigate the complicated legal system alone.” In Gideon, the court established the guarantee of the right to counsel by holding that the Fourteenth Amendment incorporates the right-to-counsel guarantee of the Sixth Amendment to the states. After the Gideon case, the right to counsel was established for most state and federal cases. Unfortunately, the Gideon case did not resolve at what point in the case the right to counsel was triggered, if people accused of minor offenses were entitled to counsel, or what level of competency the defense counsel needed to try the case to placate constitutional standards.
Because of the unanswered questions by the Gideon Court the Supreme Court had to hear additional cases to firmly explain what the right to counsel actually means. The Supreme Court clarified when the right to counsel is triggered in the Kirby v. Illinois case. In Kirby, the court stated that a suspect acquires a right to counsel when a prosecution is commenced against him. The commencement of a prosecution is defined as when the prosecutor files a complaint against the defendant, or if the defendant is indicted by a grand jury. If neither event has occurred, the suspect has no Sixth Amendment rights. It is important to note that this timing test is within complete control of the authorities and you better believe that they are aware of the right established in Kirby and the rights triggered by the commencement of a prosecution. The rights derived from the Fifth Amendment explained in the Supreme Court’s Miranda decision are the rights to counsel enjoyed by the defendant after arrest but before the “commencement of a prosecution.” Attachment of the Sixth Amendment right to counsel demands that counsel be present for all ensuing critical stages of the case. Critical stages include the preliminary hearing, pretrial motions, interrogation, plea negotiations, and the trial but ends with a final judgment of the trial court. The Supreme Court to this day has not established a right to counsel for petty offenses. The Supreme Court has not interpreted the “all criminal prosecution” language found in the Sixth Amendment to literally mean all criminal prosecutions and I would be lying if this interpretation of the Sixth Amendment language hadn’t caused some head scratching. Although petty offenses may not be viewed as being of consequence by the Court; they can definitely be a source of severe consequences for a Defendant’s future. Fortunately, the Supreme Court has held that an offense that results in incarceration no matter how brief is automatically lifted out of the petty offense category and deserves the right to counsel to attach. What constitutes ineffective assistance of counsel was established by the Supreme Court in the case of Strickland v. Washington but it wasn’t decided until 1984. The court found to set aside a plea, verdict, or sentence for reasons of ineffective assistance of counsel the defendant has to show that their attorney’s representation fell outside the range of professional competence and that counsel’s representation prejudiced the defendant so as to call the trustworthiness of the proceedings into question. Both factors need to be satisfied independently and one factor does not automatically equal the satisfaction of the other. Whether to accept a plea bargain or whether to call the defendant as a witness are considered tactical choices and the court has classified them as un-reviewable tactical choices.
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It may have taken 150 years to establish the right to an attorney in criminal cases and we have a way to go to help the poor receive better legal representation but the Justices on the Gideon court said it best when they stated that “lawyers in criminal courts are necessities, not luxuries” and that “representation was essential to maintain the integrity of the legal system, and that without counsel, the accused could face assembly line justice.”