Monday, July 11, 2016

Your right to counsel is not absolute

Most Americans are aware of their right to an appointed attorney if they are accused of a crime and can't afford to retain their own attorney [as a general rule, there is no right to counsel in non-criminal cases, altho there are certain exceptions].

Sixth Amendment to the US Constitution -- 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.

In the case Gideon v Wainwright (1963), 372 US 335, a case in which the Defendant Clarence Gideon researched his argument in the prison law library and hand-wrote his petition to the US Supreme Court
the US Supreme Court ruled that all criminal defendants are entitled to counsel, and if they could not afford counsel, an attorney would be appointed to represent them at no charge.  Prior to this case, only criminal defendants facing capital punishment [death penalty] were entitled to court-appointed counsel.

Gideon's case was retried, with an appointed attorney.  He was found not guilty.

Subsequent court decisions have pared down this right to some extent.  For example, if a person is advised of their right to counsel and declines, the court cannot usually force an attorney on that person.  Additionally, traffic court is technically a branch of criminal court [violations of certain traffic laws are misdemeanors], but persons facing traffic infractions are not entitled to counsel. 

And, if a person is appointed counsel and subsequently punches that counsel in the face in front of the jury, the attorney can withdraw his representation and the Defendant is not entitled to the appointment of another counsel.

As stated in the above-linked article --

Primary question presented: "Did the district court abuse its discretion by determining  . . . that appellant had forfeited his right to counsel by attacking his attorney in front of the jury?"  The court cited numerous decisions outside Minnesota for the proposition that "the right to counsel can be summarily forfeited for extremely serious misconduct similar to that which occurred here," namely beating counsel up, which seems to be done every now and then in a deliberate attempt to force a mistrial.

Some US counties are experiencing a crisis in funding, such that the Public Defender offices do not have sufficient budget to employ enough attorneys to provide adequate representation for all the cases being appointed by the courts.  Imagine an attorney having hundreds of cases, and yours is one of them.  Chances are, you're not going to receive the time and attention your case deserves.  To avoid that problem, called "ineffective assistance of counsel", some offices are declining to accept any more cases.
As you might imagine, the courts aren't too pleased with that decision.  New indigent defendants are entitled to an attorney, but the Public Defender is declining to accept new cases.
"Poor people arrested for misdemeanors plead guilty and go free rather than wait to see a public defender, even though a conviction on their record might hurt their chances for employment, loans or housing. At worst, the innocent go to jail, and the guilty go free."


  1. Very interesting article. Plead guilty and go free. It's terrible people are ruining their records for a quick fix.

    1. Yes. When the choice is more days in jail until you can talk with an attorney, I don't blame people for choosing to get out of jail immediately.