« Eleventh Circuit now to review en banc FSA pipeline sentencing issue | Main | Next murderer scheduled for execution in Georgia gets stay for DNA testing »

October 4, 2011

New ACS issue brief on "right to counsel" cases this SCOTUS term

Via e-mail, I got this alert from the fols at ACS about this new Issue Brief

The ‘Right-to-Counsel Term’: The Supreme Court has agreed to hear several cases this term that have the potential to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21st century criminal justice system,” write The Constitution Project's Mary Schmid Mergler and Christopher Durocher in their ACS Issue Brief.  In a comprehensive preview of the cases, the authors explain how plea negotiations, post-conviction proceedings, and other aspects of the modern criminal justice process have fallen through the right-to-counsel cracks.

October 4, 2011 at 04:51 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2014e8c05a2ef970d

Listed below are links to weblogs that reference New ACS issue brief on "right to counsel" cases this SCOTUS term:

Comments

Anoter last-minute claim. Weak.

Posted by: federalist | Oct 4, 2011 7:04:56 PM

What language in the Constitution provides the right to counsel other than at trial? If the legislature, by statute, wants to provide these things, that's its decision (a costly one to be sure, but still its decision). But any holding that they're in the Constitution will just be made up. The Framers knew full well about habeas and appeals, and said not one word about providing counsel for such things.

Posted by: Bill Otis | Oct 4, 2011 9:33:39 PM

Well, the Sixth Amendment does begin "in all criminal prosecutions," not "in all criminal trials." It's at least arguable that an appeal is one phase of a prosecution, which it mostly wasn't in the Founders' day (there were no regularized systems of criminal appeal until the 19th century).

Federal habeas isn't a "criminal prosecution" -- the wisdom of the powers that be classify it as civil -- but many state post-conviction proceedings are explicitly criminal in nature. I suppose the rationale for not including post-conviction proceedings in the Sixth Amendment is that the "prosecution" ends when the direct appeals are over and the conviction becomes final. On the other hand, I've never been able to understand why second-level discretionary appeals aren't included.

Posted by: Jonathan Edelstein | Oct 5, 2011 9:40:01 AM

Well, John, maybe we should start with Gideon, which, textually anyway, is a stretch, and then Strickland. Look how far we've gotten. At some point, this is completely divorced from the Constitution and it's just policy-driven, which means that courts can draw lines.

Posted by: federalist | Oct 5, 2011 10:05:38 AM

Jonathan Edelstein --

"Well, the Sixth Amendment does begin 'in all criminal prosecutions,' not 'in all criminal trials.'"

Yup, that's how it begins. However, the next dozen words are (emphasis added), "...the accused shall enjoy the right to a speedy and public TRIAL..." It goes on to specify some rights that obtain at such a trial, the last of which is, "...to have the assistance of counsel for his defence." Thus, in the context of the Amendment's entire text, it's perfectly clear that the right to counsel is a trial right.

"It's at least arguable that an appeal is one phase of a prosecution, which it mostly wasn't in the Founders' day (there were no regularized systems of criminal appeal until the 19th century)."

A "prosecution" is an action originated by the state in order to secure criminal penalties against the accused. Thus an appeal BY THE DEFENDANT could not possibly be viewed as part of the "prosecution." It is, to the exact contrary, an attempt to nullify the prosecution.

And the fact that (as you correctly say) appeals were not regularized until well after the Constitution was written undermines, rather than buttresses, the notion that the Framers thought they were providing the right to counsel for appeals. It would be odd to think that they were providing the right to counsel for something that for the most part did not exist.

"On the other hand, I've never been able to understand why second-level discretionary appeals aren't included."

But in fact they are not. Indeed, the Constitution contains no right to (or even mention of) FIRST level appeals. Thus, as I said in my first comment, in order for such a "right" to be "found" in the Sixth Amendment would require the Court to simply make it up.

All manner of additional protections for the defendant might be imaginable or even desirable. That is why I say they are matters for legislative consideration. But if the question is whether they're in the Constitution, the answer is easy. No.

Posted by: Bill Otis | Oct 5, 2011 10:13:34 AM

Bill,

Yup, that's how it begins. However, the next dozen words are (emphasis added), "...the accused shall enjoy the right to a speedy and public TRIAL..."

Yes, that's one of the stages of a criminal prosecution. There's nothing that says there can't be others.

A "prosecution" is an action originated by the state in order to secure criminal penalties against the accused. Thus an appeal BY THE DEFENDANT could not possibly be viewed as part of the "prosecution." It is, to the exact contrary, an attempt to nullify the prosecution.

Would you apply the same reasoning to a pretrial motion to dismiss, a suppression hearing, or a motion for judgment of acquittal after the prosecution's case? These are also initiated by the defendant rather than the prosecutor, and are an attempt to nullify the proceeding. Are you arguing that a defendant has the right to counsel for arraignment but not for pretrial motions?

Not to mention that, where an appellate process exists, it is available to the prosecution as well as the defense. In my jurisdiction (NY), prosecutors routinely appeal from orders dismissing indictments, orders granting new trials, unlawful sentences, and sentences they view as too lenient. I don't think I need to tell you that the same happens in the Federal system. So appellate review can be, and is, an integral part of the government's effort to "secure criminal penalties," as it provides a corrective for errors that favor the defense (with the sole exception of acquittal).

And yes, I saw your emphasis on the phrase "by the defendant." But if an appellate process is made available to both sides, then the right of defendants to use it doesn't remove it from the category of "criminal prosecution" any more than the right to make motions or object at trial.

And the fact that (as you correctly say) appeals were not regularized until well after the Constitution was written undermines, rather than buttresses, the notion that the Framers thought they were providing the right to counsel for appeals.

They thought they were providing the right to counsel for criminal prosecutions, whatever shape or form such prosecutions might take either then or in the future.

As you correctly state, the Constitution doesn't require appeals at all. If a state, or the Federal government, decided to abolish criminal appeals altogether, it would be within its rights to do so. But if the states and the Union see fit to broaden the concept of "criminal prosecution" to include appellate review, then the right to counsel applies. I think I'm on pretty firm ground with that, given that the Supreme Court has agreed with me several times. (I still don't agree with their reasons for excluding second-stage appeals, but that's another issue).

Posted by: Jonathan Edelstein | Oct 5, 2011 1:44:25 PM

well bill works for me. we will can all appeals except direct to the U.S. Supreme Court! which has existed since the beginning. We will also CAN ALL RETRIALS! just like the good ole days! Both sides get ONE SHOT! winner take all! No more miss trials. No more no verdit.. damn jury either renders a verdit or defendant walks!

ok!?

Posted by: rodsmith | Oct 5, 2011 6:43:12 PM

Jonathan --

"Yes, that's one of the stages of a criminal prosecution. There's nothing that says there can't be others."

You're getting the wrong answer because you're asking the wrong question. The question is not whether there's something that says there "can't be others." The question is whether the language of the Sixth Amendment REQUIRES counsel other than at trial.

"Would you apply the same reasoning to a pretrial motion to dismiss, a suppression hearing, or a motion for judgment of acquittal after the prosecution's case? These are also initiated by the defendant rather than the prosecutor, and are an attempt to nullify the proceeding. Are you arguing that a defendant has the right to counsel for arraignment but not for pretrial motions?"

Nope. All the things you mention precede and/or are bound up in the trial. The law looks very differently on the defendant's rights before and after a guilty verdict. The most important and obvious of the differences is that the presumption of innocence attaches to the former stage but decidedly not to the latter.

"Not to mention that, where an appellate process exists, it is available to the prosecution as well as the defense. In my jurisdiction (NY), prosecutors routinely appeal from orders dismissing indictments, orders granting new trials, unlawful sentences, and sentences they view as too lenient. I don't think I need to tell you that the same happens in the Federal system. So appellate review can be, and is, an integral part of the government's effort to "secure criminal penalties," as it provides a corrective for errors that favor the defense (with the sole exception of acquittal)."

Where the state is continuing to try to punish the defendant, the defendant remains in jeopardy (as an ordinary person would understand that word) and thus, in my opinion, he remains entitled to a lawyer. It's the functional (although not the nominal) extension of a trial.

Where, however, the state has already secured punishment and initiates on further action, the prosecution is over.

"But if an appellate process is made available to both sides, then the right of defendants to use it doesn't remove it from the category of "criminal prosecution" any more than the right to make motions or object at trial."

That is incorrect for the reason stated in the preceding paragraph. By whatever name the additional legal manuervering may be called, the PROSECUTION has ended when the state stops seeking to impose punishment through a criminal process.

"I think I'm on pretty firm ground with that, given that the Supreme Court has agreed with me several times. (I still don't agree with their reasons for excluding second-stage appeals, but that's another issue)."

That the Court says X does not make X correct as matter of Constitutional law, as (for example) the Court's numerous overrulings of its own prior Constitutional holdings attest. And, as you correctly imply, the logic of the Court's incorrect (IMO) rulings favoring defendants in this area certainly seems to compel the conclusion that counsel must be provided for second-stage appeals (or third or fourth stage -- where would you say the Constitution draws the line?) But the Court has never gone that far, nor is it likely to, since it's none too eager to have the public notice what you have noticed, to wit, that once you start taking liberties with the text, there's no obvious or principled place -- much less a textually-ordained place -- to stop.


Posted by: Bill Otis | Oct 6, 2011 1:07:05 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB