The Right to Counsel

The Sixth Amendment

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 Sixth Amendment to the United States Constitution provides several rights to an accused. One of the most significant, which I discuss here, is the right to the assistance of counsel.

The United States Supreme Court held that the Sixth Amendment guarantees a person accused of a crime the right to be represented by counsel. If they cannot afford an attorney, one must be appointed to represent them in court. That right was established in the landmark case of Gideon v. Wainwright (1963) 372 U.S. 335.

Clarence Earl Gideon had been charged with a felony for allegedly burglarizing a pool hall in Panama City, Florida in 1961. He could not afford private counsel so he requested a court-appointed attorney for his trial. The request was denied. At the trial, prosecution witnesses testified that they saw Gideon outside the pool hall near the time of the incident, but no one testified that they saw Gideon commit the crime. Gideon tried to cross-examine the witnesses himself, but he was not able to point out the contradictions in their testimony or effectively impeach their credibility. Gideon was convicted and sentenced to five years in prison.

The case went up to federal court on petition for writ of habeas corpus (also called the “Great Writ”), and eventually the United States Supreme Court granted certiorari. On January 15, 1963, the Supreme Court heard oral arguments. Abe Fortas (a D.C. attorney and future Supreme Court Justice) represented Gideon pro bono before the Court. He argued that no defendant, regardless of education (Gideon only had an eighth-grade education), could provide an adequate self-defense against the government, and that the United States Constitution guaranteed legal representation to all defendants charged with felonies. His argument worked. The Court unanimously ruled that the Sixth Amendment’s right to counsel applied to the states under the Fourteenth Amendment’s Due Process Clause, in that the states are prohibited from depriving “any person of life, liberty, or property, without due process of law.” The Court finally resolved the issue. A person accused of a felony has the right to appointed counsel (the Court would later apply the right to those charged with misdemeanors in Argersinger v. Hamlin (1972) 407 U.S. 25).

Unsurprisingly, Gideon’s retrial with representation resulted in an acquittal.

The Supreme Court has also recognized that the right to the assistance of counsel of course requires that counsel be effective. The Supreme Court held that “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington (1984) 466 U.S. 668, 686 (quoting McMann v. Richardson (1970) 397 U.S. 759, 771, n. 14). As the Strickland Court wrote: “The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Strickland, 466 U.S. at 685. It is settled that a person accused of a crime has the right to effective representation at every critical stage of the proceedings (what is a critical stage is a topic for another discussion). And the same right is conferred upon those on appeal after conviction. See Douglas v. California (1963) 372 U.S. 353. Without effective counsel to test the government’s evidence, our criminal justice system cannot work, and will not produce justice. Gideon proved it. An accused cannot get a fair trial (or appeal) without competent representation. The right to counsel is fundamental to ensuring that justice is done.

So why do some seem to disparage attorneys who represent “criminals” in trial court or "convicts” on appeal? Is it ignorance about the United States Constitution? Is it just unfounded indignation? Or maybe neither they nor anyone they care about has ever been accused or convicted of a crime. I suppose I have a very different perspective. To stand up for an accused upon whom the massive weight of the government is crashing down is nothing short of a noble cause. It does not surprise me that some of the greatest in our history did the same thing. Abe Lincoln was a criminal defense lawyer. And Thurgood Marshall, who before being appointed to the Supreme Court was a volunteer lawyer with the NAACP Legal Defense Fund, and was instrumental in the 1954 landmark Supreme Court win for equality in Brown v. Board of Education.

I represent people accused of criminal offenses in trial court and on appeal and habeas in private practice. I also represent individuals who cannot afford an appellate lawyer in two different appellate districts (felonies) and in two appellate divisions (misdemeanors) in California. I assure you this is not an easy job. But it is one worthy of respect. This often thankless profession serves to balance out the scales of justice. And balance is desperately needed.

God forbid the critics, or their loved ones, ever get in trouble. But when they call, I will try to help them too because that’s what I do.