Henderson, Marvin Lee

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University of Kentucky

Kentucky Law JournalVolume 52 | Issue 4 Article 151964Constitutional Law--Due Process of the FourteenthAmendment--Right to Counsel in Non-CapitalState Felony ProsecutionsMarvin Lee HendersonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Constitutional Law Commons, and the Fourteenth Amendment CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationHenderson, Marvin Lee (1964) "Constitutional Law--Due Process of the Fourteenth Amendment--Right to Counsel in Non-CapitalState Felony Prosecutions," Kentucky Law Journal: Vol. 52 : Iss. 4 , Article 15.Available at: https://uknowledge.uky.edu/klj/vol52/iss4/15KENT cKY LAw JouR[V 5In the principal case, the dissenting opinion, favoring the retentionof the M'Naughten plus irresistible impulse test, said: "Rules of law oflong standing should not be cast aside lightly but only upon a soundand meritorious basis. Such rules are not flapjacks and should not betossed about as such."25 This decision came less than thirty days afterthe court upheld the test which it had followed for sixty-two years.26Joseph Weintraub, Chief Justice of the New Jersey Supreme Court,said in a recent article that as a practicing attorney, he fought for theremoval of the M'Naughten test and then as a judge, he realized thatthe struggle between M'Naughten and its competitors is over anirrelevancy 27 and refused to overturn the older rule.28This is not to say that M'Naughten and irresistible impulse arethe perfect solution. Given the fact that a defendant commits acrime, he is at least slightly abnormal. 28 The primary purpose in thisfield then, is to insure against repetition of criminal acts for theprotection of society. Obviously, some rule should be formulatedwhich will aid both legal and medical experts in their determination ofcriminal responsibility. But until some better means to reach thedesired end are found, a rule which has proved durable and practicalfor many years should not be rejected.John Dixon, Jr.CONSTrrTUiONAL LAw-DUE PROCESS OF TE Fou TrTE- AmNDMmT-RiGHT To CouNsEL. iN NoN-CAPrrAL STATE FELONY P.ROSECUTnoNs.-The petitioner, Gideon, convicted of a non-capital felony offense in aFlorida state court after entering a plea of not guilty, filed a habeascorpus petition in the Florida Supreme Court. His petition allegedthat the trial court's denial of his request for court appointed counselabridged his constitutional rights as he was without funds with whichto retain counsel. The Florida Supreme Court, without opinion,denied him relief.1 The United States Supreme Court granted cer-tiorari with leave to proceed in forma pauperis.2 Held: Reversed. A2 5 Terry v. Commonwealth, supra note 20, at 866.2 6 Newsome v. Commonwealth, 366 S.W.2d 174 (Ky. 1962).27 Weintraub, Criminal Responsibilitu: Psychiatry Atone Cannot Determine It,49 A.B.A.J. 1075 (1963).28 State v. Lucas, 30 N.J. 37, 82, 152 A.2d 50, 74 (1959).29 The article is based on this premise-Goldstein and Katz, Some Observationson the Decision to Release Persons Acquitted by Reason of Insanity, 70 Yale L.J.225 (1960-61).1 Gideon v. Cochran, 135 So. 2d 746 (Fla. 1961).2 Gideon v. Cochran, 370 U.S. 908 (1962). The Court appointed counsel torepresent Gideon on appeal and requested that the briefs discuss the question:"Should this Court's holding in Betts v. Brady, 316 U.S. 455 ... be reconsidered?"[Vol. 2,RECENT CASESdefendant in a non-capital state felony prosecution who enters a pleaof not guilty and requests the court to appoint counsel to defendhim because he is indigent has a right to have counsel appointed. Theright to appointed counsel exists even where there are no specialcircumstances involved in the case which would lead to the conclusionthat the accused would be denied a fair trial because of the absenceof counsel. The right to counsel is so fundamental that it is a rightwhich is essential to a fair trial, and the guarantee of the sixthamendment is made obligatory on the states through the fourteenthamendment. Gideon v. Wainwright, 372 U.S. 335 (1963).The Court, in the principal case, expressly overruled the holdingin the case of Betts v. Brady.3 The Betts case held that the sixthamendment right to counsel is not such a fundamental right so as tobe essential to a fair trial. Thus, the Betts interpretation of the four-teenth amendment does not make the sixth amendment provisionobligatory upon the states in non-capital cases absent a showingthat the lack of counsel resulted in an unfair trial for the accused.4Basing its conclusion on dictum in Powell v. Alabama,5 to the effectthat the right to counsel in any criminal proceeding is a fundamentalright,( the Court said:... reason and reflection require us to recognize that in our adversarysystem of criminal justice, any person haled into court, who is too poorto hire a lawyer, cannot be assured a fair trial unless counsel is providedfor him... . That government hires lawyers to prosecute and defendantswho have the money hire lawyers to defend are the strongest indications... that lawyers in criminal courts, are necessities, not luxuries.7The decision in the principal case is one which a vigorous minorityof the Court has long urged.8 It is a decision which, in the opinionof this commentator, will have a profound effect upon raising thequality of justice in state criminal prosecutions. Prior to the Gideon3316 U.S. 455 (1942).4 For a detailed analysis of the rule and a comprehensive discussion of thefacts and circumstances surrounding the trial of Betts, see Kamisar, The Right toCounsel and the Fourteenth Amendment: A Dialogue on "The Most PervasiveRight of an Accused," 30 U. Chi. L. Rev. 1 (1962).r,287 U.S. 45 (1932).6Id. at 68 (dictum).7 Gideon v. Wainwright, 372 U.S. 335 at 844 (1963).8 Justice Black, Douglas, Murphy, and Rutledge in their dissents and concur-ring oinions have constantly urged that the Court should hold that the right tocounsel guaranteed by the sixth amendment is applicable to the states in bothcapital and non-capital criminal proceedings: Camley v. Cochran, 369 U.S. 506,519-20 (1962) (Black, J., concurring); McNeal v. Culver, 865 U.S. 109, 118(1961) (Douglas, J., concurring); Bute v. Illinois, 333 U.S. 640, 677 (1948)(Douglas, J., dissenting); Foster v. Illinois, 332 U.S. 134, 141 (1947) (Rutledge,J., dissenting); Betts v. Brady, 316 U.S. 455, 475 (1942) (Black, J., dissenting).For an excellent summation of the views of these Justices and of the leading caseson the right to counsel in general, see Batt, Equal Justice for All--Myth or Motto?,1 Win. & Mary L. Rev. 325, 352-575 (1959).1964]KENTucKY LAw JouRNALcase, it had been established that there is a requirement of assignedcounsel for indigent defendants in state criminal proceedings involvinga capital offense.9 The right to counsel assigned by the court in non-capital state felony proceedings where the assistance of counsel isdeemed essential to a fair trial is not waived by the defendant's enter-ing a plea of guilty.10 One case" held that where a plea of guilty wasentered and the right to court appointed counsel was specificallywaived by the defendant through fear, the waiver did not relieve thecourt of the duty to appoint counsel since the presence of counsel toassist in the defense was essential to a fair trial. From these cases,it may be seen that the Court ventured to the edge of the specialcircumstances rule in non-capital cases many times. At long last, inGideon the Court crossed the line.The underlying principle involved in the instant case and in itspredecessors is simply that the states have failed to integrate thepractical economic problem of the indigent defendant with our con-ception that justice in criminal proceedings is best achieved throughthe adversary system. The contest between the highly trainedprosecutor and the layman who has no training in the operationaland theoretical niceties of the law is no contest. In such cases, con-victions are not obtained because of the strength of the prosecutionscase, but because of the weakness of the defense. The problem is notnew. The Court, as we have seen, has struggled with it for a long time.Most of the states,'12 including Kentucky, 3 have made notable stridestoward its solution. Those which have hesitated, such as Florida, havefound that the hesitation was costly.14Indeed, the action taken by the Court in the principal case hadbeen predicted by at least one writer as far back as 1950:9 Hamilton v. Alabama, 868 U.S. 52, 55 (1961).10 Uveges v. Pennsylvania, 885 U.S. 487 (1948); Rice v. Olson, 824 U.S.786 (1945).11 Moore v. Michigan, 885 U.S. 155 (1957).12 Thirty-five states appoint counsel on request in any felony case. Fifteeneither make no provision, limit appontent to capital cases, or leave it to thetrial judge's discretion. McNeal v. Culver, 865 U.S. 109, 119-22 (1961) (Doug-las, J., concurring opinion-Appendix).'3 Gholson v. Commonwealth, 808 Ky. 82, 212 S.W.2d 587 (1948), holdingthat a defendant in a non-capital felony case who pleads guilty but neither requestscounsel nor waives his right to counsel in an intelligent, competent, understanding,and voluntary manner has a right to counsel under Ky. Const. § 11 and the dueprocess clause of U.S.C. Const. Amend. 14. This case is noted in 88 Ky. LJ. 317(1950).14 Of the 8,000 prisoners in Florida penal institutions, 4,542 were convictedwithout benefit of counsel. Already more than 3,000 have petitioned forreview of their convictions. Court calendars are jammed; distraughtp rosecutors are working overtime searching petitioner's records anddrawing up answering briefs; county budget directors are hunting des-perately for funds to pay for retrials. Time, Oct. 18, 1968, p. 58.[Vol. 59.,RECENT CASESIt would seem highly desirable that the states themselves take theinitiative in overhauling their criminal procedure instead of leaving thefundamental rights of their citizens in such condition that they mustdepend for enforcement upon further invasion by the Supreme Court ofthat domain traditionally belonging to the sovereign states alone.15Again, in 1959, it was said: "If local prosecutors and law enforcementagencies would carry the banner of reform, a point for state sover-eignty in the field would be cogently made."16The impact of the Gideon decision will be felt by the bar. It willrequire more lawyers to devote more of their time to representingindigent defendants. It is with the practicing lawyer that the ultimateresponsibility of solving the problem of the indigent defendant rests.An exception to this is found in those localities which have adoptedsome organized method of legal aid, such as the public defendersystem. Whether the bar responds effectively to the Supreme Court'scall to seek to satisfy the ends of justice will, in large measure,determine whether the Supreme Court will find it necessary to inter-cede more stringently and enumerate the means whereby those endsare to be achieved.The fact is simple. Until the present, the state, the bench, and thebar have failed to extend the cloak of justice to a large segment of ourpopulation. Whether this failure will be corrected in the near futuredepends upon the extent to which the individual practicing lawyerwill willingly undertake his share of the remedial responsibility. Thisin turn, depends upon whether the cry of humanity for effectiverepresentation before our courts of justice will ring as loud in thelawyer's ears as the rustle of currency. The test has come. It is upto the legal profession to decide to what extent it believes in theadversary system of justice which it propounds. Only the advocatecan make the abstract propositions of law by which our society andour nation are governed workable in the ordinary events of men.The problem of the indigent defendant is not limited to non-capital felony cases. It permeates that large segment of humanityinvolved in the ordinary vagrancy cases. 17 It extends to administrativeproceedings, juvenile proceedings, and the police court. The steptaken by the Supreme Court is a gigantic one. It is encumbent uponthe individual lawyer and the local bar to see that it becomes aneffective one. Indeed, the scales of justice have just begun to balance.Marvin Lee Henderson15 Note, 88 Ky. L.J. 317, 325 (1950).16 WBatt, Equal Justice for A-Myth or Motto?, 1 in. & Mary L. Rev. 325,373 (1959).17 SeThompson v. City of Louisville, 362 U.S. 199 (1960).19K]

Constitutional Law--Due Process of the Fourteenth Amendment--Right to Counsel in Non-Capital State Felony Prosecutions

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Constitutional Law--Due Process of the Fourteenth Amendment--Right to Counsel in Non-Capital State Felony Prosecutions

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