Kanovitz: Constitutional Law, 13th Edition


Case Studies

Chapter 8: Right to Counsel

Case 1

Officer Smithwick arrested Robert Smith, a homeless man from Sometown, for assault with a deadly weapon, a felony. According to the victim and eyewitnesses, Smith picked up a rusted pipe and beat Steven Crane with it, accusing him of stealing his blanket and coat. Crane sustained serious injuries, but was expected to fully recover. In describing the crime, eyewitnesses said that Smith appeared to be highly intoxicated at the time of the offense.
After he was arrested, Smith was taken to Sometown Police Station. Smith was intoxicated enough to not be able to walk on his own, so Officer Smithwick booked him and then placed him in a holding cell until he sobered up. The next day, he was taken to an interrogation room and advised of his rights. Now sober, Smith realized the seriousness of the charges he faced, and he expressed a desire to have a lawyer. Until then, he wished to remain silent. He was returned to a holding cell until his arraignment that afternoon at Sometown District Court.
Robert Smith was taken to Sometown District Court to be arraigned. When his case was called, he was joined by a public defender named George Frazer. Attorney Frazer entered a plea of “not guilty” on behalf of his client. A trial date was set. Attorney Frazer told Smith that he would meet with him the following week to discuss his case and instructed him not to talk to the police in the meantime. Robert Smith was then transferred to county jail where he would await his trial.

Questions

  1. Did the Sixth Amendment right to counsel for those who could not afford to pay always exist in the United States? What was the original logic behind the Sixth Amendment right to counsel?

    Correct Answer

    No, it did not. Throughout most of U.S. history, attorneys were available only to those who could afford to pay. The Sixth Amendment right to counsel was interpreted to mean only that this right could not be denied to defendants who had the means to hire an attorney. The government was under no duty to provide counsel for defendants who lacked means.

  2. What Supreme Court case established the right of the indigent to court-appointed counsel if they could not afford to pay? What was the Court’s reasoning? How does this apply to Robert Smith?

    Correct Answer

    The landmark decision that established the right of the indigent to court-appointed counsel if they could not afford to pay was Gideon v. Wainwright, in 1963. In that decision, the Court agreed that Gideon, who had been denied a court-appointed attorney because he could not afford one, had been denied his Sixth Amendment right to counsel. The Court ruled that court-appointed counsel must henceforth be furnished to state criminal defendants facing felony charges who lack the means to hire a lawyer on their own.
    Robert Smith, a homeless man facing a felony charge, could not afford an attorney, and so he was assigned a court-appointed public defender.

  3. Today, the right of the indigent to court-appointed counsel has expanded. For what crimes and at what stages do they have right to have a court-appointed attorney present? How does this relate to Robert Smith?

    Correct Answer

    The Sixth Amendment today entitles indigent criminal defendants charged with a felony to representation at the state’s expense. In the case of misdemeanor prosecutions, the right to counsel turns on the sentence actually imposed, not on the potential sentence faced. Indigent defendants charged with a misdemeanor cannot be incarcerated, even for a short time, unless counsel is appointed to represent them. However, no right to counsel exists when a fine alone is imposed.
    Indigent criminal defendants today have the right to have counsel appointed to represent them during all critical pretrial stages, post-trial sentencing proceedings, and the first appeal of a conviction or sentence. Thereafter, the state is no longer required to provide an attorney to a defendant who cannot afford to pay.
    In the case of Robert Smith, his public defender was with him at his arraignment, a critical stage in criminal prosecution.

Case 2

Jane Point had been charged with assault. She was arrested two weeks ago in the Sometown Pub after attacking two patrons. According to witnesses and video footage, Point had started a fight after a bartender refused to serve her. Point had yelled at the bartender, and when a patron told her to be quiet, she hit him over the head with a glass, knocking him unconscious. The patron’s friend stepped forward to help him, and Point jumped on his back and pulled his hair and bit his ear.
At her arraignment, she was represented by Jean Frazier. Several witnesses came forward the night and day after the incident to testify about Point’s actions that Saturday evening. In the time after the arraignment, five more witnesses had come forward to offer their stories.
Police had arranged to interview the witnesses, one at a time, on Tuesday. For the witnesses who had already come forward, police had verified their testimony with security footage from the Pub, and they planned to do the same with the new witnesses. The Sometown Pub holds about 50 people, and the security cameras set up behind the bar have the incident on film. Jane Point was not the most popular woman in town, and police were aware that some people might take advantage of the charges to get their revenge on her.
Police conducted the interviews at police headquarters. The assistant district attorney listened in as police questioned the witnesses as to their proximity to the fight and what they saw. Point and Attorney Frazier were not present at the interviews.

Questions

  1. Jane Point and her attorney were not invited to the interviews with potential witnesses. Was this constitutional? Why or why not?

    Correct Answer

    The police interviews did not violate Jane Point’s Sixth Amendment right to counsel. Government interviews with prosecution witnesses are not adversarial encounters between the government and the accused, and so no right to counsel exists.

  2. What conditions need to be present for the Sixth Amendment right to counsel at critical pretrial stages to apply?

    Correct Answer

    The right to counsel attaches after the criminal prosecution has begun. At her arraignment, Jane Pointer had an attorney present. The event must involve an adversarial confrontation between the government and the accused. Finally, the encounter must be of such a nature that important rights may be lost, defenses waived, or the fairness of the trial placed in jeopardy if the defendant is forced to proceed without the guiding hand of counsel.

  3. What are some examples of critical stage pretrial events where Pointer would have a right to counsel?

    Correct Answer

    Critical stage pretrial events include preliminary hearings, bail hearings, arraignments, interrogations of the accused, and lineups and showups conducted after the start of criminal proceedings.

Case 3

Leon Keller was facing a charge of driving under the influence in Sometown. Police had pulled him over after he crossed the yellow line, and he had failed a field sobriety test. Tests confirmed his blood-alcohol levels were above the legal limit, and so he had been charged. This was the first time he had been arrested and charged with a crime.
Keller, a 50-year-old man with a strong distrust of the legal system, did not want to hire an attorney. Instead, he wished to defend himself. In his mind, he had a solid defense. Keller was a man of above-average intelligence, who did not suffer from mental illness. He had attended college, but did not graduate.
At his arraignment, he told Judge Jet that he wished to waive his right to counsel.
“Are you sure, Mr. Keller?” Judge Jet asked.
“Yes, Your Honor. I would like to defend myself against these charges.”
There was nothing to suggest that Leon Keller lacked the mental competence to defend himself. Judge Jet proceeded to give Keller a very stern warning about the dangers and disadvantages of self-representation. She asked him several questions about his education and then several more about any experience he had with the criminal justice system. Once Keller had answered her questions, she again asked him if he was absolutely sure of his decision. Keller answered that he was.
Judge Jet expressed her reservations but allowed Leon Keller to represent himself at trial. As a precaution, she appointed standby counsel.

Questions

  1. What determination does a judge need to make before a defendant is allowed to represent himself or herself?

    Correct Answer

    Before allowing a criminal defendant to exercise his Sixth Amendment right to self-representation, a judge needs to determine if the defendant is mentally competent to make the decision and that the decision was made knowingly, intelligently, and voluntarily.

  2. Did Judge Jet satisfy the requirements in the case of Leon Keller?

    Correct Answer

    In this example, Leon Keller was mentally competent to make the decision for himself. He did not suffer from mental illness, and he appeared to be of sound mind to Judge Jet. Before accepting his waiver, Judge Jet gave him a stern warning about the dangers and disadvantages of self-representation and asked him several questions to see if he understood what he was doing. After he answered her questions and still expressed a desire to represent himself, Judge Jet was satisfied and allowed him to proceed. She appointed standby counsel, just in case it was required.

  3. What Supreme Court decision established the right to represent oneself? What was the Court’s reasoning?

    Correct Answer

    The right to self-representation was recognized in Faretta v. California, in 1975. The Court said that it was possible that a defendant might do a better job of representing himself or herself than an attorney. In addition, the only person who would suffer the consequences of the conviction is the defendant, and not the lawyer.

Case 4

Jessica Simpson, an indigent defendant, had been charged with theft of merchandise from the Sometown Department Store, valued at $2,000. Eyewitnesses had placed her at the store and saw her leave with an expensive leather jacket, several designer scarves, and some jewelry. Video footage from the store showed her in the dressing room, putting on the jacket and draping herself with scarves and necklaces before walking back out onto the floor and then out the door. When questioned by police, she admitted to stealing the items, saying that she planned on selling them to get money for food. She was assigned a public defender and a date was set for her trial.
Her overworked public defender failed to show up for the two scheduled meetings with Simpson to discuss her case before the trial started. When the day arrived, Simpson’s counsel was 20 minutes late for the proceedings. She had with her a large cup of coffee, but when Simpson looked over at her attorney while the eyewitnesses were testifying, the public defender was sleeping. She did not question any of the prosecution’s witnesses, and the judge had to wake her up twice to ask her if she wished to cross-examine them. After the defense rested, the public defender called Simpson to the stand and asked her questions that played right into the prosecutor’s hands. On cross-examination, Simpson confessed to everything. The jury took less than a half an hour to return with a guilty verdict.
When a local advocacy group heard about Simpson’s case, it helped her to file an appeal.

Questions

  1. What did the advocacy group base the appeal of Simpson’s case on?

    Correct Answer

    The advocacy group based the appeal on Simpson’s grossly ineffective counsel. After Gideon v. Wainwright, the Court began hearing challenges to the effectiveness of the representation that indigent criminal defendants were receiving. Because a person represented by an attorney who does nothing is no better off than one who has no representation at all, the Court made it clear that a state’s Sixth Amendment duty is not discharged unless appointed counsel provides reasonably effective assistance and that ineffective assistance renders a conviction vulnerable to challenge.

  2. Other than an appeal, how else could Simpson have addressed her issue?

    Correct Answer

    Claims of ineffective representation can also be brought through habeas corpus review.

  3. In order for this kind of case to be found meritorious, what does the defendant need to be able to prove? How would this have worked out in Simpson’s case?

    Correct Answer

    The defendant must prove not only that (1) counsel’s performance was deficient (i.e., fell below reasonable professional standards), but also that (2) the outcome would probably have been different had the representation been adequate. Despite the fact that Simpson’s public defender’s representation was grossly inadequate, the outcome of the trial would most likely not have been different. There was ample evidence to establish Simpson’s guilt, and she had confessed to the crime.

Case 5

Rachel Hanger had been arrested and charged with cocaine distribution. Police had conducted a thorough investigation and had sufficient evidence to secure an arrest warrant. She had been arraigned and was awaiting trial in county jail. Representing her was Doris Hunt, a private attorney.
After criminal proceedings were already underway, a witness came forward in the case. His description of the drug dealer matched that of Rachel Hunt, but police wanted to confirm the identity, because this witness would strengthen their case. To do so, they wanted him to identify Hanger in a lineup before having him testify in court. Because the suspect said that he remembered Hunt’s voice clearly, they also wanted participants in the line up to say, “It will cost you.”
Police asked Hanger to appear for the lineup. Hanger requested Attorney Hunt’s presence at the lineup, and so police contacted Attorney Hanger and then waited for her to arrive. For the lineup, police have selected five other women who roughly match Hanger’s race, height, weight, and general appearance. As they were all inmates at the county jail, all of them were wearing prison uniforms.
Attorney Hunt arrived and joined the witness, the assistant district attorney, and a police officer in the viewing room. The women walked out and stood facing the glass. In turn, each of them stepped forward and spoke the phrase, “It will cost you.”
As soon as Hanger said the phrase, the witness said, “That’s her. That’s the woman I saw.”
The lineup was completed, and police used the witness’s testimony at trial.

Questions

  1. Suggestive measures during lineups can lead to them being discredited. What are ways that lineups can be suggestive, and how did police avoid it in this example?

    Correct Answer

    Lineups that make the suspect look conspicuous are problematic. Selecting participants who are of a different race, height, and build from the witness’s description or the suspect can make the suspect stand out. Another example is having the suspect wear distinctive clothing.
    In this case, police selected women who matched Rachel Hanger’s race, height, weight, and general appearance. Because they were all inmates, they were wearing the same prison uniform.


  2. Criminal prosecution has already been initiated, and Rachel Hanger has an attorney. What are the constitutional requirements for a lineup at this stage, and were they met?

    Correct Answer

    To meet due process requirements, police must select an identification procedure that is appropriate under the circumstances and avoid unnecessary suggestiveness in conducting the procedure. As discussed in question one, this requirement was met.
    To meet Sixth Amendment requirements for a lineup, police must either obtain a waiver of the right to counsel, secure appointed counsel, or wait for retained counsel to arrive. In the example above, police asked Rachel Hanger to appear in a lineup, and she requested that her counsel be present. Police contacted Attorney Hunt and waited for her to arrive. The Sixth Amendment requirements were satisfied.


  3. Let’s say that this lineup was overly suggestive. Police selected a lineup certain to make Rachel Hanger stand out. What would happen to the identification and the witness’s testimony?

    Correct Answer

    An unnecessarily suggestive lineup can weaken the prosecution’s case against the defendant. Testimony about the identification will be suppressed, and unless the witness’s testimony stems from independent recollection from the crime, the witness will not be allowed to identify the defendant in court. Even if the judge allows the witness to identify the defendant, the defense will be able to argue to the jury why it should not trust the witness.

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