The Right to Counsel as Most Consequential: Tracking the Sixth Amendment from Warren to Roberts


The right to counsel is important for “it is through counsel that all other major rights of the accused are protected,” and “ [o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Penson v. Ohio,1(1988), quoting Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956).

Encompassed within the right to counsel is necessarily the “right to select counsel of ones choice,” which the Supreme Court has regarded as the “Root meaning of the [Sixth Amendment’s] Constitutional guarantee. United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); see also Wheat v. United States, 486 U.S. 153, 159 (1988), “The right to select and be represented by ones preferred attorney is comprehended by the Sixth Amendment,” see also; Powell v. Alabama, 287 U.S. 45, 53, (1932), a defendant should “be afforded a fair opportunity to secure counsel of their own choice.”2 3

The Supreme Court has repeatedly stated that only through defense counsel’s testing of the prosecution’s proof may the public and the Government gain comfort that a conviction, once attained, is just. “Our criminal justice is premised on the well tested principle that truth, as well as fairness, is best described by powerful statements on both sides.”4 “Law enforcement may be assisted by preventing the infiltration of taint in the prosecutions’ identification of evidence and [t]hat result . . . can only help assure that the right man has been brought to justice.”5 See also, In re Grand Jury Subpoena served upon John Doe, 781 F. 2d at 259, “Fair trial envisions defense counsel playing a critical role in the adversarial system thereby furthering a just result.” Indeed, “[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” United States v. Cronic,6(1984); quoting Herring v. New York, (1975); 7 See also, Wilson v. Mintzes, 761 F. 2d 275, 279 (6th Circuit 1985), “[the accused’s right to retain counsel of his choice is necessary to maintaining a vigorous adversary system and the objective fairness is prosecuted].”

As the Supreme Court has poignantly, and repeatedly noted, an inscription on the walls of the Department of Justice states the proposition candidly for the federal domain. . .“The United States wins its case whenever justice is done one of its citizens in the courts.”8

“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly,” Brady v. Maryland, 373 U.S. 83, 87 (1963)9.

“Due Process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely that to say that convictions cannot be brought about by methods that offend a ‘sense of justice,’” Rochin v. California,10 (1952).

“There is an additional safeguard against miscarriages of justice in criminal cases. . .that safeguard is the right to effective assistance of counsel,” Murray v. Carrier,11 (1986).

This paper will trace the application of the Sixth and Fourteenth Amendment to a Criminal Defendants’ right to be represented by effective, conflict free counsel as his or her own choice, and in specific focus on Warren Court decisions beginning with Gideon v. Wainwright12 (1963), and its progeny and then extending the analysis through the Burger, Rehnquist, and Roberts Courts’ decisions, on the application of the Sixth Amendment to a criminal defendant’s right to conflict free counsel of his choice.


The forgoing introduction has demonstrated that federal law as defined in the decisions of the United States Supreme Court clearly establishes a Sixth Amendment derived right for a criminal Defendant to be represented by counsel. In Johnson v. Herbst,13 (1938), the Supreme Court ruled that indigent criminal Defendants charged with crimes in Federal Court have the right to counsel; however, at the time, Supreme Court holdings on the Sixth Amendment right to counsel were limited to the Federal Government, meaning that only those charged with federal crimes were entitled to legal representation14. The ensuing legal question was whether the Sixth Amendment right to counsel should be extended to the States through the Fourteenth Amendment’s due process clause, which provides that states “shall not deprive individuals of life, liberty or property without due process of law.”15

In its’ 1942 decision in Betts v. Brady,16 (1942), the court held “The appointment of counsel [to indigent persons] in a non-capital criminal case, is not a fundamental right essential to a fair trial.” This meant that criminal defendants not charged with crimes bearing the death penalty, who could not afford to pay a lawyer did not have the constitutional right to the appointment of counsel.

The Warren Court changed all this in its’ 1963 decision in Gideon v. Wainwright (1963); or did it?

The story of Clarence Gideon is a fabled one; the career criminal Florida convict sitting in his cell with a blunt pencil and a sheet of paper who reads the Sixth Amendment and achieves a curious clarity; if the Sixth Amendment says that a person accused of a crime is entitled to a trial where he can confront his accusers and have a lawyer represent him, then it should make no difference if he has the money to pay for one and that if he cannot, he should have one provided to him. He wrote a hand written letter to the Supreme Court of the United States which a law clerk read and brought to the Chief Justices’ attention.

Apparently, Gideon has postured his case squarely enough for the Court to accept it in the context of the long anticipated opportunity to strike down Betts v. Brady, supra, and it appointed the noted Washington D.C. attorney and constitutional scholar, Abe Fortas (a future LBJ nominee to the High Court), to represent Gideon in the certiorari proceedings before them. What followed was the Courts’ landmark decision requiring the states to appoint counsel to every criminal Defendant accused of a felony, regardless of their ability to pay an attorney. What resulted in ensuing Warren Court decisions was the fortification of those rights. However, the road from Gideon (1963) to Gonzalez-Lopez (2007), was not paved with constitutional gold. In fact, it has become very clear that the quality of legal defense for indigents is expected to be inferior to the services provided for those who can pay.

The Warren Court’s initial foray into criminal justice defendant jurisprudence came in
its’ 1961 decision in Mapp v. Ohio17 (1961), where Justice Tom Clark writing the majority vacated a criminal conviction based upon an unlawful search and seizure, for lack of probable cause and gave us his memorable reminder that when a wrongful conviction is overturned for a violation of a defendants constitutional rights, “it is the law that sets him free” and reminiscent of Justice Brandeis’ dissent in Olmstead v. United States18 277 U.S. 438 (1928), that “nothing will undermine a governments’ legitimacy than its’ willingness to violate its’ own laws, the very charter of its’ own existence.”19

In a majority opinion in Gideon, written by Justice Hugo Black, which was in essence a reassertion of his dissent in Betts v. Brady, an unanimous Supreme Court overturned Gideon’s conviction and held that the Fourteenth Amendment guarantee of Due Process must incorporate the right of indigent state court criminal defendants in all felony cases to have the Sixth Amendment’s right to counsel.20 That Gideon represented a major breakthrough on full application of the Sixth and Fourteenth Amendment guarantees on the right of the indigent criminal defendant to be represented by counsel, there can be no doubt.

The Warren Court fortified its ruling in Gideon through with its’ 1966 decision in Miranda v. Arizona,21 (1966) which require police officers to warn suspects of their right to counsel and against self-incrimination. 22

Gideon became the subject of a Hollywood movie starring Henry Fonda and Miranda has had numerous cameo appearances in Law and Order and other police television shows ever since. However, the Warren Court was not immune to public passions about crime and punishment and Richard Nixon’s appeals to the “silent majority23.” Chief Justice Warren himself would write for the majority in Terry v. Ohio24 (1968), where the court upheld a police “stop and frisk” without having probable cause. America began making its’ sharp turn to the right and the court began what would be a forty-four year decline; one decision; rule; exception; qualification and reversal at a time, in its jurisprudence concerning that the core constitutional rights of criminal defendants, including the right to counsel.

Today, federal law as decided by the Supreme Court of the United States is clear; an indigent criminal Defendant is not entitled to counsel of his choice; United States v. Gonzalez- Lopez25 (2006), supra.

Having now established that an indigent defendant in a criminal case is not afforded the same rights to counsel of choice as a person of means, the Supreme Court has continuously left in doubt, an indigent’s right to effective assurance of conflict free counsel. In Holloway v. Arkansas26 (1978), the court drew the lines which govern when court appointed counsel must refrain from representing multiple defendants in criminal cases. In Cuyler v. Sullivan27 (1980), the Supreme Court held that the right to counsel afforded by the Sixth Amendment included the right to conflict free counsel of choice, but stressed that an indigent defendant was not entitled to the appointment of successive publicly funded lawyers except under certain circumstances. In Strickland v. Washington28 (1984), the Supreme Court imposed a strenuous standard for review of ineffective assistance of counsel claims, requiring that the defendant demonstrate both that his attorney rendered deficient performance that the deficiencies prejudiced him. This threshold test for constitutional ineffectiveness has become especially burdensome for indigent criminal defendants to meet.

In Wheat v. United States29 (1988), the Supreme Court held that a criminal Defendant’s right to counsel includes that right to conflict free counsel, but that an indigent Defendant is not entitled to a succession of court appointed lawyers if he is not satisfied with his court appointed counsel’s performance unless there is demonstrated actual conflict of interest, which would operate on the defense caused by a complete breakdown in the attorney-client relationship.30

In Wood v. Georgia (1981), the Court reiterated the rule it established for Holloway, supra, concerning the operation of actual conflicts in criminal defense attorneys, once again making the burden to establish the attorney conflict more burdensome in indigent criminal Defendants because the cost to the taxpayer in paying for successive court appointed counsel would be excessive.

In Caplin & Drysdale v. United States31 (1989) and United States v. Monsanto32 (1989), decided on the same day, the Supreme Court carefully crafted procedures for when cash contraband seized and frozen in the course of a drug prosecution may be unfrozen and made available to pay the Defendants legal fees in defending such a criminal action. The protections afforded to the cash-rich drug cartel dealer to use his ill-gotten gains to pay his lawyers in Caplin and Monsanto, are completely inapposite to the Courts’ holding, where an indigent Defendants’ right and need for a publicly appointed lawyer to defend his criminal case are at issue.

In United States v. Stein, 541 F. 3d. 130 (2d Cir. 2008), the United States Court of Appeals for the Second Circuit, dismissed an indictment against multiple KPMG, Peat, Marwick, Mitchell & Co. (criminal Defendants), in a derivative liability white collar fraud case, because the government interfered with their employer’s established corporate policy of paying it’s employees’ work related criminal counsel’s legal fees. The panel was steadfast in upholding the defendants’ rights to have third party benefactors pay for their criminal defense; once again keeping intact for criminal defendants with access to private funds the right to counsel of their choice.

This was very different from the Second Circuit’s handling of a 2001 Sixth Amendment counsel deprivation decision, in a case depicting the deprivation of counsel to an indigent state court defendant who had an altercation with his court appointed lawyer.33

The state of legal services for the poor in the United States has reached crisis proportions.

Indicative of this, the New York Civil Liberties Union (NYCLU) filed a class action lawsuit Hurrell-Harring et. al. v. State of New York in 2007, challenging New York State’s failure in its constitutional duty to provide effective counsel to New Yorkers accused of crimes who cannot afford to pay private lawyers.34

This case targets public defense systems in Onondaga, Ontario, Schuyler, Suffolk and Washington Counties, New York, for failing to provide adequate public defense services. The case was filed on behalf of defendants from these five counties. On August1, 2008, a State Supreme Court Justice denied the state’s motion to dismiss the case. In July 2009, the Appellate Division of New York State Supreme Court for the Third Judicial Department, in a split decision, reversed the lower court’s denial of the state’s motion to dismiss. In May 2010, the State Court of Appeals, New York’s highest court, overturned the Third Department in a historic 5-4 ruling, allowing the case to proceed. The case is now in the discovery phase and is making its way through the trial stages. The outcome could have an extraordinary effect on Defending Justice for the Poor in New York State and throughout the nation.35

In addition to the crisis in indigent representation in criminal cases, recent downturns in the economy and the fallout from the so called “subprime mortgage’ lending crisis and the associated predatory lending practices of institutions such as Bank of America, Countrywide Mortgage, Wells Fargo Bank and others, have exacerbated the hardships and injustices caused to indigent people who are made to proceed to litigation without adequate legal representation in civil cases. Mortgage foreclosure cases, evictions in Landlord-Tenant proceedings as well as consumer lending related matters can potentially be as threatening to the right to happiness and fairness that are bedrock to our democracy as cases which result in unconstitutional liberty deprivations.

New York State has recognized the grave proportions of this crisis and the State’s Chief Judge, Jonathan Lippman, has conducted hearings with Gillian Kirtland, Professor of Law and Economics at the University of Southern California, where extensive testimony was presented concerning the potential role of non-lawyer advocates in helping low income households in New York who are experiencing problems that are legal and civil in nature. Chief Judge Lippman has created a Task Force to address the urgent need for the judiciary to change the landscape of options available to those with legal needs. Authorizing intelligent, trained and well supported non-J.D. legal assistants to assist the poor in civil cases has been successfully undertaken in the United Kingdom where there is a long history of allowing a wide variety of differently trained individuals and organizations to provide legal assistance to the poor and the system there has been widely recognized as a success.

The United States on the other hand has little experience with non-J.D legal assistance. Washington State has made progress in this area and now has under consideration a plan to afford, “Limited License Legal Technicians” to perform carefully defined services for people, without direct supervision of an attorney. The new rule in Washington establishes a Limited License Legal Technical Board to oversee the implementation of new rules and to provide strict oversight of the non J.D. Practitioners.36

Within New York, federal and state law currently allow non-lawyer advocates to participate in administrative hearings and proceedings involving certain kinds of public benefits, including State public assistance benefits, Medicaid, food stamps and Medicare. The next logical step will be for the Chief Judge’s Task Force to promulgate rules to allow non-J.D. representatives to assist indigent persons in civil cases and stem the tide of economic injustices and waste which are running rampant in the existing adjudicative framework.

State and Federal prisoners in the United States are left little option but to obtain legal assistance in criminal and civil matters in prison law libraries where fellow inmates, with minimal education and training, are often the only source of legal assistance.37

The undeniably remarkable leadership and commitment to civil liberties demonstrated by Earl Warren has resonated with American Constitutional History since the late 1950s. Over time, The Supreme Court has significantly moderated its extension of sixth amendment protections and allowed its decisions to be effected by public outcries for increased law enforcement. It has been in the interest of the Supreme Court to rule with a coinciding sensitivity to American popular politics. Since the Warren court, we have seen the narrowing of the expansive civil liberties outlined in cases like Gideon and Miranda, as more conservative political eras have influenced the courts to chisel away at the Warren progeny; and, to some degree become and extension of law enforcement. Justice Scalia referenced that “Attorneys are not fungible” in Gonzalez-Lopez. I would challenge Justice Scalia with a reminder that Justice is also, intrinsically, not fungible; therefore, it is inherently unconstitutional to compromise the sixth amendment liberties for economic interests.

1 Penson v. Ohio, 488 U.S. 75, 84 (1988).

2 Profound consequences may flow from this choice, for “[l]awyers are not fungible, and often ‘the most important decision a defendant makes in shaping his defense is his selection of an attorney.’” Moreover, “[t]he selected attorney is the mechanism through which the Defendant will learn of the options which are available to him. It is from the attorney that he will learn of the particulars of the indictment brought against him, of the infirmities of the Government’s case and the range of alternative approaches to oppose or even cooperate with the Government’s efforts. United States v. Laura, 607 F 2d. 52, 56 (3rd. Circuit (1979)).

3 Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang, 1998. Print.

4 Penson v. Ohio, 488 U.S. 75, 84 (1988)

5 United States v. Wade, 388 U.S. 218, 238 (1967)

6 United States v. Cronic, 446 U.S. 648, 655 (1984)

7 Herring v. New York, 442 U.S. 853, 862 (1975)

8 Woodward, Bob, and Scott Armstrong. The Brethren: Inside the Supreme Court. New York: Simon and Schuster, 1979. Print.

9 Brady v. Maryland, 373 U.S. 83, 87 (1963)

10 Rochin v. California, 342 U.S. 165, 174 (1952).

11 Murray v. Carrier,1 477 U.S. 478, 496 (1986).

12 Gideon v. Wainwright, 372 U.S. 335 (1963)

13 Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard UP, 1977. Print.

14 Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang, 1998. Print.

15 Bernstein, R. B., comp. The Constitution of the United States with the Declaration of Independence and the Articles of Confederation. New York: Barnes & Noble, 2002. Print.

16 Betts v. Brady, 316 U.S. 455 (1942)

17 Mapp v. Ohio, 367 U.S. 643 (1961)

18 Olmstead v. United States, 277 U.S. 438 (1928)

19 Urofsky, Melvin I. Louis D. Brandeis: A Life. New York, NY: Pantheon, 2009. Print.

20 Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1964. Print.

21 Miranda v. Arizona, 384 U.S. 436 (1966).

22 Trachtman, Michael G. The Supremes’ Greatest Hits: The 37 Supreme Court Cases That Most Directly Affect Your Life. New York, NY: Sterling, 2009. Print.

23 Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang, 1998. Print.

24 Terry v. Ohio, 392 U.S. 1 (1968)

25 United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)

26 Holloway v. Arkansas, 435 U.S. 475 (1978)

27 Cuyler v. Sullivan, 446 U.S. 335, 100 s. Ct. 1708, 64 L. Ed. 2d. 333 (1980)
28 Strickland v. Washington, 466 U.S. 668 (1984)
29 Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L-Ed. 2d 140 (1988)
30 Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L.Ed. 2d 220, (1981)
31 Caplin & Drysdale v. United States, 491 U.S. 617, 109 S. Ct. 2667, 109 S. Ct. 2667, 105 L. Ed. 2d. 528 (1989)
32 United States v. Monsanto, 491 U.S. 600, 109 D. Ct. 2657, 105 L. Ed. Ld. 512 (1989)
33 See e.g. Gilchrist v. Keefe, 260 F.3d 87 (2nd Cir. (2001))
34 “Hurrell-Haring Et Al. v. State of New York (Challenging New York State’s Failure to Provide Adequate Public Defense Services) | New York Civil Liberties Union (NYCLU) – American Civil Liberties Union of New York State.” Hurrell-Haring Et Al. v. State of New York (Challenging New York State’s Failure to Provide Adequate Public Defense Services) | New York Civil Liberties Union (NYCLU) – American Civil Liberties Union of New York State. New York Civil Liberties Union (NYCLU), n.d. Web. 10 Dec. 2012.
35 [See, Vimeo, “Defending Justice for the Poor, Hurrell-Harring v. New York,” Steven Downs Esq., New York Civil Liberties Union and Mardi Crawford Esq., New York State Defenders Association, August 25, 2012, In Our Name, Restoring Justice in America, Conference, Andrew J. Zarro, Co-Coordinator,] http://
36 United States of America. The Supreme Court of Washington. IN THE MATTER OF THE ADOPTION OF NEW APR 28 – LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS. By J. Owens. 257000-A- ed. Vol. NO. N.p.: n.d. Ser. 1005. 14 June 2012. Web. 10 Dec. 2012. (Appendix 17 at page 1087)
37 Bounds v. Smith, 430 U.S. 817 (1977)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s