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The mission of the Yolo County Public Defender's Office is to protect the life, liberty, property and constitutional rights of each of our clients as we serve the interests of society by striving to ensure a fair, efficient and unbiased system of justice.

VISION STATEMENT

This vision of the Yolo County Public Defender's Office is to provide legal representation to
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Gideon v. Wainwright:
In 1963, the United States Supreme Court ruled that basic Due Process requires that all persons facing imprisonment, poor or not, are entitled to the aid of counsel. In this RealAudio recording, maintained by Oyez! Oyez! Oyez! (the United States Supreme Court Resource maintained by Northwestern University), hear the actual arguments before the United States Supreme Court on this historic decision.

The rationale for the decision in Gideon v. Wainwright (1963) 372 U.S. 335, an historic United States Supreme Court decision which breathed life into the Office of the Public Defender, is set forth below:

Gideon v. Wainwright

SUPREME COURT
OF THE UNITED STATES
372 U.S. 335 (1963)

--------------------------------------------------------------------------------
January 15, 1963
March 18, 1963
CERTIORARI TO THE SUPREME COURT OF FLORIDA
(Syllabus)

Charged in a Florida State Court with a noncapital felony, petitioner
appeared without funds and without counsel and asked the Court to appoint
counsel for him, but this was denied on the ground that the state law
permitted appointment of counsel for indigent defendants in capital cases
only. Petitioner conducted his own defense about as well as could be
expected of a layman, but he was convicted and sentenced to imprisonment.
Subsequently, he applied to the State Supreme Court for a writ of habeas
corpus, on the ground that his conviction violated his rights under the
Federal Constitution. The State Supreme Court denied all relief.

Held: The right of an indigent defendant in a criminal trial to have the
assistance of counsel is a fundamental right essential to a fair trial, and
petitioner's trial and conviction without the assistance of counsel
violated the Fourteenth Amendment. Betts v. Brady, 316 U.S. 455, overruled.
Pp. 336-345 .

Reversed and cause remanded. [p*336]

MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioner was charged in a Florida state court with having broken and
entered a poolroom with intent to commit a misdemeanor. This offense is a
felony under [p*337] Florida law. Appearing in court without funds and
without a lawyer, petitioner asked the court to appoint counsel for him,
whereupon the following colloquy took place:

The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to
represent you in this case. Under the laws of the State of Florida, the
only time the Court can appoint Counsel to represent a Defendant is when
that person is charged with a capital offense. I am sorry, but I will have
to deny your request to appoint Counsel to defend you in this case.

The DEFENDANT: The United States Supreme Court says I am entitled to be
represented by Counsel.

Put to trial before a jury, Gideon conducted his defense about as well as
could be expected from a layman. He made an opening statement to the jury,
cross-examined the State's witnesses, presented witnesses in his own
defense, declined to testify himself, and made a short argument
"emphasizing his innocence to the charge contained in the Information filed
in this case." The jury returned a verdict of guilty, and petitioner was
sentenced to serve five years in the state prison. Later, petitioner filed
in the Florida Supreme Court this habeas corpus petition attacking his
conviction and sentence on the ground that the trial court's refusal to
appoint counsel for him denied him rights "guaranteed by the Constitution
and the Bill of Rights by the United States Government." [n1] Treating the
petition for habeas corpus as properly before it, the State Supreme Court,
"upon consideration thereof" but without an opinion, denied all relief.
Since 1942, when Betts v. Brady, 316 U.S. 455, was decided by a divided
[p*338] Court, the problem of a defendant's federal constitutional right to
counsel in a state court has been a continuing source of controversy and
litigation in both state and federal courts. [n2] To give this problem
another review here, we granted certiorari. 370 U.S. 908. Since Gideon was
proceeding in forma pauperis, we appointed counsel to represent him and
requested both sides to discuss in their briefs and oral arguments the
following: "Should this Court's holding in Betts v. Brady, 316 U.S. 455, be
reconsidered?"

The facts upon which Betts claimed that he had been unconstitutionally
denied the right to have counsel appointed to assist him are strikingly
like the facts upon which Gideon here bases his federal constitutional
claim. Betts was indicted for robbery in a Maryland state court. On
arraignment, he told the trial judge of his lack of funds to hire a lawyer
and asked the court to appoint one for him. Betts was advised that it was
not the practice in that county to appoint counsel for indigent defendants
except in murder and rape cases. He then pleaded not guilty, had witnesses
summoned, cross-examined the State's witnesses, examined his own, and chose
not to testify himself. He was found guilty by the judge, sitting without a
jury, and sentenced to eight years in prison. [p*339] Like Gideon, Betts
sought release by habeas corpus, alleging that he had been denied the right
to assistance of counsel in violation of the Fourteenth Amendment. Betts
was denied any relief, and, on review, this Court affirmed. It was held
that a refusal to appoint counsel for an indigent defendant charged with a
felony did not necessarily violate the Due Process Clause of the Fourteenth
Amendment, which, for reasons given, the Court deemed to be the only
applicable federal constitutional provision. The Court said:

Asserted denial [of due process] is to be tested by an appraisal of the
totality of facts in a given case. That which may, in one setting,
constitute a denial of fundamental fairness, shocking to the universal
sense of justice, may, in other circumstances, and in the light of other
considerations, fall short of such denial.

316 U.S. at 462. Treating due process as "a concept less rigid and more
fluid than those envisaged in other specific and particular provisions of
the Bill of Rights," the Court held that refusal to appoint counsel under
the particular facts and circumstances in the Betts case was not so
"offensive to the common and fundamental ideas of fairness" as to amount to
a denial of due process. Since the facts and circumstances of the two cases
are so nearly indistinguishable, we think the Betts v. Brady holding, if
left standing, would require us to reject Gideon's claim that the
Constitution guarantees him the assistance of counsel. Upon full
reconsideration, we conclude that Betts v. Brady should be overruled.

II

The Sixth Amendment provides, "In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his
defense." We have construed [p*340] this to mean that, in federal courts,
counsel must be provided for defendants unable to employ counsel unless the
right is competently and intelligently waived. [n3] Betts argued that this
right is extended to indigent defendants in state courts by the Fourteenth
Amendment. In response, the Court stated that, while the Sixth Amendment
laid down no rule for the conduct of the States, the question recurs
whether the constraint laid by the Amendment upon the national
courts expresses a rule so fundamental and essential to a fair trial,
and so, to due process of law, that it is made obligatory upon the
States by the Fourteenth Amendment.

316 U.S. at 465. In order to decide whether the Sixth Amendment's guarantee
of counsel is of this fundamental nature, the Court in Betts set out and
considered
[r]elevant data on the subject . . . afforded by constitutional and
statutory provisions subsisting in the colonies and the States prior to the
inclusion of the Bill of Rights in the national Constitution, and in the
constitutional, legislative, and judicial history of the States to the
present date.

316 U.S. at 465. On the basis of this historical data, the Court concluded
that "appointment of counsel is not a fundamental right, essential to a
fair trial." 316 U.S. at 471. It was for this reason the Betts Court
refused to accept the contention that the Sixth Amendment's guarantee of
counsel for indigent federal defendants was extended to or, in the words of
that Court, "made obligatory upon, the States by the Fourteenth Amendment."
Plainly, had the Court concluded that appointment of counsel for an
indigent criminal defendant was "a fundamental right, essential to a fair
trial," it would have held that the Fourteenth Amendment requires
appointment of counsel in a state court, just as the Sixth Amendment
requires in a federal court. [p*341]

We think the Court in Betts had ample precedent for acknowledging that
those guarantees of the Bill of Rights which are fundamental safeguards of
liberty immune from federal abridgment are equally protected against state
invasion by the Due Process Clause of the Fourteenth Amendment. This same
principle was recognized, explained, and applied in Powell v. Alabama, 287
U.S. 45 (1932), a case upholding the right of counsel, where the Court held
that, despite sweeping language to the contrary in Hurtado v. California,
110 U.S. 516 (1884), the Fourteenth Amendment "embraced" those
"`fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions,'" even though they had been
"specifically dealt with in another part of the federal Constitution." 287
U.S. at 67. In many cases other than Powell and Betts, this Court has
looked to the fundamental nature of original Bill of Rights guarantees to
decide whether the Fourteenth Amendment makes them obligatory on the
States. Explicitly recognized to be of this "fundamental nature," and
therefore made immune from state invasion by the Fourteenth, or some part
of it, are the First Amendment's freedoms of speech, press, religion,
assembly, association, and petition for redress of grievances. [n4] For the
same reason, though not always in precisely the same terminology, the Court
has made obligatory on the States the Fifth Amendment's command that
[p*342] private property shall not be taken for public use without just
compensation, [n5] the Fourth Amendment's prohibition of unreasonable
searches and seizures, [n6] and the Eighth's ban on cruel and unusual
punishment. [n7] On the other hand, this Court in Palko v. Connecticut, 302
U.S. 319 (1937), refused to hold that the Fourteenth Amendment made the
double jeopardy provision of the Fifth Amendment obligatory on the States.
In so refusing, however, the Court, speaking through Mr. Justice Cardozo,
was careful to emphasize that

immunities that are valid as against the federal government by force of the
specific pledges of particular amendments have been found to be implicit in
the concept of ordered liberty, and thus, through the Fourteenth Amendment,
become valid as against the states,

and that guarantees "in their origin . . . effective against the federal
government alone" had, by prior cases,

been taken over from the earlier articles of the federal bill of rights and
brought within the Fourteenth Amendment by a process of absorption.

302 U.S. at 323, 325, 326.

We accept Betts v. Brady's assumption, based as it was on our prior cases,
that a provision of the Bill of Rights which is "fundamental and essential
to a fair trial" is made obligatory upon the States by the Fourteenth
Amendment. We think the Court in Betts was wrong, however, in concluding
that the Sixth Amendment's guarantee of counsel is not one of these
fundamental rights. Ten years before Betts v. Brady, this Court, after full
consideration of all the historical data examined in Betts, had
unequivocally declared that "the right to the aid of [p*343] counsel is of
this fundamental character." Powell v. Alabama, 287 U.S. 45, 68 (1932).
While the Court, at the close of its Powell opinion, did, by its language,
as this Court frequently does, limit its holding to the particular facts
and circumstances of that case, its conclusions about the fundamental
nature of the right to counsel are unmistakable. Several years later, in
1936, the Court reemphasized what it had said about the fundamental nature
of the right to counsel in this language:

We concluded that certain fundamental rights, safeguarded by the first
eight amendments against federal action, were also safeguarded against
state action by the due process of law clause of the Fourteenth Amendment,
and among them the fundamental right of the accused to the aid of counsel
in a criminal prosecution.

Grosjean v. American Press Co., 297 U.S. 233, 243-244 (1936). And again, in
1938, this Court said:

[The assistance of counsel] is one of the safeguards of the Sixth Amendment
deemed necessary to insure fundamental human rights of life and liberty. .
. . The Sixth Amendment stands as a constant admonition that, if the
constitutional safeguards it provides be lost, justice will not "still be
done."

Johnson v. Zerbst, 304 U.S. 458, 462 (1938). To the same effect, see Avery
v. Alabama, 308 U.S. 444 (1940), and Smith v. O'Grady, 312 U.S. 329 (1941).
In light of these and many other prior decisions of this Court, it is not
surprising that the Betts Court, when faced with the contention that "one
charged with crime, who is unable to obtain counsel, must be furnished
counsel by the State," conceded that "[e]xpressions in the opinions of this
court lend color to the argument. . . ." 316 U.S. at 462-463. The fact is
that, in deciding as it did -- that "appointment of counsel is not a
fundamental right, [p*344] essential to a fair trial" -- the Court in Betts
v. Brady made an abrupt break with its own well considered precedents. In
returning to these old precedents, sounder, we believe, than the new, we
but restore constitutional principles established to achieve a fair system
of justice. Not only these precedents, but also reason and reflection,
require us to recognize that, in our adversary system of criminal justice,
any person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him. This seems to us
to be an obvious truth. Governments, both state and federal, quite properly
spend vast sums of money to establish machinery to try defendants accused
of crime. Lawyers to prosecute are everywhere deemed essential to protect
the public's interest in an orderly society. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best
lawyers they can get to prepare and present their defenses. That government
hires lawyers to prosecute and defendants who have the money hire lawyers
to defend are the strongest indications of the widespread belief that
lawyers in criminal courts are necessities, not luxuries. The right of one
charged with crime to counsel may not be deemed fundamental and essential
to fair trials in some countries, but it is in ours. From the very
beginning, our state and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards designed to assure fair
trials before impartial tribunals in which every defendant stands equal
before the law. This noble ideal cannot be realized if the poor man charged
with crime has to face his accusers without a lawyer to assist him. A
defendant's need for a lawyer is nowhere better stated than in the moving
words of Mr. Justice Sutherland in Powell v. Alabama:

The right to be heard would be, in many cases, of little avail if it did
not comprehend the right to be [p*345] heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in the
science of law. If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without the aid of counsel, he
may be put on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does not know how to
establish his innocence.
287 U.S. at 68-69. The Court in Betts v. Brady departed from the sound
wisdom upon which the Court's holding in Powell v. Alabama rested. Florida,
supported by two other States, has asked that Betts v. Brady be left
intact. Twenty-two States, as friends of the Court, argue that Betts was
"an anachronism when handed down," and that it should now be overruled. We
agree.

The judgment is reversed, and the cause is remanded to the Supreme Court of
Florida for further action not inconsistent with this opinion.

Reversed.

1. Later, in the petition for habeas corpus, signed and apparently prepared
by petitioner himself, he stated, "I, Clarence Earl Gideon, claim that I
was denied the rights of the 4th, 5th and 14th amendments of the Bill of
Rights."

2. Of the many such cases to reach this Court, recent examples are Carnley
v. Cochran, 369 U.S. 506 (1962); Hudson v. North Carolina, 363 U.S. 697
(1960); Moore v. Michigan, 355 U.S. 155 (1957). Illustrative cases in the
state courts are Artrip v. State, 136 So.2d 574 (Ct.App.Ala.1962); Shafer
v. Warden, 211 Md. 635, 126 A.2d 573 (1956). For examples of commentary,
see Allen, The Supreme Court, Federalism, and State Systems of Criminal
Justice, 8 De Paul L.Rev. 213 (1959); Kamisar, The Right to Counsel and the
Fourteenth Amendment: A Dialogue on "The Most Pervasive Right" of an
Accused, 30 U. of Chi.L.Rev. 1 (1962); The Right to Counsel, 45 Minn.L.Rev.
693 (1961).

3. Johnson v. Zerbst, 304 U.S. 458 (1938).

4. E.g., Gitlow v. New York, 268 U.S. 652, 666 (1925) (speech and press);
Lovell v. City of Griffin, 303 U.S. 444, 450 (1938) (speech and press);
Staub v. City of Baxley, 355 U.S. 313, 321 (1958) (speech); Grosjean v.
American Press Co., 297 U.S. 233, 244 (1936) (press); Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940) (religion); De Jonge v. Oregon, 299
U.S. 353, 364 (1937) (assembly); Shelton v. Tucker, 364 U.S. 479, 486, 488
(1960) (association); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293,
296 (1961) (association); Edwards v. South Carolina, 372 U.S. 229 (1963)
(speech, assembly, petition for redress of grievances).

5. E.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 235-241 (1897);
Smyth v. Ames, 169 U.S. 466, 522-526 (1898).

6. E.g., Wolf v. Colorado, 338 U.S. 25, 27-28 (1949); Elkins v. United
States, 364 U.S. 206, 213 (1960); Mapp v. Ohio, 367 U.S. 643 , 655 (1961).

7. Robinson v. California, 370 U.S. 660, 666 (1962).

MR. JUSTICE DOUGLAS.

While I join the opinion of the Court, a brief historical resume of the
relation between the Bill of Rights and the first section of the Fourteenth
Amendment seems pertinent. Since the adoption of that Amendment, ten
justices have felt that it protects from infringement by the States the
privileges, protections, and safeguards granted by the Bill of Rights.
[p*346]

Justice Field, the first Justice Harlan, and probably Justice Brewer, took
that position in O'Neil v. Vermont, 144 U.S. 323, 362-363, 370-371, as did
Justices BLACK, DOUGLAS, Murphy and Rutledge in Adamson v. California, 332
U.S. 46, 71-72, 124. And see Poe v. Ullman, 367 U.S. 497, 515-522
(dissenting opinion). That view was also expressed by Justices Bradley and
Swayne in the Slaughter-House Cases, 16 Wall. 36, 118-119, 122, and
seemingly was accepted by Justice Clifford when he dissented with Justice
Field in Walker v. Sauvinet, 92 U.S. 90, 90, 92. [n1] Unfortunately, it has
never commanded a Court. Yet, happily, all constitutional questions are
always open. Erie R. Co. v. Tompkins, 304 U.S. 64. And what we do today
does not foreclose the matter.

My Brother HARLAN is of the view that a guarantee of the Bill of Rights
that is made applicable to the States by reason of the Fourteenth Amendment
is a lesser version of that same guarantee as applied to the Federal
Government. [n2] Mr. Justice Jackson shared that view. [n3] [p*347] But
that view has not prevailed, [n4] and rights protected against state
invasion by the Due Process Clause of the Fourteenth Amendment are not
watered-dow versions of what the Bill of Rights guarantees.

1. Justices Bradley, Swayne and Field emphasized that the first eight
Amendments granted citizens of the United States certain privileges and
immunities that were protected from abridgment by the States by the
Fourteenth Amendment. See Slaughter-House Cases, supra, at 118-119; O'Neil
v. Vermont, supra, at 363. Justices Harlan and Brewer accepted the same
theory in the O'Neil case (see id. at 370-371), though Justice Harlan
indicated that all "persons," not merely "citizens," were given this
protection. Ibid. In Twining v. New Jersey, 211 U.S. 78, 117, Justice
Harlan's position was made clear:

In my judgment, immunity from self-incrimination is protected against
hostile state action not only by . . . [the Privileges and Immunities
Clause], but [also] by . . . [the Due Process Clause].

Justice Brewer, in joining the opinion of the Court, abandoned the view
that the entire Bill of Rights applies to the States in Maxwell v. Dow, 176
U.S. 581.

2. See Roth v. United States, 354 U.S. 476, 501, 506; Smith v. California,
361 U.S. 147, 169.

3. Beauharnais v. Illinois, 343 U.S. 250, 288. Cf. the opinions of Justices
Holmes and Brandeis in Gitlow v. New York, 268 U.S. 652, 672, and Whitney
v. California, 274 U.S. 357, 372.

4. The cases are collected by MR. JUSTICE BLACK in Speiser v. Randall, 357
U.S. 513, 530. And see Eaton v. Price, 364 U.S. 263, 274-276.

MR. JUSTICE CLARK, concurring in the result.

In Bute v. Illinois, 333 U.S. 640 (1948), this Court found no special
circumstances requiring the appointment of counsel, but stated that,

if these charges had been capital charges, the court would have been
required, both by the state statute and the decisions of this Court
interpreting the Fourteenth Amendment, to take some such steps.

Id. at 674. Prior to that case, I find no language in any cases in this
Court indicating that appointment of counsel in all capital cases was
required by the Fourteenth Amendment. [n1] At the next Term of the Court,
Mr. Justice Reed revealed that the Court was divided as to noncapital
cases, but that "the due process clause . . . requires counsel for all
persons charged with serious crimes. . . ." Uveges v. Pennsylvania, 335
U.S. 437, 441 (1948). Finally, in Hamilton v. Alabama, 368 U.S. 52 (1961),
we said that, "[w]hen one pleads to a capital charge without benefit of
counsel, we do not stop to determine whether prejudice resulted." Id. at
55. [p*348]

That the Sixth Amendment requires appointment of counsel in "all criminal
prosecutions" is clear both from the language of the Amendment and from
this Court's interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It
is equally clear from the above cases, all decided after Betts v. Brady,
316 U.S. 455 (1942), that the Fourteenth Amendment requires such
appointment in all prosecutions for capital crimes. The Court's decision
today, then, does no more than erase a distinction which has no basis in
logic and an increasingly eroded basis in authority. In Kinsella v. United
States ex rel. Singleton, 361 U.S. 234 (1960), we specifically rejected any
constitutional distinction between capital and noncapital offenses as
regards congressional power to provide for court-martial trials of civilian
dependents of armed forces personnel. Having previously held that civilian
dependents could not constitutionally be deprived of the protections of
Article III and the Fifth and Sixth Amendments in capital cases, Reid v.
Covert, 354 U.S. 1 (1957), we held that the same result must follow in
noncapital cases. Indeed, our opinion there foreshadowed the decision
today, [n2] as we noted that:

Obviously Fourteenth Amendment cases dealing with state action have no
application here, but if [p*349] they did, we believe that to deprive
civilian dependents of the safeguards of a jury trial here . . . would be
as invalid under those cases as it would be in cases of a capital nature.

361 U.S. at 246-247.

I must conclude here, as in Kinsella, supra, that the Constitution makes no
distinction between capital and noncapital cases. The Fourteenth Amendment
requires due process of law for the deprival of "liberty," just as for
deprival of "life," and there cannot constitutionally be a difference in
the quality of the process based merely upon a supposed difference in the
sanction involved. How can the Fourteenth Amendment tolerate a procedure
which it condemns in capital cases on the ground that deprival of liberty
may be less onerous than deprival of life -- a value judgment not
universally accepted [n3] -- or that only the latter deprival is
irrevocable? I can find no acceptable rationalization for such a result,
and I therefore concur in the judgment of the Court.

1. It might, however, be said that there is such an implication in Avery v.
Alabama, 308 U.S. 444 (1940), a capital case in which counsel had been
appointed, but in which the petitioner claimed a denial of "effective"
assistance. The Court, in affirming, noted that,

[h]ad petitioner been denied any representation of counsel at all, such a
clear violation of the Fourteenth Amendment's guarantee of assistance of
counsel would have required reversal of his conviction.

Id. at 445. No "special circumstances" were recited by the Court, but, in
citing Powell v. Alabama, 287 U.S. 45 (1932), as authority for its dictum,
it appears that the Court did not rely solely on the capital nature of the
offense.

2. Portents of today's decision may be found as well in Griffin v.
Illinois, 351 U.S. 12 (1956), and Ferguson v. Georgia, 365 U.S. 570 (1961).
In Griffin, a noncapital case, we held that the petitioner's constitutional
rights were violated by the State's procedure, which provided free
transcripts for indigent defendants only in capital cases. In Ferguson, we
struck down a state practice denying the appellant the effective assistance
of counsel, cautioning that

[o]ur decision does not turn on the facts that the appellant was tried for
a capital offense and was represented by employed counsel. The command of
the Fourteenth Amendment also applies in the case of an accused tried for a
noncapital offense, or represented by appointed counsel.

365 U.S. at 596.

3. See, e.g., Barzun, In Favor of Capital Punishment, 31 American Scholar
181, 188-189 (1962).

MR. JUSTICE HARLAN, concurring.

I agree that Betts v. Brady should be overruled, but consider it entitled
to a more respectful burial than has been accorded, at least on the part of
those of us who were not on the Court when that case was decided.

I cannot subscribe to the view that Betts v. Brady represented "an abrupt
break with its own well considered precedents." Ante, p. 344 . In 1932, in
Powell v. Alabama, 287 U.S. 45, a capital case, this Court declared that,
under the particular facts there presented --

the ignorance and illiteracy of the defendants, their youth, the
circumstances of public hostility . . . and, above all, that they stood in
deadly peril of their lives

(287 U.S. at 71) -- the state court had a duty to assign counsel for
[p*350] the trial as a necessary requisite of due process of law. It is
evident that these limiting facts were not added to the opinion as an
afterthought; they were repeatedly emphasized, see 287 U.S. at 52, 57-58,
71, and were clearly regarded as important to the result.

Thus, when this Court, a decade later, decided Betts v. Brady, it did no
more than to admit of the possible existence of special circumstances in
noncapital, as well as capital, trials, while at the same time insisting
that such circumstances be shown in order to establish a denial of due
process. The right to appointed counsel had been recognized as being
considerably broader in federal prosecutions, see Johnson v. Zerbst, 304
U.S. 458, but to have imposed these requirements on the States would indeed
have been "an abrupt break" with the almost immediate past. The declaration
that the right to appointed counsel in state prosecutions, as established
in Powell v. Alabama, was not limited to capital cases was, in truth, not a
departure from, but an extension of, existing precedent.

The principles declared in Powell and in Betts, however, have had a
troubled journey throughout the years that have followed first the one case
and then the other. Even by the time of the Betts decision, dictum in at
least one of the Court's opinions had indicated that there was an absolute
right to the services of counsel in the trial of state capital cases. [n1]
Such dicta continued to appear in subsequent decisions, [n2] and any
lingering doubts were finally eliminated by the holding of Hamilton v.
Alabama, 368 U.S. 52.

In noncapital cases, the "special circumstances" rule has continued to
exist in form while its substance has been substantially and steadily
eroded. In the first decade after Betts, there were cases in which the
Court [p*351] found special circumstances to be lacking, but usually by a
sharply divided vote. [n3] However, no such decision has been cited to us,
and I have found none, after Quicksall v. Michigan, 339 U.S. 660, decided
in 1950. At the same time, there have been not a few cases in which special
circumstances were found in little or nothing more than the "complexity" of
the legal questions presented, although those questions were often of only
routine difficulty. [n4] The Court has come to recognize, in other words,
that the mere existence of a serious criminal charge constituted, in
itself, special circumstances requiring the services of counsel at trial.
In truth, the Betts v. Brady rule is no longer a reality.

This evolution, however, appears not to have been fully recognized by many
state courts, in this instance charged with the front-line responsibility
for the enforcement of constitutional rights. [n5] To continue a rule which
is honored by this Court only with lip service is not a healthy thing, and,
in the long run, will do disservice to the federal system.

The special circumstances rule has been formally abandoned in capital
cases, and the time has now come when it should be similarly abandoned in
noncapital cases, at least as to offenses which, as the one involved here,
carry the possibility of a substantial prison sentence. (Whether the rule
should extend to all criminal cases need not now be decided.) This indeed
does no more than to make explicit something that has long since been
foreshadowed in our decisions. [p*352]

In agreeing with the Court that the right to counsel in a case such as this
should now be expressly recognized as a fundamental right embraced in the
Fourteenth Amendment, I wish to make a further observation. When we hold a
right or immunity, valid against the Federal Government, to be "implicit in
the concept of ordered liberty" [n6] and thus valid against the States, I
do not read our past decisions to suggest that, by so holding, we
automatically carry over an entire body of federal law and apply it in full
sweep to the States. Any such concept would disregard the frequently wide
disparity between the legitimate interests of the States and of the Federal
Government, the divergent problems that they face, and the significantly
different consequences of their actions. Cf. Roth v. United States, 354
U.S. 476, 496-508 (separate opinion of this writer). In what is done today,
I do not understand the Court to depart from the principles laid down in
Palko v. Connecticut, 302 U.S. 319, or to embrace the concept that the
Fourteenth Amendment "incorporates" the Sixth Amendment as such.

On these premises I join in the judgment of the Court.

1. Avery v. Alabama, 308 U.S. 444, 445.

2. E.g., Bute v. Illinois, 333 U.S. 640, 674; Uveges v. Pennsylvania, 335
U.S. 437, 441.

3. E.g., Foster v. Illinois, 332 U.S. 134; Bute v. Illinois, 333 U.S. 640;
Gryger v. Burke, 334 U.S. 728.

4. E.g., Williams v. Kaiser, 323 U.S. 471; Hudson v. North Carolina, 363
U.S. 697; Chewning v. Cunningham, 368 U.S. 443.

5. See, e.g., Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 176 A.2d
94 (1961); Shaffer v. Warden, 211 Md. 635, 126 A.2d 573 (1956); Henderson
v. Bannan, 256 F.2d 363 (C.A. 6th Cir.1958).

6. Palko v. Connecticut, 302 U.S. 319, 325.

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Last Updated: 02/23/08