Over the past two centuries, the right to counsel, constitutionality mandated under the sixth amendment, has evolved into a right of assured counsel in any court proceedings that result in incarceration or other limitation of personal freedom. It now appears that the trajectory of that impetus is continuing into the realm of pretrial activities such as arraignment. A review of recently decided Supreme Court cases reveals that the trend is moving ever closer to a more specific guarantee of protection for the accused at every stage of the trial.

The right of counsel has been expanded to accommodate any government sanctioned investigation clothed with the power to gather and decide peremptorily on prima facie evidence which partake the nature of a trial even without necessitating the appearance before a judge and a jury. Early in the eighteenth century the American system of judicial administration adopted the institution of a public prosecutor.

The ordinary layman who stands trial was now made to face “a government official whose specific function was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries and, last but not the least, the personnel of the Court” (Heller, 1951). In other words, the uninitiated accused, ignorant of the law and court procedures, appears in court to do litigation against the full strength of the government appointed prosecution attorney.

It is a lopsided battle where even a person who is not guilty may be convicted of the crime simply because he could not provide the necessary evidence or argue his case effectively in order to establish his innocence. Precisely because of this problem, the guarantee of the right to counsel, couched in the provisions of the Sixth Amendment with reference to the Fourteenth Amendment, serves to minimize the imbalance of the adversary system (United States v. Ash, 1973).

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As Justice Black observes, it is a recognition of the reality that the average defendant “does not have the professional skill to protect himself when brought before tribunal with the power to lake his life or liberty” and against a prosecuting attorney who is most likely an experienced and knowledgeable counsel of law (Johnson v. Zerbst, 1938). In light of the foregoing immutable principles of the right of counsel and the inalienable right to due process, the decision penned in Betts v.

Brady half a century ago becomes rather repugnant to the pursuit of protection of these rights. It is anachronistic to the currently existing jurisprudence on the matter of construing the provisions of such rights against the State and not the accused, and as such, the ruling has been abandoned. The accused at the instant case was charged for robbery, but because the petitioner did not have money to employ a counsel he asked for the court that he be appointed one (Betts v. Brady, 1942).

However, the judge failed to grant the request because “it was not the practice in Carroll County to appoint counsel for indigent defendants save in prosecutions for murder and rape” (1942). The accused was forced to go into trial on his own putting and cross-examining witnesses in the stand in his defense. Subsequently, the judge convicted and sentenced him to eight years in prison. After conviction he filed a petition for a writ of habeas corpus asseverating that he was deprived of the right to a counsel which he never did waive from the very beginning, in fact proactively sought for one before the courts.

Still, the petition was denied which prompted him to raise the issue to the Supreme Court whether or not the lower court’s refusal to appoint a counsel on his behalf violated the Fourteenth Amendment as he was deprived of liberty without due process of law. The main contention of the petitioner is that the practice of denying court appointed counsel to lesser offenses is invalid in the face of the constitutional guarantee of the right to a counsel. Regardless of the crime and circumstance involved therein the state has the obligation to grant the request especially to those who can not afford any.

On this point, the Court split-hairs and drew distinctions between his case and extant jurisprudence viz. Powell v. Alabama, 287 U. S. 45 , 53 S. Ct. 55, 65, 84 A. L. R. 527, Avery v. Alabama, 308 U. S. 444 , 60 S. Ct. 321, and Smith v. O’Grady, 312 U. S. 329 , 61 S. Ct. 572 (Betts v. Brady, 1942). The Court held that unlike the aforementioned cases invoked by the petitioner, the same does not fall within the ambit of State protection since he was not feebleminded, ignorant, nor illiterate and so on to trigger the due process requirements.

Moreover, the petitioner was a man of reasonable intelligence and is quite capable of fighting for his own interests before the court of such a “narrow issue” (1942). In fact, he is no stranger to court proceedings because he had previously been in a criminal court. Taking into account these circumstances, i. e. intellect, the “narrowness of the issue” and the person’s familiarity with the courts, the Supreme Court held that there was no violation of the basic tenets of the due process clause simple because the perfunctory requirements were met.

Accordingly, there was no doubt in the minds of the Justices that he was guilty of the robbery anyway (1942). Upon a closer perusal of legal history and common law practice in force it can be said that the States are in no obligation to furnish a person, who is neither indigent nor charged with a capital offense, with counsel. Otherwise, the Supreme Court argues, to construe this in favor of the accused there is the risk of provisional malleability wherein the courts will now continually calibrate the guarantee of such a right across the board without due regard for the antecedent facts (Betts v.

Brady, 1942). Put differently, in all respects, the fulfillment of the right to a counsel is not as fundamental and essential so as to make the imposition mandatory in criminal trials in the interest of fairness and equity. To stretch this right would inevitably mean that all forms of proceedings will have to invest a huge amount of resources to grant the accused counsel no matter in what stage or body the trial commences (1942).

Curiously enough, the very words that forecasted the seemingly “dangerous” event by extending the right of counsel in all its constitutional plentitude were used in Gideon v. Wainwright to overturn the ruling in Betts v. Grady twenty years later (Gideon v. Wainwright, 1963). By way of a negative pregnant, the Court previously did recognize the possibility of expanding the right to cover a whole span of court proceedings but only stop short of actually realizing it for fear of the unknown repercussions of such a radical decision.

The decision in Gideon v. Wainwright seeks to repair the error and held that an accused who is charged with whatever felony and despite of his station in life had the fundamental and essential right to a counsel in the pursuit of fairness in trial proceedings (1963). To deny him this important right would defeat the ends of justice and truth. In the words of Justice Black, “lawyers in criminal courts are necessities, not luxuries”—only rightly so (1963). As it were, the progressive and highly-protective enactments gathered in Gideon v. Wainwright have espoused several layers of interpretation.

While the decision in the case expanded the scope of the right to counsel, the perimeters and outer limits of its meaning have yet to be thoroughly explicated (Gideon v. Wainwright, 1963). It is not beyond the realm of imagination to note that the right to counsel is not absolute in all stages and in all offenses where the possibility of a few exquisite novel cases may prompt a different approach altogether. There is the undeniable danger arising form the utter fixation towards the specificity in applying the doctrine uttered in the previous rulings.

In the extreme side of things a person may derail justice unnecessarily by invoking the invalidity of a conviction solely because his right to appear with counsel has been vaguely ignored or through technicality, wash away competent rulings in the face of a harmless error (1963). Such danger and challenge have been met and tackled in the recent case of Texas v. Cobb where the accused, who had been charged primarily with the crime of burglary, later confessed to a separate crime of two counts of murder without the benefit of counsel (2001).

At the onset, the legal requisites imposed on by the Sixth Amendment have been fulfilled. Competent counsel was assigned at his behest and criminal information has been drafted specifically for the crime of burglary. As it turned out, the crime imputed to him was only a slice of a bigger criminal offense. Upon the instance of respondent’s father report, he appeared during the preliminary proceedings and confessed willfully and knowingly to the other crime of murdering Margaret and Kori Rae (2001).

As a consequence, the respondent was convicted of “capital murder for murdering more than one person in the course of single criminal transaction in violation of the Texas Penal Code (2001). In order to debunk the validity of the conviction, the respondent reneges on his confession saying that it should have been suppressed since there was no counsel present when he confessed. Taking advantage of the enhanced reading of the Sixth Amendment, the respondent would have the Supreme Court believe that the offense-specific rule must lie even if the offense of burglary produced a higher crime during its commission.

Since the charges are different, likewise, it must necessarily mean that there must be a separate requisite to the right of counsel over the other (2001). In effect, he asks the Court to reverse the ruling because he did not have the benefit of legal advice at the time when he confessed to another crime which was nevertheless related proximately in the first charge of burglary (2001). However, the Supreme Court saw through the unjustified legalese by stating that while the specific-offense rule is still in force, the issue presented in the case is simply a problem of defining the extent of the offense (Texas v. Cobb, 2001).

There is no need to rest on technical arguments given the fact that he had an existing counsel at his disposal for the first crime and can ask for legal services when he was being interrogated for the second crime. Arguing, without conceding, that the two crimes require two different levels of legal advice and that the close and direct relations between the two are vague, the Court avers that police officers does not “possess complete knowledge of the circumstances of an incident, such that the officers will be able to tailor their investigation to avoid addressing factually related offenses” (2001).

An assumption to the contrary would be detrimental to the efficacy of the police institution since it requires that they (police enforcers) have full knowledge before they can even proceed to draft criminal information against an accused (2001). Owing largely to the complexity of certain criminal cases, interrogators are not barred from further asking questions related to a previous crime if only to render justice where it is due. At any rate, the confession was conclusive and done willingly, intelligently and voluntarily with the accused being apprised of the consequences of admitting to the crime (2001).

Indeed, the right to counsel is fundamental and essential to a person’s right to due process and right to a fair trial but such is not absolute subject only to the limitations and interpretations of Judicial review and scrutiny. A person may waive the right to a counsel if he believes that he can mount a better defense for his case than anyone can. The Constitution does not prohibit such a sanction of independent self-representation. As with the case of the State of Indiana v. Edwards, it is held that a defendant who is “competent to stand trial and knowingly, intelligently, and voluntarily requests to proceed to trial pro se” (Indiana v. Edwards, 2007).

But where the right of the State to allow a person to represent himself pro se is compounded by the fact of the person’s ill capacity with respect to his mental and intellectual faculties which places him at the risk of a farcical trial, the Court and the government “should not face a choice of either declining to prosecute a competent defendant or unleashing a spectacle that may risk fundamental unfairness and serious damage to public confidence in the fairness of the trial process” (2007).

The trail court of Indiana is rendered inutile if it were to accept a request of pro se representation even if the accused is obviously mentally incapacitated to proceed with the trial. As such, the Supreme Court reversed the ruling and enacted prophylactic measures to define the difference between the competency to stand trial and the competency to represent oneself during the trial. The flipside of the argument is the problem of defining precisely the threshold of competency to allow self-representation in criminal trials.

In other words, a person deemed intelligent and mentally stable to conduct his own defense may still be subject to the test of whether or not he understands the rules of court and knows his way around competently during the trial. It is more likely that the person who stands trial may get lost in the legal arguments of the case which would mean the indispensability of legal representation nevertheless (Indiana v. Edwards, 2007). The right of an accused to be heard will be of little avail of it does not include the right to be heard by counsel.

Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure and evidence and, without counsel, an accused may be put to trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. Left without the aid of a counsel, he may be convicted not because he is guilty but because he does not know how to establish his defense or innocence (Powell v. Alabama, 1932).

He needs the assistance of counsel lest he be the victim of overzealous prosecutors, of the law’s complexity or of his own ignorance and bewilderment (William v. Kaiser, 1945). It is for this reason that the right to counsel is deemed so important that it is has become a constitutional right and it is so implemented that it is not enough for the court to apprise an accused of his right to counsel, nor is it sufficient to ask him whether he desires the aid of an attorney, but it is essential that the court should grant him reasonable time to procure an attorney of his own or assigned one. In the same vein, the case of Rothgery v. Gillespie County appears to raise the same issue of competence with regard to intelligent and voluntary waiver of the right to counsel (2008).

The facts of the case reveal that the accused waived his right to counsel believing that it would fast track the proceedings. The accused posted bail and was immediately released but was rearrested because he could not afford the bail after it was raised to sum beyond his means (2008). He asked for legal counsel but was only represented by one a week after his grand jury indictment to which time his attorney proved that he was not a felon and thereafter released from custody (2008).

In a pending case, the accused sues the respondent for denying him an appointed counsel pursuant to the guarantee of the Sixth Amendment at the time of his detention and posting of bail. The main issue is the guarantee of the Sixth Amendment during a proceeding where a prosecutor was not present (2008). The issues in the case of Rothgery have yet to be decided. It can not be gainsaid that at this point in time a litigant needs the assistance of counsel in all proceedings, administrative, civil or criminal.

Not being a lawyer, he is ignorant of the substantive and procedural laws which are used to resolve disputes. The need of a person for the assistance of counsel is felt more urgently in a criminal than in any other proceeding against him where his life or liberty are at risk. An accused needs the guidance of a competent counsel at every stage of the trial: From custodial interrogation, to preliminary interrogation or detention pending trial, and from arraignment to promulgation of judgment (McNeil v. Wisconsin, 1991).

Reviewing the catena of cases on the matter of the right of the accused to competent counsel, there is the unmistakable tradition in the decisions of the Supreme Court in adopting a rule that compels courts to grant an accused an assured counsel at every stage of his trial. The privilege extends not only to the formal and proper proceedings but also to every prosecutorial activity where the accused is at the risk of being deprived of his freedom and liberty.


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