Archive for May 31, 2005

The debate continues. So that you don’t have to click on various links, I’ll reproduce the gist of the debate. After my previous post, Seth commented as follows:

Your reading of the U.S. Constitution seems to imply that the purpose of the Sixth Amendment was to prevent the government from barring attorneys from trials; do you have any textual evidence to support the notion that that
was the fear of the Founding Fathers in 1789? Isn’t the more likely
interpretation of the Sixth Amendment that "right" means "right," as it
does in every other place in the U.S. Constitution? Was the application
of Gideon v. Wainwright to the states judicial
activism, or among the most commonsensical
consistent-with-the-Constitution no-brainers in the history of the
common law? Frankly, I had assumed the latter until I saw your post,
but see nothing whatsoever in your post which would dissuade me from my
view.

Finally, given your absolutely remarkable view of the Fourteenth Amendment, do you disagree with the foundational legal principle that (in paraphrase) "the protections of the U.S. Constitution establish the floor for all state constitutions"?  By that indisputable principle, the Fourteenth Amendment had to provide state-level defendants with the protections of Gideon v. Wainwright, unless that case had been based on administrative law rather than the Sixth Amendment (which it wasn’t).

What
am I missing here? This seems like a somewhat frivilous dialogue,
frankly. Sure, the states can choose to set their own levels for
"indigence," but a case like Bearden v. Georgia or (in New Hampshire) State v. Fowlie
makes fairly clear that to the extent those administrative regulations
do not reasonably protect the rights of the indigent accused to get an
attorney–a pretty simple calculus, if you think of it: "Does Joe have
enough money to hire the least-expensive criminal defense attorney
available, or not?"–I’m not sure this residual, rather esoteric
question makes this issue anything like a barn-burner.

Tom responds,

Seth: in reference to the purpose of the 6th amendment, and why it was
not until the activist Warren court that it was found to mandate
state-paid attorneys– Amazing as it may seem to us, at common law
there was not even a right to have an attorney if you wanted one, even
in capital cases!

Thus, the purpose of the 6th was to guarantee counsel, not to mandate that it be provided by the state. Again,
if it’s a good idea to have the state provide counsel for the indigent,
the decision should be made by the people, not interpreted into the
constitution where it does not exist.

As I mentioned before,
even the Warren court knew they could not honestly claim to "find" a
right to state-funded defense attorneys in the 6th amendment. Hence
their use of the 14th, which, just like the 6th, was not intended to be
a blank slate for 5 justices to write their policy preferences on to.

As to the 14th, suffice to say, if "incorporation" was intended, it took a long time for the Supremes to figure it out

While I will have to agree superficially with Tom that the words "the state shall provide counsel for indigent defendants" are nowhere explicitly mentioned, I have to agree with Seth that this can be the only reading. While it may be true that there is no legal precedent prior to 1932, that does not mean the preceeding Courts were correct. The following is taking from a publication on the Dept. of State’s Website entitled "Rights of the People – Individual Freedom and the Bill of Rights" – Chapter 8 "Rights of the Accused":

We normally think of a trial by jury as one of the individual rights afforded to persons accused of a crime. It
is also, as we have seen, a right that is institutional as well — one
that belongs to the people as a whole as well as to the individual. But
jury trials, as has been all too evident in dictatorships, can be
meaningless unless that trial is governed by rules that ensure fairness
to the individual.

A trial in which the judge allows illegally seized
evidence to be used, or in which the defendant has no access to an
attorney, is forced to testify against himself, or is denied the
ability to bring witnesses favorable to his cause, is not a trial that
meets the standard of due process of law. The men who drafted the Bill
of Rights knew this, not only from their experience during the Colonial
era, but also from the history of Great Britain, which ever since the
signing of the Magna Carta in 1215 had been committed to expanding the
rule of law.

Now, admittedly, it does not refer to "indigent defendants", but honestly – if it is described as a right, can it be understood to refer to rich people only and not poor people? (Note: I also recognize that this publication is no tome, but still – it’s published by the Dept. of State.) I think not (or rather, I hope not).