In Douglas v. California, 372 U.S. 353 (1963), decided the same day as Gideon v. Wainwright, 372 U.S. 335 (1961), the Supreme Court held that the right to the assistance of counsel at state expense applied to defendants on a first level of appeal, extending Gideon to the first stage of appeal. In Douglas, two defendants were charged with thirteen felonies and both were represented by a single public defender. Both of the defendants were convicted after trial and both appealed. The defendants requested counsel be appointed for them on appeal and the court refused to grant their request, even though neither of them could afford to pay a lawyer.
Under California statutory law, a rule of criminal procedures requires state appellate courts upon the request for a lawyer to review the record independently to see whether counsel would be helpful. If the court concludes that counsel would be helpful, counsel should be appointed. The California appellate court stated it had gone through the record and reached the conclusion that ‘‘no good whatever could be served by the appointment of counsel.’’ It then upheld the defendants’ convictions and held that the court had properly refused to give them counsel at state expense.
The U.S. Supreme Court reversed the defendants’ convictions. It disagreed with the California appellate court and found that the California procedure allowing the state court to decide whether counsel was necessary to be unconstitutional. The Court held that the procedure violated the Equal Protection Clause of the Fourteenth Amendment because ‘‘the type of an appeal a person is afforded . . . hinges upon whether or not he can pay for the assistance of counsel.’’ If a defendant can pay, explained the Court, the appeals court will consider his appeal in full, which includes written briefs and oral argument by counsel. If he cannot, the court is allowed to prejudge the merits before it even decides whether a lawyer should be appointed. According to the Court, ‘‘the indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.’’
In so holding the Court made clear that it was not deciding whether a lawyer would have to be appointed for a poor person at any higher level of appeal beyond the first-level appeal after a conviction in a criminal case.
Justice Clark dissented. He began by noting that ‘‘the overwhelming percentage of appeals by indigents are frivolous and that California has adopted a procedure that saves it the unnecessary expense of the ‘useless gesture’ of providing counsel in such cases.’’ The justice would have held that this procedure did not violate Due Process or Equal Protection. In support of his conclusion, Justice Clark pointed to the U.S. Supreme Court’s procedure for dealing with petitions for review by unrepresented poor people: in the prior term of the Court, it had decided over 1200 such applications without appointing any lawyers or requiring a full record. California, he noted, furnishes a complete record to every poor person and, if counsel is requested, (1) appoints counsel; or (2) makes an investigation of the record to determine whether counsel would be advantageous. As Justice Clark concluded, ‘‘People who live in glass houses had best not throw stones.’’
Justice Harlan, joined by Justice Stewart, separately dissented. Justice Harlan did not believe that Equal Protection was relevant and would have held that due process did not require the appointment of a lawyer on a first appeal. First, Justice Harlan explained that the states are free to pass a statute ‘‘of general applicability that may affect the poor more harshly than it does the rich,’’ but that the Equal Protection clause does not require the states to ‘‘lift the handicaps flowing from differences in economic circumstances.’’ Second, as for due process, Justice Harlan was not willing to find that a defendant would be deprived of adequate appellate review without a lawyer. Justice Harlan did not believe that the state’s rule was ‘‘so arbitrary or unreasonable’’ to render it unconstitutional.
Cases and Statutes Cited
See also Betts v. Brady, 316 U.S. 455 (1942); Due Process; Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama, 287 U.S. 45 (1932); Right to Counsel; Ross v. Moffitt, 417 U.S. 600 (1974)