Ross v. Moffitt, 417 U.S. 600 (1974)

In Ross v. Moffitt, the Supreme Court addressed a question expressly held open in the Court’s earlier decisions: whether the constitutional right to counsel as recognized in Douglas v. California (1963) should be extended to require appointment of counsel beyond a first level of appeal after a criminal conviction. The Court held that the right should not be extended to that level of appeal. The Court held that there is no right to the appointment of counsel at subsequent appellate steps, that is, in seeking to convince a higher state appellate court to hear a criminal case (a discretionary state appeal) or for application for that same kind of review in the U.S. Supreme Court (by a petition for certiorari). The Supreme Court thus reversed the decision of the U.S. Court of Appeals for the Fourth Circuit, which had held that appointment of counsel was required by the due process and equal protection clauses of the Fourteenth Amendment.

In Ross, the defendant had pleaded not guilty in two cases and was represented by a court-appointed lawyer. He was convicted and took separate appeals to the state court of appeals, where he was again represented by a court appointed lawyer. His convictions were affirmed. On one of the appeals, he sought further review in the North Carolina Supreme Court and asked the court to appoint counsel to help him do so. The court refused to appoint counsel at state expense. The defendant then tried to appeal this ruling, first to the higher state courts and then to the federal courts. When he asked the court to appoint a lawyer to prepare a petition for a writ of certiorari to the U.S. Supreme Court and for postconviction remedies in the state courts on this issue, the court again refused. The North Carolina court of appeals reversed, holding that Ross was entitled to a lawyer at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to the U.S. Supreme Court.

In an opinion by Justice Rehnquist, the majority disagreed and reversed this holding. It refused to extend its holding in Douglas. That is, the Court held that the appointment of counsel was only required on an appeal that is granted as of right, without needing permission of the appellate court. The Court also distinguished the situation of a defendant at the trial stage and at the appellate stage of a proceeding. It explained that counsel is required as a matter of due process when it is the attorney for the state who prosecutes the case but that, on appeal, it is the defendant who starts the process of seeking review. The Court also recalled that appeals are not even required by due process of law. On appeal, then, unfairness results only if poor people are treated differently from rich people in a way that denies them an adequate opportunity to present their claims.

Moreover, according to the Court, there is no real need for counsel on discretionary appeals so that the absence of counsel is not constitutionally unfair. As the Court explained, on discretionary appeals— requests for review by the states’ highest courts and by the U.S. Supreme Court by way of certiorari—a poor person already has had the help of a lawyer in preparing briefs on the first level of appeal. The discretionary review will be based on those briefs. In addition, the poor person will already have had a transcript of the record in the trial court reproduced at state expense, because this is required under the Supreme Court’s decision in Griffin v. Illinois (1956). There may also be a decision written by the first appellate court that the higher courts can use to review the issues. Taken together, these materials are adequate to ensure that the request for review by the higher courts is meaningful. The sufficiency of these materials for review was particularly true in North Carolina, in fact, because the critical issue before the North Carolina Supreme Court when a defendant is seeking permission to appeal there is whether the appeal has ‘‘significant public interest or major significance to the jurisprudence of the state.’’ Similarly, in the U.S. Supreme Court, a grant of certiorari depends on many factors other than the correctness of the judgment below. And, moreover, the right to appeal is conferred by federal statute, not by the state, so that it would appear that the obligation to provide counsel is a federal one. Yet the Supreme Court regularly decides petitions without the appointment of counsel.

Justice Douglas, joined by Justice Brennan and Marshall, dissented. He relied on and agreed with the opinion of Chief Judge Haynsworth, for the unanimous panel in the Court of Appeals, who held that the most meaningful review of a criminal conviction occurs at the North Carolina Supreme Court stage so that counsel is essential. To the dissenters, the review of a conviction by a state’s highest court is extremely important and fairness therefore requires the assistance of counsel at that stage. For other reasons, the dissenters believed that assistance of counsel was required on petition for certiorari to the U.S. Supreme Court. At that stage, the existing briefs and records do not address the issue that the Supreme Court has to decide: whether the case is worthy of its review, not because of any error, but because of the national importance of the issue or the need for Supreme Court resolution of the issue for the nation. That is a more sophisticated set of arguments that may not have been covered in the other previously filed documents. Counsel is also necessary at that stage because preparing a petition for certiorari has many technical requirements that a pro se defendant may be unable to negotiate. Finally, it would be a relatively easy matter for counsel appointed on an earlier appeal to remain as counsel in the later stages of appeal. Accordingly, Justice Douglas would have held that due process fairness and equal protection equality would require counsel in discretionary appeals.

LISSA GRIFFIN

Cases and Statutes Cited

• Douglas v. California, 372 U.S. 353 (1963)
• Griffin v. Illinois 351 U.S. 12 (1956)

See also Betts v. Brady, 316 U.S. 455 (1942); Douglas v. California, 372 U.S. 353 (1963); Due Process; Equal Protection of Law (XIV); Gideon v. Wainwright, 372 U.S. 335 (1963); Griffin v. Illinois, 351 U.S. 12 (1956); Powell v. Alabama, 287 U.S. 45 (1932); Right to Counsel