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Lawyers Matter: A Cautionary Tale

We often say that the Sixth Amendment, specifically the part that says , “[i]n all criminal prosecutions, the accused shall enjoy the right to … have the assistance of counsel for his defense” guarantees the right to counsel. Despite the popular perception that this idea is fundamental, the Court has not always been protective of the notion. see, e.g. Ross v. Moffitt, 417 U.S. 600 (1974) (case decided 50 years ago this week that refused to extend the right to counsel for collateral review and for review in the Supreme Court of the United States).

The decision in Ross v. Moffitt had an enormous impact 25 years later (coincidentally 25 years ago this week), in Maryland v. Dyson, 527 U.S. 465 (1999). The most interesting pieces of that short, per curiam decision lie in the very short dissent and even shorter footnote.

Justice Breyer wrote the dissent, in which Justice Stevens joined. The entire dissent avers,

I agree that the Court’s per curiam opinion correctly states the law, but because respondent’s counsel is not a member of this Court’s bar and did not wish to become one, respondent has not filed a brief in opposition to the petition for certiorari. I believe we should not summarily reverse in a criminal case, irrespective of the merits, where the respondent is represented by a counsel unable to file a response, without first inviting an attorney to file a brief as amicus curiae in response to the petition for certiorari. For this reason, I dissent.

Maryland v. Dyson, 527 U.S. at 468.


The snarky footnote – written by one of the other justices, but we cannot discern who due to the per curiam opinion (cough, cough, ahem Scalia, ahem) – says,


Justice BREYER in dissent suggests that we should not summarily reverse a judgment in a criminal case, even though he agrees with this opinion as a matter of law. But to adopt that position would simply leave it in the hands of a respondent—who had obtained a lower court judgment manifestly wrong as a matter of federal constitutional law—to avoid summary reversal by the simple expedient of refusing to file a response. While we have on occasion appointed an attorney to file a brief as amicus curiae in a case where we have granted certiorari, in order to be sure that the argued case is fully briefed, we have never done so in cases which we have summarily reversed. The reason for this is that a summary reversal does not decide any new or unanswered question of law, but simply corrects a lower court’s demonstrably erroneous application of federal law.

Maryland v. Dyson, 527 U.S. at 467 fn.


Read that footnote carefully – essentially it says we have already made our minds up based on the petition for certiorari so do not confuse us with the facts.  It is remarkable. The Court is discretionary – it need not grant certiorari. Here it did so based only on the pleadings of the government which may – or may not be – accurate as to the underlying facts, reasoning by the lower court, or any ambiguity that may exist in the law. The Court decided to accept the case in order to reverse it without offering the defendant an opportunity to be heard. And it not only thought that was okay, but wrote a footnote chastising the member of the Court who called it out and suggested that maybe both sides should have a chance to make a case. Take that in. In a nutshell, that is the view of the right to counsel of the Supreme Court of the United States of America.

Here’s the rub – the lower court decision reversing the conviction and charging court costs to the prosecution in Maryland – was really well reasoned and, arguably, correct. At least it was far more nuanced than the Supreme Court’s cavalier assessment. Had the Court appointed counsel for Mr. Dyson, would we have had the erosion of the Fourth Amendment as to cars that we have now, 25 years later? Maybe, but not necessarily.

So, just like last week when we revisited the Brinegar case and the long legacy of Prohibition, let’s delve a little bit into the actual facts of the Dyson case and why the Supreme Court did not have to – and should not have – granted certiorari.

After losing his motion to suppress evidence, Mr. Dyson was convicted of conspiracy to possess cocaine with intent to distribute at a bench trial. Dyson v. State, 122 Md.App. 413, 417 (1998). He raised two issues on appeal – a statutory speedy trial issue which was dismissed from its inception and the question of whether the motion judge erred in denying his motion to suppress evidence. This is the issue that had traction.

The court asserted, without question, that there was probable cause to search Mr. Dyson’s car. This was established through the use of a reliable confidential informant with a very good track record and corroborated by police work. With probable cause established, the court determined that there was ample time and opportunity to present the information to a magistrate for a warrant prior to stopping the vehicle and searching it. The failure to obtain the warrant when it could have been obtained was the lynchpin for the court in reversing the conviction.

In the decision, the Maryland court discussed the necessary “exigency” of the automobile exception. Somehow, the Supreme Court read this as requiring an extra step in the process. That is not what the decision actually says.

What it says is that, even in accepting the “Carroll Doctrine” (referring to Carroll v. United States, 267 U.S. 132 (1925) which was also mentioned in this blog last week.), the preference in the Constitution is still for obtaining a warrant whenever possible. This was not a random car stop on the highway. In this case, the police had hours and hours of time after which they had established probable cause to obtain a warrant. Because of that, they should have obtained a warrant and the failure to do so should result in a reversal of the conviction regardless of the fact that the property they intended to search was a vehicle. In other words, to ensure that a search is reasonable, the Fourth Amendment requires both probable cause and a warrant whenever it is feasible to obtain a warrant notwithstanding the inherent "exigency" of the "automobile exception" to the warrant requirement. Lest the exception swallow the rule, the police here had ample time and means to obtain a warrant, which they should have done, and instead they acted like cowboys.

The decision is sound. It mentions and reviews several Supreme Court cases in reaching its conclusion. It even states internally that it is a narrow ruling and limited to its facts. Mr. Dyson’s motion to suppress should have been granted. Unsatisfied with this decision, the state requested and received certiorari. Mr. Dyson had a lawyer who was not a member of the Supreme Court Bar and refused to become a member of the Supreme Court bar. This prohibited the lawyer from filing his briefs on behalf of the defendant. Without understanding any of the issues for the actual case in controversy – because they had only been briefed by the side asking for reversal – the Court refused to appoint counsel for Mr. Dyson, reversed the state court decision (likely without reading it), and upheld the conviction thereby rewarding the poor (and arguably unconstitutional) behavior by the police.

Had a lawyer been appointed, the argument would have gone very differently. It is unclear if it would have been successful, but at least Mr. Dyson would have had the opportunity to argue his case. As an inmate, he did not have any recourse. There is a lot of chatter about how terrible the Court is now and how it should be dispassionate and non-political and how it was so much better in bygone days. Not defending today's Court - it's just not that different from any other Court (with the possible exception of its delight in reversing precedent).

In 1999, all of the members of the court agreed that the Maryland court was incorrect in its decision even if 2 of the members were uncomfortable because they had only actually heard one version of the underlying facts and law. This was based on the lens of the prosecutor. The other party – the one in prison – could not explain the nuances of this case or defend the lower court’s decision and why the actions of law enforcement in this case violated the Constitution of the United States of America. Because of the ruling a quarter century earlier in Ross v. Moffitt, supra, Mr. Dyson could not even hazard an argument that the Sixth Amendment required the appointment of counsel to make his case to the Court.

The members of the Court in 1999 who were very content with this decision included not just Chief Justice Rehnquist, Justices Scalia, Thomas, O’Connor, and Kennedy – but also Justices Ginsburg and Souter, along with dissenters Breyer and Stevens. This was not considered a far left or far right Court. This was an average Court and still only two of them thought the defendant should have a lawyer representing him in a case with far reaching implications for Fourth Amendment rights. All of them would have voted to uphold the conviction. (For good measure, the members of the Court who decided Ross v. Moffitt were Chief Justice Burger, Justices Stewart, White, Blackmun, Powell, and Rehnquist in the majority and Justices Douglas, Brennan, and Marshall in dissent).

Putting aside the fact that in a democracy, 9 people should not have this much sway over hundreds of millions of citizens (and their electeds should actually do their job a lot better which they might if they were not investigating each other all the time), the truth is that the Court has never been great when it comes to individual rights and liberties, at least for poor people.

The Court that decided Maryland v. Dyson had members appointed by Nixon, Ford, Reagan, G.H.W. Bush, and Clinton. Most (with the exception of Thomas) were pretty uncontroversial when appointed (even Scalia glided through!) By its very nature, the Court has always been behind the times. It has always been stocked with a few open-minded folks interested in exploring the meaning of the Constitution in the spirit of the purpose of lifetime appointment and mostly people who think everyone should be exactly like they are, view the law as they do, and adhere to their way of life.

For that very reason, we must ensure that all litigants who appear before the Court, particularly the poor and disenfranchised, receive as a fundamental, basic right, competent counsel to represent them in every court, even when they say it is not constitutionally required (that does not mean the government can't do it, it only means it is not constitutionally required to cover the costs. It should pay for good counsel in any event.) But, were they really paying attention to what their own predecessors said about the right to counsel?

Justice Sutherland - of the very same Supreme Court, albeit a few years earlier - reminded us in Powell v. Alabama, 287 U.S. 45, 69 (1932) that the accused require,

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. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

One day, this blog will dive in to ponder what the Court meant 92 years ago by "every step of the proceedings" and the meaning of "due process in the constitutional sense." Or how that balanced against "employed by and appearing for" when the litigant has no funds to hire counsel or knows the legal issues that should be presented to the court. Just guessing it was not the denial of counsel 50 years ago in Ross v. Moffitt or a summary reversal in Maryland v. Dyson. And yet, that's where we are.

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