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Oh Georgia - no peace I find

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. – US Constitution, Amendment VI


All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. – US Constitution, Amendment XIV, Sec. 1


In 1931, in Alabama, a group of Black boys were accused of raping two white girls. The trial judge appointed all the members of the local bar to provide counsel, though none stepped up in any meaningful way. The young men were tried, found guilty, and sentenced to death without the assistance of any attorneys. With one lone dissent, the Alabama Supreme Court upheld the convictions.


Lone Dissent Rabbit Hole: Before you get excited that the Alabama Supreme Court contained a compassionate, thoughtful judge at the height of Jim Crow and Klan activity, calm down. The dissent pointed out the extraordinary facts of the trial – where the defendants were actually under the guard of the state militia and that the packed courthouse cheered each guilty verdict which certainly the jury’s sentencing decisions. He further noted that an out-of-town lawyer stepped up to defend one or some or all of the accused but was given no time to prepare and really did not act as counsel. However, in that dissent, Judge Anderson also noted that the accusation understandably, “was of such a revolting character as to arouse any Caucasian county or community”, Powell v. State, 224 Ala. 540, 554 (1932), and that any local lawyer would be reluctant to represent an indigent he believed to be guilty, Id. at 555. So, this judge seemed to hope the conviction would stick the next go around and that at least some of the defendants would be executed. Note: the state court decision here cited post-dated the full and total recantation by accuser Ruby Bates. The story was made up; the carceral time was very real. The executions would have been murder.


The Supreme Court of the United States accepted the petition for certiorari, but chose only to address the right to counsel issue. This was managed on 14th Amendment grounds (NOT, as commonly believed, 6th amendment grounds). The Court declared,


Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires 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.



Yet, just a few years later, when a poor farmhand stood accused of armed robbery in Maryland was denied appointed counsel, the Supreme Court did not extend this ruling to non-capital cases. Instead, in Betts v. Brady, 316 U.S. 455 (1942), the Court determined that if the charge had been brought in federal court, Betts would be entitled to appointed counsel. But, that guarantee did not apply to the states outside of capital charges. In a prophetic dissent, Justice Hugo Black (joined by Justices William O. Douglas and Frank Murphy) declared not only does the 14th Amendment incorporate the 6th Amendment to the states, but that the right to counsel is fundamental to American jurisprudence. Poverty should not subject a man to a greater risk of conviction and incarceration. The dissent is wrathful and the writing stings (in a good way).


Skip ahead to 1963, where Clarence Gideon gets accused of a felony in Florida. He asks for a lawyer to be appointed and the trial judge denies this request. He represents himself, gets convicted, and sentenced to carceral time. Ultimately, he brings his case, still pro bono, to the Supreme Court of the United States (which, a bit of foreshadowing here, appoints counsel for him). In the 20 or so years since Betts v. Brady, much of the country and the Court have changed. But Hugo Black has remained. In a glorious turn of events, he gets to write the majority opinion reversing Betts and endorsing the incorporation doctrine for the 6th Amendment right to counsel through the 14th Amendment to the states. Gideon v. Wainwright is a total rebuke of Betts. It is beautiful. Here’s a tiny piece, but do yourself a favor and read the whole thing:


…reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries.



It is always a good time to remind ourselves of the Constitutional right to effective assistance of counsel. But, it really resonates today because of a little something happening right now in Georgia. There, several high profile defendants with fancy lawyers have recently been arraigned on very serious charges. Most negotiated a bond in advance of their surrender. But, one man, the only Black man accused, did not have a lawyer negotiate the terms of his bail in advance of surrendering to the court. He tried to get a lawyer, but the cost was prohibitive to him.


He asked the court to assign counsel and the court told him he did not qualify for appointed counsel in Georgia but that he could get some counseling on how to represent himself. Additionally, the judge had some concerns about a flight risk and a propensity toward violence for this individual defendant (who, again, turned himself in). So, he is currently being held in lieu of bail.


The concern over a risk of flight for the sole defendant who could not afford a lawyer at all, let alone one who could arrange for a high bail and negotiated pre-arraignments terms for a bond is laughable – holding him on any amount of money will keep him tied to the courthouse. The idea that among all of the defendants, this lone middle-class defendant - too rich to qualify for appointed counsel but too poor to afford an attorney to represent him - is a risk for violence if allowed to be released is also preposterous since his one of his co-defendants has sought to co-opt the entire strength of the United States military for his own benefit and has been known to encourage wholesale violence on his behalf and whose bail conditions literally state he is not to intimidate witnesses. That defendant is out on bond and touring the country as he makes another run for the presidency, but Harrison Floyd is a safety and flight concern if he is out on bail? Really?


The purpose of bail is to ensure the defendant’s presence in court. I have no idea who Harrison Floyd is, and I have no idea if he is guilty of any or all of the crimes for which he stands accused. I will, however, afford to him the same courtesy to which all defendants in criminal cases are entitled: the presumption of innocence. I will also add that he should be, like his co-defendants, entitled to bond and to post bail under conditions to satisfy the court that he will appear for his court dates. Finally, he should, at all times, have zealous counsel to represent him at every single step of the proceedings. If that costs the good people of Georgia a little bit of scratch, it is worth it. Lawyers in criminal court are necessities, not luxuries.


Hopefully, this man will get a lawyer to take his case. And Georgia will fix that broken system. After Dobbs and Bruen, no one is looking forward to the Supreme Court of the United States revisiting Gideon.

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