Page 51 - Ad Hoc Report June 2018
P. 51

 and jurisdictions created legal aid societies to assist the indigent in their criminal defense, but the vast majority of defendants too poor to afford a lawyer were prose- cuted and convicted without a lawyer by their side.
In 1932, the Supreme Court recognized that defendants required more than the occasional, ad hoc provision of counsel if their Sixth Amendment rights were to be protected. In Powell v. Alabama,8 nine African-American teenagers—often referred to as the “Scottsboro boys”—having been denied effective counsel, an impartial jury, or a fair trial and sentencing were wrongly convicted of raping two white women.9 All were convicted in trials that lasted no more than a few hours. Eight of the nine, including a 13-year-old boy, were sentenced to death. None had been given access to an attorney until a few minutes before their trial began. Of the two attorneys who had agreed to represent all nine, one had retired decades prior and the other was a Tennessee real estate lawyer.
Recognizing there had been a grave miscarriage of justice, the Supreme Court formally held that indigent defendants charged with capital crimes had a right to court-assigned counsel. Challenging principles of English common law that looked to judges as the defendant’s protector and advocate, and forecasting many of the principles that inform this report, the Court intoned:
[H]ow can a judge, whose functions are purely judicial, effectively dis- charge the obligations of counsel for the accused? He can and should see to it that, in the proceedings before the court, the accused shall
be dealt with justly and fairly. He cannot investigate the facts, advise
and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.10
By rejecting English common law as contrary to principles of due process, the Supreme Court held that defense counsel had an essential and unique role to play in our adversarial system. Denial of counsel was a denial of justice.11
Six years later, in Johnson v. Zerbst,12 the Supreme Court held that all defen- dants, not just those facing the death penalty, had a right to court-appointed coun- sel when charged with a felony in federal courts. The Court stated, “Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional
8 Powellv.Alabama,287U.S.45(1932).
9 Powellat71–73.
10 Powellat61.
11 Powellat68(citingGalpinv.Page,85U.S.350,369(1873))(“Judgmentwithoutsuchcitationand opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.”).
12 Johnsonv.Zerbst,304U.S.458(1938).
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 7
 States unless approved by the Conference itself.

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