More than thirty years before the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963), determined that the Sixth Amendment guarantee of appointed counsel for indigent defendants charged with felonies applied to state court prosecutions, the court in Powell v. Alabama, 287 U.S. 45 (1932), recognized a due process right to appointed counsel in a state capital proceeding.
Powell involved the capital prosecution of eight young black men (referred to as “boys” in the record) for allegedly raping two young white women (referred to as “girls”) on a freight train as it headed through Alabama. The defendants, all illiterate and all of whom resided elsewhere, were seized from the train by a sheriff’s posse and were guarded by the militia until their trial began less than two weeks after the alleged crimes. At the start of the trial, the court charged members of the local bar generally with representing the defendants but did not appoint any specific attorneys. All eight defendants were convicted and sentenced to death. The Alabama Supreme Court reversed one defendant’s conviction based on evidence that he was under 16 at the time of the alleged crime and thus was not subject to the trial court’s jurisdiction. The remaining defendants sought relief from the United States Supreme Court, which reversed their convictions, holding that under the circumstances of the case, the failure of the trial court to appoint counsel was a denial of due process under the Fourteenth Amendment.
Decades later, a trial judge declined to appoint counsel to Clarence Earl Gideon in his 1961 trial for breaking and entering with intent to commit larceny, explaining:
I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.
Gideon, 372 U.S. at 337 (1963); see also Bruce R. Jacob, The Gideon Trials, 99 Iowa L. Rev. 2059 (2014) [hereinafter Gideon Trials].
Readers of this blog are likely aware of what came next. Gideon was sentenced to five years imprisonment and petitioned the United States Supreme Court for review. That court reversed, holding that the Sixth Amendment guarantee of appointed counsel for defendants charged with felonies who cannot afford to hire an attorney applied to state court prosecutions. In so holding, the court explained:
[R]eason 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. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Following remand, Gideon was tried again, this time with the benefit of an attorney. See Gideon Trials at 2100. The jury found him not guilty. Id.
Today, an indigent defendant who is prosecuted capitally in state court (like any such defendant charged with a felony or a misdemeanor for which he faces incarceration) has a Sixth Amendment right to appointed counsel in a criminal court proceeding, regardless of the particular circumstances of the case. See Alabama v. Shelton, 535 U.S. 654, 662 (2002) (holding that the Sixth Amendment does not permit activation of a suspended sentence imposed upon an indigent defendant who was not afforded appointed counsel). And since 1985, indigent defendants charged with capital offenses in North Carolina have an additional statutory right, namely the right to two appointed counsel. (The right to two attorneys in a federally-prosecuted capital case has a much longer lineage, dating to shortly after the nation’s founding. See United States v. Watson, 496 F.2d 1125 (1973) (Murray, J., dissenting) (noting that the “two counsel provision of Title 18, Section 3005 . . . has existed continuously in our law since 1790”)).
The statutory right. G.S. 7A-450(b1) provides that an indigent person may not be capitally tried for murder without an assistant counsel being appointed in a timely manner. It further states that if the indigent person is represented by the public defender’s office, the assistant counsel requirement may be satisfied by the assignment to the case of an additional attorney from the public defender’s staff.
While this right is statutory and not constitutionally required, the North Carolina Supreme Court in State v. Hucks, 323 N.C. 574 (1988), held that the denial of the right to a second attorney is per se prejudicial error. In Hucks, two defendants, Hucks and Miller, were tried jointly for capital murder. After the jury was empaneled, defendant Miller pled guilty. The matter proceeded as a trial and sentencing hearing for Hucks, whom the jury ultimately found guilty and for whom it recommended life imprisonment, and a sentencing hearing of Miller, for whom the jury recommended a sentence of death – a joint process that the statute supreme court later found was “hopelessly tainted” as to Hucks. Id. at 584 (concluding that the cases against the defendants should have been severed following Miller’s guilty plea).
On appeal, Miller argued that his conviction should be reversed because he was never appointed a second counsel pursuant to G.S. 7A-450(b1), a provision enacted mere months before Miller was charged with first-degree murder. The trial court never asked Miller whether he wanted second counsel, and Miller never asked the court to appoint one. Nevertheless, the North Carolina Supreme Court agreed with Miller that the statute was mandatory, he had not waived the right to second counsel, and the violation warranted reversal. The Hucks Court explained:
The statute gives a right to assistant counsel which is not to be confused with the fundamental right of criminal defendants to effective assistance of counsel guaranteed by our state and federal constitutions. On its face, the statute provides a right to counsel in addition to constitutional requirements, and reflects a special concern for the adequacy of legal services received by indicted indigents who face the possibility of the death penalty. There is no reason to believe, however, that the statute embodies such a different and limited notion of assistance of counsel that it would not apply to all of the post-indictment critical stages of a criminal prosecution to which the more basic and limited constitutional right to effective assistance applies.
Hucks, 323 N.C. at 577.
As to waiver, the court stated that “[g]iven the mandatory nature of the statute and the public policy it serves, we can find no prerequisite duty of the indigent defendant to request assistant counsel in this capital case and cannot infer waiver of the requirement of assistant counsel from the defendant’s silence.” Id. at 580.
These days, trial courts follow an established process to ensure the appointment of lead and associate counsel for indigent defendants charged with a capital offense. If the court finds that a defendant charged with a capital offense (first-degree murder or an unspecified degree of murder and the defendant was 18 or older at the time of the offense), it notifies Indigent Defense Services (IDS) through IDS’s Office of the Capital Defender of the need to appoint counsel. See AOC-CR-427.
Interplay with Retained Counsel. Sometimes an otherwise indigent defendant charged capitally is represented by retained counsel. This can occur when the family member of an indigent defendant hires counsel or when the defendant himself does so, exhausting his funds to retain a single attorney. In such a circumstance, the court must appoint assistant counsel, regardless of whether the defendant makes such a request. State v. Davis, 168 N.C. App. 321 (2005).
In Davis, the court of appeals held that the trial court erred when it failed to appoint assistant counsel to defendant’s retained counsel when the defendant was otherwise indigent and the state was seeking the death penalty. Noting that a defendant is deemed indigent under G.S. 7A-450(a) when he is “financially unable to secure legal representation and to provide all other necessary expenses of representation,” the court reasoned that the plain language of the statute makes clear that retaining counsel does not remove a defendant’s indigent status where necessary expenses (such as retaining associate counsel) cannot be met. The court explained that G.S. 7A-450 guarantees indigent capital defendants two counsel, “and assumes the representation will be the same as if the two appointed counsel were privately retained counsel.” Davis, 168 N.C. App. at 329. Furthermore, the court stated:
The statute reflects due regard for the gravity of a capital charge and its potential for many exhaustive procedural overlays and dire ramifications. It stands to reason that, if a defendant were able to procure funds sufficient for only one attorney his defense would be severely handicapped by denying appointment of assistant counsel. Therefore, we hold that assistant counsel which cannot be retained falls within a “necessary expense” of a capital defense which the State must provide or the defendant must waive.
Id.
The Davis Court deemed the trial court’s failure to appoint assistant counsel error per se, reversed the conviction, and granted the defendant a new trial.
Once Capital, Not Always Capital. Not every case that could be capitally prosecuted is. If a first-degree murder case is declared non-capital, one of the two attorneys appointed for an indigent defendant must move to withdraw (absent exceptional circumstances and the prior approval of the IDS Director). See IDS Rule 2A.5(c). If an attorney seeks to have both appointed counsel remain on the case and IDS does not approve the request, the attorney may apply to the court for permission to have both counsel remain. In such a circumstance, the attorney must provide to the court a copy of the IDS Director’s written notice disapproving the request.
In summary, an indigent defendant facing the death penalty in a state prosecution in North Carolina is entitled to two attorneys, and the trial court has an obligation to ensure that right.
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