What exactly does a "Right to Counsel" mean?

Tales from death row: Justice for Rodney Reed


By: Caitlin Adams

March 18th marks the 50th anniversary of the landmark, unanimous Supreme Court decision in Gideon v Wainwright, in which the court held that the Sixth Amendment to the Constitution guarantees a person charged with a serious crime the right to have legal representation.  This decision should have changed the entire landscape, should have leveled the playing field in jurisprudence. Sadly, that is not the case.

I am going to share a little history on Gideon v Wainwright (I must always provide the disclaimer that I'm not an attorney, so my understanding and interpretation will be rudimentary. But on the upside, at least  it will be in "human" language!). The case began with the 1961 arrest of Clarence Earl Gideon. Gideon was charged with breaking and entering and stealing money from some vending machines. Mr. Gideon could not afford an attorney; he requested that the state of Florida provide him one. Florida refused. Mr. Gideon went on to represent himself and ultimately was convicted.  After being sentenced to five years, Mr. Gideon filed a habeas corpus petition (a petition for release from unjust imprisonment) with the Florida Supreme Court, his petition was denied. He then filed his petition with the U. S. Supreme Court who agreed to hear his case. The case was heard in January 1963 and the court’s decision was rendered on March 18, 1963.

In the Supreme Court's decision, written by Justice Hugo Black, they ruled that Gideon's conviction was unconstitutional because Gideon was denied a defense lawyer at trial. The Court ruled that the Constitution's Sixth Amendment gives defendants the right to counsel in criminal trials where the defendant is charged with a serious offense even if they cannot afford one themselves; it states: "in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence." In an interesting aside, before the 1930s, this amendment was interpreted to mean that the state could not forbid someone from having legal representation. After the 1930s, the amendment was interpreted to only apply to capital cases (Powell v Alabama in 1932, for all those who'd like to know more). Gideon v Wainwright now extended the application of the 6th amendment to all felony cases. In 1972, the Supreme Court further extended the right to legal counsel to include any defendant charged with a crime punishable by imprisonment in Argersinger v. Hamlin.

This is all good, right?  Sure sounds like it should be.  The problem: the Supreme Court didn't say that the counsel provided had to be competent!  The Supreme Court, finally, kinda, sorta, got around to doing that in 1984, in Strickland v Washington. Kinda, sorta, doesn't work very well in the jurisprudence.  In Strickland, the court did say, that yes, they meant "competent counsel" but then promptly went on to so broadly define what competent counsel was, it rendered Gideon v Wainwright ineffectual. Here's my interpretation, rendered by a knowledgeable attorney,  "In Strickland v Washington, the Supreme Court finally came out and said, “yes, we did mean competent counsel”, but then went on to define competence in such impossibly broad terms that incompetence can be judged competent.  The standard set in the landmark decision in Strickland v. Washington creates an extremely high burden on the defendant to establish ineffectiveness. The Supreme Court set a two‐prong test to determine ineffectiveness: 1. The counsel's representation must fall below an objective standard of reasonableness and there must be reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. 2. Further, in evaluating the performance of counsel, the Supreme Court stated that courts “must be highly deferential...A court must indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.”

In Rodney's case, his trial attorneys never challenged the state's forensic evidence or witnesses—and those witnesses were clearly wrong. His counsel never called their own forensic experts. His counsel never challenged the state's theory of the crime or presented an alternate theory.  His counsel never called alibi witnesses, or other witnesses who knew of Rodney and Ms. Stites's relationship. His counsel presented no defense. Competent?

In Rodney's direct appeal, he was represented by an attorney who was representing a man in another murder case, who had confessed to killing Ms. Stites and at one time was a suspect in Ms. Stites’s murder. Conflict of interest? Competent? If this other client happened to say something at all regarding the Stites case it would be considered privileged material and eminently damaging to Rodney. Would we ever even know if this client made such a statement? In all likelihood, no.  This client may have received competent counsel, Rodney surely did not.

In Rodney's first habeas corpus petition, his attorney, Mr. William Barbish, had never handled a habeas petition in a capital case, had never had to contend with the AEDPA before. In a recent affidavit to the courts, Mr. Barbish tells the court that he did not provide Rodney with competent counsel. Competent? Apparently, according to the recent district court ruling, incompetent = competent in the court's eyes!

All of this matters very much in Rodney's case, as his Martinez v Arizona claim is a critical element of him getting a chance for justice. This claim will ultimately be decided when the Supreme Court rules in Trevino v Thaler. How the court rules will determine if any of the "incompetence" in Rodney's case will ever get a fair hearing.

Mr. Gideon, thank you for your courage and fortitude in fighting for justice. I'm sorry to report that having counsel isn't always what you might have hoped.

For anyone interested in a more detailed look at how Gideon v Wainwright has been applied and interpreted in and out of the courtroom, here are a couple of links:

http://www.theatlantic.com/national/archive/2013/03/so-you-want-to-learn-more-about-the-gideon-case/273254/

www.innocenceproject.org/docs/Innocence_Project_IAC_Report.pdf