Planet Defendant: Right to an Attorney

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called right to an attorney.

The Sixth Amendment of the United States Constitution provides that the accused in all criminal prosecutions shall enjoy the right to have the assistance of counsel for his defense. Article 2, Section 24 of the Arizona State Constitution provides that the accused shall have the right to appear and defend by counsel. Federal courts debated for decades whether the Sixth Amendment right to an attorney applied to state court proceedings via the Fourteenth Amendment. In 1963, the United States Supreme Court held that the Sixth Amendment right to an attorney applied to the states in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Court quoted Mr. Justice Sutherland in Powell v. Alabama on the importance of a lawyer representing an accused:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. 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.’287 U.S., at 68—69, 53 S.Ct., at 64, 77 L.Ed. 158.” Id. at 344-345.

One year later, Arizona beefed up its public defender offices to comply with Gideon v. Wainwright. Indigent defendants charged with felonies are appointed public defenders as are indigent defendants charged with misdemeanors facing jail time.

All this is good as long as a person qualifies as “indigent” and the appointed public defender is not overworked or incompetent. The Arizona Court of Appeals found that a nonindigent defendant did not validly waive his right to counsel in State v. Jones, 146 Ariz. 278, 280 (App. 1985):

“All that the present record reflects is that the defendant’s appointed attorney was discharged four weeks before trial, that the defendant attempted to raise money to hire an attorney, and that he was told that if he did not hire an attorney he would be required to represent himself. A valid waiver of counsel cannot be established by these facts. Defendant was not warned of the dangers of self-representation. He was not asked if he wished to represent himself. No inquiry was made as to why he had not been able to hire an attorney. No continuance was offered to permit that. Instead he was simply required to represent himself. This is constitutionally impermissible. See City of Bellevue v. Acrey, 103 Wash.2d 203691 P.2d 957 (1984). That these failures undoubtedly resulted from the change of judge so that the trial judge understandably assumed that a valid waiver had occurred at an earlier time cannot change the result.”

If you are not indigent or don’t like your public defender, don’t despair. Attorney Gary Rohlwing has over thirty years experience defending clients charged with felonies and misdemeanors for reasonable rates. Call him today for a free consultation.


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