ON THE RIGHT TO COUNSEL
[Posted August 1, 2008] One of the fringe benefits of being in the
The summer 2008 issue of the Journal arrived this week, and I have just read a very thoughtful article by Justice Earl Johnson, Jr., who retired last year from the California Court of Appeal. Justice Johnsons theme is that indigent parties should have a right to court-appointed counsel, not just in criminal cases, but in important civil proceedings, too. Note that he doesnt advocate an attorney for each and every court appearance, or even each and every case; specifically, he cites with approval a 2006 ABA resolution that calls for such appointed counsel in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health[,] or child custody . . ..
You probably know that there is no right to court-appointed counsel in civil cases. You may not know that the US Supreme Court rendered just such a ruling in a 1981 case, essentially sealing off the right to appointed counsel to criminal proceedings alone. But the context of that ruling, as explained by Justice Johnson, is worth noting.
In 1942, the Big Supremes ruled that there is no right to a court-appointed lawyer in criminal cases. Betts v. Brady, 316
The Lassiter decision was 5-4, as so many decisions seem to be on the increasingly fractured Court of the 21st Century. But as the justice points out, the facts of the case (which he describes as the weakest possible fact situation for declaring such a right”) seemed to presage the ultimate decision, if only as a matter of practicality:
Lassiter was a double murderess who hadnt seen her children for years and wouldnt be able to be a parent to them until her earliest possible parole date, by which time they were adults. It seemed highly unlikely any lawyer, even a Clarence Darrow or his equivalent, could have won the case [below] . . ..
Despite this overwhelmingly problematic fact pattern, four justices voted to extend a right to counsel to Lassiter. One can only wonder (as Justice Johnson does) whether the US Supreme Court would react differently if a more compelling case came along. Given the current composition of the Court, my initial reaction is that I doubt it. But that doesnt mean that the issue is dead.
The other thread of the justices argument is that we are seriously lagging behind the rest of our partners in civilization in refusing to recognize this right.
But does this program go far enough? Two considerations suggest that it might not. First, the appointment can be made from these panels only after the court decides to grant a writ. At the petition stage, there is no provision for appointed or assigned counsel. Overall, the writ-granted rate in civil cases usually runs to about 21 or 22 percent; the rate for pro se appellants is probably much lower than that. How many potentially meritorious appeals never mature to the merits stage because they are not presented in a professionally prepared petition for appeal? I cannot begin to guess.
Second, and implicating vastly more resources, is Justice Johnsons principal thesis: Court-appointed trial counsel for indigent parties in civil cases. As any good appellate lawyer will tell you, if the trial record is a disaster, theres not much she can do with the case. The seeds for appellate victory are always, always planted in the trial court, and that point is where the assistance of counsel is most vital; where the absence of counsel can be most fatal.
Justice Johnsons views raise the troubling possibility that Americans may regard that their indigent citizens simply arent worthy of the kind of legal protections afforded to those in other nations. Those countries have based their policies on guarantees of things like fair proceedings, or of equal access to justice, in their fundamental legal documents. In Justice Johnsons view, we have a couple of phrases like that. See if these sound familiar: Equal protection of the laws. Due process of law. (We even have some language like that in the Constitution of Virginia.) Europeans, at least, think that noble words like that should be interpreted broadly.
Regardless of what the nine Robes say in Washington, our