Non-Appointment of Counsel in Indigent Criminal Cases: A Case Study
Francis D. Doucette*
Introduction
In 1991 the Massachusetts Legislature made a significant but little heralded amendment to Massachusetts General Laws, chapter 211D, section 2A. The amendment provides that an indigent criminal defendant charged with a misdemeanor or certain other minor offenses "need not be appointed counsel" if conviction of the offense "will not include any period of incarceration."(1)
Quietly, but inexorably, implementation of that statute, coupled with the abolition of the de novo two-tier trial system(2) in 1994, and the attendant pressures on the courts to dispose of cases quickly, has brought a sea of change to the manner in which criminal cases are handled in the district courts of Massachusetts.
Whether this sea of change is for good or ill is a contentious question that can be approached from many perspectives. Certainly the subject can be analyzed in the arid language of statistics.(3) But criminal cases are ultimately about people, not numbers, and the manner in which those cases are treated says a great deal about the underlying values and priorities of society. To grasp what is truly taking place in this new era of criminal jurisprudence, it is essential to examine and then reflect upon what happens in an actual, representative case. No amount of statistical analysis can be expected to shed as much light.
What follows, then, is precisely that: an accurate summary of an actual case resolved in one day in a district court of Massachusetts in 1996, without the benefit of any attorney being appointed. This actual case is appropriate for discussion not because it is particularly egregious but because, thanks to its rawness and myriad short-cuts, it is all too typical.
An Actual Case
I observed the following scenario in court one day.
At arraignment the judge turned to the police prosecutor and inquired whether the two defendants, both earlier found to be indigent, would need to have attorneys appointed. "No, Your Honor," the police prosecutor assured the judge, shrugging aside the suggestion and projecting a somewhat bored demeanor. "We're not looking for incarceration."
The defendants, operator and passenger in a motor vehicle, were charged with possession of marijuana with intent to distribute. Their vehicle had been stopped on a stormy February day for the sole reason that snow allegedly was obscuring the rear license plate. Eight small bags of a substance believed to be marijuana were seized from the glove compartment after the police officer allegedly inquired if the two occupants would object to a quick search of the vehicle. Allegedly no objection was heard.
At second call, after a brief conference in the corridor, the police prosecutor and the two defendants returned to the courtroom, where the case was disposed of in a matter of minutes by an admission to sufficient facts. The green "tender of plea" form carried a recommendation of a continuance without a finding, but with supervision by probation. It was written entirely by the police prosecutor, except for the signatures of the two defendants. The judge displayed no hesitation in accepting the recommendation, after first conducting a perfunctory colloquy regarding the defendants' waiver of the right to jury trial, and warning the defendants about immigration consequences if they were not United States citizens.
Omissions in the Actual Case
No one advised the two defendants that operating a motor vehicle with the license plate numbers obscured by snow is a nonarrestable civil infraction,(4) giving police no authority to conduct a warrantless search and seizure of the vehicle.(5)
No one advised the two defendants that the opening of the glove compartment (a closed container), despite the alleged consent, was without factual or legal foundation.(6)
No one advised the two defendants about filing a Motion to Suppress nor what might be accomplished by filing it.
No one advised the two defendants that, based on the charges, they had a statutory right to be examined without cost for drug dependency and could be granted a stay in the proceedings if assigned to a drug treatment facility.(7)
No one advised the two defendants that disposing of a criminal case of any seriousness on the day of arraignment is rarely advantageous.(8)
No one advised the two defendants that the Commonwealth lacked a certificate of chemical analysis, and that the contraband seized from the vehicle had not even been submitted yet to a laboratory.(9)
No one advised the two defendants that, since neither one of them had been found in "actual possession" of the alleged contraband, the prosecution at trial would have the more difficult burden of proving "constructive possession."(10)
No one advised the two defendants that the evidence of intent to distribute was woefully weak, if not non-existent.(11)
No one advised the two defendants that revocation of the continuance without a finding would lead to, among other things, a two-year suspension of their license by the Registry of Motor Vehicles.(12)
No one advised the two defendants that, in the event of a subsequent arrest and conviction for a similar narcotics offense, they could be subjected to statutorily enhanced penalties based on this tender of plea.(13)
No one advised the two defendants, one a driver, the second a passenger, that their legal positions were different regarding what knowledge could be imputed to them concerning the contents of the vehicle.(14)
No one advised the two defendants that they would need separate attorneys to represent their interests adequately.(15)
Right to Counsel
Before one can attempt to assess how the above case was handled, it is first necessary to review the current state of the law regarding appointment of counsel. In Massachusetts the right to appointed counsel in criminal matters is firmly established and embedded in a variety of statutory and constitutional provisions and procedural rules.(16) Further, "[w]hen counsel is appointed for a defendant that defendant is entitled to receive effective assistance from appointed counsel."(17) Indeed, it has often been remarked that this panoply of protections, in particular the Massachusetts Declaration of Rights, "provide[s] greater safeguards than the Bill of Rights of the United States Constitution."(18)
Section 2A of Chapter 211D in effect abolished those multiple safeguards, however, when it was amended in 1991, by displacing "any other provision of law."(19) Presumably, this displacement includes the Sixth Amendment as well, which incidentally makes no distinction between felony and misdemeanor. Rather, it explicitly states: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence."(20)
While it is true that Section 2A pertains only to "a misdemeanor or a violation of a municipal ordinance or bylaw," that scarcely amounts to a meaningful limitation.(21) In reality, those transgressions comprise the majority of all criminal offenses. Accordingly, there is great pressure to accelerate them through the system.(22) As explained by Justice Douglas, "the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result."(23)
Moreover, labeling a criminal offense a misdemeanor gives little or no clue to its legal or factual complexity. "While only brief sentences of imprisonment may be imposed, the cases often bristle with thorny constitutional questions."(24) In sum, "an indigent accused's need for the assistance of counsel does not mysteriously evaporate when he is charged with an offense punishable by six months or less."(25) The right to counsel as guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth Amendment has undergone many permutations since the landmark case of Gideon v. Wainwright.(26) The prevailing federal rule, reiterated recently in Nichols v. United States, (27) is that "where no sentence of imprisonment [is] imposed, a defendant charged with a misdemeanor [has] no constitutional right to counsel."(28) Nonetheless, Chief Justice Rehnquist, writing for the Court in Nichols, saw fit to add that "[o]f course States may decide, based on their own constitutions or public policy, that counsel should be available for all indigent defendants charged with misdemeanors."(29)
Section 2A by no means goes as far as the prevailing federal rule. That is, it neither denies a judge the authority to appoint counsel in misdemeanor prosecutions nor restricts that authority. In a great many district courts, however, the key operative language of the statute, "need not be appointed counsel,"(30) has been interpreted to mean the prohibition of appointments. This is particularly true when arraignment sessions and default removals are handled by an assistant clerk magistrate in the absence of a judge. Such officials routinely inform indigent misdemeanor defendants that, because the prosecution has announced it is not seeking incarceration, they are therefore not eligible for the appointment of counsel.
This is plainly an incorrect reading and application of Section 2A of Chapter 211D. If the Legislature had intended to ban all such appointments it would have been an easier task to do so by inserting the words "shall not be appointed counsel," or the equivalent, in place of the present language. There is far more than a shade of difference between the expressions "shall not" and "need not," and "`statutory language itself is the principal source of insight into the legislative purpose.'"(31)
But the bewildered indigent defendant, usually poorly educated and beset by a number of other gnawing problems and disadvantages, can hardly be expected to understand these subtleties and challenge the ruling of the Court. Consequently, it is becoming increasingly common for indigent defendants in drunk-driving, drug, assault and battery, and malicious destruction cases, among others, to be denied "the guiding hand of counsel,"(32) and forced to fend for themselves.(33) In reality, what that usually means is an ill-advised, uncounseled plea or a default at a later date.
Reflections on the Actual Case
Under the current state of the law, as outlined above, and, in particular, Section 2A of Chapter 211D, the judge could have appointed counsel--but was not required to do so--for the two defendants charged with possession of marijuana with intent to distribute. No reason was stated on the record by the judge for declining to appoint counsel; indeed, the statute does not mandate a reason being given.(34) But the manner in which this decision was made, that is, deferring to the prosecutor in open court as to whether the defendants needed counsel appointed, is highly troubling. Nothing in the statute forbids such a consultation, and the argument could easily be made that proper implementation of the statute demands one. But how can a prosecutor, whose overriding goal is to secure convictions, be expected to speak objectively of the legal needs and interests of the defendants? It is unlikely, to say the least, that the Legislature, in drafting this statute, contemplated that a prosecutor, of all individuals, would be elevated to the almost Kafkaesque position of determining which defendants are appointed counsel.
Similarly, the statute is silent as to which factors should be taken into account, aside from risk of incarceration, in deciding whether to appoint counsel. This omission is regrettable because the range of offenses and accompanying penalties encompassed by the term "misdemeanor" are truly vast.
For example, at the low end, crimes such as trespass, disorderly person, and shoplifting carry minimal penalties and rarely result in a jail sentence being imposed. Indeed, often such offenses are not prosecuted at all but rather siphoned away from the courtroom by referral to a pre-trial diversion program.(35) A little known new law, made effective July 1, 1995, also makes it possible for these minor offenses to be treated non-criminally, as civil infractions, but only upon a prosecutor's request and with a judge's approval.(36)
In sharp contrast, possession of marijuana with intent to distribute, while also a misdemeanor, is unquestionably a serious offense. The statute provides for up to two years imprisonment and fines ranging from between $500 and $5,000.(37) It is also the sort of offense that could stigmatize a defendant in significant ways, such as employment, and reputation, notwithstanding a disposition of continuance without a finding. Moreover, "the drawing of a line based on whether there is imprisonment (even for overnight) can have the practical effect of precluding provision of counsel in other types of cases in which conviction can have more serious consequences."(38)
Based on the seriousness of the charge alone, as well as the short- and long-term consequences of a continuance without a finding, the court should have appointed separate counsel for the two defendants, even though it was not legally required to do so. Although the prevailing United States Supreme Court case, Scott v. Illinois,(39) adopts "actual imprisonment as the line defining the constitutional right to appointment of counsel,"(40) there are major differences.
First, that case was decided under the Sixth and Fourteenth Amendments to the United States Constitution; the Massachusetts Declaration of Rights, by contrast, affords greater protection.(41) Second, and far more important, the criminal offense in Scott was much less serious than possession of marijuana with intent to distribute. The defendant was charged with shoplifting, which under the then applicable Illinois statute carried a maximum penalty of a $500 fine or one year in jail or both. The value of the merchandise involved was less than $150, and the defendant was found guilty and fined $50 after a bench trial where he was unrepresented.(42)
Role of the Judge
A judge's obligation to an unrepresented criminal defendant differs markedly depending upon whether the proceeding is a plea hearing or a trial. "A judge has a general responsibility to conduct a fair trial, whether or not the defendant is pro se . . . ."(43) That general responsibility, of course, "does not require [the judge] to act as attorney for a pro se litigant."(44) Judges in such cases, however, are strongly encouraged to "assume more than a merely passive role" and to adopt reasonable and necessary measures to ensure that this ideal of fairness is not ignored.(45)
For example, in Commonwealth v. Moran(46) the trial judge was recognized for having made "scrupulous efforts to advise [the defendant] of the rules of trial procedure and to ensure that he received a fair trial."(47) Among the measures used by the judge were excluding hearsay evidence, sanitizing records, and precharging "the jury on the Commonwealth's burden of proof and advis[ing] them that the fact that the defendant was representing himself should not be held against him."(48)
Additionally, before a pro se criminal trial begins in a Massachusetts district court, the judge is required by rule to advise the defendant about certain fundamental rights, including the right to cross-examine prosecution witnesses, the right to testify, and the right to remain silent.(49)
Plea bargaining, on the other hand, is "an area [of the law] with minimal court supervision or legal protection."(50) What protection and supervision that exists is usually in the form of an attorney's advice, negotiation skills, and experience, all of which, of course, are unavailable to an unrepresented defendant. And, unlike a trial, where the judge is required to notify the unrepresented defendant of certain rights and is encouraged to adopt measures to promote a fair proceeding, a judge presiding at a plea hearing has an extremely limited role and risks censure if he or she attempts to go beyond that role.
Appellate courts have visited this issue on many occasions(51) and often resort to blunt language to reinforce their concerns. The following admonition is typical: "We take this opportunity to remind judges that they are not to participate as active negotiators in plea bargaining discussions."(52) The most common reasons cited for this position are "[c]oncerns about . . . the effect on the judge's subsequent ability to evaluate the voluntariness of the agreement, the potential coercive impact on the defendant, and the effect on public respect for the court's impartiality."(53)
Thus, in the case under review, the judge, at the plea hearing, was not obligated to alert the defendants to what a motion to suppress might accomplish. Nor in other respects was the judge compelled to become an advocate for the defendants' cause. Such advocacy, in addition to inserting the judge in the plea-bargaining process, would be an unwarranted departure from the strict impartiality demanded by Canon 3 of the Code of Judicial Conduct.(54) Further, "how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused?"(55)
A "Factual Basis"
But, at the same time, "[a] judge should be faithful to the law and maintain professional competence in it."(56) More specifically, in Massachusetts "[a] judge shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the charge."(57) What standard of proof, what quantum of evidence is mandated by a "factual basis," however, is anything but clear. The phrase is shopworn and nebulous, eluding predictable and consistent application. "Of course, we are necessarily `[c]ondemned to the use of words [and thus] we can never expect mathematical certainty from our language.'"(58)
Some other jurisdictions, unlike Massachusetts, do not require the judge to inquire into the factual basis of a guilty plea.(59) At first blush, this may seem like a logical extension of the famous but unsettling decision in North Carolina v. Alford,(60) where the United States Supreme Court upheld the voluntariness of the defendant's plea to second-degree murder "despite his professed belief in his innocence."(61) It should also be remembered, however, that the defendant in that case was represented by counsel, seemingly capable counsel, and there was a "strong factual basis for the plea demonstrated by the State."(62)
At a plea hearing, to be sure, a prosecutor is relieved of the burden of proving the case beyond a reasonable doubt.(63) Similarly, in Massachusetts a judge is not required to inform the defendant "that a guilty plea waives his right to require the prosecution to prove his guilt beyond a reasonable doubt."(64) Recent federal decisions have suggested that a prosecutor's burden at a plea or sentencing hearing is the preponderance standard.(65)
One well-known, minimum recommendation for plea hearings is that "at least one prosecution witness will be sworn and testify to the factual basis of the finding."(66) This procedural suggestion sheds little light on the proper quantum of proof, however, and as a practical matter it is seldom followed. The great majority of plea hearings in the Massachusetts district courts consist simply of a hurried recitation of a police report. On occasion, a defendant, usually represented by counsel, will agree with the prosecutor to waive the reading of the report and admit to the face of the Complaint, but a judge is not bound by this agreement and can insist on hearing evidence.
If a prosecutor's proffer of evidence at a plea hearing casts grave doubt on the strength of the case (or whether the charges should have been brought in the first place), should a judge in good conscience still accept the plea? "A defendant's choice to plead guilty will not alone support conviction; the defendant's guilt in fact must be established."(67) As stated recently by Judge Harold Rothwax of New York, "[t]he major job requirement of a judge . . . is intellectual honesty."(68) Surely that honesty must embrace a willingness to recognize and condemn an occasionally meritless case or a case for which no factual basis has been submitted. Appellate reversals of a trial court's acceptance of such deficient pleas are, unfortunately, relatively rare.(69)
Are defects about the sufficiency of evidence automatically cured if the defendant is adamant in his insistence that he in fact committed the crime? If so, how is this situation materially different from an uncorroborated confession? "[T]he majority rule of this nation [is] that an uncorroborated confession is `insufficient to prove guilt.'"(70) The corroboration rule, granted, does not require much. Indeed, "all that the rule requires is that there be some evidence, other than a confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary."(71) Should pleas be accepted, particularly from unrepresented defendants, where a judge intuitively knows that a prosecutor would never be able to prevail beyond a reasonable doubt at trial? "A guilty plea may be deemed involuntary if the defendant was incompetently advised."(72) How much more likely is it, then, that a plea will be involuntary where the defendants were never advised by counsel at all but rather conferred for a few minutes with a police prosecutor?
VIII. The "Factual Basis" in the Actual Case
On the green "tender of plea" form the police prosecutor in the actual case placed a mark in the box immediately to the right of "ADMISSION TO FACTS SUFFICIENT FOR A FINDING OF GUILTY." There is little difference between that procedure, however, and a true plea of guilty because under the one-trial system in effect since 1994, "such admission shall be deemed a tender of a plea of guilty."(73)
At this plea hearing, which lasted approximately five minutes, no witness testified and no documents or exhibits were shown or passed up to the bench. The judge, listening to a recitation of the police report, never heard a scintilla of evidence in support of the crucial element of intent to distribute. No evidence was elicited, from any source, about an attempted sale. The prosecutor said not a word about an unusually large quantity of cash or drugs, or about packaging materials or drug paraphernalia, or about customer lists, or about false names or other false information given to police.
Indeed, the judge never heard a scintilla of evidence, other than a bald assertion in the police report, that the seized contraband was a controlled substance. Nor had either defendant been found in actual possession of the contraband. Although "[t]he failure of the defendant to acknowledge all of the elements of the factual basis shall not preclude a judge from accepting a guilty plea,"(74) that is a very different matter from the prosecution being unable to proffer a sufficient factual basis for those elements at the plea hearing.
In sum, the conclusion is inescapable that the "factual basis" for the plea in the actual case was a legal fiction, falling far short of even a preponderance standard. The case was rushed through the system, receiving scarcely more attention than a speeding ticket, and no attorney was allowed to intervene. The threshold issues of the stop and search of the vehicle were of course never even addressed.
In the din of a sea of plea hearings, mostly uncounseled, it may have been easy to overlook that the vehicle was stopped solely for an obscured license plate on a snowy day. The stop was not per se unlawful,(75) just highly unusual under the circumstances. Nevertheless, violation of the relevant statute, which calls for number plates to be "kept clean with the numbers legible,"(76) is a nonarrestable civil infraction.(77) Accordingly, the police utterly lacked the authority to conduct a warrantless search and seizure of the vehicle.(78) Perhaps the judge was aware of this limitation, perhaps not. In any event, at no time did the judge press the prosecutor to explain why a search of the vehicle was initiated, including the opening of a closed glove compartment, leading to the seizure of the alleged contraband.
These are not idle academic questions, given the burgeoning numbers of indigent defendants "waiving" their rights to trial and appearing unrepresented at plea hearings in the district courts of Massachusetts. Whether it was contemplated by the Legislature or not, Section 2A of Chapter 211D has thrust judges into a strained, unenviable, and ever more difficult role--attempting to administer justice fairly and even-handedly when only one side is represented. In the words of Justice Powell, "the adversary system functions best and most fairly only when all parties are represented by competent counsel."(79)
The Notion of "Rough Justice"
It is of course possible--but hardly easy--to defend the court's handling of the actual case. Apologists for the "rough justice" ideology, typically meted out in uncounseled dispositions, will hasten to point out that, despite the seriousness of the charge, neither defendant was sentenced to jail. Contrast this "favorable" outcome with the plight of the unrepresented indigent defendants in the watershed cases of Gideon(80) and Argersinger v. Hamlin,(81) where committed sentences of five years and ninety days, respectively, were imposed. Indeed, neither defendant was even found guilty, thanks to minimal prior records and a perceived willingness to cooperate with the prosecution. Moreover, "[a] continuance without a finding . . . is almost always a very desirable disposition for a defendant."(82)
From the standpoint of strict efficiency, the case could hardly have been handled any better. It proceeded from arraignment to disposition in one morning, reaching the often elusive goal of finality in that brief span of time. Such efficiency, however, comes with heavy costs. Not only were the defendants deprived of a multitude of valuable rights and litigation options, but the failure of the court to advise them of this tarnished the criminal justice system as well.
The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant . . . must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice but to go forward with the haste of the mob.(83)
Because the case proceeded from arraignment to disposition in one morning, nothing was added to existing court congestion. The court was "spared" listening, on subsequent dates, to discovery motions, motions to compel, motions to suppress, motions to reconsider, a trial, and the like. And, obviously, no public funds were expended for appointment of counsel.
What about the defendants themselves? Were they satisfied with the outcome? Did they believe that justice had been served? These are more difficult matters to ascertain because the defendants, both young Hispanics, one male, one female, scarcely spoke a dozen words during the entire proceeding. They appeared nervous and frightened throughout, looking around as if for help that never appeared, nodding their heads in unison to questions from the judge, anxious not to displease the court, seemingly comprehending nothing. "The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights . . . ."(84)
Unfortunately, a week or so later, it became clear that one of the defendants, the female, was decidedly not happy with her treatment by the court. She returned on her own, to complain bitterly that she had never been informed that probation was going to require her to submit to random drug testing as part of her supervision. Ironically, it was at this point, after all of the damage had been done, after all her fundamental rights had been waived, that an attorney was finally appointed to represent her "interests." Upon learning of the background of the case the attorney wasted no time filing a motion to vacate the uncounseled plea. The motion has since been denied, by the same judge who heard the admission to sufficient facts on the day of arraignment.
Vitality of the Law
There are related considerations. The growth and vitality of the law depend on challenges to the law. Without these challenges, the law may and indeed has become inequitable and inflexible. It is a familiar axiom--but one worth repeating--that challenges to the law, particularly in the forms of motions to suppress or dismiss, act both as a deterrent and as an educator. Among other effects, such challenges will put police on notice that their conduct will be scrutinized.
Because no motion to suppress was ever filed or argued in the actual case, the educational or deterrent factor is zero. The officers will hardly be deterred in the future; perhaps they will even be emboldened to make a habit of such stops and to conduct searches of vehicles where there is no justification to support such a search. In effect, the constitutional and privacy rights of all individuals suffer, indigent and non-indigent alike.
The rebuttal can be made, of course, that the law will not become stagnant because counsel hired by non-indigent defendants in similar cases will pick up the burden. That is, they will make the appropriate challenges, file the appropriate motions, and preserve the issues for appellate review. This is, however, a speculative argument in the extreme, tantamount to "trickle-down economics." It also overlooks the unavoidable fact that the majority of criminal defendants, misdemeanor and felony alike, are indigent and likely to remain so. The galaxy of landmark state and federal criminal cases which have protected the rights of American citizens for decades would soon be reduced to little if those cases involving indigent defendants had never been litigated.
Conclusion
Aside from fundamental unfairness and the lack of due process forced upon unrepresented defendants, the chief infirmity presented by uncounseled convictions is their inherent unreliability. It was for this reason that the Supreme Judicial Court, in Commonwealth v. Proctor,(85) ruled inadmissible evidence of the defendant's three prior uncounseled convictions in the State of Maine in determining whether he should be committed under Massachusetts chapter 123A as a sexually dangerous person (SDP).(86) "The admission of uncounseled convictions in c. 123A proceedings," wrote Chief Justice Hennessey, "would present a substantial risk that the respondent would be erroneously deprived of liberty and improperly stigmatized by being adjudged an SDP."(87)
Until recently, the federal rule regarding use of uncounseled misdemeanor convictions in collateral proceedings was similar. That rule was abandoned, however, in 1994, when the United States Supreme Court, by a narrow majority, decided Nichols, holding "that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction."(88) The uncounseled misdemeanor conviction was for drunk driving, and the practical effect of this enhancement was to add approximately two years to the defendant's sentence.
A half century ago, prior to the decision in Gideon, the position of the United States Supreme Court was "that appointment of counsel is not a fundamental right, essential to a fair trial."(89) The adoption of Section 2A of Chapter 211D is a regrettable step backward in that direction. Not only is the statute misguided and a violation of the Sixth Amendment guarantee of the right to counsel, but it fails to make any distinction between minor and serious misdemeanors, treating them all alike provided that incarceration is not imposed. The elimination of counsel in such cases, coupled with the fact that the judge is not allowed to step in and act as counsel for the accused, means that convictions are resulting from the flimsiest of evidence and sometimes from no evidence at all.
The political reality may well be that the 1990s is an era of retrenchment and that the public will no longer support funding for appointment of counsel in all indigent criminal cases, particularly where incarceration is not imposed. But the other reality, the reality that touches thousands of human lives, is that there are many other forms of punishments attached to criminal convictions, most more onerous and long lasting than incarceration.
What keeps society free and vibrant is a balance of powers, including periodic, vigorous challenges to those powers. In the six years since the amendment to Section 2A police and prosecutors surely have noticed that no one, neither judge nor defense counsel, is holding them accountable for the way in which they arrest and prosecute vast numbers of indigent misdemeanor defendants. It is a situation ripe for abuse, and it is folly to think that those abuses and consequences do not extend beyond the lives of those many unfortunate defendants who sorely need but who are denied the appointment of counsel.
* B.A., University of Massachusetts, 1970; M.A., Harvard University, 1972; Ph.D., Harvard University, 1974; J.D., Northeastern University School of Law, 1981. Francis D. Doucette is a member of the Massachusetts and Virginia bars and has been in private practice since 1982. He has been a part-time clinical supervisor at Suffolk University Law School since 1990.
1. Mass. Gen. Laws ch. 211D, § 2A (1994 & Supp. 1996). The provision provides as follows:
Notwithstanding any other provision of law, a criminal defendant charged with a misdemeanor or a violation of a municipal ordinance or bylaw need not be appointed counsel if the judge, at arraignment, informs such defendant on the record that, if the defendant is convicted of such offense, his sentence will not include any period of incarceration. For good cause, that judge or another judge of the same court may later revoke such determination on the record and appoint counsel, and on the request such counsel shall be entitled to a continuance to conduct any necessary discovery and to prepare adequately for trial. Any such determination or revocation by a judge shall be endorsed upon the docket of the case.Id.
2. See Mass. Gen. Laws ch. 278, § 18 (1994 & Supp. 1996).
3. For example, one can marshal and compare data before and after 1991, as it relates to the volume of cases resolved with and without court-appointed counsel, average length of time a case remains in the system from arraignment to disposition, and the amount of funds expended for court-appointed counsel.
4. See Mass. Gen. Laws ch. 90, § 6 (1994 & Supp. 1996). ("Every motor vehicle or trailer registered under this chapter when operated in or on any way in this commonwealth shall have its register number displayed conspicuously thereon by the number plates furnished by the registrar. . . . The said number plates shall be kept clean with the numbers legible. . . ."); see also Mass. Gen. Laws ch. 90, § 9 (1994 & Supp. 1996) (stating that operation of an unregistered or improperly equipped motor vehicle is not allowed).
5. See Commonwealth v. Lyons, 564 N.E.2d 390, 392 (Mass. 1990) ("An investigatory automobile stop requires that the Commonwealth prove that the officer `has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.'" (quoting Commonwealth v. Wren, 463 N.E.2d 344, 345 (Mass. 1984))). The vehicle occupied by the defendants and stopped by the police did in fact have a proper number plate, albeit temporarily obscured by snow.
6. For example, the officers were not responding to a tip, the police report did not mention any furtive movements or gestures or mention possible weapons in the vehicle; similarly, the report did not mention any request or order to open the glove compartment to retrieve the vehicle's registration.
7. See Mass. Gen. Laws ch. 111E, § 10 (1994 & Supp. 1996). This statute provides as follows:
Any defendant who is charged with a drug offense shall, upon being brought before the court on such charge, be informed that he is entitled to request an examination to determine whether or not he is a drug dependent person who would benefit by treatment, and that if he chooses to exercise such right he must do so in writing within five days of being so informed.Id. The statute, however, draws a distinction between those defendants "charged for the first time with a drug offense not involving the sale or manufacture of dependency related drugs" and all other defendants. Id. With respect to the former, assignment to a drug treatment facility is mandatory, if the defendant requests it and has been found to be drug dependent, "without consideration of any other factors." Id. With respect to the latter, "an assignment order shall not be made unless . . . the court determines that adequate and appropriate treatment is available." Id.
8. See Committee for Public Counsel Services, Performance Guidelines Governing Representation of Indigents in Criminal Cases, II (2.1)(b)(1) ("A guilty plea or an admission to sufficient facts at [arraignment] is inadvisable due to the inadequate time to investigate the case.").
9. Ordinarily, to establish that seized contraband meets the definition of a controlled substance, a prosecutor seeks to introduce at trial a certificate of chemical analysis, pursuant to Mass. Gen. Laws ch. 111, §§ 12-13 (1994 & Supp. 1996). However, "[p]roof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence." Commonwealth v. Dawson, 504 N.E.2d 1056, 1057 (Mass. 1987). But "[w]e suspect it would be a rare case in which a witness's statement that a particular substance looked like a controlled substance would alone be sufficient to support a conviction." Id. at 1057-58.
10. See Commonwealth v. Arias, 563 N.E.2d 1379, 1382-83 (Mass. App. Ct. 1990), aff'd, 572 N.E.2d 553 (Mass. 1991).
11. The decision to charge the defendants with intent to distribute appears to have been based alone on the quantity of eight small bags, although the prosecutor never stated any reason on the record. While the controlling statute, Mass. Gen. Laws ch. 94C, § 32C(A) (1994 & Supp. 1996), imposes no minimum quantity requirement (unlike "trafficking" statutes), the eight bags, small enough to fit inside a glove compartment, pale when contrasted with the amounts typically at issue in appellate opinions. "When a guilty finding of possession with intent to sell has been upheld where there was little or no evidence of intent to distribute beyond the amount of the drugs seized, the amount seized has been very high." Commonwealth v. Roman, 609 N.E.2d 1217, 1220 (Mass. 1993); see also Commonwealth v. Bongarzone, 455 N.E.2d 1183, 1197 (Mass. 1983) (observing that fifteen bags of marijuana weighed over twenty pounds each); Commonwealth v. Allen, 554 N.E.2d 854, 859-60 (Mass. App. Ct. 1990) (noting that "[e]leven pounds was a quantity of marihuana warranting an inference of intent to distribute").
12. See Mass. Gen. Laws ch. 90, § 22f (1994 & Supp. 1996); Mass. Regs. Code tit. 540, § 20.03 (1993).
13. See, e.g., Mass. Gen. Laws ch. 94C, § 32C(b) (1994 & Supp. 1996).
14. See Commonwealth v. Deagle, 409 N.E.2d 1347, 1350-51 (Mass. App. Ct. 1980); Commonwealth v. Gray, 362 N.E.2d 543, 545 (Mass. App. Ct. 1977).
15. "A defendant, as part of his fundamental right to counsel, has the right to the full and undivided loyalty of his counsel, free from any conflict of interest." Commonwealth v. Burbank, 534 N.E.2d 1180, 1184 (Mass. App. Ct. 1989); see also Commonwealth v. Davis, 384 N.E.2d 181, 187 (Mass. 1978). The Davis court states:
[W]e are acutely conscious of the problems that may arise when an attorney represents more than one criminal defendant in the same proceeding. Joint representation may be plagued by conflicts of interest at various stages of trial: at plea bargaining, in selecting defenses for individual defendants, in deciding whether to call one of the defendants as a witness, in closing argument, and in sentencing.Id. (footnote omitted).
16. See Mass. Const., art. XII; Mass. Gen. Laws ch. 211D, §§ 5-6 (1994 & Supp. 1996); Mass. Sup. Jud. Ct. R. 3:10; Mass. R. Crim. Proc. 8; see also Commonwealth v. Appleby, 450 N.E.2d 1070, 1076 (Mass. 1983).
17. Breese v. Commonwealth, 612 N.E.2d 1170, 1172 n.4 (Mass. 1993).
19. Mass. Gen. Laws ch. 211D, § 2A (1994 & Supp. 1996).
20. U.S. Const. amend. VI (emphasis added).
23. Argersinger v. Hamlin, 407 U.S. 25, 34 (1972) (Powell, J., concurring).
24. Id.; see also Papachristou v. Jacksonville, 405 U.S. 156 (1972).
25. Hamlin, 407 U.S. at 34 (Powell, J., concurring).
28. Id. at 1925 (footnote omitted); see also Scott v. Illinois, 440 U.S. 367 (1979).
29. Nichols, 114 S. Ct. at 1928 N.12.
30. Mass. Gen. Laws ch. 211D, § 2A (1994 & Supp. 1996).
31. Commonwealth v. Cowan, 664 N.E.2d 425, 428 (Mass. 1996) (quoting McNeil v. Commissioner of Correction, 633 N.E.2d 399, 401 (Mass. 1994) (quoting Hoffman v. Howmedica, Inc., 364 N.E.2d 1215, 1218 (Mass. 1977))).
32. Powell v. Alabama, 287 U.S. 45, 69 (1932).
34. See Mass. Gen. Laws ch. 211D, § 2A (1994 & Supp. 1996).
35. See Mass. Gen. Laws ch. 276A, §§ 1-9 (1994 & Supp. 1996).
36. See Mass. Gen. Laws ch. 277, § 70C (1994 & Supp. 1996), which states:
Upon oral motion by the commonwealth, the court may in its discretion treat any violation of a municipal ordinance or by-law, or any misdemeanor offense not involving a crime against the person punishable by chapter two hundred and sixty-five, as a civil infraction. A person complained of for such a civil infraction shall neither be sentenced to any term of incarceration nor be entitled to appointed counsel pursuant to chapter two hundred and eleven for said infraction. Id.
37. See Mass. Gen. Laws ch. 94C, § 32C(A) (1994 & Supp. 1996).
38. Scott v. Illinois, 440 U.S. 367, 374 (1979) (Powell, J., concurring).
40. Id. at 373 (Powell, J., concurring).
41. See supra notes 17-18 and accompanying text.
42. See Scott, 440 U.S. at 368.
43. Commonwealth v. Stovall, 498 N.E.2d 126, 130 (Mass. App. Ct. 1986).
45. Special Functions of the Trial Judge, in 1 ABA Standards for Criminal Justice § 6-3.6(b) (2d ed. 1980 & Supp. 1986).
46. 457 N.E.2d 287 (Mass. App. Ct. 1983).
47. Id. at 293 (footnote omitted).
49. See Dist. Ct. Supp. R. Crim. Proc. 4.
50. William W. Robinson, Plea Bargaining and Guilty Pleas, in 2 Massachusetts Criminal Defense § 37.1 (Eric D. Blumenson ed., 1990 & Supp. 1993).
51. See Commonwealth v. Ravenell, 612 N.E.2d 1142, 1143 n.1 (Mass. 1993).
52. Commonwealth v. Gordon, 574 N.E.2d 974, 976 n.3 (Mass. 1991).
54. See Supreme Jud. Ct. R. 3:09, Canon 3.
55. Powell v. Alabama, 287 U.S. 45, 61 (1932).
56. Supreme Jud. Ct. R. 3:09, Canon 3(A)(1).
57. Mass. R. Crim. P. 12(c)(5)(A).
58. Commonwealth v. Power, 650 N.E.2d 87, 93 (Mass. 1995) (alterations in original) (quoting Grayned v. Rockford, 408 U.S. 104, 110 (1972)).
59. See William Robinson, Pleas of Guilty, in 3 ABA Standards for Criminal Justice 14-1.6(a) & nn.1-6 (2d ed. 1980 & Supp. 1986).
63. Commonwealth v. DelVerde, 496 N.E.2d 1357, 1360 (Mass. 1986) ("When a criminal defendant pleads guilty, he waives his right to be convicted by proof beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364 (1970), his Fifth Amendment privilege against self-incrimination, his right to stand trial by jury, and his right to confront his accusers."); see also Boykin v. Alabama, 395 U.S. 238, 243 (1969).
64. Commonwealth v. Earl, 473 N.E.2d 193, 195 (Mass. 1985) (footnote omitted).
65. See Kent B. Smith, 30 Massachusetts Prac. § 1245, at 700 (2d ed. 1983 & Supp. 1996); see also United States v. Isom, 886 F.2d 736, 738 n.3 (4th Cir. 1989).
66. Mass. R. Crim. P. 12(c)(5)(A) reporter's notes.
67. DelVerde, 496 N.E.2d at 1362.
68. Fred Kaplan, New York Officials Bash Judges' Rulings, Boston Globe, Apr. 9, 1996, at 3.
69. See People v. Miller, 312 N.E.2d 352, 354 (Mass. 1974).
70. Commonwealth v. Leonard, 517 N.E.2d 157, 158 (Mass. 1988) (quoting Commonwealth v. Forde, 466 N.E.2d 510, 513 (Mass. 1984)).
71. Commonwealth v. Morgan, 663 N.E.2d 247, 251 (Mass. 1996); see also Forde, 466 N.E.2d at 513.
72. Commonwealth v. Clerico, 620 N.E.2d 799, 802 (Mass. App. Ct. 1993); see also Tollett v. Henderson, 411 U.S. 258, 266-67 (1973).
73. Mass. Gen. Laws ch. 278, § 18 (1994 & Supp. 1996).
74. Mass. R. Crim. P. 12(c)(5)(A).
75. See Whren v. United States, 116 S. Ct. 1769, 1776-77 (1996).
76. Mass. Gen. Laws ch. 90, § 6 (1994 & Supp. 1996).
77. See Commonwealth v. Mullen, 664 N.E.2d 854, 858 (Mass. App. Ct. 1996).
78. See id. at 858; see also Commonwealth v. Zorrilla, 645 N.E.2d 48, 49-50 (Mass. App. Ct. 1995).
79. Argersinger v. Hamlin, 407 U.S. 25, 65 (1972) (Powell, J., concurring).
80. Clarence Earl Gideon was sentenced to a five year state prison sentence after a jury convicted him of breaking and entering into a poolroom with intent to commit a misdemeanor, a felony under Florida law. See Gideon v. Wainwright, 372 U.S. 335, 336 (1963). His request for a court-appointed attorney was denied by the trial judge, who ruled that he would be eligible for such attorney only if charged with a capital offense. See id. at 336-37.
81. 407 U.S. 25 (1972). Jon Richard Argersinger, indigent and unrepresented at trial, was sentenced to 90 days in jail after a Florida judge found him guilty of carrying a concealed weapon. See id. at 26.
82. Wendy J. Kaplan, Sentencing Advocacy in the Massachusetts District Courts, 80 Mass. L. Rev. 22, 31 (1995).
83. Powell v. Alabama, 287 U.S. 45, 59 (1932); see also Commonwealth v. Fossa, 666 N.E.2d 158, 161-62 (Mass. App. Ct. 1996) ("We take judicial notice of the judges' legitimate `concern over the court calendar and the need to move cases along. However, "concern for the avoidance of a congested [court] calendar must not come at the expense of justice."'" (alteration in original) (quoting Commonwealth v. Connelly, 634 N.E.2d 103, 104 (Mass. 1994) (quoting Monahan v. Washburn, 507 N.E.2d 1045, 1047 (Mass. 1987)))).
84. Johnson v. Zerbst, 304 U.S. 458, 465 (1938).
85. 526 N.E.2d 765 (Mass. 1988).
88. Nichols v. United States, 114 S. Ct. 1921, 1928 (1994). Justices Blackmun, Stevens, and Ginsburg, attack this result in a variety of ways but emphasize that their "concern here is not with multiple punishments, but with reliability. Specifically, is a prior uncounseled misdemeanor conviction sufficiently reliable to justify additional jail time imposed under an enhancement statute?" Id. at 1933.