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The Sixth Amendment’s Right to the Assistance of Counsel

Henry Fonda in Gideon's TrumpetThanks to television police reading the Miranda Warnings people are familiar with a criminal defendant’s right to an attorney and that an indigent defendant may have appointed counsel. Such protections have not always been part of United States law.

The right to an attorney is found in the Constitution’s Sixth Amendment.  The Sixth Amendment was ratified as part of the Bill of Rights in 1791.  The provision regarding counsel for criminal defendants is as follows:

“In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.”

For 141 years the Sixth Amendment provision was understood to allow[1] a defendant to employ a lawyer in his defense. The state was not required to provide counsel for an indigent defendant. There was no belief that someone was entitled to a competent lawyer. In 1932, the understanding began an evolution leading to a universal right to an attorney for anyone accused of a crime.

The Scottsboro Boys and the Sixth Amendment

In 1932, the Supreme Court decided the case of Powell v. Alabama. It was the case of the “Scottsboro Boys”. A group of nine young black men were accused of raping two young white women in March, 1931. The accusations grew out of an altercation between a group of blacks and a group of whites, when both had hitched a ride on a freight train. The blacks had thrown the whites off the train, but when the train was later stopped based upon a telegraph message, nine blacks were arrested for the altercation, taken to the Scottsboro, Alabama jail and once there were identified by a white woman as having gang raped her and another.

Trials began a mere twelve days after the arrest. They had been given a 70 year old real estate attorney and an attorney from Tennessee. The attorneys did little cross examination and offered no closing arguments.  Eight were convicted of rape and sentenced to death. The ninth was a 12 year old boy whose case ended in a mistrial. They had never been given the chance to even attempt to select counsel of their choice.

The Supreme Court determined that the defendants had not been provided any opportunity to obtain counsel of their choice and overturned the convictions. The lawyers had been incompetent and the defendants had not had the opportunity to seek counsel. The Supreme Court found the proceedings against the Scottsboro Boys to be fundamentally unfair and that in the “special circumstances” of the case they were entitled to have counsel.[2]

The Right to an Attorney in Federal Prosecutions

In 1934 two enlisted United States Marines were charged with passing four counterfeit $20 bills. In Federal Court, the Marines pleaded not guilty but told the judge they could not afford an attorney. They were tried, convicted and sentenced without a lawyer. In the case of Johnson v. Zerbst, the Supreme Court’s 1938 decision required the appointment of counsel for defendants in federal[3] criminal trials, but the right to appointed counsel in state prosecutions still did not exist, absent special circumstances such as existed in the matter of the Scottsboro Boys.

Special Circumstances and Death Penalty Cases

Eventually, the Supreme Court would determine that in addition to special circumstances that the states were required to appoint counsel for defendants facing the death penalty. There was not, however, the universal rule that exists today requiring appointed counsel for an indigent defendant in every state prosecution.

The court continued to add circumstances in which a state criminal defendant was entitled to appointed counsel, but it was not until 1963 that the Sixth Amendment was interpreted to require appointed counsel for indigent defendants in all situations.

The Right to Counsel in State Prosecutions

On June 2, 1961 $5 and some beer and soda were taken from a pool Room in Florida. A 22-year-old resident who lived near the pool room, told police he had seen Clarence Gideon leave the pool hall with a bottle of wine and his pockets filled with coins, enter a cab and leave.

Gideon was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor that was a felony. Gideon appeared in court indigent and without a lawyer, and asked the court to appoint counsel for him. His request was denied. Gideon represented himself was found guilty and sentenced to five years in prison.

From the Florida State Prison an appeal of Gideon’s conviction was sent to the US Supreme Court.  It was written in pencil on prison stationery.  The handwritten appeal argued that Gideon had been denied counsel and his Sixth Amendment right.

In 1963 the Supreme Court overturned Gideon’s conviction. In doing so, the Court said that the Sixth Amendment right to counsel applied to all state criminal prosecutions, and that the states were obligated to appoint counsel for indigent defendants. Gideon was given a new trial and a court appointed attorney. The jury found him not guilty in less than an hour.

Gideon’s case changed criminal procedure not only in the United States, but around the world.  A book and movie[4] were made about his story.  The legend is that this man with limited education wrote the appeal that changed the law.  The legend is likely to not be true,[5] but the impact of the case on criminal law was inestimable.

Bill of Rights to Scottsboro to Gideon

It was 31 years after the Scottsboro Boys and 174 years after the Sixth Amendment was ratified that it became clear that all criminal defendants were entitled to a lawyer, even if they could not afford one, in no small part thanks to a prison pencil and paper.


[1] This was a departure from the English tradition.  In England and early colonial America, criminal defendants were denied counsel on the theory that a guilty defendant should not escape punishment because of a skilled attorney.

[2] The Sixth Amendment at the time did not generally apply to criminal prosecutions by the states.   The Due Process clause of the Fourteenth Amendment did apply to the states and the Court employed the protections of both amendments to overturn the convictions of the Scottsboro boys.

[3] The Sixth Amendment had, since being ratified in 1791 applied to the federal government as did all the other provisions of the Bill of Rights.

[4] The Book is Gideon’s Trumpet, by Anthony Lewis and the movie, based upon the book is titled the same and starred Henry Fonda.

[5] Gideon’s cell mate in prison was a former judge who had been convicted of murder.  It is likely that the murdering judge was instrumental in Gideon’s successful appeal.  For more on this see:  Gideon v. Wainwright, 50 Years Later, Did Clarence Gideon Write His Appeal? Part 2

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