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February 2006Counsel for Poor Criminal Defendants: An American Traditionby Joanne I. Moore In 1789, Congress adopted and the states ratified the Bill of Rights in order to protect individuals against unwarranted, arbitrary interference by government. Shortly before the adoption of the Bill of Rights, Thomas Jefferson wrote to James Madison: "In the arguments in favor of a declaration of rights … one which has great weight with me [is] the legal check which it puts into the hands of the judiciary."1 One of the 10 constitutional amendments comprising the Bill of Rights, the Sixth Amendment establishes that "in all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defense." In fledgling America, the assistance of counsel was viewed as a critical protection against unjust criminal actions. The right to the assistance of counsel was a sharp departure from English law, which denied the aid of counsel in most felony trials until 1836.2 Some 37 years after the adoption of the Bill of Rights, Constitutional commentator William Rawle wrote that: "The most innocent man, pressed by the awful solemnities of public accusation and trial, may be incapable of supporting his own cause. He may be utterly unfit to cross-examine the witnesses against him, to point out the contradictions or defects of their testimony, and to counteract it by properly introducing it and applying his own." 3 Many years before the U.S. Supreme Court interpreted the Sixth Amendment as guaranteeing that poor criminal defendants have the right to assistance of appointed counsel if they cannot afford to pay, a number of our historical lawyer leaders proved the depth of their belief that attorneys are necessary in criminal matters by taking this responsibility upon themselves. Nineteen years prior to the adoption of the Bill of Rights, John Adams, for example, agreed to defend eight British soldiers and a captain charged with the murder of five Americans during the Boston Massacre. Adams accepted a nominal fee of only 10 guineas on accepting the case, and eight guineas at trial. When he took the case, Adams well understood that his defense of these hated British soldiers would result in "endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, a sense of duty."4 Adams, one of Boston's finest lawyers, obtained acquittals for six of the eight soldiers by proving that they were fired upon first. Later, he observed in his diary that the fee paid for his labors was paltry, and said: "The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently."5 Some 30 years later, Alexander Hamilton and Aaron Burr joined with another New York attorney, Brockholst Livingston, to represent Levi Weeks, a notorious criminal defendant, on a pro bono basis. Weeks was charged with the murder of his fiancée, Gulielma Sands. Witnesses had seen the victim conversing with him on December 22, 1799, in front of the Manhattan boarding house where they both resided. A few days later, she was found drowned in a well. Widely circulated handbills described her grotesquely bruised and bloated body and her relatives displayed the corpse publicly, inciting fury against Weeks. At the trial, the defense's opening statement described the: ". . . unexampled industry that has been exerted to destroy the reputation of the accused and to immolate him at the shrine of persecution without the solemnity of a candid and impartial trial…the public opinion comes to be formed unfavorably and long before the prisoner is brought to his trial he is already condemned."6 During the three-day trial in which 55 witnesses were called, the defense established that Weeks had an alibi and cast suspicion on Richard Coucher, another boarding-house resident. It has been reported that part of the defense technique was to hold lighted candles near Coucher's head in order to facilitate the jury's observation of his face while he testified. The jury returned a not-guilty verdict after deliberating for some five minutes.7 In 1857, Illinois attorney Abraham Lincoln told Hannah Armstrong, a widow, that he would represent her son pro bono in his murder trial. William Armstrong had been arrested for killing Preston Metzker in a drunken brawl several months before, on August 29, 1857. At trial, the primary witness against Armstrong testified that he had clearly seen the defendant deliver a fatal blow to Metzker at about 11:00 at night, under an almost-full moon. Lincoln then demonstrated his considerable talents as a trial lawyer. In an early use of judicial notice, he offered the Farmers' Almanac to show that on August 29, the moon was just past the first quarter, producing so little light that the witness could not have seen the fight. Based on this evidence, the jury quickly acquitted Armstrong.8 Counsel was appointed for the accused in a number of criminal trials during the 19th century. Two famous examples are John Brown's Kansas state murder trial for the attempted insurrection and raid on Harpers Ferry trial in 1859,9 and the Lincoln assassination conspiracy trial in 1865.10 By 1934, as the Supreme Court summarized in the Adams v. Powell case overturning the Scottsboro Boys' convictions, the right to counsel for poor defendants was guaranteed by federal statute and by state statute or state case law, to varying degrees but at least for capital cases, throughout the United States. In the 1942 Betts v. Brady case, the Court ruled that whether the Sixth Amendment required that the states appoint counsel depended on the circumstances of the case. The Betts approach was overturned by Gideon v. Wainwright, decided in 1963, when the Supreme Court proclaimed that the Sixth and Fourteenth Amendments guarantee counsel to criminal defendants, including those without the means to pay. In the Gideon opinion, the Court reviewed America's history of providing counsel for poor criminal defendants, and found that: "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to ensure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him . . . ." Similar reasoning must have been undertaken by Adams, Hamilton, Burr, and Lincoln. These lawyer leaders passionately believed that counsel was essential to a fair murder trial for the poor defendants they represented. They had abiding faith in the procedural and substantive safeguards available through their representation. Indeed, even though the defendants represented by them in each case clearly appeared to be guilty before trial, through able lawyering, these historical leaders succeeded in proving they were innocent.
NOTES 1. Thomas Jefferson to James Madison, 1789. ME 7:309; www.etext.virginia.edu/jefferson/quotations/jeff950.htm.
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