author: Mr. Justice Douglas Me. Chief Justice Warren, Mr. Justice Harlan,

text:
    BURGETT v. TEXAS.
    No. 53.
    Argued October 18, 1967.
    Decided November 13, 1967.

      Gordon Gooch, by appointment of the Court, 386 U. S. 963, argued the cause and filed briefs for petitioner.

      Leon Douglas argued the cause for respondent. With him on the brief were Crawford Martin, Attorney General of Texas, George Cowden, First Assistant Attorney General, A. J. Carubbi and R. L. Lattimore.

   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner was convicted of “assault with malice aforethought with intent to murder; repetition of offense.” The jury fixed the punishment at 10 years in the Texas State Penitentiary. On appeal, the Texas Court of Criminal Appeals affirmed petitioner’s conviction. We granted certiorari, 386 U. S. 931.

Petitioner was charged in a five-count indictment. In the first count the State alleged that he had cut one Bradley with a knife and had stabbed at Bradley’s throat with intent to kill. Pursuant to the Texas recidivist statutes, the remaining counts of the indictment consisted of allegations that petitioner had incurred four previous felony convictions: a Texas conviction for burglary, and three Tennessee convictions for forgery. If these allegations were found to be true, petitioner would be subject to a term of life imprisonment upon conviction of the offense charged in count one.

Petitioner’s counsel filed a pretrial motion to quash the four counts of the indictment referring to the prior convictions for failure to apprise the defense of what the State would attempt to prove. The record is silent as to the court’s action on this motion. But when the indictment was read to the jury at the beginning of the trial, before any evidence was introduced, the four counts relating to the prior convictions were included.

During the course of the trial, while the jury was present, the State offered into evidence a certified copy of one of the Tennessee convictions. The conviction read in part, “Came the Assistant Attorney-General for the State and the Defendant in proper person and without Counsel.” Petitioner’s counsel objected to the introduction of the record on the ground that the judgment on its face showed that petitioner was not represented by counsel in violation of the Fourteenth Amendment. There was no indication in the record that counsel had been waived. The court stated that it would reserve ruling on the objection, apparently to give the State an opportunity to offer any of the other convictions into evidence. The State then offered a second version of the same Tennessee conviction which stated that petitioner had appeared “in proper person” but did not contain the additional words “without counsel.” This second version also stated that “After said jury had heard the evidence, argument of counsel, and the charge of the Court, they retired to consider of their verdict.” It is not clear, however, whether “counsel” was being used in the singular or plural, and in any event no explanation was offered for the discrepancy between the two records. Petitioner’s counsel objected to this second version on the same ground. The court again reserved its ruling.

The State then offered into evidence a certified copy of the indictment in the prior Texas case. Petitioner’s counsel indicated he had no objection, and that record was received into evidence. Thereafter, testimony was offered concerning the judgment and sentence in the prior Texas case. After some testimony had been given, the jury was excused and the hearing continued out of its presence. At the conclusion of the hearing, petitioner’s attorney objected that the Texas judgment was void on its face under state law. The court sustained that objection, and the record of the Texas conviction was stricken from evidence. At the same time, the court sustained petitioner’s objection to the first version of the Tennessee conviction; but overruled the objection to the second version of the same conviction. The jury was then recalled and testimony was heard on the substantive offense charged. The next reference to the prior convictions was when the court instructed the jury not to consider the prior offenses for any purpose whatsoever in arriving at the verdict.

Petitioner’s motion for a new trial was denied. In the Court of Criminal Appeals, petitioner argued, inter alia, that the court erred in permitting counts two through five of the indictment to be read to the jury at the beginning of the trial, and in failing to sustain petitioner’s objection to the admission into evidence of the second version of the Tennessee conviction. The Court of Criminal Appeals held that since petitioner had not suffered the enhanced punishment provided by the recidivist statutes, and since the instruction to disregard the prior offenses had been given, no error was presented.

We do not sit as a court of criminal appeals to review state cases. The States are free to provide such procedures as they choose, including rules of evidence, provided that none of them infringes a guarantee in the Federal Constitution. The recent right-to-counsel cases, starting with Gideon v. Wainwright, 372 U. S. 335, are illustrative of the limitations which the Constitution places on state criminal procedures. Those limitations sometimes touch rules of evidence.

The exclusion of coerced confessions is one example. Chambers v. Florida, 309 U. S. 227.

The exclusion of evidence seized in violation of the Fourth and Fourteenth Amendments is another. Mapp v. Ohio, 367 U. S. 643.

Still another is illustrated by Pointer v. Texas, 380 U. S. 400. In that case we held that a transcript of a preliminary hearing had to be excluded from a state criminal trial because the defendant had no lawyer at that hearing, and did not, therefore, have the opportunity to cross-examine the principal witness against him who since that time had left the State. The exclusionary rule that we fashioned was designed to protect the privilege of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth.

The same result must follow here. Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U. S. 202; Pickelsimer v. Wainwright, 375 U. S. 2. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U. S. 506. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U. S. 269) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.

The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error “harmless beyond a reasonable doubt” within the meaning of Chapman v. California, 386 U. S. 18.

Our decision last Term in Spencer v. Texas, 385 U. S. 554, is not relevant to our present problem. In Spencer the prior convictions were not presumptively void. Moreover, the contention was that the guilt phase of the trial was prejudiced by the introduction of the evidence of prior crimes. As the Court noted, “[i]n the procedures before us ... no specific federal right — such as that dealing with confessions — is involved; reliance is placed solely on a general ‘fairness’ approach.” Id., at 565. In this case, however, petitioner’s right to counsel, a “specific federal right,” is being denied anew. This Court cannot permit such a result unless Gideon v. Wainwright is to suffer serious erosion.

Reversed.

Me. Chief Justice Warren,

concurring.

I am in full agreement with the opinion of the Court and the reasons stated therein for reversing the conviction in this case. However, in view of the terse dissent entered by my Brother Harlan, I feel constrained to add some observations of my own.

The dissent refers to the Court’s decision in Spencer v. Texas, 385 U. S. 554, and the entire thrust of the dissent is reminiscent of that decision of last Term which placed this Court’s stamp of approval on the Texas recidivist procedures from which this case evolves. The dissent reminds us that “[w]e do not sit as a court of errors and appeals in state cases.” I would not disagree with that statement as an abstract proposition. But we are not dealing with abstracts in this case. We are dealing with a very real denial of a state criminal defendant’s rights as guaranteed by the Federal Constitution. We are also told by the dissent that “this case shows no prosecutorial bad faith or: intentional misconduct.” But this misses the mark. We are not limited in our review of constitutional errors in state criminal proceedings to those errors which flow from “prosecutorial bad faith or intentional misconduct.” Our concern is with the effect of those errors, whether well-intentioned or not, on the constitutionally protected right of a criminal defendant to a fair and impartial trial.

This case is a classic example of how a rule eroding the procedural rights of a criminal defendant on trial for his life or liberty can assume avalanche proportions, burying beneath it the integrity of the fact-finding process. In Spencer, the Court approved a procedure whereby a State, for the sole purpose of enhancing punishment, includes in the indictment allegations of prior crimes which are read to the jury and enters evidence at trial of those prior crimes, no matter how unrelated they might be to the charge on which the defendant is being tried. The rule adopted in Spencer went so far as to allow the State to enter evidence on the prior crimes even though a defendant might be willing to stipulate the earlier convictions. In this case, that harsh rule was expanded to a degree close to barbarism.

In addition to charging the petitioner with the principal crime of “assault with malice aforethought with intent to murder,” the indictment alleged four prior convictions, one in Texas and three in Tennessee. Despite the efforts of the petitioner’s attorney to quash those portions of the indictment referring to the prior crimes, the entire indictment was read to the jury at the start of the petitioner’s one-day trial. The prosecutor then proceeded to offer evidence of the prior convictions. The petitioner’s attorney objected to evidence of one Tennessee conviction because a certified copy of that conviction showed that the petitioner had not been represented by counsel. The trial judge reserved his ruling on the objection. The prosecution next offered a second version of that same Tennessee conviction which omitted any reference to the absence of counsel but which did not show a waiver of counsel. The petitioner’s attorney again objected and the trial judge again reserved his ruling. The prosecutor then offered into evidence a certified copy of the indictment in the prior Texas case, and it was received without objection. All this occurred in the presence of the jury. However, when the petitioner’s attorney objected to evidence concerning the judgment and sentence in the prior Texas case, the jury was excused and testimony was taken out of the presence of the jury. At the close of that evidence and before the jury returned, the trial judge ruled that the prior Texas conviction was void under state law. In addition, the trial judge sustained the objection to the first version of the Tennessee conviction but overruled the objection to the second version of the same conviction. The jury then returned and the trial continued. The next the jury was to hear of the prior convictions was a brief instruction from the trial judge advising the jurors not to consider the prior crimes for any purpose. The jury was never told, however, that two of the prior convictions charged were void and that the prosecution had failed to offer testimony on the validity of the other prior crimes charged in the indictment.

Thus, the jury went into its deliberations knowing that the petitioner had been convicted and imprisoned for four prior felonies, although not one had been proven at the trial. To expect that the jury could wipe this from its memory and decide the petitioner’s guilt only on the basis of the evidence of assault is to place too much faith in a jury’s ability to detach itself from reality. This is particularly true since the trial judge gave the jurors not the slightest clue as to why matters which consumed so much time at trial were suddenly being removed from their consideration.

To suggest that such a procedure accords a man charged with a crime due process is beyond belief. This Court has reversed convictions in other cases based on unfair influences on juries which must be deemed minor when compared to the pervasive prejudice in this case. Not long ago we ruled that a defendant was denied due process when a court bailiff remarked in the presence of the jurors, “Oh that wicked fellow, he is guilty”; and, “If there is anything wrong [in the verdict] the Supreme Court will correct it.” Parker v. Gladden, 385 U. S. 363. We also reversed a murder conviction because two prosecution witnesses were deputy sheriffs who had been assigned to accompany the jury while it was sequestered. Turner v. Louisiana, 379 U. S. 466. If these transgressions offend constitutional standards of fairness, can it be doubted that the petitioner’s trial was stripped of all vestiges of due process when the jurors were told of his prior void convictions and the error was not explained to them?

This case is the frightful progeny of Spencer and of that decision’s unjustified deviation from settled principles of fairness. Today we have placed a needed limitation on the Spencer rule, but nothing except an outright rejection would truly serve the cause of justice.

Mr. Justice Harlan,

whom Mr. Justice Black and Mr. Justice White join,

dissenting.

The record in this case shows no prosecutorial bad faith or intentional misconduct. To the extent that the prosecutor contemplated the use of prior convictions in a one-stage recidivist trial, his right to do so is of course established by Spencer v. Texas, 385 U. S. 554, decided only last Term. The fact that the prior convictions turned out to be inadmissible for other reasons involves at the most a later corrected trial error in the admission of evidence. We do not sit as a court of errors and appeals in state cases, and I would affirm the judgment of the state court.

       The maximum penalty for a first conviction of assault with intent to murder is 25 years; the minimum penalty is two years. Tex. Pen. Code, Art. 1160 (Supp. 1966).

        Burgett v. State, 397 S. W. 2d 79 (1965).

       The statutes involved here are Articles 62 and 63 of the Tex. Pen. Code (1952).
      Article 62 provides: “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”
      Article 63 provides: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

       Tex. Pen. Code, Art, 63 (1952).

       In petitioner’s amended motion for a new trial, which was denied by the court, he explained that the purpose of the pretrial motion was “so that defendant could establish their [the previous convictions alleged for enhancement] admissibility before they were read into the record in the presence of the jury; same reading into the record in the presence of the jury was prejudicial to defendant herein.”

       The court apparently withdrew consideration of the prior convictions from the jury since only the record of the one prior Tennessee conviction for forgery had been accepted. Thus, Article 63 could not be applied to petitioner. Further, since forgery could not be considered as an offense of the “same nature” as assault with intent to murder, Article 62 would not be applicable. See n. 3, supra.

      The State apparently did not attempt to introduce the records of the other two Tennessee convictions for forgery because the indictment showed that all of the convictions occurred on- the same date. To invoke the provisions of Article 63, each succeeding conviction must be subsequent in time to the previous conviction — both with respect to commission of the offense and to conviction. Cowan v. State, 172 Tex. Cr. R. 183, 355 S. W. 2d 521 (1962).

       See, e. g., Boyd v. United States, 142 U. S. 450; United States v. Clarke, 343 F. 2d 90 (C. A. 3d Cir. 1965). Cf. Waldron v. Waldron, 156 U. S. 361, 383; Throckmorton v. Holt, 180 U. S. 552; Lawrence v. United States, 357 F. 2d 434 (C. A. 10th Cir. 1966); United States v. DeDominicis, 332 F. 2d 207 (C. A. 2d Cir. 1964).
      What Mr. Justice Jackson said in Krulewitch v. United States, 336 U. S. 440, 445, 453 (concurring opinion), in the sensitive area of conspiracy is equally applicable in this sensitive area of repetitive crimes, “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.”

       Prosecutorial bad faith, of course, is not an irrelevant element in our review of state criminal convictions. It can often make even more intolerable errors which demand correction in this Court. See, e. g., Miller v. Pate, 386 U. S. 1; Napue v. Illinois, 360 U. S. 264; Mooney v. Holohan, 294 U. S. 103.

       The dissent is not alone in viewing this case solely in terms of the prosecutor’s good or bad faith. The Texas Court of Criminal Appeals disposed of the petitioner’s objection to the use of the prior void convictions at trial with the crjrptic observation that “[t]here is no showing of bad faith on the part of the state in alleging or attempting to prove the prior convictions.” Boswell tells us that Dr. Johnson once observed that “Hell -is paved with good intentions.” Boswell, Life of Samuel Johnson 257 (Great-Books ed. 1952). If the good-faith view of this case should prevail, then surely this petitioner’s road to prison would be paved with the same good intentions.

       The record is silent concerning the second and third Tennessee convictions alleged in the indictment, and the prosecution apparently did not offer any evidence on those convictions. However, the jury had been made aware of those prior crimes when the indictment was read at the start of the trial.

       1 do not mean to express any disapproval of our decisions in Parker and Turner. I joined both of those opinions and I have no doubt the practices condemned in those cases were at odds with settled principles of due process of law. However, it follows a fortiori from those decisions that we are presented in this case with a violation of due process.


source: Caselaw Access Project

author: Mr. Justice White

license: Public Domain

text:
    UNITED STATES v. RANDS et ux.
    No. 54.
    Argued October 18, 1967.
    Decided November 13, 1967.

      Robert S. Rijkind argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Weisl, Roger P. Marquis and A. Donald Mileur.

      Alex L. Parks argued the cause for respondents. With him on the brief were Sidney Teiser and Robert B. Abrams.

   Mr. Justice White

delivered the opinion of the Court.

In this case the Court is asked to decide whether the compensation which the United States is constitutionally required to pay when it condemns riparian land includes the land’s value as a port site. Respondents owned land along the Columbia River in the State of Oregon. They leased the land to the State with an option to purchase, it apparently being contemplated that the State would use the land as an industrial park, part of which would function as a port. The option was never exercised, for the land was taken by the United States in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River. Pursuant to statute the United States then conveyed the land to the State of Oregon at a price considerably less than the option price at which respondents had hoped to sell. In the condemnation action, the trial judge determined that the compensable value of the land taken was limited to its value for sand, gravel, and agricultural purposes and that its special value as a port site could not be considered. The ultimate award was about one-fifth the claimed value of the land if used as a port. The Court of Appeals for the Ninth Circuit reversed, apparently holding that the Government had taken from respondents a compensable right of access to navigable waters and concluding that “port site value should be compen-sable under the Fifth Amendment.” 367 F. 2d, 186, 191 (1966). We granted certiorari, 386 U. S. 989, because of a seeming conflict between the decision below and United States v. Twin City Power Co., 350 U. S. 222 (1956). We reverse the judgment of the Court of Appeals because the principles underlying Twin City govern this case and the Court of Appeals erred in failing to follow them.

The Commerce Clause confers a unique position upon the Government in connection with navigable waters. “The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States .... For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Wall. 713, 724-725 (1866). This power to regulate navigation confers upon the United States a “dominant servitude,” FPC v. Niagara Mohawk Power Corp., 347 U. S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P. B. Co., 312 U. S. 592, 596-597 (1941); Gibson v. United States, 166 U. S. 269, 275-276 (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, South Carolina v. Georgia, 93 U. S. 4 (1876), or otherwise impair or destroy a riparian owner’s access to navigable waters, Gibson v. United States, 166 U. S. 269 (1897); Scranton v. Wheeler, 179 U. S. 141 (1900); United States v. Commodore Park, Inc., 324 U. S. 386 (1945), even though the market value of the riparian owner’s land is substantially diminished.

The navigational servitude of the United States does not extend beyond the high-water mark. Consequently, when fast lands are taken by the Government, just compensation must be paid. But “just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, ... it also permits the Government to disregard the value arising from this same fact of riparian location in compensating the owner when fast lands are appropriated.” United States v. Virginia Elec. & Power Co., 365 U. S. 624, 629 (1961). Specifically, the Court has held that the Government is not required to give compensation for “water power” when it takes the riparian lands of a private power company using the stream to generate power. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 73-74 (1913). Nor must it compensate the company for the value of its uplands as a power plant site. Id., at 76. Such value does not “inhere in these parcels as upland,” but depends on use of the water to which the company has no right as against the United States: “The Government had dominion over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.” Ibid.

All this was made unmistakably clear in United States v. Twin City Power Co., 350 U. S. 222 (1956). The United States condemned a promising site for a hydroelectric power plant and was held to be under no obligation to pay for any special value which the fast lands had for power generating purposes. The value of the land attributable to its location on the stream was “due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account.” 350 U. S., at 226.

We are asked to distinguish between the value of land as a power site and its value as a port site. In the power cases, the stream is used as a source of power to generate electricity. In this case, for the property to have value as a port, vessels must be able to arrive and depart by water, meanwhile using the waterside facilities of the port. In both cases, special value arises from access to, and use of, navigable waters. With regard to the constitutional duty to compensate a riparian owner, no distinction can be drawn. It is irrelevant that the licensing authority presently being exercised over hydroelectric projects may be different from, or even more stringent than, the licensing of port sites. We are dealing with the constitutional power of Congress completely to regulate navigable streams to the total exclusion of private power companies or port owners. As was true in Twin City, if the owner of the fast lands can demand port site value as part of his compensation, “he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. . . . To require the United States to pay for this . . . value would be to create private claims in the public domain.” 350 U. S., at 228:

Respondents and the Court of Appeals alike have found Twin City inconsistent with the holding in United States v. River Rouge Improvement Co., 269 U. S. 411 (1926). In that case, the Government took waterfront property to widen and improve the navigable channel of the Rouge River. By reason of the improvements, other portions of the riparian owner’s property became more valuable because they were afforded direct access to the stream for the building of docks and other purposes related to navigation. Pursuant to § 6 of the Rivers and Harbors Act of 1918, the compensation award for the part of the property taken by the Government was reduced by the value of the special and direct benefits to the remainder of the land. The argument here seems to be that if the enhancement in value flowing from a riparian location is real enough to reduce the award for another part of the same owner’s property, consistency demands that these same values be recognized in the award when any riparian property is taken by the Government. There is no inconsistency. Twin City and its predecessors do not deny that access to navigable waters may enhance the market value of riparian property. See United States v. Commodore Park, Inc., 324 U. S., at 388, 390. And, in River Rouge, it was recognized that state law may give the riparian owner valuable rights of access to navigable waters good against other riparian owners or against the State itself. 269 U. S., at 418-419. But under Twin City and like cases, these rights and values are not assertable against the superior rights of the United States, are not property within the meaning of the Fifth Amendment, and need not be paid for when appropriated by the United States. Thus, when only part of the property is taken and the market value of the remainder is enhanced by reason of the improvement to navigable waters, reducing the award by the amount of the increase in value simply applies in another context the principle that special values arising from access to a navigable stream are allocable to the public, and not to private interest. Otherwise the private owner would receive a windfall to which' he is not entitled.

Our attention is also directed to Monongahela Navigation Co. v. United States, 148 U. S. 312 (1893), where it was held that the Government had to pay the going-concern value of a toll lock and dam built at the implied invitation of the Government, and to the portion of the opinion in Chandler-Dunbar approving an award requiring the Government to pay for the value of fast lands as a site for a canal and lock to bypass the falls and rapids of the river. Monongahela is not in point, however, for the Court has since read it as resting “primarily upon the doctrine of estoppel.. . .” Omnia Commercial Co., Inc. v. United States, 261 U. S. 502, 513-514 (1923). The portion of Chandler-Dunbar relied on by respondents was duly noted and dealt with in Twin City itself, 350 U. S. 222, 226, n. (1956). That aspect of the decision has been confined to its special facts, and, in any event, if it is at all inconsistent with Twin City, it is only the latter which survives.

Finally, respondents urge that the Government’s position subverts the policy of the Submerged Lands Act, which confirmed and vested in the States title to the lands beneath navigable waters within their boundaries and to natural resources within such lands and waters, together with the right and power to manage, develop, and use such lands and natural resources. However, reliance on that Act is misplaced, for it expressly recognized that the United States retained “all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership . Nothing in the Act was to be construed “as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power.” The Act left congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them.

For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case remanded with direction to reinstate the judgment, of the District Court.

Reversed and remanded.

Mr. Justice Marshall took no part in the consideration or decision of this case.

       74 Stat. 486, 33 U. S. C. § 578.

       40 Stat. 911, 33 U. S. C. §595.

       67 Stat. 29, 43 U. S. C. §§ 1301-1343.

       67 Stat. 32, 43 U. S. C. § 1314.

       67 Stat. 31, 43 U. S. C. § 1311 (d).


author: Mr. Justice Marshall

text:
    MEMPA v. RHAY, PENITENTIARY SUPERINTENDENT.
    No. 16.
    Argued October 11-12, 1967.
    Decided November 13, 1967.

      Evan L. Schwab, by appointment of the Court, 386 U. S. 953, argued the cause and filed a brief for petitioners in both cases.

      Stephen C. Way, Assistant Attorney General of Washington, argued the cause for respondents in both cases. With him on the brief was John J. O’Connell, Attorney General; joined by MacDonald Gallion of Alabama,
      Arthur K. Bolton of Georgia, Allan G. Shepard of Idaho, James S. Erwin of Maine, and Helgi Joharmeson of North Dakota, Attorneys General for their respective States, and by Robert Y. Button, Attorney General of Virginia, and Reno S. Harp III, Assistant Attorney General, as amici curiae.

      Patrick J. Hughes, Jr., filed a brief for the National Legal Aid and Defender Association, as amicus curiae, urging reversal. Earl Faircloth, Attorney General of Florida, and Wallace E. AUbritton, Assistant Attorney General, filed a brief for the State of Florida, as amicus curiae, joined and supported by Allan G. Shepard, Attorney General of Idaho.

      Together with No. 22, Walkling v. Washington State Board of Prison Terms and Paroles, also on certiorari to the same court.

   Mr. Justice Marshall

delivered the opinion of the Court.

These consolidated cases raise the question of the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation.

Petitioner Jerry Douglas Mempa was convicted in the Spokane County Superior Court on June 17, 1959, of the offense of “joyriding,” Wash. Rev. Code § 9.54.020. This conviction was based on his plea of guilty entered with the advice of court-appointed counsel. He was then placed on probation for two years on the condition, inter alia, that he first spend 30 days in the county jail, and the imposition of sentence was deferred pursuant to Wash. Rev. Code §§ 9.95.200, 9.95.210.

About four months later the Spokane County prosecuting attorney moved to have petitioner’s probation revoked on the ground that he had been involved in a burglary on September 15, 1959. A hearing was held in the Spokane County Superior Court on October 23, 1959. Petitioner Mempa, who was 17 years old at the time, was accompanied to the hearing by his stepfather. He was not represented by counsel and was not asked whether he wished to have counsel appointed for him. Nor was any inquiry made concerning the appointed counsel who had previously represented him.

At the hearing Mempa was asked if it was true that he had been involved in the alleged burglary and he answered in the affirmative. A probation officer testified without cross-examination that according to his information petitioner had been involved in the burglary and had previously denied participation in it. Without asking petitioner if he had anything to say or any evidence to supply, the court immediately entered an order revoking petitioner’s probation and then sentenced him to 10 years in the penitentiary, but stated that it would recommend to the parole board that Mempa be required to serve only a year.

In 1965 Mempa filed a pro se petition for a writ of habeas corpus with the Washington Supreme Court, claiming that he had been deprived of his right to counsel at the proceeding at which his probation was revoked and sentence imposed. The Washington Supreme Court denied the petition on June 23, 1966, by a vote of six to three. Mempa v. Rhay, 68 Wash. 2d 882, 416 P. 2d 104. We granted certiorari to consider the questions raised. 386 U. S. 907 (1967).

Petitioner William Earl Walkling was convicted in the Thurston County Superior Court on October 29, 1962, of burglary in the second degree on the basis of his plea of guilty entered with the advice of his retained counsel. He was placed on probation for three years and the imposition of sentence was deferred. As conditions of his probation he was required to serve 90 days in the county jail and make restitution. On May 2, 1963, a bench warrant for his arrest was issued based on a report that he had violated the terms of his probation and had left the State.

On February 24, 1964, Walkling was arrested and charged with forgery and grand larceny. After being transferred back to Thurston County he was brought before the court on May 12, 1964, for a hearing on the petition by the prosecuting attorney to revoke his probation. Petitioner then requested a continuance to enable him to retain counsel and was granted a week. On May 18, 1964, the hearing was called and Walkling appeared without a lawyer. He informed the court that he had retained an attorney who was supposed to be present. After waiting for 15 minutes the court went ahead with the hearing in the absence of petitioner’s counsel. He was not offered appointed counsel and would not have had counsel appointed for him had he requested it. Whether he made such a request does not appear from the record.

At the hearing a probation officer presented hearsay testimony to the effect that petitioner had committed the acts alleged in the 14 separate counts of forgery and 14 separate counts of grand larceny that had been charged against petitioner previously at the time of his arrest. The court thereupon revoked probation and imposed the maximum sentence of 15 years on Walkling on his prior second degree burglary conviction. Because of the failure of the State to keep a record of the proceeding, nothing is known as to whether Walkling was advised of his right to appeal. He did not, however, take an appeal.

In May 1966 Walkling filed a habeas corpus petition with the Washington Supreme Court, claiming denial of his right to counsel at the combined probation revocation and sentencing proceeding. The petition was denied on the authority of the prior decision in Mempa v. Rhay, supra. We granted certiorari, 386 U. S. 907 (1967), and the cases were consolidated for argument.

In 1948 this Court held in Townsend v. Burke, 334 U. S. 736, that the absence of counsel during sentencing after a plea of guilty coupled with “assumptions concerning his criminal record which were materially untrue” deprived the defendant in that case of due process. Mr. Justice Jackson there stated in conclusion, “In this case, counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner.” Id., at 741. Then in Moore v. Michigan, 355 U. S. 155 (1957), where a denial of due process was found when the defendant did not intelligently and understanding^ waive counsel before entering a plea of guilty, this Court emphasized the prejudice stemming from the absence of counsel at the hearing on the degree of the crime following entry of the guilty plea and stated, “The right to counsel is not a right confined to representation during the trial on the merits.” Id., at 160.

In Hamilton v. Alabama, 368 U. S. 52 (1961), it was held that failure to appoint counsel at arraignment deprived the petitioner of due process, notwithstanding the fact that he simply pleaded not guilty at that time, because under Alabama law certain defenses had to be raised then or be abandoned. See also Reece v. Georgia, 350 U. S. 85 (1955), and White v. Maryland, 373 U. S. 59 (1963).

All the foregoing cases, with the exception of White, were decided during the reign of Betts v. Brady, 316 U. S. 455 (1942), and accordingly relied on various “special circumstances” to make the right to counsel applicable. In Gideon v. Wainwright, 372 U. S. 335 (1963), however, Betts was overruled and this Court held that the Sixth Amendment as applied through the Due Process Clause of the Fourteenth Amendment was applicable to the States and, accordingly, that there was an absolute right to appointment of counsel in felony cases.

There was no occasion in Gideon to enumerate the various stages in a criminal proceeding at which counsel was required, but Townsend, Moore, and Hamilton, when the Betts requirement of special circumstances is stripped away by Gideon, clearly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. In particular, Townsend v. Burke, supra, illustrates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to counsel applies at sentencing. Many lower courts have concluded that the Sixth Amendment right to counsel extends to sentencing in federal cases.

The State, however, argues that the petitioners were sentenced at the time they were originally placed on probation and that the imposition of sentence following probation revocation is, in effect, a mere formality constituting part of the probation revocation proceeding. It is true that sentencing in Washington offers fewer opportunities for the exercise of judicial discretion than in many other jurisdictions. The applicable statute requires the trial judge in all cases to sentence the convicted person to the maximum term provided by law for the offense of which he was convicted. Wash. Rev. Code § 9.95.010. The actual determination of the length of time to be served is to be made by the Board of Prison Terms and Paroles within six months after the convicted person is admitted to prison. Wash. Rev. Code § 9.95.040.

On the other hand, the sentencing judge is required by statute, together with the prosecutor, to furnish the Board with a recommendation as to the length of time that the person should serve, in addition to supplying it with various information about the circumstances of the crime and the character of the individual. Wash. Rev. Code § 9.95.030. We were informed during oral argument that the Board places considerable weight on these recommendations, although it is in no way bound by them. Obviously to the extent such recommendations are influential in determining the resulting sentence, the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.

Even more important in a case such as this is the fact that certain legal rights may be lost if not exercised at this stage. For one, Washington law provides that an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation. State v. Farmer, 39 Wash. 2d 675, 237 R 2d 734 (1951). Therefore in a case where an accused agreed to plead guilty, although he had a valid defense, because he was offered probation, absence of counsel at the imposition of the deferred sentence might well result in loss of the right to appeal. While ordinarily appeals from a plea of guilty are less frequent than those following a trial on the merits, the incidence of improperly obtained guilty pleas is not so slight as to be capable of being characterized as de minimis. See, e. g., United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244 (D. C. S. D. N. Y. 1966). Cf. Machibroda v. United States, 368 U. S. 487 (1962).

Likewise the Washington statutes provide that a plea of guilty can be withdrawn at any time prior to the imposition of sentence, Wash. Rev. Code § 10.40.175, State v. Farmer, supra, if the trial judge in his discretion finds that the ends of justice will be served, State v. Shannon, 60 Wash. 2d 883, 376 P. 2d 646 (1962). Without undertaking to catalog the various situations in which a lawyer could be of substantial assistance to a defendant in such a case, it can be reiterated that a plea of guilty might well be improperly obtained by the promise to have a defendant placed on the very probation the revocation of which furnishes the occasion for desiring to withdraw the plea. An uncounseled defendant might very likely be unaware of this opportunity.

The two foregoing factors assume increased significance when it is considered that, as happened in these two cases, the eventual imposition of sentence on the prior plea of guilty is based on the alleged commission of offenses for which the accused is never tried.

In sum, we do not question the authority of the State of Washington to provide for a deferred sentencing procedure coupled with its probation provisions. Indeed, it appears to be an enlightened step forward. All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing. We assume that counsel appointed for the purpose of the trial or guilty plea would not be unduly burdened by being requested to follow through at the deferred sentencing stage of the proceeding.

The judgments below are reversed and the cases are remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

       The State suggests that the Supreme Court of Washington was in error in stating that Mempa received a deferred rather than a suspended sentence, but we accept that court’s characterization of the sentence as supported by the record.

       Under Washington procedure the trial judge is required by statute to impose the maximum sentence provided by law for the offense, Wash. Rev. Code § 9.95.010, but is also required, along with the prosecuting attorney, to make a recommendation to the parole board of the time that the defendant should serve accompanied by a statement of the facts concerning the crime and any other information about the defendant deemed relevant. Wash. Rev. Code § 9.95.030. However, it is the parole board that actually determines the time to be served. Wash. Rev. Code § 9.95.040. See infra, at 135.

       See Kadish, The Advocate and the Expert — Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 806 (1961).

        E. g., Martin v. United States, 182 F. 2d 225 (C. A. 5th Cir. 1950); McKinney v. United States, 93 U. S. App. D. C. 222, 208 F. 2d 844 (1953); Nunley v. United States, 283 F. 2d 651 (C. A. 10th Cir. 1960).

        State v. Proctor, 68 Wash. 2d 817, 415 P. 2d 634 (1966), modified the Farmer rule only to permit an appeal following placement on probation in eases involving (1) a contested trial and (2) the imposition of a jail term or fine as a condition of probation.

         See generally Newman, Conviction — The Determination of Guilt or Innocence Without Trial (1966); Enker, “Perspectives on Plea Bargaining,” in The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 108-119 (1967).


author:
Per Curiam. Mr. Justice Douglas,
      Mr. Justice Harlan,

text:
    WHITNEY v. FLORIDA.
    No. 68.
    Argued October 19, 1967.
    Decided November 13, 1967.

      Richard Kanner argued the cause and filed a brief for petitioner.

      James T. Carlisle, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Earl Fair cloth, Attorney General.
   Per Curiam.

The writ is dismissed as improvidently granted without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court.

Mr. Justice Douglas,

dissenting.

The question presented here is whether Florida has deprived petitioner of equal protection or due process of law by summarily dismissing his collateral - attack on a state criminal conviction without conducting an evi-dentiary hearing. Because of the increasing tide of habeas corpus petitions brought by prisoners (see Price v. Johnston, 334 U. S. 266, 293)—many of whom find they must turn to federal courts to obtain a hearing — the question is of considerable importance.

I assume that the Federal Constitution does not compel the States to provide any remedy for collateral attack of criminal convictions. Cf. Townsend v. Sain, 372 U. S. 293, 313, n. 9; Griffin v. Illinois, 351 U. S. 12, 18. But when a State makes available a means for review, it is held to a “constitutional requirement of substantial equality and fair process.” Anders v. California, 386 U. S. 738, 744. It may not discriminate arbitrarily between persons applying for relief (e. g., Burns v. Ohio, 360 U. S. 252), and it must adhere to the requirements of due process. Swenson v. Bosler, 386 U. S. 258, 260. Though these rules were primarily developed with reference to appellate review, we have held them applicable with equal force to state post-conviction proceedings. Smith v. Bennett, 365 U. S. 708.

By Rule 1 of the Florida Rules of Criminal Procedure, Florida has provided a means of collateral attack.

In his application petitioner alleged that extensive pretrial publicity — including television broadcasts of confessions given by him — prevented selection of a fair and impartial jury. Petitioner further alleged that he asked his trial counsel to request a change of venue, but counsel refused to do so. The Florida District Court of Appeal held that no evidentiary hearing was necessary because venue objections could only be raised at trial and because venue was res judicata under the judgment in a prior collateral attack by petitioner (see Whitney v. Cochran, 152 So. 2d 727, 730 (Fla.)) that representation by trial counsel was adequate and not a farce or sham.

But this characterization and disposition of petitioner’s allegations avoid the basic issue presented. Under Entsminger v. Iowa, 386 U. S. 748, a defendant who specifically asked his attorney to take a plenary appeal was denied a constitutional right when the attorney took only a truncated appeal. The allegations of petitioner here clearly constitute a prima facie case of violation of this principle.

My Brother Harlan characterizes this crime as “a particularly brutal murder” — and so it was. But that does not alter the underlying constitutional question whether the atmosphere of the community had been so saturated by adverse publicity as to deprive the state trial of the constitutional requirement of due-process. Sheppard v. Maxwell, 384 U. S. 333. My Brother Harlan states that from this record it is “inescapable” that petitioner’s trial counsel “deliberately” chose to try the case before a jury that may have been exposed to petitioner’s televised confessions. But with all respect, that is no answer to the present constitutional claim. Until we know the extent and degree of saturation of the public mind with the TV films, it is impossible to say whether or not counsel’s failure to obtain a change of venue was harmless error under the ruling of Chapman v. California, 386 U. S. 18. Far more than mere trial tactics and strategy is involved. In such a case the denial of the .defendant’s rights is not cured by outstanding representation by counsel during the balance of proceedings. It is no answer for the Florida courts to say counsel never moved at trial for a transfer to a county not saturated with pretrial publicity; for this failure of counsel is the very heart of the wrong allegedly done to petitioner. Nor are res judicata principles applicable, for as I read Whitney v. Cochran the Entsminger right-to-counsel issue was neither raised nor decided.

I would vacate the judgment and remand to the Florida courts so that the State may give petitioner the evi-dentiary hearing to which he is entitled. We needlessly burden the federal regime when we do not insist that Florida, which has provided a remedy, have the eviden-tiary hearing which will determine the nature and extent of the pretrial publicity and whether it was trivial or potentially damaging.

Mr. Justice Harlan,

whom Mr. Justice Black joins,

dissenting.

I would affirm the judgment of the state court. I can find no sound basis for this Court’s not reaching the merits of the questions brought here for review, even though I believe that the writ should not have issued in the first place. Nor do I believe that a federal habeas corpus proceeding should be encouraged, which is the implicit effect of the Court’s “without prejudice” dismissal, or, as my Brother Douglas suggests, that the case should be remanded to the state court for a hearing.

Petitioner was convicted of a particularly brutal murder, committed in the course of an armed robbery. At trial, with advice of counsel, he entered into a written stipulation conceded to be the virtual equivalent of a guilty plea, confessing the murder. Consequently, the only question argued to the jury by counsel was whether it would recommend mercy; the jury declined to do so, and a sentence of death was imposed.

Prior to his trial, petitioner had confessed to five other homicides and one attempted homicide. These confessions were not referred to at trial. They were, however, allegedly given wide publicity by television and radio stations in the area where trial occurred. Contending that this publicity had deprived him of the right to trial before an impartial jury, petitioner brought this collateral proceeding in the state courts.

The Florida District Court of Appeal, rejecting the argument that petitioner’s claim was foreclosed by his failure to raise it in prior proceedings, held that as a matter of state law the principle of res judicata is applicable, in criminal cases, “only to those items actually raised in the prior proceedings.” Whitney v. State, 184 So. 2d 207, at 209 (Fla.). (Emphasis in original.) On the merits the court rejected petitioner’s claim, relying heavily on the fact that trial counsel had made no motion for a change of venue, and had not even undertaken to exercise all of his peremptory challenges. Cf. Beck v. Washington, 369 U. S. 541, 557-558. The record also reveals that counsel conducted a vigorous voir dire during which, although for obvious reasons no mention of other crimes was made, each juror represented that he could and would judge the case solely on the basis of what was presented in court. The conclusion that trial counsel deliberately chose to risk the mercy of a local jury, rather than court more imponderable hazards elsewhere, seems inescapable.

After- trial, new counsel sought to depict this perfectly understandable piece of strategy as but the product of incompetence so gross as to give rise to a constitutional claim that the petitioner was deprived of the effective assistance of counsel. In light of the record, and particularly defense counsel’s extensive summation, which clearly evinces an effort to make the best of a hopeless case by trying to save defendant from the death penalty, the claim now made is little short of frivolous.

I can find in this straightforward train of events no room for questioning the validity of this state conviction from a federal constitutional standpoint, or for further prolonging the case.

      Habeas corpus petitions and petitions under 28 U. S. C. § 2255 in the federal courts increased from 598 in 1941 to 2,314 in 1961 (Annual Rep. Adm. Off. U. S. Courts 1964, p. 155) and to 9,697 in the 1967 fiscal year. Annual Rep. 1967, p. 11-56. Of these, 5,91(8 were habeas corpus cases brought by state prisoners. Ibid.


author: Per Curiam. Mr. Justice Douglas,

text:
    HACKIN v. ARIZONA et al.
    No. 523.
    Decided November 13, 1967.
   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Douglas,

dissenting.

Appellant, who is not a licensed attorney, appeared in a state court habeas corpus proceeding on behalf of an indigent prisoner. The indigent prisoner was being held for extradition to Oklahoma, where he had been convicted of murder and had escaped from custody. Appellant had previously attempted to secure for the prisoner appointed counsel to argue in court the prisoner’s contention that his Oklahoma conviction was invalid due to denial of certain constitutional rights. But in Arizona an indigent has no right to appointed counsel at habeas corpus proceedings (e. g., Palmer v. State, 99 Ariz. 93, 407 P. 2d 64) including habeas corpus proceedings that are part of the extradition process (Applications of Oppenheimer, 95 Ariz. 292, 389 P. 2d 696). Unable to obtain counsel for the indigent, appellant chose to represent him himself and was convicted of a misdemeanor for violation of an Arizona statute providing that “No person shall practice law in this state unless he is an active member of the state bar in good standing . . . .” (Hackin v. State, 102 Ariz. 218, 427 P. 2d 910, quoting Ariz. Rev. Stat. Ann. § 32-261 A.)

Appellant contends that this statute suffers from overbreadth and vagueness and is unconstitutional on its face because it interferes with the rights of the destitute and ignorant — those who cannot acquire the services of counsel — to obtain redress under the law for wrongs done to them. He also alleges the statute is unconstitutional as applied here, where appellant acted on behalf of the indigent prisoner only after exhaustive efforts to obtain appointed counsel. Appellant is no stranger to the law. He graduated from an unaccredited law school but was refused admission to the Arizona Bar. See Hackin v. Lockwood, 361 F. 2d 499 (C. A. 9th Cir.), cert. denied, 385 U. S. 960.

The claim that the statute deters constitutionally protected activity is not frivolous. Whether a State, under guise of protecting its citizens from legal quacks and charlatans, can make criminals of those who, in good faith and for no personal profit, assist the indigent to assert their constitutional rights is a substantial question this Court should answer.

Rights protected by the First Amendment include advocacy and petition for redress of grievances (NAACP v. Button, 371 U. S. 415, 429; Edwards v. South Carolina, 372 U. S. 229, 235), and the Fourteenth Amendment ensures equal justice for the poor in both criminal and civil actions (see Williams v. Shaffer, 385 U. S. 1037 (dissenting opinion)). But to millions of Americans who are indigent and ignorant — and often members of minority groups — these rights are meaningless. They are helpless to assert their rights under the law without assistance. They suffer discrimination in housing and employment, are victimized by shady consumer sales practices, evicted from their homes at the whim of the landlord, denied welfare payments, and endure domestic strife without hope of the legal remedies of divorce, maintenance, or child custody decrees.

If true equal protection of the laws is to be realized, an indigent must be able to obtain assistance when he suffers a denial of his rights. Today, this goal is only a goal. Outside the area of criminal proceedings covered by our decisions in Gideon v. Wainwright, 372 U. S. 335, and Douglas v. California, 372 U. S. 353, counsel is seldom available to the indigent. As this Court has recognized, there is a dearth of lawyers who are willing, voluntarily, to take on unprofitable and unpopular causes. NAACP v. Button, 371 U. S., at 443. See also Johnson v. Avery, 252 F. Supp. 783, 784 (D. C. M. D. Tenn.).

Some States, aware of the acute shortage of lawyers to help the indigent, have utilized the abilities of qualified law students to advise indigents and even to represent them in court in limited circumstances. But where this practice is not sanctioned by law, the student advocate for the poor may be subjected to criminal penalty under broadly drafted statutes prohibiting unauthorized practice of law.

There is emerging, particularly in the ghetto areas of our cities, a type of organization styled to bring a new brand of legal assistance to the indigent. These groups, funded in part by the federal Office of Economic Opportunity, characteristically establish neighborhood offices where the poor can come for assistance. They attempt to dispense services on a comprehensive integrated scale, using lawyers, social workers, members of health professions, and other nonlawyer aides. These new and flexible approaches to giving legal aid to the poor recognize that the problems of indigents — although of the type for which an attorney has traditionally been consulted — are too immense to be solved solely by members of the bar. The supply of lawyer manpower is not nearly large enough. But the necessary involvement of lay persons in these programs threatens their success. Lay involvement was recently cited by New York’s Appellate Division as one ground for denying the application of a proposed corporate aid-to-indigent program for New York City. Matter of Action for Legal Services, 26 App. Div. 2d 354, 274 N. Y. S. 2d 779; contra, In re Community Legal Services, Court of Common Pleas of Philadelphia County, No. 4968, March Term, 1966 (decided May 10, 1967).

The so-called “legal” problem of the poor is often an unidentified strand in a complex of social, economic, psychological, and psychiatric problems. Identification of the “legal” problem at times is for the expert. But even a “lay” person can often perform that function and mark the path that leads to the school board, the school principal, the welfare agency, the Veterans Administration, the police review board, or the urban renewal agency. If he neither solicits nor obtains a fee for his services, why should he not be free to act? Full-fledged representation in a battle before a court or agency requires professional skills that laymen lack; and therefore the client suffers, perhaps grievously, if he is not represented by a lawyer. But in the intermediate zone where the local pastor, the social worker, or best friend commonly operates, is there not room for accommodation? Dean Charles E. Ares recently said:

. . [T]he structure of the legal profession is middle class in its assumptions. We assume that the lawyer can sit quietly in his office awaiting the knock on the door by a client who has discovered that he has a legal problem and has found the way to the lawyer’s office. . . . This assumption is not valid for the great mass of people who live in poverty in the United States. . . . The ways in which this structure can be changed open exciting and interesting prospects.” Poverty, Civil Liberties, and Civil Rights: A Symposium, 41 N. Y. U. L. Rev. 328, 346 (1966).

Moreover, what the poor need, as much as our corporate grants, is protection before they get into trouble and confront a crisis. This means “political leadership” for the “minority poor.” Id., at 351. Lawyers will play a role in that movement; but so will laymen. The line that marks the area into which the layman may not step except at his peril is not clear. I am by no means sure the line was properly drawn by the court below where no lawyer could be found and this layman apparently served without a fee.

Legal representation connotes a magic it often does not possess — as for example, the commitment procedure in Texas, where, by one report, 66 seconds are given to a case, the lawyer usually not even knowing his client and earning a nice fee for passive participation. Wei-hofen, Mental Health Services for the Poor, 54 Calif. L. Rev. 920, 938-939 (1966). If justice is the goal, why need a layman be barred here?

Broadly phrased unauthorized-practice-of-law statutes such as that at issue here could make criminal many of the activities regularly done by social workers who assist the poor in obtaining welfare and attempt to help them solve domestic problems. Such statutes would also tend to deter programs in which experienced welfare recipients represent other, less articulate, recipients before local welfare departments.

As this Court’s decisions in NAACP v. Button, supra, and Railroad Trainmen v. Virginia Bar, 377 U. S. 1, indicate, state provisions regulating the legal profession will not be permitted to act as obstacles to the rights of persons to petition the courts and other legal agencies for redress. Yet statutes with the broad sweep of the Arizona provision now before this Court would appear to have the potential to “freeze out” the imaginative new attempts to assist in digents realize equal justice, merely because lay persons participate. Cf. NAACP v. Button, 371 U. S., at 436. As we said in Button, the threat of sanctions may deter as forcefully as the imposition of the sanctions. Id., at 433. In such circumstances, “the State may prevail only upon showing a subordinating interest which is compelling.” Bates v. Little Rock, 361 U. S. 516, 524. Certainly the States have a strong interest in preventing legally untrained shysters who pose as attorneys from milking the public for pecuniary gain. Cf. NAACP v. Button, at 441. But it is arguable whether this policy should support a prohibition against charitable efforts of nonlawyers to help the poor. Cf. Opinion of the Justices to the Senate, 289 Mass. 607, 615, 194 N. E. 313, 317-318. It may well be that until the goal of free legal assistance to the indigent in all areas of the law is achieved, the poor are not harmed by well-meaning, charitable assistance of laymen. On the contrary, for the majority of indigents, who are not so fortunate to be served by neighborhood legal offices, lay assistance may be the only hope for achieving equal justice at this time.

In sum, I find the questions posed in this appeal both timely and troublesome; and it would appear that appellant has standing to raise the indigent’s First Amendment rights of advocacy and petition of redress and of equal justice. See NAACP v. Button, supra, at 428; Griswold v. Connecticut, 381 U. S. 479, 481. Since the very nature of the inequity suffered by the poor precludes them from asserting their rights to legal assistance in court, why should the layman who steps up to speak for them not be held to be asserting their constitutional rights? Johnson v. Avery, supra, at 786. Cf. Barrows v. Jackson, 346 U. S. 249, 257. Accordingly, I would hear this appeal.

       Appellant’s conviction for unauthorized practice of law would seem to be the result of Arizona’s restrictive reading of Gideon v. Wainwright, 372 U. S. 335. In State v. Bost, 2 Ariz. App. 431, 409 P. 2d 590, the court held Gideon inapplicable to extradition proceedings because they were ministerial rather than judicial in nature. Some members of this Court have expressed doubt whether pigeonholing criminal proceedings into categories such as felony, misdemeanor, habeas corpus, etc., is a proper means for the States to develop the full scope of the Gideon rule. See DeJoseph v. Connecticut, 385 U. S. 982, and Winters v. Beck, 385 U. S. 907 (dissenting opinions of Mr. Justice Stewart) . Had Arizona courts approached the problem in that light rather than selecting between the labels “ministerial” and “judicial,” they might have concluded that indigents in the position of the prisoner whom appellant aided here are entitled to counsel under Gideon.

       See Williams v. Shaffer, 385 U. S. 1037, 1040 (dissenting opinion); In re Community Legal Services, Court of Common Pleas of Philadelphia County (No. 4968, March Term, 1966; decided May 10, 1967). See also Pye, The Role of Legal Services in the Antipoverty Program, 31 Law & Contemp. Prob. 211, 216-217 (1966): “The poor man because of his lack of education and social status, may need representation in matters such as a dispute with a high school principal over the dismissal of a child, or the assertion of a complaint for a violation of the health or building code by a landlord under circumstances where the better educated citizen could speak for himself.” For broad discussion of the many and varied areas where the poor need assistance, see Symposium on Law of the Poor, 54 Calif. L. Rev. 319 et seq. (1966); Dorsen, ed., Poverty, Civil Liberties, and Civil Rights: A Symposium, 41 N. Y. U. L. Rev. 328 (1966); Cahn & Cahn, The War on Poverty: A Civilian Perspective, 73 Yale L. J. 1317 (1964); McCalpin, A Revolution in the Law Practice?, 15 Clev.-Mar. L. Rev. 203 (1966); Carlin & Howard, Legal Representation and Class Justice, 12 U. C. L. A. L. Rev. 381 (1965); Sparer, Thorkelson & Weiss, The Lay Advocate, 43 U. Det. L. J. 493 (1966); Levi, Problems Relating to Real Property, in National Conference on Law and Poverty Proceedings 1 (1965); Dunham, Consumer Credit Problems of the Poor — Legal Assistance as an Aid in Law Reform, id., at 9; Polier, Problems Involving Family and Child, id., at 14.

       See, e. g., Matter of Legal Aid Society of the City of Albany, 27 App. Div. 2d 687, 277 N. Y. S. 2d 632; Matter of Cornell Legal Aid Clinic, 26 App. Div. 2d 790, 273 N. Y. S. 2d 444; Monaghan, Gideon’s Army: Student Soldiers, 45 B. U. L. Rev. 445 (1965); Broden, A Role for Law Schools in OEO’s Legal Services Program, 41 Notre Dame Law. 898 (1966); Cleary, Law Students in Criminal Law Practice, 16 DePaul L. Rev. 1 (1966); Note, 12 Wayne L. Rev. 519 (1966).

       See generally Cahn & Cahn, supra, n. 2, at 1334-1352; Carlin & Howard, supra, n. 2, at 432-436; Rosenblum, Controlling the Bureaucracy of the Antipoverty Program, 31 Law & Contemp. Prob. 187, 208 (1966); Note, Ethical Problems Raised by the Neighborhood Law Office, 41 Notre Dame Law. 961 (1966); Paulsen, Law Schools and the War on Poverty, in National Conference on Law and Poverty Proceedings 77 (1965).
      The O. E. 0. Guidelines for Legal Services Programs states that the programs are expected to be a component of a community action agency run, in part, by representatives of labor, business, religion, minority groups, and the poor. (P. 5.) Residents of the depressed area served by the legal office are expected to participate directly in the legal services program. (P. 10.) “The poor must be- represented on the board or policy-making committee of the program to provide legal services, just as they are represented on the policy-making body of the community action agency.” (P. 11.) “Whenever possible, the board of the legal services program should include at least one representative from each of the areas or neighborhoods with a substantial population to be served.” (P. 12.)
      The staff of the neighborhood legal office may utilize the talents of law schools (p. 24) and “may include a person trained in the field of social work” (p. 29) plus “interviewers, investigators, law students, neighborhood aides, and trained personnel from other disciplines.” (P. 31.)

       See Cahn & Cahn, What Price Justice: The Civilian Perspective Revisited, 41 Notre Dame Law. 927 (1966). “Finally, with respect to manpower, we have created an artificial shortage by refusing to learn from the medical and other professions and to develop technicians, nonprofessionals and lawyer-aides — manpower roles to carry out such functions as: informal advocate, technician, counsellor, sympathetic listener, investigator, researcher, form writer, etc.” (P. 934.) “[T]he possibility of advancing the cause of justice through increasing lay involvement in fact finding, adjudication and arbitration, should not be sacrificed a priori out of fear of abuse.” (P. 951.) See also Ginsberg & Shiffman, Manpower and Training Problems in Combating Poverty, 31 Law & Contemp. Prob. 159 (1966).

       Zimroth, Group Legal Services and the Constitution, 76 Yale L. J. 966, 968 (1967), reports that the O. E. 0. legal services programs involving lay persons have also survived challenges in Houston, Texas, and Modesto, California.

       See Frankel, Experiments in Serving the Indigent, in National Conference on Law and Poverty Proceedings 69, 75-76 (1965): “[W]e lawyers must certainly confront constructively the idea that what we have traditionally regarded as legal business cannot permanently be so regarded. The needs of the poor for services in matters that are somehow legal appear pretty clearly to be enormous. Among those needs are many kinds of matters that are narrow, that are specialized, and can be routinized. Matters related to housing, to workmen’s compensation, to consumer problems are a few that one could name. . . . [WJe should attempt to create a class of legal technicians who can handle, under lawyers’ supervision, some of the problems that have thus far seemed to us to be exclusively the province of the lawyer. I think we have an important creative function to perform in trying to mark out these areas where lawyers are not really needed.”
      See Paulsen, The Law Schools and the War on Poverty, in National Conference on Law and Poverty Proceedings 77, 81 (1965): “Services to the poor -will undoubtedly call for advocacy and advice by lay persons as well as lawyers. A lawyer’s time is costly. Not every problem thrown up by legal arrangements requires the skill and costly time of a law-trained person. We can, perhaps, expect the creation of advice centers operated by laymen hot unlike Britain’s Citizen’s Advice Bureaus.”

       In habeas corpus proceedings, “the practice of a next friend applying for a writ is ancient and fully accepted.” United States v. Houston, 273 F. 915, 916 (C. A. 2d Cir.). It rests on the premise that “[w]ithout some assistance, their right to habeas corpus in many instances becomes empty and meaningless.” Johnson v. Avery, 252 F. Supp. 783, 784 (D. C. M. D. Tenn.). The next-friend doctrine was recognized at common law and is given effect in most jurisdictions today, either by statute or by court decision. See Collins v. Traeger, 27 F. 2d 842, 843 (C. A. 9th Cir.); Ex parte Dostal, 243 F. 664, 668 (D. C. N. D. Ohio); State v. Fabisinski, 111 Fla. 454, 461, 152 So. 207, 209; In re Nowack, 274 Mich. 544, 549, 265 N. W. 459, 461; In re Nahl v. Delmore, 49 Wash. 2d 318, 301 P. 2d 161; 28 U. S. C. §2242.
      An Arizona statute provides that application for habeas corpus may be made by the person detained “or by some person in his behalf . . . .” Ariz. Rev. Stat. Ann. § 13-2002. The court below recognized that this statute precluded prosecution of appellant for writing and filing the writ application on behalf of the indigent prisoner. Hackin v. State, 102 Ariz., at 219, 427 P. 2d, at 911. But the statute was held not to authorize appellant to argue the matter in court. Id., at 220, 427 P. 2d, at 912.

       “Social workers in public assistance may already be required to practice law as substantially as if they were in a courtroom. In making an initial determination of an applicant’s eligibility, the public assistance worker must complete the applicant’s financial statement. ‘Every question, or nearly every question, on the financial statement, is a legal question. When the social worker advises, or even discusses the questions or answers, he may very likely be giving legal advice.’ The private social worker who advises an applicant that he should apply, how to apply, what to answer and how to appeal if the application is rejected is also giving 'legal’ advice. When he argues with the public worker on behalf of the applicant, he is giving representation. When and if he goes to a hearing on behalf of the applicant, he is surely engaging in advocacy.” Sparer, Thorkelson & Weiss, supra, n. 2, at 499-500. See also McRae & Linde, An Emerging Joint Venture: Lawyers and Social Workers, 48 J. Am. Jud. Soc. 231 (1965); Rosenblum, supra, n. 4, at 208.

       Sparer, Thorkelson & Weiss, supra, n. 2, at 507.

       Such statutes have also been utilized for attack on attorneys themselves who defend locally unpopular causes, such as civil rights. See Washington Post, Sept. 20, 1967, §A, at 10, col. 1, reporting a Louisiana prosecution of a civil rights lawyer for "unauthorized practice.” Cf. NAACP v. Button, 371 U. S. 415.


author: Per Curiam. Mr. Justice Harlan

text:
    MODERN LIFE INSURANCE CO. v. WOLFMAN.
    No. 574.
    Decided November 13, 1967.

      John M. Hall, William E. Kelly and Preben Jenson for appellant.

      Arthur V. Oetchell for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Harlan

would dismiss the appeal for want of jurisdiction. 28 U. S. C. § 1257.


author: Per Curiam.

text:
    IN RE EPSTEIN et al.
    No. 649,
    Misc.
    Decided November 13, 1967.

      Wesley R. Asinof on the motion.

      Arthur K. Bolton, Attorney General of Georgia, and Harold N. Hill, Jr., Assistant Attorney General, for Maddox, Governor of Georgia, et al., in opposition.
   Per Curiam.

The motion for leave to file a petition for writ of mandamus is denied. See Schackman v. Arnebergh, 387 U. S. 427.


author: Per Curiam. Mr. Justice Douglas

text:
    GREGOIRE v. LOUISIANA.
    No. 35,
    Misc.
    Decided November 13, 1967.

      Allen B. Pierson, Jr., for appellant.

      Jack P. F. Gremillion, Attorney General of Louisiana, William Schuler, Assistant Attorney General, Duncan S. Kemp and Leonard E. Yokum for appellee.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas

is of the opinion that certiorari should be granted.


text:
    NIELSEN v. NEBRASKA ex rel. NEBRASKA STATE BAR ASSOCIATION.
    No. 503,
    Misc.
    Decided November 13, 1967.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.