The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations

The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations Gideon v. Wainwright and Douglas v. California, the landmark right to counsel cases of March, 1963, -may have supplied a few answers, but they -raiseor reopen many questions: Do these cases cover prosecutions for "driving under the influence"? Overparking? Do they apply to post-conviction proceedings? Probation revocation hearings? Do they require that the poor man be furnished counsel as soon as the rich man enjoys the advantage of his? And when should the rich -man first enjoy this advantage? Whatever the meaning and impact of these decisions, is the defender's office or the court appointed system the better way to effectuate them? Whatever the system, is the person who has no ready cash, but a good job an "indigent"? The man who can raise bail? The need to gather information about the practice and attitudes bearing on these and related matters led the Amerian Bar Association to launch a state by state audit of the representation of indigent defendants in the United States. Professors Ihoper and Kamisar were designated co-reporters for Minnesota. Between inter- views with state supreme court justices, trial judges, county attorneys and publi defenders, the Reporters found themselves asking each other more and more questions. This Article is the result.t Yale Kamisar* Jesse H. Choper** * Professor of Law, the University of Minnesota. ** Associate Professor of Law, the University of Minnesota. "[Field work for this Article was done by the authors as Reporters for Minnesota in connection with the American Bar Association's nationwide study of representation of indigent defendants, see 1902 A.B.A. RE. 408, under the research supervision of the American Bar Foundation. The au- HeinOnline -- 48 Minn. L. Rev. 1 1963-1964 MINNESOTA LAW REVIEW [Vol. 48:1 No good society can be unprincipled; and no viable society can be principle-ridden.' NTRODUCTION A. TEm MINNESOTA BACKGROUND Historically, comparatively, the State of Minnesota has been rather sympathetic to the plight of the indigent criminal defendant. As the Chief Justice of the Minnesota Supreme Court recently observed, "we have had some provision for the appointment of counsel in felony and gross misdemeanor cases at least since 1869."2 Throughout the state every indigent who wants to be is represented by counsel at arraignment, trial, and sentencing. Over the years, the point at which state-furnished counsel could enter the case has been moved back in time until, with a 1959 amendment, an indigent defendant is entitled to appointed counsel "prior to his preliminary examination by a magistrate." Two years after the legislature expanded the "beginning" of the thors drew conclusions only from field findings gathered in Minnesota. Gen- eral conclusions are, thus, necessarily of a tentative character and subject to revision in light of further statistical analysis of Minnesota data and of. information obtained in other states. In any event, the conclusions are solely those of the authors. The authors are indebted to many of their colleagues for their helpful assistance, especially Professors Maynard E. Pirsig and James L. Hetland, Jr. They also wish to express their appreciation to two representatives of the American Bar Foundation, Professor Harry W. Jones, Director of Research, and Lee Silverstein, Esquire, Research Attorney, for their valuable cooperation and encouragement. Library research for this Article was aided by a research grant from the Graduate School of the University of Minnesota. 1. Bicmmr, THE LEAST DANGEROUS BRANcH 64 (1962). 2. Knutson, The State-Wide Public Defender System, Bench and Bar of Minn., May 1963, pp. 11, 12, referring to what is now MINN. STAT. § 611.07 (1961). 3. MmNw. STAT. § 611.07 (1961). Compare FED. R. CRnvm. P. 44, which entitles an indigent defendant to an attorney if and when he "appears in court without counsel." According to an Advisory Committee note, "the rule is intended to indicate that the right of the defendant to have counsel assigned . relates only to proceedings in court and, therefore, does not include preliminary proceedings before a com- mitting magistrate." U.S.C.A. Rule 44, note 2 (1961). Generally, this is the way it has worked out. See ATTORNEY GmNmAI's COMMITTEE, REPORT ON POVERTY AND THE ADMINISTRATION OF FEDERAL CRIINAL JUSTICE 24 (1963). A new Ad- visory Committee on Federal Criminal Rules has recently proposed that Rule 44 be amended so as to provide that an indigent defendant "shall be entitled, if he so requests, to have counsel assigned to represent him within a reasonable time after such request." HeinOnline -- 48 Minn. L. Rev. 2 1963-1964 1963] RIGHT TO COUNSEL right to assigned counsel, and two years before the Supreme Court's historic "right to counser' decisions of March 18, 1963, the state's highest court, in a declaration of "policies and princi- ples" designed to control and facilitate the disposition of applica- tions for appointed counsel on appeal," extended the point at which the appointment of counsel "ends." Expressly patterning the new system after California's, under which, after an independent examination of the record, appellate courts appointed counsel where it "would be helpful to the defendant or the court" and denied such appointment only if counsel "would be of no value to either,"' the Minnesota Supreme Court directed the trial courts to prepare sufficiently detailed synopses in all felony and gross misdemeanor cases so that it could "adequately determine whether T there is any justification for ... appointment ...on appeal.! Minnesota has never been content with a mere declaration of the right to "have the assistance of counsel."8 Since territorial days," it has effectuated this right by "requiring not only that defendant be informed of his right ...but that he be asked if he desires to avail himself of that right.'" Last year, the Minne- sota Supreme Court held that this "affirmative duty ...to alert the defendant" applies to misdemeanor prosecutions in justice or municipal courts as well as to felony and gross misdemeanor cases in district courts."' The decision,'- and some language utilized by the court in arriving at it, 3 might have presaged the extension of the right to assigned counsel to misdemeanor cases, independent 4. Douglas v. California, 37a U.S. 353 (1963) (Douglas, 3.); Gideon v. Wainwright, 372 US. 335 (1968) (Black, J.). 5. State v. Dahlgren, 259 Mn. 307, 310, 107 N.W.2d 299, 301 (1961). 6. People v. Hyde, 51 Cal. 2d 152, 154, 331 P.2d 42, 43 (1958), quoted with approval in State v. Dablgren, 259 Mnn.307, 317-18, 107 N.W.2d 299, 306 (1961). See also the comments of the author of the Daldgren opinion in Knutson, supra note 2, at 11. 7. State v. Dahlgren, 259 Mlnn. 307, 315, 107 N.W.2d 299, 305 (1961). 8.U.. CousT. amend. VI; MMM. CONST. art. I, § 6. 9. WMnn. Rev. Stat. [Terr.] 1851, ch. 120, § 101, now Mmi'r. Siwr. § 630.10 (1961). 10. State v. Moosbrugger, 263 Minn. 56, 59, 116 N.W.2d 68, 70 (1962). 11. -bid. 12. See The Minnesota Supreme Court 1961-1962, 47 Mmmin.L. l~v. 255, 285 (1962). 13. No one, least of all the defendant or the state, would disagree that this is a criminal prosecution concerned with a most serious offense .... In such proceedings it is elementary that the defendant has a right to all the constitutional and statutory safeguards which would be painstak- ingly accorded him were he being prosecuted for a felony. State v. Moosbrugger, 263 Mlimi. 56, 60, 116 N.W.2d 68, 71 (1962). HeinOnline -- 48 Minn. L. Rev. 3 1963-1964 MINNESOTA LAW REVIEW [Vol. 48:1 of radiations from the landmark cases subsequently handed down by the Supreme Court of the United States. Developments have also occurred in proceedings not generally regarded as meriting the usual criminal procedural safeguards. Until recently, in keeping with the majority view, Minnesota did not afford a probationer even the right to be represented by re- tained counsel at revocation proceedings.14 Last year, however, the Advisory Committee on Revision of the Minnesota Criminal Law recommended a new provision - since adopted into law'- entitling a probationer facing revocation "to be heard and to be represented by counsel." Whether or not the new statutory re- quirement bestows the right to assigned counsel on indigent pro- bationers,"8 at the very least it furnishes them an appealing argu- ment for such counsel as a matter of fourteenth amendment equal protection. 7 B. TnE RECENT SUPREM COURT DECISIONS Although Minnesota has not been standing pat, the historic decisions of March, 1963 demonstrate that she - and her sister states- have not been moving nearly fast enough. 1. Potential Impact Just how far and how fast the Court has actually moved is a question that defies a confident answer. At the very least, Doug- las v. California's necessitates the appointment of counsel for every indigent convicted of a serious crime who wishes to perfect 14. Minn. Sess. Laws 1909, ch. 391, § S. See generally Kadish, The Advo- cate and the Expert-Counsel in the Peno-CorrectionalProcess, 45 MINN. L. REV. 803, 815-17 (1961). 15. Minn. Sess. Laws 1963, ch. 753, § 609.14(2). 16. Some of the judges interviewed believe this is the intent of the provision. See text accompanying notes 390-92 infra. 17. See text accompanying notes 394-98 infra. 18. 372 U.S. 853 (1963). Over the sharp protest of Mr. Justice Harlan, the Court, for the time being, has declined to address itself to the question of the retroactive effect of the "right to counsel" cases, Pickelsimer v.

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