Introduction to the Right to Counsel and Ineffective Assistance

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” For more than a century after the ratification of the Amendment, this right allowed criminal defendants to hire their own lawyers but did not require the government to provide counsel to indigent defendants who could not afford to hire counsel. In 1932, the Court held that state court indigent defendants must be provided counsel in death penalty cases. See Powell v. Alabama, 287 U.S. 45 (1932) (the “Scottsboro Boys” case). Although the Court soon thereafter required federal courts to provide counsel even in non-capital cases, see Johnson v. Zerbst, 304 U.S. 458 (1938), the Court held in 1942 that for ordinary felony cases, state courts could decide for themselves whether to appoint counsel to indigent defendants. See Betts v. Brady, 316 U.S. 455, 473 (1942) (“we cannot say that the [Fourteenth A]mendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel”).

In 1963, the Court reversed Betts v. Brady in the landmark case of Gideon v. Wainwright. The story of Clarence Earl Gideon inspired one of the best known works of legal journalism—Gideon’s Trumpet (1964), by Anthony Lewis—as well as a movie with the same title starring Henry Fonda. Gideon asked for counsel when charged with a Florida crime, and the state judge refused to appoint him a lawyer. After his conviction, he appealed unsuccessfully in Florida courts. He then sent a handwritten note to the Supreme Court, which agreed to take the case.