Carnley v. Cochran/Concurrence Black
Mr. Justice BLACK, concurring.
I concur in the Court's judgment of reversal and agree for the reasons stated in its opinion that petitioner was, even under the constitutional doctrine announced in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, entitled to be represented by counsel. That case, decided in 1942, held that an indigent defendant charged with crime in a state court did not have a right under the Federal Constitution to be provided with counsel unless this Court could say 'by an appraisal of the totality of facts in a given case' that the refusal to provide counsel for the particular defendant constituted 'a denial of fundamental fairness, shocking to the universal sense of justice * * *.' Id., at 462, 62 S.Ct. at 1256. I dissented from the Court's denial of counsel and its announcement of what I considered to be such an impossibly vague and unpredictable standard. Among other grounds I thought the defendant in that case entitled to counsel because of my belief that the Fourteenth Amendment makes applicable to the States the Sixth Amendment's guarantee that 'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.' That is still my view.
Twenty years' experience in the state and federal courts with the Betts v. Brady rule has demonstrated its basic failure as a constitutional guide. Indeed, it has served not to guide but to confuse the courts as to when a person prosecuted by a State for crime is entitled to a lawyer. Little more could be expected, however, of a standard which imposes upon courts nothing more than the perplexing responsibility of appointing lawyers for an accused when a trial judge believes that a failure to do so would be 'shocking to the universal sense of justice.' To be sure, in recent years this Court has been fairly consistent in assuring indigent defendants the right to counsel. As the years have gone on we have been compelled even under the Betts rule to reverse more and more state convictions either for new trial or for hearing to determine whether counsel had been erroneously denied  a result that in my judgment is due to a growing recognition of the fact that our Bill of Rights is correct in assuming that no layman should be compelled to defend himself in a criminal prosecution. But all defendants who have been convicted of crime without the benefit of counsel cannot possibly bring their cases to us. And one need only look at the records of the right-to-counsel cases since Betts v. Brady in both state and federal courts to understand the capriciousness with which the 'shocking to the universal sense of justice' standard bestows its protection upon persons accused of crime.  I think that now is the time to abandon this vague, fickle standard for determining the right to counsel of a person prosecuted for crime in a state court. We can do that by recognizing that defendants in state courts have by reason of the Fourteenth Amendment the same unequivocal right to counsel as defendants in federal courts have been held to have by virtue of the Sixth Amendment. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. For these and many other reasons, including those set out in McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct. 413, 5 L.Ed.2d 445, by Mr. Justice Douglas and joined in by Mr. Justice Brennan, I would overrule Betts v. Brady in this case. In so doing we would simply return to the holding of this Court in Powell v. Alabama, 287 U.S. 45, 68 69, 53 S.Ct. 55, 77 L.Ed. 158, where it was stated with reference to prosecution for crime in the state courts that the '* * * right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.' I am aware that this statement was made in a capital case, but the Fourteenth Amendment protects life, liberty, and property and I would hold that defendants prosecuted for crime are entitled to counsel whether it is their life, their liberty, or their property which is at stake in a criminal prosecution.
THE CHIEF JUSTICE and Mr. Justice DOUGLAS, while joining the opinion of the Court, also join this opinion.
^1 Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445; Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500; Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. But cf. Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955.
^2 Compare, e.g., Flansburg v. Kaiser, D.C., 55 F.Supp. 959, aff'd on other grounds, 8 Cir., 144 F.2d 917, with Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55; Parker v. Ellis, 5 Cir., 258 F.2d 937, with Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145; Henderson v. Bannan, 6 Cir., 256 F.2d 363, with United States ex rel. Savini v. Jackson, 2 Cir., 250 F.2d 349. Numerous other examples could of course be cited including the contrast between the decisions cited in note 1 and the lower court decisions which they reversed which had held that the denial of counsel had not been erroneous under the Betts v. Brady rule.