ARGERSINGER v. HAMLIN

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Argument of J. Michael Shea

Chief Justice Warren E. Burger: We will hear arguments next in number 5015, Argersinger against Hamlin.

Mr. Shea you may precede whenever you are ready.

Mr. J. Michael Shea: Mr. Chief Justice and may it please the Court.

The petitioner in this case was arrested in January of 1970, in Leon County, Florida for the crime of carrying a concealed weapon, punishable in Florida by imprisonment for six months or fine of a thousand dollars.

He was arraigned and pled guilty the next day and was sentenced to 90 days or $500 fine.

The original petition was filled in the Supreme Court of Florida the same month and that Court rendered its decision in June of the same year.

The Court although, establishing a new rule for Florida, denied the petitioners right to the counsel.

A cert has been granted by this Court and it is our contention that a person charged with any crime, should be given the right to counsel, even in the situation where he is indigent.

Chief Justice Warren E. Burger: I did not get Mr. Shea, clearly, just what it was you said about change in the handling of these cases in Florida was --

Mr. J. Michael Shea: Yes sir.

Chief Justice Warren E. Burger: (Inaudible)

Mr. J. Michael Shea: Originally, before the Argersinger case, the rule was Fisher versus State, which was decided in Florida in 1964, and in that case the Florida Supreme Court ruled that the right to counsel as decided in this case, only applied to felonies.

Now, since then, they have upheld that several times, but then changed their mind in a four-to-three decision of this case, in the lower -- in the June decision and now we have a more than six-month rule in Florida, and this defendant then lost by one day.

Justice William J. Brennan: Then is the matter what the label maybe on the defense, if it carries six months or more?

Mr. J. Michael Shea: No, Your Honor.

Justice William J. Brennan: No.

Mr. J. Michael Shea: If it carries more than six months, no matter what the label – (Voice overlap)

Justice William J. Brennan: If it carries more than six months?

Mr. J. Michael Shea: Yes sir.

Justice William O. Douglas: Under the Florida law now a counsel must be provided, is that it?

Mr. J. Michael Shea: Yes sir.

Justice Potter Stewart: And before that in the law -- in the rule of the Fisher case in Florida was that the counsel may not be provided, except in felony cases, was that ii?

Mr. J. Michael Shea: That is correct, Your Honor.

Justice Potter Stewart: (Inaudible).

And how are felonies defined for it?

Mr. J. Michael Shea: Incarceration for more than one year.

Justice Potter Stewart: A year?

Mr. J. Michael Shea: Yes, Your Honor.

Justice Potter Stewart: Or more (Voice Overlap)

Mr. J. Michael Shea: Incarceration in the state.

Justice Potter Stewart: No attachment?

Mr. J. Michael Shea: Yes, Your Honor.

We have some misdemeanors in Florida where a person can be incarcerated for more than a year, but that would be in a situation where they would be kept in a County facility, so it is possible in Florida to be incarcerated for a misdemeanor for more than a year.

Justice William J. Brennan: But for that, I have gather, if the offense is limited to more than six months publicity, is it still labeled that misdemeanor or do you have other labeling?

Mr. J. Michael Shea: No sir, it is labeled a misdemeanor, although, if it is municipal violation, then it would be a municipal violation.

Justice William J. Brennan: And, I suppose it carries more than six months?

Mr. J. Michael Shea: I assume from reading the Argersinger decision from Florida that the rule would apply.

Justice William J. Brennan: How about traffic offenses, they have any advantage to carry between six and --

Mr. J. Michael Shea: Yes sir.

Justice William J. Brennan: (Voice Overlap)

Mr. J. Michael Shea: They are called City Ordinances or Ordinances of the City violation and the same Ordinance would be a traffic violation in State Court.

Justice William J. Brennan: So it is under State Law?

Mr. J. Michael Shea: Yes sir.

Justice William J. Brennan: So now you want us to understand this recent decision as meaning and all those instances, counsel would have to be provided?

Mr. J. Michael Shea: Yes sir.

I think that the question of the difference between the terminologies probably been laid to rest with this Court’s decision of Waller.

Justice William J. Brennan: Has there been any effort they provide the figures as to what this will mean, in terms of the number of assignments that they will have to be made?

Mr. J. Michael Shea: No, of course this is only a speculation on our part, however, I would refer the Court to our footnote 2, 18 or 19, which we state that in the City of New York, there was 1,800,000 misdemeanors depicted in 1969, and of those only 40 were actually incarcerated.

So although --

Justice William J. Brennan: Well, is that test under (Inaudible) for example.

Is the test whether or not the offense may carry over six months or is the test whether in fact, punishment imposed is more than six months?

Mr. J. Michael Shea: The test is made.

Justice William J. Brennan: Is what?

Is made?

Mr. J. Michael Shea: Yes sir.

Justice William J. Brennan: I do not see it otherwise, it can operate.

Mr. J. Michael Shea: No sir.

Chief Justice Warren E. Burger: Well, in the figures you gave for New York, if you show how many of them could have been of the sentence for over the six months period?

Mr. J. Michael Shea: No sir, but I think in this, we have to look to the practicality of it.

Actually, we are only talking about 40 people, 40 people out of 1,800,000.

Chief Justice Warren E. Burger: How do we know that?

Mr. J. Michael Shea: Well, that is what the actual figure show.

If I may continue, the --

Justice Potter Stewart: Just before you starting on the -- situation is still is not clear I gather in Florida, if the Justice Boyd's separate opinion in this case, he accurately describes the decision of the Court of Appeals for the Fifth Circuit, which hold that the -- which he says extend the right to counsel the person facing possible imprisonment regardless of the degree of their offenses or length of possible incarceration.

Are there decisions from the Fifth Circuit to that effect?

Mr. J. Michael Shea: Yes sir, there are and this has lead to a great deal of confusion in our state and some of the other states in our circuit.

Presently, there are quite a number of habeas corpuses in Federal Courts, which are pending the decision of this Court and this case.

There has been a Federal Judge in Jacksonville, which has ordered one of our counties in that area to have their JPs inform all defendants that they have right to counsel.

This was in a form of an injunction.

In my hometown, the City of Tampa, our Federal Judge has a reserved ruling on a case before him requiring the Municipal Court Judges inform defendants of their right to counsel.

We have a situation where they –

Justice Potter Stewart: Their right to counsel, whenever imprisonment is a possible sentence --

Mr. J. Michael Shea: Yes sir.

Justice Potter Stewart: -- punishment, is that it?

Mr. J. Michael Shea: Well, their right to counsel in a situation where the person has ended.

Justice Potter Stewart: Well, even for a parking ticket?

Mr. J. Michael Shea: I suggest, Your Honor that there has been a long time --

Justice William O. Douglas: So I just wondered, I am asking about fact, not about what you think what the law ought to be.

Mr. J. Michael Shea: Yes sir.

Justice Potter Stewart: They have been directed to inform the indigent defendants of their right to counsel, in what kind of cases?

Mr. J. Michael Shea: No, that is what it is all about.

The judge has respectively reserved ruling on it, until such time.

We do have three judges, I also about to say and one of them informs of the right and the other two do not.

Justice Potter Stewart: Informs of the right, in what kind of cases?

Mr. J. Michael Shea: In all cases.

Justice Potter Stewart: Even in parking ticket cases?

Mr. J. Michael Shea: Yes sir.

If a parking ticket case would come before the Court.

However, they do not come before our Courts, so I suggest that it is impossible for a person to go to prison in Florida for a parking ticket, now he made --

Justice Potter Stewart: I assumed it was.

That is the reason I asked you what kind of case is this judge informs indigent defendants that they have the right to counsel?

Is it only in cases where imprisonment is a possible punishment?

Mr. J. Michael Shea: Yes sir.

The parking ticket situation, I am not saying that a person could go to prison for a parking ticket violation, but not the violation itself.

If he is a (Voice Overlap)

Justice Potter Stewart: Or stop light or something like that?

Mr. J. Michael Shea: Yes, alright.

Justice Potter Stewart: Not the parking ticket.

Justice William J. Brennan: Well, one last question.

Mr. J. Michael Shea: Yes sir.

Justice William J. Brennan: Is your submission do our stand that the constitution requires provision for counsel in every case where they find charged may carry a prison sentence, however long or however short?

Mr. J. Michael Shea: Yes sir! That is our position.

I have closing statement that will make specifically to that point.

I think that the constitution is clear on that, it says in Article VI that all criminal prosecutions, where a person may have the right to the assistance of counsel for the defense.

I think that is absolutely clear and it makes no limitation on the person’s income.

Justice Potter Stewart: Well, of course, that is the Sixth Amendment?

Mr. J. Michael Shea: Yes sir.

Justice Potter Stewart: You are talking about the Fourteenth Amendment.

Mr. J. Michael Shea: Yes sir and I think we have to assume that the Fourteenth Amendment applies to the State of Florida and the --

Justice Potter Stewart: It certainly does.

Mr. J. Michael Shea: Yes sir.

Justice Potter Stewart: I will agree on that.

Mr. J. Michael Shea: I am glad that sometimes I wondered if some Justices realize that.

If I may continue on --

Justice Harry A. Blackmun: Would the Sixth Amendment, to which you refer also provides for an impartial jury and have we held that an impartial is essential for any case in which of the imprisonment is a possible punishment?

Mr. J. Michael Shea: No sir, I think the distinction between the Sixth Amendment, rights are quite different though and the mere fact that this Court has chosen to treat jury trials differently is of no bearing on the right to counsel.

I think that we can say that a fair trial can be had in this country without a jury.

We had been doing it for a quite sometime and I do not feel that it is an essential element to a trial.

But in an adversary system, where the state is providing a prosecutor, it is completely unthinkable to expect the defendant to get up and defend himself and then, say that the trial is fair.

And, I would also add that the other vices as outlined in the Sixth Amendment are not restricted as is the jury trial.

I think this was adequately even pointed out in the decision that Your Honor is speaking of, like Justice White when he wrote (Inaudible) when he said that indeed the prospect of imprisonment for however short of time will seldom be viewed by the accused as a trivial or petty matter and may well result in quite serious effects to the defendant.

If we look to the various states, we find that the question is, as was in Gideon quite unclear.

We would offer though that our position is not one that is impossible.

There are two states at present that are currently holding our suggested point of view, the State of Minnesota and the State of New Jersey.

I would also like to point out to the Court that in the lower court decision of our case, we had a four-to-three decision and in the descending opinion was to Chief Justice then, of the State of Florida, Richard Ervin, who maybe familiar to the Court, he was the Attorney General of the State of Florida in the Gideon case and presented that brief.

So, I think it is safe to assume that our Chief Justice has now taken a 180 degree turn of the then, Chief Justice.

Unknown Speaker: There might be a reservation of what you have state about choosing.

Mr. J. Michael Shea: I beg your pardon sir.

Unknown Speaker: I say I hope you permit me a reservation about what you say about choosing.

Mr. J. Michael Shea: Yes sir.

There have been several arguments raised against our opposition.

The jury trial was uncommon at all is just one such.

The state has also point it out in their brief that there is a possibility of a Boykin error.

We do not feel that there is a Boykin error.

There cannot be a Boykin error unless there is an intelligent waiver.

There cannot be an intelligent waiver unless a person is afforded the right to counsel.

This is an elementary thing and must come before we can even consider those.

There has been a suggestion that the Criminal Justice Act has limited the right to counsel.

It is our position that that act does not limit the right to counsel.

It speaks more specifically, if one takes a closer reading to compensation for counsel.

And, the fact that Congress has chosen to compensate attorneys who handle more lengthy cases and involved cases and not those of some of the lesser offenses, I think should have no bearing on a constitutional right.

Justice Harry A. Blackmun: Mr. Shea let me be sure if I understand you.

Did you say that there cannot be an intelligent waiver of the right to counsel, without counsel, is this what you are saying?

Mr. J. Michael Shea: Yes sir.

Justice Harry A. Blackmun: No matter how intelligent a person is, you cannot waive a counsel?

Mr. J. Michael Shea: No sir, I do not think he can.

I think he has to be informed of all the problems, the ramifications of what he is charged with.

His possible defenses and what the possible sentence is and everything else, and only after he has been completely advised of his present situation and the possibilities that he has, can he then make a decision.

Unknown Speaker: You never been confronted with a situation, where the client knows more than the attorney?

Mr. J. Michael Shea: Yes sir.

I have a few of those.[Laughter]I still advise them.

The only problem that I really see is the rules of procedures for the trial of minor offenses before magistrates.

If we assume that those rules, whereas the negative predicate suggest that our petitioner here today is lost and we can at least suggest that.

However, it is our position that if we are to interpret that rule, that way that it is unconstitutional rule and violation of the Sixth and Fourteenth, I would hope that this Court would not put this question to rest with a negative predicate.

We would like to offer, what we feel is a completely workable rule, as a test for the right to counsel. In the case of James v. Headley, Judge Wisdom handed down a rule, which has been most successfully used.

A defendant must be given a counsel whether there is a practical possibility that he might be sent to jail.

And, in that we mean that in those situations, such as have been raised by the state of a person spitting on a sidewalk, of parking tickets, of jaywalking, and all the other minor offenses, we suggest that these are not practical possibility of a person going to prison.

Justice William J. Brennan: Even though the ordinance or the statute as the case maybe, may say for that kind of offense, a criminal or rather a prison terms maybe imposed for 30 days or 50 days as case maybe?

Mr. J. Michael Shea: Yes.

Justice William J. Brennan: Even though the statute said so?

Mr. J. Michael Shea: Yes sir, and I would ask them, to offer to us some statistics where someone did go to prison for that.

Chief Justice Warren E. Burger: Well, then you would have to come around to the test that has been suggested as one possibility in various reports that counsel is required only if generally or usually a prison sentence is imposed.

Is that the test you advocate?

Mr. J. Michael Shea: If you are speaking in ABA minimum, that is one standard.

Chief Justice Warren E. Burger: That is one?

Mr. J. Michael Shea: Yes sir.

I think that we would go along with that and say that our position is in line with that suggested minimum standard.

Chief Justice Warren E. Burger: Well, I thought you had responded to a question of Mr. Justice Stewart that in every case, if the penalty was possible, counsel had to be provided.

Mr. J. Michael Shea: Yes, Your Honor I have and suggest that it is impossible for a person to go, practically impossible for a person to go to prison for spitting on a sidewalk.

The statistics just do not bear out.

As a second part of our suggested test, we would like to say that it should be added then --

Justice Thurgood Marshall: What happens, if it never happens before with this man gets two years?

What happens to him?

Mr. J. Michael Shea: I beg your pardon sir?

Justice Thurgood Marshall: You say that statistics, whether a man is entitled to a lawyer, I am saying that statistics show that this crime, nobody in the United States has ever gone to jail for any crime.

It was all been found, but Mr. A, is given two years, would that be a legal conviction without the counsel?

Mr. J. Michael Shea: No sir, because the second part --(Voice Overlap)

Justice Thurgood Marshall: Why is that?

Mr. J. Michael Shea: The second part of our suggestion would cover that.(Voice Overlap)

Justice Thurgood Marshall: Well, how do you cover those two cases?

Mr. J. Michael Shea: Well, if I may continue addressing myself to that --

Justice Thurgood Marshall: I get worried with this legality by statistics of constitutionality by statistics --

Mr. J. Michael Shea: Yes sir.

The second phase of this would be that, no person could then in fact be sent to a jail, unless he had been given right to counsel.

And, I think this would take care of that.

For many, many years we have had justices and judges in our court system that have taken it upon themselves to appoint counsel in situations where they felt is the magnitude of the charge or case itself warranted such a thing.

And, we are suggesting that this can be done and in those situations where it appears that there is a possibility of sentence, the right of counsel be afforded.

Justice Potter Stewart: Well, it might not appear so, it is the beginning of the trial before the trier of the fact that had heard all the evidence and it might turn out to be a much more aggravated and serious situation than it had appeared before the trial began.

I take it your position would be then, that if a conviction was followed by a sentence to prison and no lawyer had been provided, then that conviction would have to be set aside in the new trial order, is that it?

Mr. J. Michael Shea: Yes sir.

We would suggest that it would be better to set a rule of this nature, saying that if there is a possibility of a sentence, then he must be given the right to counsel from the outset.

If that decision is made, one way the other and he is not given that attorney, then he may not be sent to prison even though the facts may develop as you have suggested.

Justice Potter Stewart: Well, or if he is sent to prison then maybe it turns out that there was a very good reason, why he be sent to prison from the point of view of the gravity or seriousness or outrageousness of the conduct, but then a new trial should be ordered and at this time he gets a lawyer, is that it?

Mr. J. Michael Shea: Yes sir.

Chief Justice Warren E. Burger: Will that pose any double jeopardy problems, if he did not consent to the new trial?

Mr. J. Michael Shea: I would have to admit, it is possible --

Justice Potter Stewart: Suppose a new trial would not be ordered, unless he appealed, I would assume that he would have appealed?

Mr. J. Michael Shea: Yes sir.

And, I think that in the actual practice of it, in speaking of that particular circumstance that it is better to let a few of these people, maybe not go to prison and have a stiffer fine or some other type of –-(Voice Overlap)

Justice Potter Stewart: He go to prison, but in my brother Marshall’s hypothetical case, where you have an offense where never in the particular jurisdiction had anybody been sentenced to prison for the commission of this offense and so, at the outset of the trial, it could be fairly confidently assumed that this defendant was not going to prison and then, it developed during the course of the trial, that for one reason or another, this was a singularly, egregiously, outrageous of example of this particular violation and for the sufficient reasons after the defendant was convicted, he was sentenced to prison and for the first time in history of that jurisdiction.

Then it would be your position that the convicted defendant could then appeal and have a new trial this time with a lawyer.

Mr. J. Michael Shea: Yes, Your Honor.

In addition to the fact that we are offering this test, I also point out as Chief Justice has said that the test is also one recommended by the ABA minimum standards.

We suggest that there is another possibility for a test and that would be in a stricter application, looking directly at the statute and if the statute has a possibility at all of imprisonment, that then counsel must be provided if the person is indigent.

If that were the rule to be handed down by this case -- this Court, I would hope that the American Juris Prudence System would take he, the President Nixon’s latest comments on this, on legal reform and that we proceed to eliminate from the possibility of incarceration, many of these minor crimes, where there is no victim.

I think that I will save the remainder of my time for rebuttal for the state.

Chief Justice Warren E. Burger: Very well Mr. Shea.

Mr. Georgieff?

Argument of George R. Georgieff

Mr. George R. Georgieff: Mr. Chief Justice and may it please the Court.

I guess this is as fitting an occasion as any to take off on the downside of Gideon’s, since Florida opened the door for Gideon itself.

I suspect Florida is the proper state to decide whether Gideon should be extended downward.

Hopefully, the result would not be the same as it was in Gideon, although I think it was a sound one.

I would like to put something to rest before we get too far into it.

Felonies and misdemeanor as defined in Florida as of today; Felonies are those offenses punishable by imprisonment in the state penitentiary.

Now, it does not mean that they must be so incarcerated, since we do have provisions for our alternative confinement in County Jails for offenses five years or less in term.

Now, misdemeanors or all offenses otherwise punishable by confinement in the county jails. Everything else is something less than a crime in Florida.

It is neither a misdemeanor nor a felony.

Municipal violation, if you take up the situation in Dade County, you have Metro violations, which do not fit either bracket.

Justice Potter Stewart: (Inaudible) a violation in Metro?

Mr. George R. Georgieff: Metro, it is called Metropolitan Government.

It is a combination of those cities, which decided to go together with the County.

Now, there are some 23, as I understand which are not part of it and they remained isolated municipalities with their own unit of governments.

Justice Potter Stewart: So a municipal offense or a Metro violation is something less even than a misdemeanor?

Mr. George R. Georgieff: Oh! Yes.

As the Metro, they are sui generis in terms of Miami being the leader.

They cannot be the leader in that situation, but they are all less than misdemeanor.

Justice Potter Stewart: And, in terms of punishment, what is the maximum that they carry?

Mr. George R. Georgieff: I would hazard on the outside now, perhaps Mr. Shea can correct me, but I would hazard that it cannot exceed 90 days and that is true with all Municipal violations.

I have not known of any that go in excess of that.

Now, conceivably you can have some of them back-to-back, which would result in a longer period of confinement, but the maximum on the outside is 90 days.

Chief Justice Warren E. Burger: And where is the confinement served?

Mr. George R. Georgieff: In City Jail, City compounds, it is something on that order.

I do not have a title for all the places where they can --

Chief Justice Warren E. Burger: Not in the county jail?

Mr. George R. Georgieff: No sir.

Now, as a matter of fact, there are many times in the rural counties, where they do not have county compounds.

They often by arrangement have them serve in one City that may exist.

For instance, in place like Liberty County, which has only 2800 people in it, they do not have a compound.

They interchange their facility, but if we are going to deal with the labels, I want t straighten that much out first, but we intend to throw labels out the window, because they really do not mean anything at all.

You said so in Goff and that is a fact.

Under the Criminal Justice Act, it is broken by Congress that six-month on the petty offense doctrine.

Now, after the decision in Gideon and I think Mr. Justice Stewart after several times when you suggested that perhaps the matter of misdemeanor ought to be treated and had not been, the Supreme Court of Florida decided in Fisher versus State that if you had meant the Gideon should apply across the board as to crimes which includes both misdemeanors and felonies that you would assess them.

And therefore, they held that the counsel was not an organic right in misdemeanor situations, no matter what.

Now, on another occasion before you, I advice you that indeed there were some misdemeanors in Florida, though there have been no prosecutions under it and that carry the maximum penalty, would you believe of 8 years.

And, in which case I think by an inquiry from Mr. Justice Brennan, I replied that if you had a situation like that, it would be absurd to suggest that you do not appoint counsel for him, because of the terms of confinement.

Now, as of January 1, 1972, all that will be wiped out by the passage of 71-136, which is a General Reviser’s Bill and that is found in the Florida session law service, it is post binder, covered in pages 381 to 711 or some 380 odd pages of a general revision of the criminal code of Florida.

They breakdown felonies into four degrees; capital and three degrees of felonies.

They break misdemeanors down to two degrees and misdemeanors are broken down very simple.

In terms of time and or money fines, for a misdemeanor of the first degree, by a definite term of imprisonment in the county jail not exceeding one year.

We understand that under the decisions of the Fifth Circuit, in Harvey in the others and indeed under Judge Mert's decision in Princeton (ph), where he breaks it in six months, based upon the Criminal Justice Act and expecting a similar treatment as to federal and state prisoners that certainly everybody in Florida, as of January 1, who is under a misdemeanor of the first degree, is going to get in counseled, as a matter of course.

Now, for a misdemeanor of a second degree, by a definite term of imprisonment in the county jail, not exceeding 60 days.

Now, there is also a fine provision, which sets the fine at $500, but obviously after you reach the decision that you did not take, that is meaningless.

Since, if he is indigent and cannot pay the fine, he cannot be made to serve more than 60 days, no matter how you could.

So, we are now in the posture of going down 30 days below what the Fifth Circuit Court of Appeals has said was very acceptable petty offense line.

If it was all misdemeanors before, if it was reduced to 6 months by the Criminal Justice Act and by the State of Florida Supreme Court in Argersinger and even if the Federal District Court in Jacksonville under Willie (ph), and by the way the only reason they are not advising everybody as to everything, is they are awaiting the outcome of your decision here in this case today.

Now, we say that breaking point with the Fifth Circuit was set at 90 days.

We set it ourselves by the Florida Supreme Court relying on Judge Mert's decision in Princeton at six months which coincides with what you said, in Baldwin as to juries and with the Criminal Justice Act as to petty offenses.

Now, the question becomes, is it awesome to the man who faces some kind of imprisonment no matter what?

Well, somewhere you must break the line.

There was no command at the time that Argersinger was argued there, except that is urged here.

Now, I do not know how far we can break it.

All I do know is as of January 1, they are only going to be a handful of people who are ever processed on misdemeanor charges who would not based upon the imprisonment possible be provided counsel.

Justice William J. Brennan: Well, let us see Mr. Georgieff.

I gather your provision does not reach all these metro offenses on all the types?

Mr. George R. Georgieff: No, Your Honor, it does not.

Justice William J. Brennan: (Voice Overlap)

Mr. George R. Georgieff: That is right.

Now, if you recall under Waller (ph), of course Metropolitan community and/or cities or whatever you may call them exist at the sovereign of the legislature.

No laws that they adopt are criminal in nature.

They may adopt whatever they like either by individual or charter provisions or they may adopt the violations of the state law as City Ordinances, but they must set independent punishment and in other words, the Reviser’s Bill does not reach them any degree.

I tell you, as a matter of pure fact, although it is not in the record here, that no City has violations to my knowledge, that had ever come to my attention that exceed 90 days for a violation of what would be of criminal law had it been processed in the state or by the county.

So, in the last analysis, we are told that you allow people to come into Court with the lawyer in situations of their own hiring, so why should you not do it here, no matter what the penalty is, and if you would do and if we use this, the statistics that they given us on the New York report of the million one -- million 800 thousand with only 40 processed to the degree where they were put in confinement.

If anything ever sounded like de minimis to me, that certainly does.

Now, if it is the awesome prospect that they tell us that it is, how come so few ever wound up in jail as a result of it?

Now, I think Mr. Justice Marshall’s question about what do you do when somebody winds up on the short end of a theretofore vacant threat?

Well obviously, the answer as you pose Mr. Justice Stewart is if you wind up with a situation like that, that is easily correctable.

We grant them a new trial, if what happened to him, so far outstrip what anybody expected certainly they are going to grant him a new trial, there is not any question about it.

Now, I do not know how often that is going to occur if it all.

They are now, under -- in the legislature, in a special session this very day, and they will meet in general session in February to take up of all the things, another Reviser’s Bill, which it is hoped will do a way with most, if not all of the victimless crimes.

Now, that would not do away with the DWIs or anything like that, assuming anybody is injured or there is a substantial amount of property damage.

Unknown Speaker: What is DWI?

Mr. George R. Georgieff: Driving While Intoxicated or under the Influence.

Now, many of the minor violations, such as drunkenness, loitering and I do not know what all are will -- if this goes through be wiped out.

Now, what that will do statistically to the problem posed, as suggested by petitioners, I do not know.

But if we do away with victimless crimes, we are going to do away for the most part with what was the object of your concern in Tate and other cases, similar to it.

I submit that it is not anywhere near the problem suggested.

I submit that the congress did not think that it was.

I submit that not even the Fifth Circuit thinks that it should be extended below the 90-day breaking line that they adopted.

But even if it is, Florida has broken in at 60 days, as of January 1, 1972 and for all the world, nothing I have heard here today, gives me any reason to suspect that what was done with regard in Mr. Argersinger in the Florida Supreme Court should in be modified by any decision that you render here today.

I know that somebody says by one day, he lost the benefit of counsel, but wherever you would draw the line, assuming it is not all the way down to the basement, somebody is going to lose by one day.

Presumably, if you set the limit at 58 days, surely an artful legislature would say, well, let us make it 57, and it would be a never ending battle.

So, I do not know that one day makes the difference.

I know that the doctrine of petty offense has to mean something.

Certainly, the Congress was not stupid when they adopted it nor was the Fifth Circuit stupid when they said that we think 90 days, is a good place at which to break it.

I think Judge Mert's was aptly justified in breaking it at the six months suggested by the Criminal Justice Act of 1964.

Since, it does coincide and since that is what the Florida Supreme Court relied on and there is really no predicate for deciding that there ought to be a departure below the six-month petty offense rule and in the last analysis since Florida is not going to be imposing these awesome burdens at any time after January 1, I think the action of the Supreme Court of Florida should be affirmative in this case.

Thank you.

Justice Potter Stewart: How about the rules approved by this Court, the Magistrates, has anything to do with it, you think?

Mr. George R. Georgieff: Well, I do not know that an individual stands in any different posture with it before a US magistrate than he does when he is before a County Judge of the state or for that matter of that wherever he may be, where a confinement is going to run no more than 6 months.

If it satisfactory for an individual before US magistrate, I should imagine that it is meaningless to an individual anywhere else to tell him do not worry about the rope burning, it is made out of linen, instead of a hem.

That is just another reason, I think, Mr. Justice Stewart why to make a false distinction simply because it has its genesis in the state proceeding would be untoward.

There is no reason to tell an individual being processed in a criminal system that it is different in one area and he is entitled to counsel there then it is in another where he is not simply by rules adopted either by this Court or by the Congress.

I think the posture is the same.

A jail cell is a jail cell is a jail cell.

Now, I do not stand ready, willing or able to tell that an individual ought to like it for one day.

I am sure none of them do, but if we are going to live in a world with people who serve it and if they are going to be enough of them to go around, then I think an intelligent break is made up of six-month petty offense situation and hopefully by the time they are finished you will agree with that and affirm the action below.

I hope that answers your question sir?

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Georgieff, Mr. Shea, you have anything further?

Rebuttal of J. Michael Shea

Mr. J. Michael Shea: I find it very difficult to understand how we convict anything less than one day.

How can we arbitrarily say that 1 day, 30 days or 60 days.

To the man that sitting in jail, that decision is completely arbitrary.

I also would offer that there is no logical reason for picking 60 days or 90 days or six months.

As to some of the points that Mr. Georgieff raised, I believe there is now a Florida statute that was recently passed in our last session that makes county ordinances is the same as misdemeanors and that is a session law of 70-453, sub-section something or other.

I also want to try to make it clear that our position is that, we do not feel that it is necessary to make the counsel appointment that will not result to the counsel appointed in all of misdemeanor cases, only those where each practical possibilities that the person may receive some incarceration.

I think that the position of the Fifth Circuit was a bit misleading, as far as the state was presented.

They said that the Fifth Circuit has a 90 days rule.

I do not think that is quite the case.

The Fifth Circuit has ruled on a case in which they said a person charged with an offense that received 90 days should be given a right to counsel, but I think they left the bottom into that open and they have only ruled in the other cases on similar special circumstances.

In conclusion, I think that it is evident that our position and that of the states is not that far apart.

They have not come before you this morning and suggested that a man not be given the right to counsel in misdemeanors.

They have only suggested that it should be either six months and now they have come with another possibility of 60 days.

We feel that the only real test is to go completely as the constitution says.

A person who is in the position of a possible incarceration must be given the right to counsel.

And if he is not given that right, he cannot be sent to prison.

It is that simple, that is our test.

No, attorney --

Justice Harry A. Blackmun: That you are not concern with a fine no matter how large?

Mr. J. Michael Shea: Correct sir.

Justice Harry A. Blackmun: Next week would you be back here with a fine case?

Mr. J. Michael Shea: No sir, I think that, that is another situation that we get into; contempts and things of that nature and if a person did not pay the fine then he would, I assume be charged with a contempt violation and in fact, would be afforded an attorney.

So, I think that the possibility of a person getting up here with that argument is a much more remote.

Our suggestion, to boil it down in its simplest form, is no attorney, no jail.

I think the greatest freedom that we have in this country is our liberty and when a man is afforded counsel, it is the only method he has of protecting that liberty when he stands on our Courts.

If we take that right away, we also take his liberty away.

To say less is to compromise the freedoms of our constitution.

Thank you sir.

Justice Potter Stewart: Mr. Shea, on January 27 of this year, this Court, as you know promulgated the rules or procedure for the trial of minor offenses before magistrates, which by subsequent enactment of the Congress of the United States, I understand it have now become effective rules.

If many were those rules -- (Voice Overlap)

Mr. J. Michael Shea: Yes sir, I am.

Justice Potter Stewart: -- there is reference too in your brief?

Mr. J. Michael Shea: Yes sir.

Justice Potter Stewart: What bearing if any, do you think they have on your argument, on your position?

Mr. J. Michael Shea: I think they are unconstitutional, as they apply to the right to counsel.

They are strict violation of the Sixth and Fourteenth and I do not feel that they specifically go to the question and I think it is only a reference in a form of a negative pregnant and I hope --

Justice Potter Stewart: Now which -- now, you have given me two quite different answers?

Mr. J. Michael Shea: No sir, I think that was my original answer when I was asked that question before.

Justice Potter Stewart: Well, are there unconstitutional or do not they bare on your questions?

Mr. J. Michael Shea: I think they are unconstitutional.

Justice Potter Stewart: Why?

Mr. J. Michael Shea: Because they are in violation of the constitution.

Justice Potter Stewart: Why?

Mr. J. Michael Shea: Because, the constitution says that a person shall have the right to counsel.

Justice Potter Stewart: Yes.

Mr. J. Michael Shea: In all criminal prosecution.

Justice Potter Stewart: But, your second answer was that these rules do not say that person shall not have the right to counsel?

Mr. J. Michael Shea: Well, I think that the only way that it can construed that they do say that is through that negative pregnant and I would suggest that is a cool way of putting this question to bid.

I do not read it that way myself.

Justice Potter Stewart: You do not read it, which way?

Mr. J. Michael Shea: As affecting the right to counsel, but if it does --

Justice Potter Stewart: In that case, if your reading is correct then they are not unconstitutional?

Mr. J. Michael Shea: That is right sir.

If it is read that way and on the alternative if it is -- I would suggest that if it possible that the other construction could be read and if that be the case, then it is our position that they are unconstitutional.

Any further questions sir?

Chief Justice Warren E. Burger: No.

Mr. J. Michael Shea: Thank you sir.

Chief Justice Warren E. Burger: I have heard enough Mr. Shea.

Thank you gentlemen.

The case is submitted.

Print this transcript Transcript: 

Argument of Bruce S. Rogow

Chief Justice Warren E. Burger: We'll hear arguments next in 70-5015, Argersinger against Hamlin.

Mr. Rogow you may proceed whenever you are ready.

Mr. Bruce S. Rogow: Mr. Chief Justice and may it please the Court.

Certiorari was granted in this case to review the decision of the Florida Supreme Court which held four to three that the right to counsel extends only to those cases which carry a maximum punishment in excess of six months.

The petitioner in this case John Richard Argersinger who is convicted in the Leon County Court, in Tallahassee, Florida on a charge of carrying a concealed weapon.

The maximum punishment imposable on that charge was six months imprisonment or a fine of $1,000.00.

Because the maximum punishment imposable was only six months, the Florida Supreme Court held that Argersinger was not entitled to have been advised of his right to counsel.

Three dissenters in the Florida Supreme Court would have held that the right to counsel extends to any offense in which a man may loose his liberty.

Our position is essentially that.

Our position is that wherever the actual threat of incarceration exists, a man must be advised of his right to counsel and counsel must be appointed for him, if he cannot afford afford counsel, unless the defendant knowingly and intelligently waives that right.

Chief Justice Warren E. Burger: Suppose the Judge at the outset, under a rule such as you suggest, concluded in his own mind that he was not going to impose any sentence, even though it was permitted and then went ahead with the trial, that would be alright under your theory, would it?

Mr. Bruce S. Rogow: If went ahead with the trial and not imposed incarceration --

Chief Justice Warren E. Burger: Imposed on your client?

Mr. Bruce S. Rogow: Yes sir.

Chief Justice Warren E. Burger: Now then if he imposed at the conclusion of the trial he concluded that he changed his mind that either the offense was much more serious than he had at first thought or perhaps probation report or some information about a prior record came to his notice and he concluded to impose the sentence, then the suggestion of offering him a new trial comes up.

What is your response to that?

Mr. Bruce S. Rogow: Our position is that he would have to be offered a new trial with a benefit of counsel then no double jeopardy problem would be raised because this would be in effect an appeal, a voluntary act by the defendant in accepting a new trial.

Chief Justice Warren E. Burger: What if you said no thank Your Honor, I want to stand on the trial at hand?

Mr. Bruce S. Rogow: I think that he could waive counsel, even at that point, only if he was clearly advised of the consequences of his act.

He was clearly advised that this judges considering putting him in jail or he was going to put him in jail.

Chief Justice Warren E. Burger: Let's assume he is a little more sophisticated than some of the defendants, that he answers the judge's suggestion by saying, no thank you Your Honor.

I have tried my case as well I was think it can be tried by anyone and the case is closed and it is your decision, except he makes the point you cannot send me into any confinement and I will not accept a new trial?

Mr. Bruce S. Rogow: Well, I do not think that he would really have that option.

I think that he has the option to waive the right to counsel that point if the court has explained to him the circumstances that exist, the real threat that he may go to jail.

I do think he can in effect have his cake and eat it too and say now you tried me, now I am going to take this trial because I know you cannot incarcerate me.

I think that he has to make a decision between one or the other.

I think if he failed to make that decision, and if he stood on that first trial, I do think the decision will be able to be reviewed.

Chief Justice Warren E. Burger: You do not see any double jeopardy problems, even if at the outset of the trial he had asked for counsel and then denied it, so that at the end of the trial, he said he wanted to stand on that trial and would oppose and object to a new trial on any term.

Mr. Bruce S. Rogow: If he had been advised at the outset that there was an actual threat of incarceration and that he may very well go to jail and he had a right to counsel, then counsel be appointed and he waives his right --

Chief Justice Warren E. Burger: My assumption is that at the outset he asked for counsel and the Judge said no I am not going to appoint counsel.

The Judge then thinking he was not going to impose any confinement and in my hypothesis the judge has changed his mind because of some factor intervening.

Mr. Bruce S. Rogow: In that very instance I think the Judge might be left with the fact that he will not be able to impose incarceration.

If there has been a clear situation originally where the man did request counsel and the Judge had made up his mind there would be no imprisonment, I think that is a rare case though.

I think that what happens in most of these cases --

Chief Justice Warren E. Burger: Would it be -- would it be rare if this rule were structured as you suggest?

Mr. Bruce S. Rogow: I do not think it would be rare, Your Honor because I think that in very few of these relatively minor offenses and I mean, very minor offenses, for instance violations in the City of New York which carry a maximum penalty of 15 days, very can people actually go to jail in those cases.

A statistic contained in our brief at page 40 shows that over million eight hundred thousand people were tried in New York on these minor violations and only 40 were actually incarcerated.

So I think there really is some practical recognition made everyday in every Court in the Country that some offenses, although they carry the possibility because the ordinance says 15 days, there is no real actual possibility have incarceration.

Our position is essentially drawn from the long line of cases beginning with Powell versus Alabama through Johnson versus Zerbst, Gideon versus Wainright, In re Gault, and Coleman versus Alabama.

In this long line of cases the Court has consistently held that the right to counsel is fundamental.

It is essential to the fact finding process and a fair trial cannot be held without the guiding hand of counsel of every point.

As the Court said in Gideon in our advisory system of criminal justice, any person held into court who is too poor to higher lawyer cannot be assured a fair trial, unless counsel was provided for him.

We submit that those words in Gideon are equally applicable to a case where man may lose his liberty for even one day.

Several courts had held that there is no distinction to be drawn by the constitution between loss of liberty for a long period of time and loss of liberty for a short period.

Nearly 30 years ago, in Evans versus Reeves, the Court of Appeals for the District of Columbia said just that.

The constitution draws as no distinction between loss of liberty for a long time and short time.

United States Court of Appeals for the Fifth Circuit has held in every case that has come before it that the right to counsel extended to the indigent misdemeanant or traffic violator who has faced with as in each case there was presented in the Fifth Circuit, 90 days, that in each of those cases the right to counsel extended.

There is no real hard and fast rule though in the Fifth Circuit because the Fifth Circuit decisions have been on a case by case basis.

In one case James versus Headley, Judge Wisdom writing for himself alone, urged the position that we urge here today that anytime there is an actual threat of incarceration, a person should be provided a counsel.

That position is supported by the ABA Committee on minimum standards for criminal justice which urges a very similar position almost exactly like ours.

The President's Commission on Crime and law enforcement has urged a similar position.

So the position that we submit to the court today is not one that is not been recognized even judicially or by established committees of the bar.

Justice Byron R. White: Would you -- does that mean that where a statute carries the possible jail sentence less than six months that if he -- if the actual penalty imposed is, it doesn't include a jail sentence, the defendant needs the counsel?

Mr. Bruce S. Rogow: He need that be advise of his right to counsel.

Of course, he still can bring counsel, if he could afford counsel.

Justice Byron R. White: And so when you say actual threat what you are really saying is you judge -- that if a judge is going to try a person without counsel he can't impose a jail sentence?

Mr. Bruce S. Rogow: Exactly You Honor.

There is --

Justice Byron R. White: But he does not and the possible penalty is less than six months, he does not impose a jail sentence on him.

He does not need to have counsel in any case?

Mr. Bruce S. Rogow: If the Judge does not impose a jail sentence, there is no actual threat of the jail sentence then under the theory we advance, there would be no need to point out --

Justice Byron R. White: When you Judge that actual threat --

Mr. Bruce S. Rogow: I understand.

The difficulty is it has to be sort of a pre-judgment and this Court is acknowledge that kind of judgment in the criminal content cases dealing with right to a jury trial where if a decision is made by the presiding judge that this defendant may get more than six months, there has to be jury trial provided.

There are faults in this position.

I would prefer I think a flat out rule that anytime a person faces even a remotest possibility of incarceration he should be provided counsel, but the rule we advance and the rule that it is supported by the Solicitor General takes into consideration the practical aspects of what goes on everyday in a low visibility of the criminal justice system and that is at many minor offenders sidewalks splitters, jay walkers these are always a kind of offenses that raised in the decisions which seek to limit the right to counsel.

Those people do not actually face the threat of incarceration.

Of course, under the ordinance they may, but it is such a remote possibility, we submit that the real threat of incarceration does not exist.

Only 10 States still adhere to a firm and inflexible rule that the right to counsel extends only to felonies.

The other States have all moved beyond the Gideon versus Wainright decision in one form or another.

Not all of them do what Minnesota as done in State versus Borst and say that if imprisonment is likely to be imposed then the court must appoint counsel.

Several other States have adapted the same position not always on constitutional grounds.

The Minnesota decision was based upon the rule making power of that court.

New Jersey in Rodriguez versus Rosenblatt arrived at the same conclusion based upon its own laws, but what is important to looking at the States is that they have moved into the field of providing counsel for misdemeanors and there is no great fear on the part of the States, that providing such counsel would cause them any great harm.

The arguments that had been advanced in limiting the right to counsel to an access of six month cases are based upon one or several of the following theories.

First that because the right to counsel and the right to jury trial both reside in the Sixth Amendment, the right to counsel must be governed by this court's decision in a jury trial case, Baldwin versus New York.

We submit that, that argument is just not valid.

There is a great difference between counsel and a jury trial.

As the Court recognized in Baldwin a fair trial can be had without a jury and in fact everyday in this country fair trials are had without a jury by a judge alone, but a lawyer is essential to the fact finding process and the lawyer must be there to hammer out the facts which the decider will have to consider.

Therefore, analogy between jury trial and counsel is not valid and one other reason, I think this Court is recognized that the analogy is invalid in holding the right to counsel retroactive, but in refusing to hold the right to a jury trial retroactive.

Another argument advanced in the cases which seek to limit the right to counsel is that because the right to counsel in jury trial both reside in the Sixth Amendment, Baldwin versus New York must govern, but there are other rights in the Sixth Amendment.

There is a right to a public trial, the right to a speedy trial, the right to confront the witnesses against you, the right to compulsory process.

No court has ever held to my knowledge that those rights are contingent upon a sentence which exceeds six months.

So any argument that because all these right reside in the same amendment, they are govern by Baldwin versus New York, just does not hold.

Another argument advanced by people seeking to limit the right to counsel is that the criminal Justice at Title 18 US Code, Section 3068 at present which is the Federal Standard for appointed counsel, limits appointed counsel only to cases which exceeds six months, but that law relates only to the payment of counsel.

It does not set a firm rule that counsel shall not be provided in so called petty offenses.

In fact to the contrary, the framers of the law, the legislative history compel the -- support the conclusion that they believed that the right to counsel did extend to petty offenses and they left the Criminal Justice Act open ended.

So the counsel will be able to be paid, if this Court holds that the right to counsel does extend beyond or into -- in cases that hold -- that carry less than six month penalty.

Justice Potter Stewart: Earlier in the argument Mr. Rogow you said that you were supported by the government and I know that is true basically.

However, the constitutional rule that they submit is not identical to the one using that, is that correct?

Mr. Bruce S. Rogow: As I read it, it is very identical Your Honor.

Justice Potter Stewart: It is a little more finally spun out perhaps?

Mr. Bruce S. Rogow: If a matter of semantics I think becomes involved, yes sir.

Justice Potter Stewart: But you would be happy and content with the government submission, would you?

Mr. Bruce S. Rogow: Not all together, Your Honor.

There are points in the government submission that I would not agree with in every facet, but in terms of this rule itself we do agree there is no disagreement.

The government has excluded a great many the other cases which we think may -- do not need to be decided today, but may in the future be presented, but for the purpose of this case there is no disagreement between the government and ourselves.

Another argument raised by --

Justice Byron R. White: What about plead to guilty, the same rule?

Mr. Bruce S. Rogow: Yes there are -- has to be advise of counsel before acceptance of a plea.

The plea is a crucial time.

Justice Byron R. White: Well not if you know you are going to be fined?

Mr. Bruce S. Rogow: I am sorry.

If there is only going to be fine there would be no need to advise on his right to counsel.

But what we are here asking is a judicial recognition of the practical procedures that take place everyday.

We are saying there are millions of cases tried in this country, first offense speeding, things like where no one goes to jail, although the ordinance says perhaps a ten-day penalty could be imposed, but no one does go to jail, we are saying that the judiciary does in fact everyday make these determinations.

Justice Byron R. White: But do you think -- does any one have any statistics at all and what kind of extra burden this would be on the legal system or on the attorneys of the country?

How many under six months cases are actually result in the jail sentences?

Mr. Bruce S. Rogow: The figures on that are not rely -- does not exist.

The only statistics that I have --

Justice Byron R. White: What would be -- a million or hundred thousand or 10,000 or what?

Mr. Bruce S. Rogow: The statistics that I have for instance in New York where of the hundred thousand persons for traffic violations, only 40 actually went to jail.

I can really speak only in terms of some practical experience in Dade county.

About 400,000 people are faced with traffic offenses in cases tried in the Metro Court, but only about 5,000 those people ever actually faced incarceration.

So in that --

Justice Byron R. White: (Inaudible)

Mr. Bruce S. Rogow: Well those --

Justice Byron R. White: 5,000 people are --

Mr. Bruce S. Rogow: Incarcerated.

Justice Byron R. White: Now?

Mr. Bruce S. Rogow: Yes sir, incarcerate.

Unknown Speaker: Per Year?

Mr. Bruce S. Rogow: Per year.

Justice Byron R. White: 5,000 which was filed in here (Inaudible)

Mr. Bruce S. Rogow: Yes sir.

Justice Potter Stewart: Cases like drunken driving and (Inaudible)

Mr. Bruce S. Rogow: Exactly.

Unknown Speaker: Well that includes the right cases (Inaudible)

Mr. Bruce S. Rogow: Well exactly in fact our position is that --

Justice Byron R. White: How about the six-month cases?

Mr. Bruce S. Rogow: Those are in the six-month cases and the maximum penalty imposable in Dade County is only sixty days, Your Honor.

Chief Justice Warren E. Burger: I am not sure I have got that (Voice Overlap) not too sure I got you figure clear.

If 5,000 people a year in Dade County can go to some kind of confinement up to six months.

Mr. Bruce S. Rogow: No sir for up to sixty days only.

The maximum penalty imposable in Dave County Metropolitan court is 60 days or a $500 fine.

The offenses include everything from the loitering and vagrancy to drunk driving.

Chief Justice Warren E. Burger: That is 5,000 of them.

Mr. Bruce S. Rogow: 5,000 people.

Justice Byron R. White: In one city they go to jail --

Mr. Bruce S. Rogow: In Dade County.

Justice Byron R. White: By the end -- if all those were in (Inaudible) which held beyond but let it (Inaudible).

Mr. Bruce S. Rogow: Yes I would say a lot of them are but --

Justice Byron R. White: They have (Inaudible) n Dade County not too vague.

Mr. Bruce S. Rogow: The estimates are about 25% of the total so called misdemeanants, these kind of offenses are indigent.

But excepting your figures of 25%, 1250 or 2500 appointments would have to be made but the statistics also --

Justice Byron R. White: If there was denial of waiver?

Mr. Bruce S. Rogow: Yes there was not a valid waiver but the statistics also show that a public defender who can handle a 150 felonies a year, can handle a thousand of these cases a year because these cases are not as complex.

These cases, of course there will be no jury trial in these cases either.

The case will proceed much more rapidly.

So if we are talking about a public defender being able to handle a thousand cases then we were talking about 2500 cases.

We are talking only about two and a half public defenders.

Chief Justice Warren E. Burger: You will have an assumption there that goes a little to speedily for me that is that the lawyer can try that many.

Now when the lawyer gets into a case the case of the litigation tends to change very often, I assume you would accept that is a realistic fact?

Mr. Bruce S. Rogow: Yes, Your honor but in may change in two ways.

It may result in guilty pleas where there would not be a guilty plea without counsel.

In other words, if a defendant confirms with counsel and learns exactly what the nature the offense is and what his defenses are and it maybe he has no defense.

Chief Justice Warren E. Burger: Are there any available, reasonably reliable figures on these propositions?

Mr. Bruce S. Rogow: Your Honor, I am afraid the only places where any statistics at all exist are in the National legal Aid and Defenders Associate Amicus brief which was filed in this Court and 55 Iowa Law review and in 13 Wilman Maryland Law Review there are some attempt to me to provide statistics.

Wilman Maryland article echoes really the national Legal Aid Defenders Association brief.

The statistics are sketchy.

In fact, only this morning I was in contact with the National Legal Aid Defenders Association in effort to get some additional statistics, which they said were not available.

They have recently received the grant for a $100,000 to find out exactly how much you spent in the country.

Justice Byron R. White: (Inaudible) before all petty offenses?

Mr. Bruce S. Rogow: For all offenses which might result in the loss of liberty, except the minor traffic where there is no real threat of incarceration.

My statistics show 12.

Minnesota, these are the States in which except for the rare -- these are the States which provide counsel in all cases in which there is no possibility except those one no possibility in which incarceration will be imposed.

Justice Byron R. White: And how many provide counsel, 12?

Mr. Bruce S. Rogow: 12.

Justice Byron R. White: Are all about 12?

Mr. Bruce S. Rogow: 12 provide counsel.

Justice Byron R. White: In all cases where there is any provision for a jail sentence?

Mr. Bruce S. Rogow: Not provision under the ordinance, no sir.

Those -- those things provide counsel in accordance with the rule we advocate today.

Chief Justice Warren E. Burger: The probability of confinement?

Justice Byron R. White: For all State?

Mr. Bruce S. Rogow: Yes sir.

Justice Byron R. White: In Minnesota, you said one of them?

Mr. Bruce S. Rogow: Minnesota is one of them, Your Honor.

Justice Byron R. White: Where are they listed?

Mr. Bruce S. Rogow: They are enlisted in our brief.

There is a compilation of States.

There are some recent decisions.

For instance, Alaska only two months ago, Anchorage versus City of Alaska arrived at the same conclusion, wherever there is a possibility of incarceration, counsel be provided.

The reason that there is not a great problem, a great economic problem involved here because as we argued before, most of these public defendant situations and systems already do provide some counsel in misdemeanor cases and more than that when Gideon was decided, it caused a creation of public defender system nationwide.

What we are seeking here will not cause such a creation.

What it will do perhaps will be to enlarge the already existing public defender system, but Gideon required a whole new creation, this does not.

This builds only upon the prior of decisions of the Court.

Chief Justice Warren E. Burger: Your observation certainly have relevance to Metropolitan Centers.

What about isolated rural areas that are either not covered by any legal aid defenders system at all or one that's on a regional basis where the legal aid office maybe a hundred miles away from a particular small town court?

Mr. Bruce S. Rogow: In those cases, for instance Mississippi comes to mind, where they have rural areas, they a circuit court which travels and at a certain time during the year that circuit court sits and there are defense counsel available.

We would submit that in that kind of situation when the trial court which tries felonies comes town.

Chief Justice Warren E. Burger: The mobile court is not a common phenomenon in the country anymore, is it?

Mr. Bruce S. Rogow: No sir and that --

Chief Justice Warren E. Burger: You do not have many States functioning as Mississippi does?

Mr. Bruce S. Rogow: In terms of Circuit Courts that move, I think there are several rural States which do have that where there is not enough court business to maintain a sitting of court through out the year.

Chief Justice Warren E. Burger: Several, but there are great many States with large rural areas where the court does not rule in just away your talking about, I am sure you know that.

Mr. Bruce S. Rogow: Yes sir, but even in those cases the defendant must move to the court in a felony case and there must be counsel provided.

All we are saying that will be necessary would be for this misdemeanor to move to that same court.

Chief Justice Warren E. Burger: Well, but in many States again if the defendant is not to be carried in the same court, in a felony court, he is often local police court or sometime, more often than that I would think?

Mr. Bruce S. Rogow: In a Municipal Court of sometime.

Chief Justice Warren E. Burger: Yes.

Mr. Bruce S. Rogow: If there is no counsel available is that the Court's question?

The only thing that we suggest that can be done would be to have sometime legislation passed in that kind of a State where the trial court of criminal cases, the Felony cases would have jurisdiction to try that case.

Chief Justice Warren E. Burger: But then your suggestion about this having no significant impact is, it has to be diluted a little bit, doesn't it?

Mr. Bruce S. Rogow: Well, obviously there will be a significant impact, but the people that have refused to extend the right to counsel have raised the spectrum of counsel for walk splitters and jay walkers and they have exaggerated the -- the need for counsel because they do not taking into consideration the practical day to day situation in these courts.

Justice William H. Rehnquist: Mr. Rogow let me ask you along the line of Chief justice's question.

The situation in my home state of Arizona where Coconino County which has an area of 20,000 square miles and has one County seat where the superior court sits, but justice courts that are spread out over an area that it is larger than that of many of the States, where ordinarily they are simply are not lawyers in residence.

Now wouldn't be application of your rule virtually require the abolition of Justice Court's Jurisdiction in an area of that side?

Mr. Bruce S. Rogow: Not necessarily.

It might require that the penalty imposed by the justice court would have to be less than incarceration, but it would not necessarily do away with the jurisdiction of the justice court in anyway.

Because I am not aware of how many people actually face incarceration in those cases and if they are relatively few, they may try minor offenses which they do not actually carry the threat of incarceration.

If that is the case --

Justice Thurgood Marshall: (Inaudible) County in some of upstate, I mean, like in upstate New York where a group, where all the lawyers are either one or two lawyer practitioners and that if you get in, they got only these farmers, they came in to judge and said if we keep going this way, you go appointing indigent lawyers to defend indigent clients.

What -- I mean, the whole point is there is a problem in areas like that.

Mr. Bruce S. Rogow: Yes there is a problem, Your Honor.

There is no doubt this is not going to be something it will this to be taking overnight, implemented without any discomfort at all to the states, but recently in Mayer versus City of Chicago this Court is held that when a fundamental right is involved, the expense is not something to be considered in terms of guaranteeing a fundamental right.

We are not saying there will be no expense here.

We are not saying there will be no changes, there obviously will be.

We are saying these changes are no where as great as some people would have us believe.

One of the other argument that is raised in our position to any attempt to extend the right to counsel is the rules for the trial of minor offenses before a magistrate.

Our position on that is that those rules in Rule 3, allow trial in the District Court and Rule 44 of the Federal Rules of Criminal Procedure provides that counsel in a District Court should be appointed, even the trial of petty offenses.

Therefore, there is a right to counsel still in those cases.

Chief Justice Warren E. Burger: How many, in terms of comparative analysis, how many truly minor trivial crimes are covered by the Federal Court?

Mr. Bruce S. Rogow: I believe the Solicitor General's brief used the figure of 150,000 and 200,000, I am not sure exactly, but in his brief his submission is that the Federal System could incorporate the rule that we advocate without any great difficulty.

Chief Justice Warren E. Burger: For magistrates?

Mr. Bruce S. Rogow: Yes for the magistrates, I am sorry.

An Equal Protection argument exists also in this case and that is that what we have here is a classification made by the State of Florida denying counsel to some and guaranteeing counsel to others.

We submit that the equal protection clause would equally guarantee counsel in this case and that, that and the Due Process Clause of the Fourteenth Amendment would apply.

I would like to reserve five minutes for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Rogow.

Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: Mr. Chief Justice and may it pleas the Court.

Perhaps I am too unreconstructed.

What I plan to do here is to think of the legal problem in this case in terms of the Fifth and Fourteenth Amendment, rather in terms of the right to counsel provision in the Sixth Amendment.

This is a State case and if the Sixth Amendment is applicable, it is true of the Fourteenth Amendment.

As far as the Sixth Amendment alone is concerned, there are in some minds at least, some verbal or doctrinal difficulties.

By its language, the Sixth Amendment guarantee is only the right to have counsel and not the right to have counsel supplied.

I know that the contrary was decided in the Gideon case and that this was set to rest on the Sixth Amendment.

For some though this has a more understandable foundation in the Fourteenth Amendment.

Then there is the fact that the Sixth Amendment by it terms is applicable in all criminal prosecutions and the Court has decided in the Duncan and Baldwin that the right to a jury trial also provided by the Sixth Amendment is applicable where the penalty is more than six months.

On this basis, it is contended as it was decided below that the right to counsel provision can be applicable only where more than six months imprisonment is involved.

Of course they are authorities who are saying that the same words in a statute or constitution may have different meanings and different applications.

This involves that some intellectual strain, but as I have said it's easier for me to deal with the problem in terms of the Fourteenth Amendment.

After all it is a case of procedural due process which lies at the heart of the Fourteenth Amendment.

And two, we are more accustomed to think of due process as a developing idea then we are define such flexibility in some of the earlier amendments.

On this basis, I look at the Gideon case which with respect it seems to me to have a fairly sound due process foundation in considering the right to counsel.

I cannot find any basis, any logical ground to stand on for saying that the right to counsel exists for imprisonment of six months or more, but does not apply for imprisonment for less than six months.

I recognize that lines have to be drawn on the law like the age of majority and that my case is close to the line on each side will not be very different from each others.

However, with respect to imprisonment I find it hard to draw a line in any place.

Five months imprisonment seems to me to be substantial.

I do not find much help when the time is reduced to ten days or five days.

There seems to me to be a difference in kind between the imprisonment of any duration and merely monetary sanctions or other sanctions which maybe imposed by judicial decisions.

These other sanctions maybe a serious burden, but they do not keep involve depriving a person of his liberty and that is something fundamental in our society and thus I have found myself forced to the conclusion that there should be a due process right to counsel and that this right should be applicable, before any term of imprisonment can be imposed.

Chief Justice Warren E. Burger: And then on line drawing Mr. Solicitor General, that means one day or one hour is relative to six months and (Voice overlap)

Mr. Griswold: Any imprisonment at all is the only place where I can find a satisfactory place to draw the line, drawing a distinction between imprisonment and monetary penalties of one kind or another.

Obviously there are problems at the boarder line, as the case is mentioned by my associate here where a statute authorizes imprisonment but it is rarely imposed.

I should think that in such cases the prosecutor or judge should make the determination in advance or if something develops at the trial which makes imprisonment seem appropriate, and the defendant has not had counsel, whether he had waived it or not before that without a clear understanding that imprisonment was a likely consequence, there should at the defendant's request be a new trial or a counsel will be provided and very likely before a different judge.

If in answer to Chief Justice's question, he says well I stand on that trial, I take it that to be waiver of his right to counsel but he should have a right to have counsel at a new trial.

If he does not want it, it should be forced on him.

This conclusion that counsel should be made available for an indigent defendant before any term of imprisonment is imposed is essentially the conclusion which has been reached by two eminent bodies which have considered this problem not as judges, but as persons vitally interested in developing proper standards for the administration of criminal justice.

These are the American Bar Association and it is minimum standards for criminal justice and the President's Commission on Law Enforcement and Administration of Justice.

Both are cited on page 17 of our brief.

The Bar Association recommendation on this matter has in substance been approved at least three times by the House of Delegates of the Association which is a large and representative group of the profession.

Because of these reports and actions, I have more confidence in the conclusion to which I have felt myself compelled as an intellectual matter, and namely that counsel must be made available to an indigent before any sentence of imprisonment can be imposed.

I am also confirmed by the excellent opinion of Justice Jacobs of the Supreme Court of New Jersey for an unanimous court in Rodriguez against Rosenblatt decided last May.

At this point though another extremely difficult problem arises.

What are the practical consequences of such a conclusion?

What will be required in the way of manpower, can the legal personnel would be made available.

Justice Potter Stewart: Just before we move on Mr. Solicitor General, is Rodriguez against Rosenblatt (Voice Overlap)

Mr. Griswold: No I am sorry Mr. Justice, it is not cited in our brief.

It is 58 New Jersey, 281 and 277 Atlantic Second 216.

Justice Potter Stewart: Thank you.

Mr. Griswold: Although our information about the manpower situation is sketchy, what we have is encouraging.

As far as the Federal Courts are concerned, a counsel is now required in all cases unless it is waived.

That's Rule 44A of the Rules -- Federals Rules of Civil Procedure and I say the same is applicable with respect to trials in the magistrate's courts because any defendant there may elect to have a trial in the District Court where he can have counsel assigned to him if he chooses in order to save time and to get it over with which I think is often situation in these new cases to go ahead in the magistrate's court, he has had the right to go to the District Court and have counsel and I find it not too difficult.

Moreover it seems to me not unlikely that counsel can be provided in the magistrate's courts.

The latest amendment of the Criminal Justice Act provides for compensation for counsel in these cases because it's now been amended to say wherever it is required by the constitution and if this Court so decides, then it will be covered.

All cases involving any imprisonment have long been covered in the District of Columbia, where there are of course many petty offenses and this is not proved to be unbarred.

As far as the situations in the States is concerned there is more room for concern.

However, the problems will probably not be as serious in actuality as the statistics on the number of cases would indicate.

In the first place it appears that merely half of the States now cover all or nearly all of these cases and to that extent, to the extent that increases in services are required, there all figures need to be adjusted because it undoubtedly is true that it takes less time to try most misdemeanors than it does the more serious cases.

Moreover, it is likely that the counsel will be waived more often in cases of petty offenses.

And it seems to me that waivers might well be more readily accepted in cases of this sort and where the charge is a bit of serious felony.

If the defendant in response to inquiry from the Court says he does not want counsel, it should not be forced when the right to counsel and usefulness of counsel are somewhat attenuated as they are here.

We have considerable light on all of these questions in the two briefs of amicus curie which have been filed in this case on behalf of the Legal Age Society of New York which sets out actual experience in a situation where counsel are required in the cases of this sort in our most congested metropolitan area, and the National Legal Aid and Defenders Association and as has been said much the same information is contained in an article in the recent issue of the William and Mary Law Review.

New York has for sometime provided for representation in cases where imprisonment maybe opposed -- imposed and the New York Legal Aid Society shows that the load can be handled.

So maybe other brief in the Article summarize experience in other places which indicates that the load though substantial is not unmanageable.

On the basis of this information and experience, I find myself led to the conclusion that the chances are that the adoption by this Court of a rule that counsel must be furnished before any imprisonment maybe imposed would result in increasing the man hours required of the defense counsel by a 50 or 60%.

This is a serious matter that I do not think that it is insuperable.

I have tried to put together some figures but they are much too uncertain.

On the basis of those figures I estimate that it is perhaps as many as 3,000 additional lawyers would required.

At $10,000 a year that would be a cost of 30 million dollars.

If you add half of that for secretarial and other personnel, it might get up to as much as 50 Million dollars.

Whatever that financial load, this should be manageable when allocated to the 50 States.

Even though some of the larger States would have to carry a considerable part of the load.

That California and Illinois and New York now provide for counsel in these cases.

Thus a considerable part of the additional load is already undertaken.

Other States should now be guided to do likewise just as was the situation when the Gideon case itself was decided.

In this connection with respect to the availability of lawyers to carry the task, I am encouraged by the presently existing fact that there are now twice as many students in the nation's law schools as they were ten years ago.

That young lawyers are starting their practice in unprecedented numbers and that it is estimated that the number of lawyers in the country will double within the next 12 or 13 years.

Already concern is being expressed about the openings which will be available for these new lawyers.

It maybe that the recognition of the need and the availability of the means to answer are about to coincide.

Justice William O. Douglas: You have in your brief the information concerning the number of States -- I know (Inaudible) by the state laws --

Mr. Griswold: It is not in our brief Mr. Justice.

What information there is, is included in these two, in the petitioner's brief here and in the two briefs amicus which have been filed and as far as I know there is no other information.

Justice William O. Douglas: 8 or 9 States?

Mr. Griswold: How many States?

Justice William O. Douglas: 8 or 9, 8 or 9 States now have the rule that the --

Mr. Griswold: It is -- one of the brief says 30.

I said close to half, counsel for the petitioner said 10 I believe.

It really boils down to a question how you define certain borderline matters.

Frankly I was not trying to resolve all of those borderlines matters.

Traffic offenses, well they vary all the way from automobile man slaughter on the one hand to failing to stop it an intersection when there was no other car nearby or overtime parking.

The only formula I have been able to come up here with is before any imprisonment is in fact imposed.

Justice Potter Stewart: How many States which is Mr. General if you know or about how many now permit represent -- appearance in court on behalf of the indigents by law students or people who are not yet admitted to law?

Mr. Griswold: I do not how many Mr. Justice.

I know that there now a great many.

They used to be only one and I was just quite instrumental in helping to bring that about, but this is one of the one of the points that I wanted bring out.

Justice Potter Stewart: There are several States there now, (Voice Overlap)

Mr. Griswold: There are great many States.

There has been a movement in recent years in that direction.

I am concerned about the quality of the service that will be performed by practicing members of the bar.

It can be rather stultifying to be assigned to go to courtroom 14 and represent a 100 people this morning.

Even that might be better than no representation, but it seems to me that what we to do is setup the standard and then rely on local courts, bar association, legal aid agencies and so on, to try and find ways to see that the representation is appropriately provided and consistently to the efficiency of the courts.

This also was a matter of legitimate concern.

The introduction of counsel in the more cases will require more pre-trials time of prosecutors and more courtroom time and this will lead the bigger backlogs with present personnel.

Court reporters will be needed as well as counsel and that's one of our worst bottlenecks.

It seems equally clear that we need more courtroom personnel and the only way we would get it is by building up the pressure which will make it clear that such personnel must be provided.

Chief Justice Warren E. Burger: Well, I am not sure I follow your suggestions about the court reporters.

Do you link court reporter as an imperative in every case where there is a lawyer just automatically.

Mr. Griswold: This Court has more less intimated as much in the some cases.

It is rather difficult to carry out an appeal without a transcript and I would suspect as practical matter that it would be found the court reporters were necessary where counsel were provided.

Chief Justice Warren E. Burger: Would you agree that's probably a greater problem than the problem of counsel?

Mr. Griswold: No, but I think it to serious problem that not only this cases but in all criminal cases that we ought to find ways to improve perhaps by putting court reporters on salaries rather than having them paid by piece work because we now do.

Chief Justice Warren E. Burger: That is a Federal Court situation, but the States are not generally in that posture, are they?

Mr. Griswold: The States --

Chief Justice Warren E. Burger: By (Voice Overlap)

Mr. Griswold: Federal Courts are very much in that --

Chief Justice Warren E. Burger: No, we are talking here for the large part (Voice Overlap) problems exactly --

Mr. Griswold: I suspect the State Courts have more trouble than the Federal Courts do on this.

I am not really familiar with Nationwide with the State Court situation with the respect to the reporters.

Justice Byron R. White: But what the great number of the cases you are talking about exactly courts to take the court's (Inaudible) what the appeal or what's essentially a trial de novo many, many (Inaudible)?

Mr. Griswold: Whatever it was Mr. Justice, it would of course there would be no need for a reporter.

I have a final word.

If this step is taken I have the feeling that it should be expressly made none retroactive.

Presumably that's not very important, since relatively short sentences are involved.

However, I would go even further and respectfully suggest that the court's decision should expressly provide that it would not become fully effective for some period in the future, say for year or until January 1, 1974.

This will give the States an opportunity to adjust to the new requirement.

Without something like this if for example even without retroactivity this Court's decision should become fully applicable on the day it is announced, there could be a massive pile up in the State Courts which do not now meet the standard.

This would involve delays and frustrations which would not be a real contribution to the administration of Justice.

I recognize that such a provision, may I have a three minutes more Mr. Chief Justice, thank you.

I recognize that such a provision with the unusual, but it would not be unlike the powers exercised by courts of equity in abetting the nuisance for example which allow time to the parties to take the step which are necessary to effectuate the court's decision.

Justice William H. Rehnquist: Have we ever done that in the constitutional decision, made it applicable for a year or --

Mr. Griswold: I do know Mr. Justice.

I think that this is a -- this is getting out to a place where things are very attenuated and I find it easier to accept that recognition of not fully complying with what the court now regards the constitutional requirement to be than it is to say we must comply and everything is in chaos.

Justice Potter Stewart: Before you are asked to do something like that among various alternative requests in the case of Brown against Board of Education, the --

Mr. Griswold: Yes.

Justice Potter Stewart: -- effectuation chaos (Voice Overlap) isn't that true?

Mr. Griswold: Yes certainly that has been the --

Justice Potter Stewart: I wasn't clear, but I read the opinion and it indicated to me the court was asked alternatively to do a variety of things, one of which was to give a time, but give a time in the future (Voice Overlap).

Justice Thurgood Marshall: It should not (Inaudible) here.

Mr. Griswold: No Mr. Justice I am (Voice Overlap) simply speaking your (Inaudible).

Justice Potter Stewart: Albeit speed, but it was asked to do something else among other things and that was to give a certain time when it should be effective, is that not correct?

Mr. Griswold: Yes sir, Mr. Justice.

Chief Justice Warren E. Burger: Are you sub silentio suggesting that this Court has some supervisory power over State Courts?

Mr. Griswold: With respect to the constitution that does not, does not shock me.

With respect the constitutional requirements, I would have put it that way myself.

I would simply have said that in the process of effectuating a change it is not inappropriate to allow the time which is in fact required to carry out the change.

Justice Byron R. White: What about the (Inaudible) in this case?

Mr. Griswold: In this case, I would grant relief and hold that this petitioner is entitled to a counsel at a new trial.

Justice Potter Stewart: And -- you said to court from the application of the rule of this case.

Mr. Griswold: No I would not in his case.

I would not -- I would try and try to hold it down as little as possible, but I don't see how you can say if this Court decides this case on May 10, that on May 11 there shall be counsel in every court or else the trial shall all be invalid, even for short terms in the work hours.

Many of these petty offenses would really be quite petty.

It seems to me that it would be very helpful if this Court's decision could make a plain that under a appropriate circumstances, the right to counsel does not require the presence of a fully qualified member of the bar.

For example, many of these cases might be handled very effectively by law students under proper supervision and it would be helpful if this court's decision could recognize that possibility.

I have been familiar with the activities of law students in court and I would say from experience that they provide excellent service.

Usually they have much more time available than practicing lawyers and they work on their cases with great energy and enthusiasm and it might also be that other persons could serve as counsel in certain types of cases, involving relatively small sentences.

These might include clergymen, social workers, probation officers and other persons of that type and finally I have great concern about the more rural areas in the country, Wyoming, Idaho or North Dakota, or Upstate New York.

There may well be cases of family assaults where a short jail sentence is appropriate and where there is no lawyer within a 100 miles.

In such cases it seems to me that real need might be met by the parents on behalf of the defendant of a minister or parent or a probation officer or some other local citizens.

Often what is needed in cases of this sort is not legal expertise, but simply an assurance that there is not over reaching of some sort.

I would hope that this court's decision might leave some flexibility so that cases in remote areas involving relatively minor penalties might be handled with some sort of appropriate representation other than that of fully qualified legal counsel.

This seems to me to be adequately consistent with the due process concept in cases where the requirement of counsel is clearly stretched close to its limit.

On this basis I submit that the decision below should be reversed within the appropriately flexible opinion of this Court.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Georgieff if you need some additional time we will indulge that, but you have been here before on this subject and perhaps you would not need it.

Argument of George R. Georgieff

Mr. George R. Georgieff: I do think I'll need it.

If I cannot make it in the time allotted I guess I would better give it up Mr. Chief Justice.

I would like us to remember what happen here before.

The court had cast upon it the question of whether you should consider this matter in light of the Sixth Amendment.

Now they have abandoned that and we have come to the Fourteenth Amendment.

Chief Justice Warren E. Burger: Well I do not know that counsel for the party has abandoned it, the (Voice Overlap) authority has done so.

Mr. George R. Georgieff: Let me assume for the moment that if I can get to that, and demonstrate to you why the Sixth Amendment doesn't cover the situation will be left with the Fourteenth and then hopefully I can dissect it as the Solicitor's Office has done, the Fourteenth Amendment in setting out the reasons why you should adopt it as the predicate for the action sought here.

Now as to the Sixth Amendment, Mr. Rogow has told you that the reason that you needn't separate the two is because after all you have said that a jury trial is really not quite as necessary to a fair trial as is a lawyer and yet we find that you can waive both rights and we hear from the Solicitor’s Office that what you really ought to have to save this people if you find that by (Inaudible) the horribles you are going to have horrendous situation is to get a non lawyers but para legals or preachers or social workers or somebody like that.

Now you either going to give them lawyers or you are not going to give them lawyers.

Now I understand that Deans and formers Deans are very proud of law students and I understand that sometimes judges are, working lawyers for the States know that the greatest number of complaints about inefficient counsel come in those areas.

Our complaints in not regard and we handle them all in our office for the State of Florida have increased 1400%.

Since there has been that kind of supervisory service rendered by supervised law students.

Now what an appellate court does with them is meaningless.

I am telling you about the complaints that come.

Now they come with the lawyers Just as well as they do without.

Justice Thurgood Marshall: What are you going compare that with, no lawyer?

Mr. George R. Georgieff: In light of the --

Justice Thurgood Marshall: Or competent lawyer?

Mr. George R. Georgieff: Well, you have to compare it in terms of the competent lawyer I am sure.

What are the basis do we have sir?

Justice Thurgood Marshall: Well, now in these cases we are talking about, they have no lawyers, right?

Mr. George R. Georgieff: Yes sir.

Justice Thurgood Marshall: So wouldn't a law school student be better than no lawyer?

Mr. George R. Georgieff: Or to the man who winds in jail as as the result of bad service, I do not guess it makes any different what you get.

Justice Thurgood Marshall: Well I guess we have seen cases where the 16 greatest lawyers that ever lived wouldn't save them.[Laughter]

Mr. George R. Georgieff: No, I am satisfied.

I do not need split here.

What I am saying is if we make it turn on the awesome spectrum if having to go to jail for even one day, it is meaningless to tell me that an isolated area where actually no real harm is going to be done to the individual because he batted somebody around what you really need to give this somebody less than a lawyer because after all he is only going to get three to four days, that is meaningless to him.

If you are asked to believe the other part, now if we are going to believe one part then we ought to take it all and none at all.

If it's so awesome a prospect that it did not keep you from deciding that in your practice before a magistrates you ought to break it off at six months then I submit you ought to give him counsel or tried and through in the past of our somewhere and allowed and able to practice.

Then if they complain, we will have to measure them as against all other lawyers in the general community.

But if we go to the Fourteenth, how do we carve about property and what do we do with it.

When foreclose against somebody who now loses the house, his kids have got nowhere to stay, nowhere to go, we will give him counsel under due process.

On the fines, what do we do about the fines, what we will do with Tate.

You cannot fine an indigent and then if he does not pay it stick him in jail for not pay it.

Justice Thurgood Marshall: I would submit that we might get to those when we get there.

Mr. George R. Georgieff: Well --

Justice Thurgood Marshall: We did not say it you know.

Mr. George R. Georgieff: No I understand that, but to say that we say that the reason you ought to give them lawyers is because imprisonment is the prospect, relies what you said in Tate, that is to say you cannot fine a man who is indigent and then because he cannot pay it, stick him in jail as penalty therefore.

Now that is here and it's already been ruled on.

Now, if you cannot put him in jail for non payment of the fine and if you cannot fine him because you know he cannot pay it, then truly you have got a super class.

Justice Thurgood Marshall: That is three months that we are talking about, aren't we?

Mr. George R. Georgieff: Six months in his case.

Justice Thurgood Marshall: Six months?

Mr. George R. Georgieff: Yes sir.

Justice Thurgood Marshall: That is what we are talking about?

Mr. George R. Georgieff: Yes sir.

Justice Thurgood Marshall: We are not talking about his property or anything, we're talking about six months in jail.

Mr. George R. Georgieff: No but the argument, no I understand, but the argument advanced here today by both parties, by counsel for the party and by amicus is that you break it at a fine.

The only time the problem ever comes up is when you have the imprisonment as the prospect.

Justice Thurgood Marshall: Would you -- six months and one day, is it?

Mr. George R. Georgieff: That is right.

Justice Thurgood Marshall: It's an arbitrary line, isn't it?

Mr. George R. Georgieff: All lines are arbitrary.

Somebody drop (Voice Overlap)

Justice Thurgood Marshall: Is there anything in the constitution in you mind that limits the word liberty, it says liberty?

Mr. George R. Georgieff: No not in my mind.

Justice Thurgood Marshall: Alright, well that is what I thought?

Mr. George R. Georgieff: No, I mean I do not think you draw a line about liberty, liberty if it's curtailed, it's curtailed, no quarrel about that.

Justice Potter Stewart: The point is that it also says property.

Mr. George R. Georgieff: That is right.

Justice Potter Stewart: You can differentiate between the two.

Mr. George R. Georgieff: Just it says life and liberty and property.

Now, if you are going to give him counsel in one, you got to give it to him in all unless you can take a sharpest scalp they seem to use and carve it out and say why you get it one and not in the other.

Now, I submit that confinement for one day for a man who commits a running violation in a vehicle is far less meaningful in terms of harm to him or far less meaningful than is the loss of one's house on a foreclosure when he cannot gather up money together so have a lawyer around and get him to come in and do something about if he can.

That is an awesome prospect to him, but they say well we do not care about money fines and we do not care about this.

All we care about is slamming a door on him for one day or perhaps for an hour for all we know.

So I do not how they managed to cut it out.

As far as I am concerned --

Justice Byron R. White: Well no one suggests you can waive?

Mr. George R. Georgieff: I beg your pardon sir.

Justice Byron R. White: No one suggests you can waive a lawyer?

Mr. George R. Georgieff: Oh no I would hope you can, certainly.

You can waive jury, you can waive everything, you waive speedy trial.

Now --

Justice Thurgood Marshall: You cannot waive a prosecutor, okay?

Mr. George R. Georgieff: I beg your pardon.

Justice Thurgood Marshall: You cannot waive a prosecutor?[Laughter]

Mr. George R. Georgieff: Dade County was mentioned when the figure of 400,000 was used.

The last time we argued this case I told you that in terms of what it would mean to Florida, we have dropped down to well 60% below what would be the rule if we adopted as the basis for your future decision, what you did in adopting the rules for your practice before magistrates.

We are down to 60 days on our split misdemeanors if you recall.

Now on the March 14, in Florida along with the number of people who think they are going to find out who is going to be the Presidential nominee for either the Democrats or Republican, we wrote on Article 5 which is re-vamping of the court structure in the State of Florida.

One of the provisions that will be voted on is the total abolition of all Municipal courts in the State.

You do not have long to wait once you get to the Fourteenth, one day beyond that the canvassing board will certify the results we won't even have any Municipal Courts.

So remembering what it was down to 60 days in Florida by our legislature we are down even below what was done in Willy in the Jacksonville District Court.

We are certainly down below what was done in McDonald and Harvey and we are certainly down below what would be the basis if we use your procedure before magistrates.

We get away with Municipal Courts and we are down to what?

We are down to County Courts which will be the second strata of what we get if Article 5 is adopted, now I am sure that it will be, but who knows what the voters will do.

But let's assume for the moment that that's so.

What do we do now about speedy trials.

400,000 in Dade County, that's only in Metro, that does not take into a count the 23 Cities which if this Article does not pass will still function.

So we are talking about better than 600,000, but in the rural communities, we do not have to go to North Dakota.

Brisco is the County seat of liberty County, Florida, there are 2800 people in the whole County.

There has not been a lawyer there for over 30 years.

Now, I'll admit that they have a Circuit Court that sits occasionally when they have litigation, but as to those individuals who violate the ordinances of the City there is no one to whom they can go and there is no one in the court to whom they can turn for an appointment because there is nobody around.

There simply aren't any lawyers and there is no reason from them to be there.

What do we do for them?

Do we say well now you are going to have to wait until the Circuit Court gets here, so that he can appoint somebody to represent you and represent you where in the Municipal Court, in the County Court, how long will it be before you get to hearing.

It got so bad in Liberty County that Governor Collins many years ago had to order them to hold the term of Court because they solved their business without even going to court.

They decided who would do what, and nobody seem any worse for it.

I do not have the case that is a good notion.

All I am telling you that these are things that do occur.

After the Dickey decision, the Florida Supreme Court decided to adopt a rule regarding speedy trials which they did.

They broke it into the 180 days cold or on demand 60 days.

I got so bad in Dade County which is the source of the 400,000 figure Mr. Rogow gave you, that the State Attorney's Office had to make a special plea to the Florida Supreme Court to extend the deadline on it because otherwise 690 man would get a walk out because they could not meet the deadline which they did by the way.

So piecemeal they had to make an adjustment.

How much time do you give a man for a speedy trial who faces the prospect of three days, five days, ten days, I do not know.

You certainly cannot make it much longer than the time he would spend in jail if he ever got there, where it'd be meaningless to him, and if you do mean to make a speedy situation where do you get the help.

The court reporters -- you give the man a lawyer free and I guarantee you that he'll not only take it, but he'll demand an appeal if he losses and a lawyer to handle an appeal or a trial de novo, no matter which, you do not have to have a court report.

Justice William H. Rehnquist: Aren't most misdemeanors automatically bailable in Florida?

Mr. George R. Georgieff: Oh!

Certainly.

Justice William H. Rehnquist: So the pressure of this speedy trial from the defendant and it will presumably a little bit less than if they were being held in jail, isn't it?

Mr. George R. Georgieff: Well, Mr. Justice Rehnquist all felonies with the exception of capital and just recently those punishable by life imprisonment have always been bailable as a matter of right, but that did not stop the speedy trial demand.

Justice William H. Rehnquist: But you do -- isn't there a greater propensity to or a higher percentage of prisoners awaiting felony trials being held for one of bail or other decision of the court to be person should not in fact be bailed, that it is a case of misdemeanor?

Mr. George R. Georgieff: That is possibly so but it is only because of the amount of the bail.

In my heavenly days we are from the a severe state of in terms of bail.

You wind up with anything over $7500 bail then it is a miracle.

It just does not happen because they are not a attuned to high bail in Florida.

Now I think -- there are host of problems, no one of rich can be answered.

Now, the Solicitor comes before you and talks in terms of a 150,000 cases.

That maybe and it maybe that for the Federal System it would be virtually a piece of cake, but in terms of just those half a handful of States, you have been told the figure is 12 that leaves 38 of 12 is accurate but I think Mr. Rogow will have to tell you that of those 12 it is tough, well, if there is even one that says if an individual faces the possible prospect of one day's confinement we will provide him free counsel, if he is indigent, I'll bet he'll tell you no.

Unknown Speaker: How about in Minnesota?

Mr. George R. Georgieff: I do not think even in Minnesota.

Now it is just a guess I would not want to be hung by it but it occurs to me that --

Unknown Speaker: Well it would without the (Inaudible)[Laughter]

Mr. George R. Georgieff: If we are talking about 38 States, let assume the 12 is the correct figure, if we are talking to about 38 States I submit they ought to have a better spokesman than me concerning my history before this court.

Now and they want to rely on the Solicitor but they ought to have a better spokesman than me and they ought to be give an opportunity to come to you and tell you what it is they have in terms of a peculiar problem and many in prison that made about statistics that would support this better than other.

And it does seem to me that it is not an easy question no matter which course you follow.

But certainly if it did not disturb you in grafting the procedure to be followed before magistrates to break the line at six months on the petty offense and if the Brenson decision relying on that, Another position is accurate.

If a jury break down is accurate at this then it occurs to me that if our own Fifth Circuit and if our own Federal District Court by the way breaks it in 90 days and if we have broke in at 60 then we will probably reduce it even further then it seems to me that we are all talking about something that really is far less in terms of a horrible prospect then we made it out to be.

Now talking about the ABA; it is a very compelling organization and much of what they have done has proved to be some law in the future.

Mr. Chief Justice you may not remember out of Jackson Hole, Wyoming, when we were out there with the Ten Circuit sometime ago shortly after you took your chair, but the minimum standards committee serving Florida has just submitted it is a matter to the Florida bar for inclusion in the journal and it will be presented to the Florida Supreme Court.

No where does it include anything about providing counsel for indigents at this level, no where.

I served on that committee as its vice-chairman.

Now it maybe that somebody will initiate something like that in Florida and remember I am speaking for Florida, not for any of the other 38 or magically the 12 that make up the total of 50, but I will tell you that if it is a recommendation, it still has not reached Florida as well.

Now somebody else may put it out in that fashion, but it seems to me that if we are going to provide people with lawyers, it better be lawyers and not ministers or anything like that.

If we are going to provide lawyers which we are assured will be here in the next 12 or 13 years, may would go to eight 12 or 13 years to find out not only if they are there, but if the problem that is posed is really the problem that is urged and if there is such problem, whether it can be solve in a fashion that we can even accommodate, we do not have the physical room for this people.

We are told that we have created the defenders system right after Gideon, that is true.

We had seven days after your decisions State wide.

We were the first ones to respond in that fashion and fittingly since Gideon came from Florida, you are told now that the defenders can pick up ten times as many misdemeanor prosecutions and handle them with relative ease.

Now is that because those cases are ten times easier or because they will give them only one tenth of the time necessary.

If they are all as horrible as they say, nobody sitting in this room today ought to be able to convince you that they only work one tenth of a time, simply because the sentence involved maybe minimum.

To the individual going to jail, as I said before in response to your question, I cannot break the line at liberty and it is meaningful to him if he decides that he has been done in by law enforcement, if somebody been try to do him in and he wants representation and if he is innocent by golly anytime he spends in jail is terrible to him.

And to somebody who can say well now look, the felony is important you know of being, either they caught him coming out of the window, this is going to take a day and a half, I'll have to pick to jury.

Truth to the matter is we assured there aren't going to be any jury, do not you believe that.

We wind up without any Municipal Courts and they are tried in a County Court, you are going to see jury trials and you are going to see them in alarming frequency.

There is no question about it.

As a matter of fact right now in Florida on traffic violations in Municipal Courts you have an option at which you can request a trial in a County Court with a jury.

Now that is an exercise too often because it involves money and lawyers but the moment they find that they can have they are going to exercise it just as rapidly and quickly as they can.

Justice Thurgood Marshall: Do you want me to convince me that the average person charged with a traffic offense wants the jury of his fellow drivers to trial?

Mr. George R. Georgieff: If they can have it oh sure.

Justice Thurgood Marshall: You sure?

Mr. George R. Georgieff: Oh sure.

I am certain of it.[Laughter]

Justice Potter Stewart: Well so far as the Federal Constitution is concerned they are not entitled to a jury trial unless the punishment is gong to be more than six months imprisonment.

Mr. George R. Georgieff: Well, if we arrived that the jury trial at six months or greater that should be the same predicate for the counsel (Voice Overlap)

Justice Potter Stewart: Well that is something else again?

Mr. George R. Georgieff: Yes.

Justice Potter Stewart: This parade of horrible of yours maybe I do not know what your law is in Florida about Jury Trials but so far as the Federal Constitution (Voice Overlap)

Mr. George R. Georgieff: No, no I don't -- no, Your Honor I don't mean to suggest that it will ultimately find its way to you and you are going to have to slap us down, because we do not give them that is not what I mean.

Justice Potter Stewart: We have already done that --

Mr. George R. Georgieff: Yes.

Justice Potter Stewart: -- we have already held that there is no constitutional right --

Mr. George R. Georgieff: That is correct.

Justice Potter Stewart: -- to a jury trial unless the imprisonment is going to be longer than six months.

Mr. George R. Georgieff: That is correct.

All I am saying is that we will be confronted with the problem and since I say I do only speak for Florida then it recurs to us.

For more then several reasons, not only those that I have advanced here.

But it does seem to me that there is been less of the reason advanced here on this occasion, more people talking, saying more things, but not as much reason as was advanced the first time and accordingly whatever you do as to Mr. Argensinger certainly if he is re-tried he will be given counsel, but that is under own statute right now and under our own Florida Supreme Rule in this very case.

So that if he were retried he had his lawyer.

It isn't the question what happens to Argensinger, it is a question what happens to all the others that are sure to follow and I might add he could have had the new trial because there was an admitted Boykin violation in the processing of his own case which was stipulated to by the State in the Florida Supreme Court and we said so in our brief.

So it isn't a problem of whether he gets his review, that is not really what they have, so much it is the overall quest.

Thank you.

Chief Justice Warren E. Burger: Are you suggesting we decide the case on some of the grounds that --

Mr. George R. Georgieff: Of course, you mean on the Boykin violation no question about that, I would be delighted. I would like to somebody else have a chance to extend Gideon doctrine rather than Florida.

Chief Justice Warren E. Burger: I do not think we spent much in the original argument on that subject --

Mr. George R. Georgieff: No, not at all.

Chief Justice Warren E. Burger: (Voice Overlap)

Mr. George R. Georgieff: They what?

Chief Justice Warren E. Burger: Not spend anytime.

Mr. George R. Georgieff: No.

Justice William O. Douglas: When you say that (Inaudible) the problems is not the Supreme Court in Florida because (Inaudible) to the statute.[Laughter]

Mr. George R. Georgieff: I do not quite that mean.

Chief Justice Warren E. Burger: That means you get counsel before you go to that.

Mr. George R. Georgieff: I would rather not avoid it and yet I do not really know how to answer it --

Justice William O. Douglas: That was (Inaudible) that was supposed to be (Inaudible)

Mr. George R. Georgieff: Well no I quite understand but would you believe that the day after the opinion came out why they descended on our office and wanted to know what it was we could do to draft on that would be found acceptable and so far I told them I have to go to Washington and I could not spend anytime on it I hope somebody else could but hopefully --Thank you.

Chief Justice Warren E. Burger: You have four minutes left Mr. Rogow.

Rebuttal of Bruce S. Rogow

Mr. Bruce S. Rogow: Thank you Mr. Chief Justice.

There really is not much disagreement between my brother Mr. Georgieff and myself.

As he said in his argument there is no real horrible prospect here.

He mentioned several matters that he thought might cause problems.

In fact, in his brief on Page 17 the Attorney General of the State of Florida is suggesting a Betts versus Brady rule they are not the same in anyway, that is should be no right to counsel in these misdemeanor offenses.

They have suggested Betts versus Brady on page 17 and we submit that Betts versus Brady was rejected in Gideon versus Wainright.

One problem that does concern me in this case and that is in seeking to assure that a decision be reached which will limit the future litigation in terms of on a case by case basis trying to decide whether there was a violation or whether there wasn't.

I think that the waiver of counsel must be set forth clearly in any decision this Court reaches, set forth in such a way so that it is clear that the trial court will advise the defendant not just it has a right to counsel, right to appoint a counsel but advise the defendant that trial judge has concluded that there is a real actual threat of incarceration and only in that kind of situation could defend and make a knowing and intelligent waiver on the Johnson versus Zerbst as of his right to counsel.

Justice Potter Stewart: I suppose equal protection would require of the judge inform a non indigent defendant the same way, would he not?

Mr. Bruce S. Rogow: Yes sir exactly.

It would be reverse discrimination I think if he did not.

I think it would have to be clear.

Our position is if the Supreme Court of Florida should be reversed the case should be reminded Argersinger and all of the persons who face actual threat of Incarceration should be advised and provided counsel unless they knowingly and intelligently waive that right, waive it knowingly and intelligently waived that right.

Chief Justice Warren E. Burger: Thank you Mr. Rogow, thank you Mr. Solicitor General, thank you Mr. Georgieff.

The case is submitted.