The Right to Counsel in American Courts

By William M. Beaney | Go to book overview

CHAPTER VI
RIGHT TO COUNSEL IN PRACTICE

THE large number of appellate decisions concerning counsel reviewed in the previous chapters does not fully reveal the magnitude of the actual problem of furnishing counsel for indigents. It seems fair to conclude that at least as many claims of denial of counsel are never appealed to higher courts as are, and that an even greater number of potential claims are never pressed in any court. The same indigence which resulted in the initial loss of the right to counsel continues to act as a restraint on possible corrective action. Nevertheless, it is evident that the intensity of the controversy in the higher courts concerning the scope of the right is having, and will continue to have, substantial influence on the actions of trial courts. For whatever trial judges or disgruntled laymen may think of the wisdom of certain Supreme Court decisions, the doctrines set forth by that Court are the law, and will be followed to the fullest extent possible. It has been the lack of easily applied rules which has made the task of the trial courts more difficult.1

Obviously, with present incomplete data, no one can trace with precision the defects and accomplishments of American trial courts as they attempt to conform with the legal rules concerning counsel announced by the highest Court. The discussion to follow is hardly more than a sketch of selected important phases of the practical problem, such as the demand for improvement, the ascertainment of the need for counsel in individual cases and the administration of the right to it, the

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1
This is not to say that all trial courts have been aware of the problem. Unless his decision is reversed, a typical trial judge is inclined to proceed with business as usual. The lower bench is not filled with constitutional scholars, and, particularly in state lower courts, there is a tendency to dismiss the counsel problem as "theoretical." It is only when a rule or a mandate from the highest state court is directed at the lower courts that they awaken.

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