1. The guarantee by the Fourteenth Amendment of assistance of
counsel in a criminal case is not satisfied by a formal appointment
of counsel to defend the accused, but includes an opportunity for
consultation between them and for preparation of the defense. P.
308 U. S.
446.
2. Upon review of a decision of a state court, the question
whether an accused has been denied the federal constitutional right
to the assistance of counsel is to be determined by this Court upon
an independent examination of the record. P.
308 U. S.
447.
3. Upon the record in this case,
held that denial by
the trial court of a motion for a continuance, made by appointed
counsel to obtain
Page 308 U. S. 445
more time to prepare the defense did not, under the
circumstances disclosed, deprive the accused of his constitutional
right to the assistance of counsel. P.
308 U. S.
450.
237 Ala. 616, 188 So. 391, affirmed.
Certiorari,
post, p. 540, to review the affirmance of a
conviction of murder.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was convicted of murder in the Circuit Court of Bibb
County, Alabama; he was sentenced to death, and the State Supreme
Court affirmed. [
Footnote 1]
The sole question presented is whether, in violation of the
Fourteenth Amendment, "petitioner was denied the right of counsel,
with the accustomed incidents of consultation and opportunity of
preparation for trial," because, after competent counsel were duly
appointed, their motion for continuance was denied. Vigilant
concern for the maintenance of the constitutional right of an
accused to assistance of counsel led us to grant certiorari.
[
Footnote 2]
Had petitioner been denied any representation of counsel at all,
such a clear violation of the Fourteenth Amendment's guarantee of
assistance of counsel would have required reversal of his
conviction. [
Footnote 3] But
counsel were duly appointed for petitioner by the trial court
as
Page 308 U. S. 446
required both by Alabama law [
Footnote 4] and the Fourteenth Amendment.
Since the Constitution nowhere specifies any period which must
intervene between the required appointment of counsel and trial,
the fact, standing alone, that a continuance has been denied does
not constitute a denial of the constitutional right to assistance
of counsel. In the course of trial, after due appointment of
competent counsel, many procedural questions necessarily arise
which must be decided by the trial judge in the light of facts then
presented and conditions then existing. Disposition of a request
for continuance is of this nature, and is made in the discretion of
the trial judge, the exercise of which will ordinarily not be
reviewed. [
Footnote 5]
But the denial of opportunity for appointed counsel to confer,
to consult with the accused, and to prepare his defense could
convert the appointment of counsel into a sham, and nothing more
than a formal compliance with the Constitution's requirement that
an accused be given the assistance of counsel. [
Footnote 6] The Constitution's guarantee of
assistance of counsel cannot be satisfied by mere formal
appointment.
In determining whether petitioner has been denied his
constitutional right to assistance of counsel, we must remember
that the Fourteenth Amendment does not limit the power of the
States to try and deal with crimes committed within their borders,
[
Footnote 7] and was not
intended to bring to the test of a decision of this Court every
ruling
Page 308 U. S. 447
made in the course of a State trial. [
Footnote 8] Consistently with the preservation of
constitutional balance between State and Federal sovereignty, this
Court must respect, and is reluctant to interfere with, the States'
determination of local social policy. [
Footnote 9] But, where denial of the constitutional right
to assistance of counsel is asserted, its peculiar sacredness
[
Footnote 10] demands that
we scrupulously review the record. [
Footnote 11]
The record shows --
Petitioner was convicted on an indictment filed in the Bibb
County Circuit Court for murder alleged to have occurred in 1932.
He was found and arrested in Pittsburgh, Pennsylvania, shortly
before March 21, 1938. On that date, Monday, he was arraigned at a
regular term of the Court; two practicing attorneys of the local
bar were appointed to defend him; pleas of not guilty and not
guilty by reason of insanity were entered, and the presiding judge
set his trial for Wednesday, March 23. The case was not reached
Wednesday, but was called Thursday, the 24th, at which time his
attorneys filed a motion for continuance on the ground that they
had not had sufficient time and opportunity since their appointment
to investigate and prepare his defense. Affidavits of both
attorneys accompanied the motion.
One attorney's affidavit alleged that he had not had time to
investigate and prepare the defense because he had been actually
engaged in another trial from the time of his appointment at 2
P.M., Monday, until 9 P.M.
Page 308 U. S. 448
that evening; his presence had been required in the courtroom on
Tuesday, March 22, due to employment in other cases set but not
actually tried; he had been detained in court Wednesday, March 23,
waiting for petitioner's case to be called; but, after his
appointment, he had talked with petitioner, and "had serious doubts
as to his sanity."
The affidavit by the other attorney stated that he too had not
had proper time and opportunity to investigate petitioner's case
because of his employment in other pending cases, some of which
were not disposed of until Tuesday at 4:30 P.M.
No ruling on the motion for continuance appears in the record,
but, on Thursday, the 24th, the trial proceeded before a jury.
The foster parents of the person whose murder was charged and
another witness testified that, on the day of the killing, deceased
petitioner's wife, from whom he was then separated, had started to
a nearby neighbor's house to get a washtub, when petitioner
approached her with a pistol in his right hand; words ensued; she
turned and ran, and he shot her twice in the back; she fell, and he
shot her three more times. Petitioner denied that these witnesses
were at the time in a position to see what occurred. Admitting he
had come some three miles from his home to see his wife, he
insisted that he had no pistol, but that, when he spoke to her, she
had a bucket of water and something else; they quarrelled; she then
drew a pistol from under her sweater, and he "got to tussling with
her over the pistol, trying to take it away from her;" "shot her,
behind the shoulder, and through the back, tussling with her," and
then ran away. There is no suggestion in the record that there were
any witnesses to the killing other than those who testified. The
plea of insanity apparently was withdrawn. [
Footnote 12]
Page 308 U. S. 449
The jury returned a verdict of guilty with the death penalty. On
the same day, the 24th, petitioner's counsel moved for new trial,
setting up error in the failure to grant the requested continuance.
This motion for new trial was continued from time to time until
June 30. In the interim, a third attorney had been employed by
petitioner's sister, and, on June 30, petitioner's three lawyers
filed an amendment to the motion for new trial, specifically
setting out that the denial of a continuance had deprived
petitioner of the equal protection of the laws and due process of
law guaranteed by the Fourteenth Amendment, by denying him "the
right of counsel, with the accustomed incidents of consultation and
opportunity of preparation for trial."
When the motion for new trial was heard, the only witnesses were
petitioner's three attorneys. The third attorney, employed by
petitioner's sister, testified only that he had been employed after
the trial and verdict. The two attorneys who had represented
petitioner at the trial substantially repeated what they had set
out in their original affidavits. In some detail, they testified
that: they had conferred with petitioner after their appointment on
Monday, March 21, but he gave them no helpful information available
as a defense or names of any witnesses; between their appointment
and the trial, they made inquiries of people who lived in the
community in which the petitioner had lived prior to the crime with
which he was charged and in which the killing occurred, and none of
those questioned, including a brother of petitioner, could offer
information or assistance helpful to the defense; they (the
attorneys) had not, prior to the trial, conferred with local
doctors, of whom there were four, as to petitioner's mental
condition, had neither summoned any medical experts or other
witnesses nor asked for compulsory process guaranteed an accused by
the Alabama Constitution, Art. 1, § 6. And, in response to
inquiries
Page 308 U. S. 450
made by the trial judge, they stated that they had not made any
request for leave of absence from the court to make further inquiry
or investigation.
The motion for new trial was overruled.
Upon appeal, the Alabama Supreme Court gave full consideration
to the motion for continuance, although no ruling upon it was
contained in the record, and concluded that the trial court had not
abused its discretion in failing to continue the case. [
Footnote 13]
Under the particular circumstances appearing in this record, we
do not think petitioner has been denied the benefit of assistance
of counsel guaranteed to him by the Fourteenth Amendment. His
appointed counsel, as the Supreme Court of Alabama recognized, have
performed their "full duty intelligently and well." Not only did
they present petitioner's defense in the trial court, but, in
conjunction with counsel later employed, they carried an appeal to
the State Supreme Court, and then brought the matter here for our
review. Their appointment and the representation rendered under it
were not mere formalities, but petitioner's counsel have -- as was
their solemn duty -- contested every step of the way leading to
final disposition of the case. Petitioner has thus been afforded
the assistance of zealous and earnest counsel from arraignment to
final argument in this Court.
The offense for which petitioner was convicted occurred in a
county largely rural. The county seat, where court was held, has a
population of less than a thousand. [
Footnote 14] Indictments in the Bibb County Circuit
Court, as in most rural counties throughout the Nation, are most
frequently returned and trials had during fixed terms or sessions
of
Page 308 U. S. 451
court. [
Footnote 15] And
these rural "Court Weeks" traditionally bring grand and petit
jurors, witnesses, interested persons
Page 308 U. S. 452
and spectators from every part of the county into the county
seat for court. [
Footnote
16] Unlike metropolitan centers, people in these rural counties
know each other, and information concerning witnesses and events is
more widespread and more generally known than in large cities.
Because this was so, petitioner's attorneys were able to make the
inquiries during Court Week at the county seat, to which they
testified, and that they apparently withdrew the plea of insanity
after this inquiry is significant. That the examination and
preparation of the case, in the time permitted by the trial judge,
had been adequate for counsel to exhaust its every angle is
illuminated by the absence of any indication, on the motion and
hearing for new trial, that they could have done more had
additional time been granted.
Page 308 U. S. 453
Under the circumstances of this case, we cannot say that the
trial judge, who concluded a fairly conducted trial by carefully
safeguarding petitioner's rights in a clear and fair charge,
deprived petitioner of his constitutional right to assistance of
counsel. The Supreme Court of Alabama having found that petitioner
was afforded that right, its judgment is
Affirmed.
[
Footnote 1]
237 Ala. 616, 188 So. 391.
[
Footnote 2]
Post, p. 540.
[
Footnote 3]
Powell v. Alabama, 287 U. S. 45;
see Brown v. Mississippi, 297 U.
S. 278,
297 U. S.
286.
[
Footnote 4]
Code of Ala. 1923, § 5567.
[
Footnote 5]
Franklin v. South Carolina, 218 U.
S. 161,
218 U. S. 168;
Isaacs v. United States, 159 U. S. 487,
159 U. S. 489;
see Minder v. Georgia, 183 U. S. 559,
183 U. S.
561.
[
Footnote 6]
Cf. Powell v. Alabama, supra; Moore v. Dempsey,
261 U. S. 86,
261 U. S.
91.
[
Footnote 7]
Leeper v. Texas, 139 U. S. 462,
139 U. S.
467-468;
Ughbanks v. Armstrong, 208 U.
S. 481,
208 U. S. 487;
Minder v. Georgia, supra, 183 U. S.
562.
[
Footnote 8]
Cf. Davidson v. New Orleans, 96 U. S.
97,
96 U. S. 104;
Walker v. Sauvinet, 92 U. S. 90,
92 U. S. 92.
[
Footnote 9]
Green v. Frazier, 253 U. S. 233,
253 U. S.
239-240,
253 U. S. 242;
Nebbia v. New York, 291 U. S. 502,
291 U. S.
537-538.
[
Footnote 10]
Cf. Lewis v. United States, 146 U.
S. 370,
146 U. S.
374-375.
[
Footnote 11]
Norris v. Alabama, 294 U. S. 587,
294 U. S. 590;
Pierre v. Louisiana, 306 U. S. 354,
306 U. S.
358.
[
Footnote 12]
The opinion of the Supreme Court of Alabama notes (237 Ala. 616,
188 So. 392): "Counsel first interposed a plea of not guilty, and
another of not guilty by reason of insanity, but, upon the trial,
withdrew the latter plea."
[
Footnote 13]
Avery v. Alabama, supra.
[
Footnote 14]
Vol. I, Fifteenth Census of the United States, 1930.
[
Footnote 15]
The first Constitution of Alabama (1819), Art. V, § 7, provided
for the holding of a circuit court at least twice a year in each
county, and this provision continues in the present constitution,
Const. of Ala. (1901), Art. VI, § 144. While, in recognition of
modern social needs (
see Pound, Criminal Justice in
America, 1930, pp. 152, 88, 150, 163, 164, 178, 183, 189, 190),
circuit courts now, by statute, entertain causes at substantially
all times (Code, 1923, § 6667), the holding of formal court at
specific terms or sessions is emphasized in the requirement that
each cause be called at least twice a year and as often as is
necessary to secure prompt trials. (
Id., § 6668).
Cf. Ala.Civ.Code, 1907, c. 62, Art. I, § 3234,
specifically providing for holding of circuit court in Bibb County
on the first Monday before the last Monday in February and August
of each year. In general, the practice in Alabama accords with that
in all sections of the country,
e.g., see Compiled Laws of
Colorado, 1921, § 5656
et seq. fixing specific terms of
district courts, and § 5734-5766, fixing specific dates of county
court terms; Idaho Code Ann. (1932) 1-706
et seq.,
requiring at least two terms each year for the district court in
each county to be fixed by court order; Burns Indiana Stat.Ann.
(1933) 4-332
et seq., fixing specific terms of circuit
courts, 4-407
et seq., and 4-607, fixing specific terms of
superior courts; Rev.Stat. of Maine (1930), c. 91, § 21, p. 1262,
fixing specific trial terms for superior courts; Mich.Stat.Ann.
(Callaghan, 1938) § 27.546
et seq., providing for at least
four terms of circuit court in each county organized for judicial
purposes at fixed times subject to change by court order (§
27.547); Cahill's Consol.Laws of New York, c. 31, § 84, providing
that special and trial terms of supreme court be designated by the
appellate division (
see also § 150) and requiring that at
least one special term and two trial terms must be held in each
county annually, § 148; Rev.Stat. of Utah (1933), 20-3-6, 20-3-9,
requiring at least three terms during each year for the district
court at each county seat at times to be fixed by the respective
district judges; Public Laws of Vermont (1933), § 1374, p. 296,
fixing stated terms for holding county courts. In Pennsylvania,
courts of quarter sessions, "of oyer and terminer and . . . jail
delivery shall be holden four times, annually, in every
county."
17 Purdon's Penn.Stat., §§ 331, 351, 371.
[
Footnote 16]
The system of circuit court terms continues today
characteristics traceable to the original English Assizes. While
financial and administrative matters have been dropped from the
business historically committed to justices on Eyre and later to
judges of assize from the time of Henry II, our rural county
circuit courts still bear the earmarks of a "general review of the
whole administration of the country." I Stephen's, "His. of the
Cri.Law of Eng." (London), pp. 101, 106, 111.
See II Enc.
of Soc.Sci., 283, 284, IV, 522. And the practice of promptly trying
at any term all the then accused finds its historical roots in the
commissions of gaol -- delivery oyer and terminer of judges on
Circuit or "Assize." I Stephen,
supra, p. 105
et
seq. These judges were empowered "to try every prisoner in the
gaol, committed for any offense whatsoever." They proceeded upon
prior indictments "as well as upon indictments taken before
themselves." Stubbs' "Crown Circuit" (Dublin), 2, 5, 7, 9, 10. "And
therefore it hath never been a question but that the justices of
gaol-delivery may take an indictment, try, and give judgment the
same day." 2 Hale's "Pleas of the Crown," 1st American Ed., 33. The
Sheriff was commanded to see that the prisoners,
"together with their attachments, indictmenti, and all other
muniments any ways concerning those prisoners . . . [be present,
and that] all they, who will prosecute against those prisoners, be
then and there to prosecute against them, as shall be just."
Stubbs,
supra, 4, 5.
See 1 Holdsworth's
"History of English Law," 1927, pp. 49-51, 264
et seq.