The American Bar Association list Gideon V. Wainwright (1963) as one of the U.S. Supreme Court’s “landmark decisions. Gideon held that States must provide criminal defendants charged with serious crimes with an attorney if they cannot afford one. A serious crime, the Court said, is one punishable by more than one year in prison.

 

A recurring question that evolved out of Gideon is at what point in the criminal process does the right to counsel begin?

 

It took the Supreme Court 23 years before it thoroughly answered that question in 1986 in Moran v. Burbine.

 

In Moran, the Court said that “the first formal charging proceeding [is] the point at which the Sixth Amendment right to counsel initially attaches. The Court added that the Sixth Amendment become applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the ‘intricacies … of law, is needed to assure that the prosecution’s case encounters ‘the crucible of meaningful adversarial testing.’

 

Texas has codified the right to counsel, and when it attaches, in Article 1.051 of the Texas Code of Criminal Procedure. Not only does the defendant have a right to counsel in an “adversarial judicial proceeding, but they enjoy the right to confer in private with counsel “sufficiently in advance of a proceeding.”

 

Not all states have been as constitutionally responsible in establishing and protecting the right to counsel. Take Oregon, for example. The Ninth Circuit Court of Appeals on May 31, 2024, handed down a momentous decision that upset the State’s reckless disregard for the Sixth Amendment right to counsel. The first three paragraphs in the decision crystallize that disregard:

 

“The state arrests a citizen and incarcerates him pending trial. Days, weeks, and months pass without any legal representation. He seeks relief from the authorities—surely a lawyer should help him? In response, he gets a shoulder shrug, a promise that they are ‘working on it, and nothing more. He remains in jail, without legal counsel or any relief in sight.

 

‘You might think this passage comes from a 1970s State Department Report on some autocratic regime in the Soviet Bloc. Unfortunately, we do not need to go back in time or across an ocean to witness this Kafkaesque scene.

 

‘This is the State of Oregon in 2024.”

 

The cause of this crisis resides in the simple fact that Oregon does not have enough public defenders to represent the offenders it arrests and charges with crimes. This crisis, brought on by years of the State either refusing or neglecting to address the crisis, translated into an unconstitutional situation where defendants—those without the financial resources to post bail—remained in jail uncharged because the State cannot proceed with the prosecutorial process “unless and until an attorney is appointed to represent them. Instead of solving the problem and increased funing to the state’s public defender’s office, ” “Oregon insisted on fighting the solution.”

 

As the Ninth Circuit pointed out, the end result is that “an innocent person may languish in jail for months awaiting trial, simply because no lawyer has been provided to review or investigate his case.”

 

Finally, a class of defendants brought a civil habeas corpus claim against the State, alleging their Sixth Amendment right to counsel was being abridged and that they should be released from unlawful jail confinement. Both the federal district court and the Ninth Circuit, in a split decision, agreed, ordering the State to release all inmates from its jail who have been locked up more than seven days without the appointment of counsel.

 

In light of that split decision, and the Supreme Court’s historical contempt for Ninth Circuit decision-making, the State will likely appeal. And given the Roberts Court’s tendency to overturn precedent, Gideon v. Wainwright, and the Sixth Amendment right to counsel it protects could be on the chopping block, especially with the ethically challenged Justice Clarence Thomas bearing the hatchet. He and Justice Gorsuch have openly advocated the overturning of Gideon, with the upside-down flag-waving Justice Alito demonstrating an inclination to do the same thing. “Justice Thomas wrote that the Sixth Amendment, as understood by those who drafted and ratified [the Constitution], guaranteed only the right to hire a lawyer.

 

A little whispering in the ears of Justices Barrett and Kavanaugh from the right-wing Federalist Society could quickly get all these angry, ax-to-grind justices on board to overturn Gideon.

 

These are the times we live in, folks. Constitutional rights that were embedded in our nation’s ethos are being overturned willy-nilly by right-wing activist Justices. Who would have thought?