Justice Ruth Bader Ginsburg snapped that the reasoning of Justice Antonin Scalia "makes little sense." Scalia said Ginsburg was engaged in "implausible speculation." Ginsburg charged that on one point Scalia was "simply incorrect." Scalia sniffed that Ginsburg's statistics were "interesting but quite irrelevant."
It was just another day at the office, but by the time the combatants retired on May 15, the Supreme Court had significantly amended the Sixth Amendment. The vote was 5-4. The case was Alabama v. Shelton, No. 00-1214, a two-bit case that evolved into an expensive burden for state courts.
The facts are of little interest. LeReed Shelton was involved in a minor automobile collision with Kenny Campbell. The accident led to a fistfight in which Shelton beat up on Campbell. Charged with third-degree assault, a misdemeanor, Shelton chose to represent himself, thus reaffirming the adage that a man who serves as his own lawyer has a fool for a client. A jury found him guilty.
The judge imposed this sentence: "30 days suspended, $500 fine, $516.69 restitution, two years' probation." The Alabama Supreme Court ruled that Shelton had not "intelligently and understandably waived his constitutional right to counsel" and vacated both the 30-day suspended sentence and the period of probation. The state appealed to the U.S. Supreme Court.
Justice Ginsburg held for the majority that a suspended sentence, which carries a threat of subsequent imprisonment, may not be imposed under the circumstances present in the Shelton case. Though the defendant had been repeatedly warned of the risks of self-representation, he had not been formally offered the assistance of counsel at state expense. If a suspended sentence should be activated because of a violation of the terms of probation, the effect would be to imprison a defendant who had not had the benefit of counsel. The Sixth Amendment, said Ginsburg firmly, "does not countenance this result."
Justice Scalia, speaking for the dissenters, attempted to draw a bright line between actual imprisonment and the mere threat of imprisonment. Shelton "has not suffered and may never suffer a deprivation of liberty." A right to counsel might arise at a hearing on revocation, but that question was not before the court, "and the court has no business offering an advisory opinion on its answer."
The majority's opinion, Scalia warned, will have "practical consequences." By expanding a right to appointed counsel beyond cases of actual imprisonment, the court was imposing unpredictable but substantial costs upon the states. Ginsburg said his "dire predictions" lacked foundation.
At the bottom of their squabble lies the Sixth Amendment. It says in relevant part, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The courts long ago concluded that "all" does not really mean "all," and that "criminal" and "prosecutions" are words of legal art. In small increments, the right to counsel gradually has expanded.
The expansion dates from 1932, when nine illiterate black youths were charged in Alabama with raping two white girls. A court-appointed lawyer had barely half an hour to confer with the defendants before they were tried, convicted and sentenced to die. The Supreme Court reversed, and a right was established that in capital cases the states must provide for the effective assistance of counsel.
The right to counsel took a big leap in 1963 with the case of Clarence Earl Gideon, an indigent who asked for a lawyer to defend him in a case of breaking and entering. The trial judge denied his motion. Gideon wound up in the Supreme Court, where Abe Fortas brilliantly argued that Gideon's Sixth Amendment rights had been violated. Two years later, Lyndon Johnson would name Fortas to the high court and a dramatic tale of hubris and greed would unfold.
Thirty years ago, in a case known as Argersinger, the right to counsel was extended to misdemeanor cases carrying a risk of imprisonment. Along the way came the famous Miranda case — "You have a right to counsel, and if you are unable to afford counsel a lawyer will be appointed . . . ." Other cases have turned on a right to counsel at lineup or arraignment. One recent case questioned the effectiveness of a lawyer who fell asleep while his client was on trial.
Now the case of LeReed Shelton nudges the Sixth Amendment to a new meaning in terms of a suspended sentence. Like it or not, this is how the Constitution grows.
E-mail Jack Kilpatrick at: kilpatjj@aol.com.