Right (Necessity) to Counsel

by Liana Stinson

Imagine: you are seventeen years old. Instead of being in math class or at football practice, you are out joyriding with your friends. You then get convicted of joyriding and are only sentenced to two years’ probation, thanks to your court-appointed counsel. However, four months later, it is alleged that you were involved in a burglary. Consequently, you then must attend a hearing for the possible revocation of your probation. At the hearing, you were not represented by counsel, you were not asked whether you wished to have counsel appointed for you, and you were not asked about your previously appointed counsel that represented you at the joyriding trial. You were asked at the hearing if you were involved in the burglary and you answered yes, without the advice of counsel. A probation officer testified at the hearing but was not cross-examined, because of your lack of counsel. You were not asked if you had anything to say or any evidence to supply, because of your lack of counsel. Then at seventeen years old, instead of two years’ probation, you were sentenced to 10 years in the penitentiary.

This is the story of Jerry Douglas Mempa. He served six years in the penitentiary from 1959 until 1965 when he filed a writ of habeas corpus to the Washington Supreme Court, claiming that he was denied his right to counsel at the hearing where his probation was revoked. Mempa v. Rhay, 389 U.S. 128, 131 (1967). This writ was denied. Id. However, the Supreme Court granted certiorari in 1967. Id. at 132.

Thurgood Marshall delivered the majority opinion of the Court. It was ultimately held that criminal defendants must be afforded a lawyer at all stages of the trial, “whether it be labeled a revocation of probation or a deferred sentencing.” Id. at 137. There were various policy considerations driving this decision.

First, Marshall recognized that there may be a number of legal rights lost if counsel is not present at the proceeding. In the state of Washington, “an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation.” Id. at 135. Therefore, if counsel is not present at the imposition of the deferred sentence, a criminal defendant may lose the right to appeal. Id. at 136. Granted, there are less appeals when there is a guilty plea involved. However, Marshall recognized that “the incidence of improperly obtained guilty pleas is not so slight as to be capable of being characterized as de minimis.” Id.

Second, an uncounseled criminal defendant may be unaware of the fact that, in the state of Washington, a guilty plea can be withdrawn at any time prior to the imposition of a sentence. Id. If Mr. Mempa’s guilty plea was improperly obtained at the hearing and then he is sentenced without the aid of counsel, there is no way to revoke that guilty plea. This would be essentially allowing improper methods of getting criminal defendants to confess to crimes they may or may not have committed and then sentencing them to take away their right to revoke that improper guilty plea. That is the opposite of justice.

In cases like these, the Court recognized that “counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicted on misinformation or misreading of court records, a requirement of fair play in which absence of counsel withheld from this prisoner.” Townsend v. Burke, 334 U.S. 736, 741 (1948). In the case of Mr. Mempa, having counsel present would have allowed evidence to be produced, cross examination of the probation officer, statements from Mr. Mempa to be placed on the record, etc. Prior Court cases have consistently stood for the proposition that counsel needs to be appointed at every stage of a criminal proceeding where “substantial rights of a criminal accused may be affected.” Mempa 389 U.S. at 134. Here, Mr. Mempa’s freedom was affected. At seventeen years old, he was sentenced to ten years in the penitentiary absent any advice from counsel. Thurgood Marshall took an enlightened step forward in this opinion by requiring counsel to supply criminal defendants with due process of the law.