Hmm, for some reason WordPress is glitching.
In any case, someone, either KDD or GJS put together this marvelous list of quotes regarding the right to your own attorney in the US.
For some reason, the right to your own attorney is such a hot mess of discord when a probate court gets involved. I have heard tons and tons of complaints that a proposed disabled person asked for an independent attorney or an attorney of their chosing and got nothing.
Justice Connors said in her recent deposition, well, if I “really” thought someone was serious about wanting an attorney, then I would appoint one (from a court tied in list).
But I have never heard that the standard for having one’s own attorney of choosing either was “if they really wanted one” and/or the attorney of choice had to come from a court tied in list.
So, read on and enjoy the list.
I found an interesting case today, Johnson v. Zerbst, Warden 304 U.S. 459 (1938) the right to an attorney has been beautifully explained. This case has been cited in most recent cases, too. but I like this statement the best:
“The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”
– “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
– – in Cogdell v. State, 1951
– The courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights.
– – in State v. Huckaby, 1997 and
– Although the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent.
– – in King v. Bobby, 2006
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– The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.
– “While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”
– – in Roberts v. Bennett, 1966
“It is unfortunate, if petitioners lost their right to a new trial through ignorance or negligence, but such misfortune cannot give this Court jurisdiction in a habeas corpus case to review and correct the errors complained of.”
The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution. True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities — not involving the question of jurisdiction — occurring during the course of trial;[15] and the “writ of habeas corpus cannot be used as a writ of error.”[16] These principles, however, must be construed and applied so as to preserve — not destroy — constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened — not narrowed — since the adoption of the Sixth
466
*466 Amendment. In such a proceeding, “it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court”[17] and the petitioned court has “power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry . . . [involves] an examination of facts outside of, but not inconsistent with, the record.”[18] Congress has expanded the rights of a petitioner for habeas corpus[19] and the “.. . effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the Act of 31 Car. II, c. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to `dispose of the party as law and justice require.’
“There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. . . .
467
*467 “. . . it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, . . .”[20]
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