308 U.S. 444 (1940), 124, Avery v. Alabama

Docket Nº:No. 124
Citation:308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377
Party Name:Avery v. Alabama
Case Date:January 02, 1940
Court:United States Supreme Court

Page 444

308 U.S. 444 (1940)

60 S.Ct. 321, 84 L.Ed. 377




No. 124

United States Supreme Court

Jan. 2, 1940

Argued December 7, 1939



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. 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. 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 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. 450.

237 Ala. 616, 188 So. 391, affirmed.

Certiorari, post, p. 540, to review the affirmance of a conviction of murder.

BLACK, J., lead opinion

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.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 [60 S.Ct. 322] right of an accused to assistance of counsel led us to grant certiorari.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.3 But counsel were duly appointed for petitioner by the trial court as

Page 446

required both by Alabama law4 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.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.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,7 and was not intended to bring to the test of a decision of this Court every ruling

Page 447

made in the course of a State trial.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.9 But, where denial of the constitutional right to assistance of counsel is asserted, its peculiar sacredness10 demands that we scrupulously review the record.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 [60 S.Ct. 323] 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.

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that evening; his presence had been...

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