James v. Headley

• Decision Date: 09 April 1969
• Docket Number: No. 25892.,25892.
• Citation: 410 F.2d 325
• Parties: Betty J. JAMES and Raymond Miller, Appellants, v. Walter HEADLEY, Chief of Police of the City of Miami, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 325 (1969)

Betty J. JAMES and Raymond Miller, Appellants, v. Walter HEADLEY, Chief of Police of the City of Miami, Appellee.

No. 25892.

United States Court of Appeals Fifth Circuit.

April 9, 1969.

Alfred Feinberg, Bruce S. Rogow, Miami, Fla., for appellants.

Lucy S. Forrester, William H. Traylor, Atlanta, Ga., amicus curiae.

John G. Thomas, Charles K. Allan, William M. Porter, Miami, Fla., for appellee.

Before WISDOM, GODBOLD, and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

The question this case presents is whether an accused has the right to court-appointed counsel when charged with only "a petty offense", that is, an offense carrying the maximum penalty of six months.¹ This gets down to whether Harvey v. Mississippi, 5 Cir. 1965, 340 F.2d 263, is viable. If it is, do the petitioners before us come under aegis of Harvey? We hold that the right to counsel, as articulated in Harvey, is alive and well and living in this circuit, and applies to the present case.

On November 19, 1967, Betty J. James was arrested in Miami, Florida, for the theft of dresses valued at $35. She was charged with five offenses: petty larceny, resisting arrest, and three separate counts of assault and battery upon an officer. She remained in jail until her trial in Municipal Court two days later. Raymond Miller was arrested at the same time as Miss James and was charged with petty larceny and resisting arrest. He also remained in jail and was tried simultaneously with Miss James.

Miss James and Miller pleaded not guilty but were found guilty on all counts. Each received the maximum sentence of 60 days for each count, Miss James for a total of 300 days and Miller for a total of 120 days. Each was fined $500 for each count or, in lieu of payment, an additional 60 days for each count, thereby subjecting Miss James to a potential sentence of 600 days and Miller to a sentence of 240 days. Later, the fines were suspended.

The proceeding now before us began as a class action for an injunction. Miss James and Miller, on behalf of themselves and others similarly situated, sought to have the district court enjoin "the defendant Judges and City Prosecuting Attorney from continuing to try plaintiffs and the class they represent without first providing appointed counsel for them, unless said plaintiffs and their class expressly and knowledgeably waive their right to counsel".² The theory of the complaint was that the defendants' practices violated the plaintiffs' (petitioners') constitutional rights and entitled them to injunctive relief under 42 U.S.C. § 1983.³ The district court, correctly, we think, treated the complaint as a petition for habeas corpus, eliminating the class action and injunctive aspects of the complaint.

At the habeas hearing both petitioners testified that they were not informed that they could have counsel or, if they could not afford counsel, that a lawyer would be appointed to represent them. Taking the evidence in a light most favorable to the appellee, we find that the record supports the petitioners' contention and that there was no waiver of the right to counsel.⁴ The district court denied the writ, principally on the authority of Brinson v. State of Florida, S.D.Fla.1967, 273 F.Supp. 840 and Cheff v. Schnackenberg, 1966, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629. Brinson held that persons charged with petty offenses, as defined in 18 U.S.C. § 1, are not entitled to court-appointed counsel. Cheff v. Schnackenberg held that persons charged with petty offenses are not entitled to a jury trial. All members of the panel are in agreement with the foregoing (and with part III of this opinion relating to elimination of the class action and injunctive aspects of the complaint and treatment of the case as a habeas proceeding). All agree that the district court erred in concluding that Harvey has lost its vitality. We find it very much alive. And the present case, like McDonald v. Moore, 5 Cir. 1965, 353 F.2d 106, is sufficiently similar to Harvey to justify granting the habeas writ. All concur in reversal. My brother judges do not join in parts I and II^* of the opinion.

I.

The Sixth Amendment to the United States Constitution provides as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the Witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

In Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the Supreme Court held that the right to counsel guaranteed in the Sixth Amendment is a fundamental right essential to a fair trial under the due process requirement of the Fourteenth Amendment. Gideon involved a felony, but the language of the opinion, like that in the Sixth Amendment, is broad enough to apply to all criminal offenses.

In Harvey the petitioner sought to overturn a conviction for "possession of whiskey" that had been based upon a guilty plea offered without notice of the right to an attorney's advice. The offense was a misdemeanor under Mississippi law, carrying a maximum penalty of a $500 fine and 90 days in jail. A Justice of the Peace testified that Harvey had come to his house at night, three days after the arrest, for the specific purpose of pleading guilty. The Court held that the failure at that time to advise the petitioner of his right to appointed counsel violated the requirements of the Sixth and Fourteenth Amendments as interpreted in Gideon. Judge Tuttle, for the Court, reasoned:

It is true that the cases which support appellant\'s argument all involved felony convictions, but their rationale does not seem to depend on the often purely formal distinction between felonies and misdemeanors. One accused of crime has the right to the assistance of counsel before entering a plea because of the disadvantageous position of an unassisted layman in a court of law and because of the serious consequences which may attend a guilty plea. Such disadvantages and consequences may weigh as heavily on an accused misdemeanant as on an accused felon. The record reveals that the guilty plea entered in the case at bar had grievous consequences indeed. 340 F.2d at 269. (Emphasis added.)

We quoted with approval the following language from Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633:

It is * * * suggested * * * that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of `serious offenses.\' No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. The purpose of the guaranty is to give assurance against deprivation of life or liberty except strictly according to law. The petitioner would be as effectively deprived of his liberty by a sentence to a year in jail for the crime of non-support of a minor child as by a sentence to a year in jail for any other crime, however serious. And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one. 126 F.2d at 638. (Emphasis added.)

We conclude that "the reasoning in Evans along with other recent right-to-counsel decisions persuades us that we should apply that rule in the present case". 340 F.2d at 271.

The reliance on Evans, which rejected the "serious offense" concept, and the reference in Harvey to "serious consequences" and "grievous consequences" are not inconsistent if we bear in mind that in each case the court focused its attention on the lack of any real distinction between a felony and a misdemeanor: the consequences of a misdemeanor may be as serious to an accused misdemeanant as to an accused felon. Any loss of liberty would be serious. And any unassisted layman in a court of law is at a disadvantage.

McDonald v. Moore, 5 Cir. 1965, 353 F.2d 106, reaffirmed the position we took in Harvey. McDonald was sentenced to serve six months in the county jail or pay a fine of $250 for the illegal sale of half a pint of gin and the illegal possession of two half-pints of gin and nine pints of bourbon. Judge Jones, who sat on the panel in Harvey, speaking for the Court, noted the difficulty in drawing a line:

It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state. If the Constitution requires that counsel be provided in such cases it would seem that in many urban areas there would be a requirement for more lawyers than could be made available. 353 F.2d at 108, 109.

Nevertheless, the Court specifically refused the suggestion to adopt as "a rule of thumb * * * the denial of counsel in petty offenses as defined in 18 U.S. C.A. § 1": the suggestion "would provide a rule of certainty and one which might be fair in most situations" but "it would be difficult to sustain on any legal ground". 353 F.2d at 109, n. 4. The Court concluded, without setting forth any criterion, to rest its grant of the writ on the similarity of the facts to those in Harvey.

Recently, in Goslin v. Thomas, 5 Cir. 1968, 400 F.2d 594, this Court approved Harvey and McDonald. That case involved a misdemeanor for which the petitioner was given a sentence of one year in jail. The Court stated that it did "not consider the question of the delineation of a petty offense rule", but at the same time it "noted that the maximum penalty in the Harv...