Crooker v. California/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

When petitioner was first arrested, and before any real interrogation took place, he asked that his attorney be present. 'I had no objection to talking with them about whatever they had to talk about, but * *  * I wanted counsel with me *  *  *. I wanted an attorney with me before I would talk with them.' That was petitioner's testimony; and it is verified by the testimony of Sergeant Gotch of the police.

'A. I stated to him that after our investigation was     concluded he could call an attorney, and if he didn't have      funds to hire an attorney, when he went to Court's public      defender would be assigned to handle his case.

'He then stated that he had a friend who had been an     instructor at Pepperdine College that would probably handle      the case for him. I asked him who the name was, and he said     it was a man by the name of Simpson, who lived in Long Beach.

'Q. He asked you if he could call an attorney at that time,     and you told him that he could call after your investigation      was completed, is that right?

'A. I told him, after I was through with the investigation,     he could make a call.'

This demand for an attorney was made over and again prior to the time a confession was extracted from the accused. Its denial was in my view a denial of that due process of law guaranteed the citizen by the Fourteenth Amendment.

The Court finds no prejudice from the denial of the right to consult counsel; and it bases that finding on the age, intelligence, and education of petitioner. But it was said in Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' That was a federal prosecution. But what is true of the need for counsel is federal case is equally true in a state case.

Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, held that in a state criminal trial the request of the accused for counsel can be denied and a judgment of conviction sustained as not in violation of due process, where the offense is not a capital one, Cf. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398, and the Court on review determines there was no fundamental unfairness resulting from the denial of counsel. The rule of Betts v. Brady, which never applied to a capital case, see Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, is now made to do so. Assuming that Betts v. Brady was properly decided, there is no basis in reason for extending it to the denial of a request for counsel when the accused is arrested on a capital charge.

The Court properly concedes that the right to counsel extends to pretrial proceedings as well as to the trial itself. The need is as great then as at any time. The right to have counsel at the pretrial stage is often necessary to give meaning and protection to the right to be heard at the trial itself. See Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4. It may also be necessary as a restraint on the coercive power of the police. The pattern of the third degree runs through our cases: a lone suspect unrepresented by counsel against whom the full coercive force of a secret inquistion is brought to bear. See Lisenba v. State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. The third degree flourishes only in secrecy. One who feels the need of a lawyer and asks for one is asking for some protection which the law can give him against a coerced confession. No matter what care is taken innocent people are convicted of crimes they did not commit, see Borchard, Convicting the Innocent (1932); Frank and Frank, Not Guilty (1957). We should not lower the barriers and deny the accused any procedural safeguard against coercive police practices. The trial of the issue of coercion is seldom helpful. Law officers usually testify one way, the accused another. The citizen who has been the victim of these secret inquisitions has little chance to prove coercion. The mischief and abuse of the third degree will continue as long as an accused can be denied the right to counsel at this the most critical period of his ordeal. For what takes place in the secret confines of the police station may be more critical than what takes place at the trial.

'If at any time, from the time of his arrest to final     determination of his guilt or innocence, an accused really      needs the help of an attorney, it is in the pre-trial period. * *  * Indeed, the pre-trial period is so full of hazards for      the accused that, if unaided by competent legal advice, he      may lose any legitimate defense he may have long before he is arraigned and put on      trial.' Note, Criminal Procedure-Right to Counsel Prior to      Trial, 44 Ky.L.J. 103-104.

Or as stated by a Committee headed by Prof. Zechariah Chafee, 'A person accused of crime needs a lawyer right after his arrest probably more than at any other time.'

The Court speaks of the education of this petitioner and his ability to take care of himself. In an opinion written by Mr. Justice Sutherland the Court said, 'Even the intelligent and educated layman has small and sometimes no skill in the science of law. * *  * He requires the guiding hand of counsel at every step in the proceedings against him.' Powell State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158. Mr. Justice Sutherland spoke of the trial itself. But what is true of the trial is true of the preparation for trial and of the period commencing with the arrest of the accused. No matter how well educated, and how well trained in the law an accused may be, he is sorely in need of legal advice once he is arrested for an offense that may exact his life. The innocent as well as the guilty may be caught in a web of circumstantial evidence that is difficult to break. A man may be guilty of indiscretions but not of the crime. He may be implicated by ambiguous circumstances difficult to explain away. He desperately needs a lawyer to help extricate him if he's innocent. He has the right to receive the benefit of the advice of his own counsel at the trial, as we held in Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4. That same right should extend to the pretrial stage.

The need of a lawyer in the pretrial investigation, if the constitutional rights of the accused are to be preserved, was stated by Mr. Justice BLACK, dissenting, in In re Groban, 352 U.S. 330, 340-343, 77 S.Ct. 510, 517, 1 L.Ed.2d 376:

'The witness has no effective way to challenge his     interrogator's testimony as to what was said and done at the      secret inquisition. The officer's version frequently may     reflect an inaccurate understanding of an accused's      statements or, on occasion, may be deliberately distorted or      falsified. While the accused may protest against these     misrepresentations, his protestations will normally be in      vain. This is particularly true when the officer is     accompanied by several of his assistants and they all vouch      for his story. But when the public, or even the suspect's     counsel, is present the hazards to the suspect from the      officer's misunderstanding or twisting of his statements or      conduct are greatly reduced.

'The presence of legal counsel or any person who is not an     executive officer bent on enforcing the law provides still      another protection to the witness. Behind closed doors he can     be coerced, tricked or confused by officers into making      statements which may be untrue or may hide the truth by      creating misleading impressions. While the witness is in the     custody of the interrogators, as a practical matter, he is subject to their uncontrolled will. * *  * Nothing would be      better calculated to prevent misuse of official power in      dealing with a witness or suspect than the scrutiny of his      lawyer or friends or even of disinterested bystanders.'

The demands of our civilization expressed in the Due Process Clause require that the accused who wants a counsel should have one at any time after the moment of arrest.