Your rights are on trial; Right to counsel

The following tape recorded program is distributed by the National Association of educational broadcasters a defendant's assistance by counsel in a criminal trial is an absolute right. That was the actual voice of federal Judge Jerome Frank author of courts on trial who will appear on today's program. The case of the missing lawyers the 10th in this series of authoritative discussions and authentic dramatizations of High Court cases in which your rights are on trial. You are right. The. True story of a High Court in which your rights are on

trial. Your rights are on trial by the University of Minnesota radio station under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters and the University of Minnesota Law School. On today's program you will hear actual voices in Frank. And Roland wants the American Civil Liberties Union first to set the stage for the authenticated the missing lawyers. Here is one of the commentators for your associate professor of law at the University of Texas Mr. Charles. For the average individual his constitutional rights to due process of law and to the equal protection of the laws come down to his practical right to counsel. Do you have the right to have a trained authority representing your interests in the complicated

area of law at all times. This is the right to counsel. This is a right so fundamental that the Supreme Court said years ago that a person accused of a crime is entitle to the guiding hand of counsel at every step of the proceedings against him. In short you have the right to have a lawyer. And what should happen if you are denied this right. Or if you simply fail to exercise it. This is one of the basic questions that are interpreted and reinterpreted by the high courts of our land. The best way to understand your right to counsel is through a recent case in which this vital right was weighed and analyzed in our courts. The case we've chosen is the State vs. all of them decided in the United States 10th Circuit Court of Appeals on October 27 plane nine hundred fifty five the case starts however on midnight of October 22nd 1949 and a Standard Oil service station on the outskirts of Beaver Utah.

God I leave you open to you all till 2:30 anyhow. And later a small town in all this is our big season. During time you know and you fellows up for the deer hunt. Oh yeah yeah yeah sure sure. What kind of town is this. Oh it's good enough. I'll probably come back here to live after I finish school got the G.I. bill right now. I just got married a few months ago too. Some guys have it made. But you're an athlete too on why I played quite a bit of basketball. So where's your body. It's like a route is running do for you fellows. Nothing special. Thought maybe you could give us a few tips on this tour right now but looks like you're busy now cash customer Yamin will drop back in later. Well suit yourself. Yeah come on man let's get going. What time is it. It's hard to see

two twenty five. Let's get it over with and stay behind the sign as soon as he turns off the pump lights will cross. I need another drink here. Finish the bottle. Kill it. Lights are off. Let's go now. Come on let's get cold here yes. Well we're clueless fellow. Oh it's you fellas. Oh ok just one of those tips on Durani. Well I left. Show it was like oh I just can just say I don't want to I just want to know what you were some. One of us going to just you know you all like what little let him have it. Now what do we do now. For now we just sit tight in this hotel room. But what do we do. I've never really been in trouble before what do we

how do you try shutting up. What do you think you're going to I'm going to the police I'm going to get myself I'll know you watch. When we were drinking we can even take any money. Maybe we're crazy ha. Maybe your crazy now they'd lynch us first. They ask the questions later. And I look there's a bus for less pay guests at 10 I will get on it. OK. Now OK. Charged button for my life. Burglary suspects believe it heading for Las Vegas and the descriptions although one of them is around 60 slender blonde kept the information of the card check all the polls in hotels first to bring in any recent arrivals that fit the description like. Your full name Alfred brush look what's going on around here. Your

name sounds Solomon. Now over on the right. Well what's this all about just want to ask a few questions and I think we ought to have a lawyer just for a few questions. Yeah you've got a right to have a lawyer but it's not our job to find your one well at least tell us what this is all about. We just got a bowl of them from L.A. burglary suspects heading for here one of the description fits you brush. Yeah but we just got in from Cedar City Utah. Wait I'll show you the bus ticket stuff so you're going to pick those up at the depot. Check with the driver of the Utah bus we just got in half an hour ago. We could be wrong set on for a few minutes boys. If your story checks we won't detain you you can get a bone from you Todd if you want to say there are some of them. Nonsense. Sarge bulletin from Cedar City attempted robbery in Beaver Utah where a Beaver Utah filling station attendant was murdered murdered. Well as I think we've got a few questions to ask you. Say I'm going to make one of them think the other put the blame on him. Now

Sergeant you don't think that old jewelry they work. Besides how can we get them to waive extradition. One bridge at a time. But that trick so ancient what all they got to Lowe's right Sam Sullivan. I've kept them separate of the past. Sullivan is only 19 and he doesn't know what's coming off. Nobody's that naive. So I let them. Inspector Harris from Utah. How do you do. Hi. He's a little late. We're ready to close the case. What do you mean. Your buddy Mr Brosh has been talking. I don't believe you. I just said he's been talking I didn't say confessed. Sure because you said you fired the shots. That's not true each fired twice. That's the way we figured out. Right inspector. I have no comment. Just tell us the whole story now Solomon. Give yourself a chance when we're drinking. I've never been in trouble before.

And you want to get this over with no. Yeah the best thing is to head back to Utah with the inspector right. I guess so. But first we want to get your story straight away it really happened. And here are both of your confessions typed out as you stated them. You sign right here Mr. Brush. Well I think that I have a lawyer. Why to advice me about what whether or not I should sign this. Q I'm Sullivan made his confession voluntarily I didn't just. Nobody forced you to say anything today. This is really what happened isn't it. Yeah. So what do you need a lawyer for. The everyone. The next day Sullivan and brush were taken from Las Vegas to Utah. A lawyer might have advised them that they cannot be taken from one state to another without formal procedures known as extradition. But they had no lawyer to advise them of this right.

Upon their return to Utah first degree murder charges were filed against them a few days later a preliminary hearing was held. Neither Brosh nor Sullivan to talk to a lawyer at this time. What you have heard so far is based upon the actual court records in this case and an article by Charles P. Libro as published in The Nation magazine for April 14th 1956. Mr. Will Always you talk correspondent for The American Civil Liberties Union. What you will hear now is taken from the transcript of the preliminary hearing itself word for word. This is actually as it occurred. Your honor may I at this time advise these men of their constitutional rights under the laws of the state of Utah and yes that they have a right to a speedy trial. That you have a right to be represented by counsel and attorney at all stages of the proceedings that you have a right to a preliminary hearing at this time or you may ask for a continuance so that you can get an attorney.

What is your wish. Can we have an attorney at this time and that the trial the justice of the peace at the preliminary hearing doesn't have the right to appoint counsel. If the justice of the peace binds you over to the district court the court will appoint counsel for you. The court at this point doesn't have the right to do that. You have the right to employ counsel for yourselves. This is a preliminary hearing to determine whether or not a crime has been committed and if so whether or not there is probable cause to hold you boys for that crime. Now that's the purpose of this action. Do you waive time for a preliminary hearing to be held at a later date. Just get it over with. You waive time to get counsel or further time yeah. Is that your desire Mr. Sullivan. Yes pardon me yes. The confessions have been introduced Plaintiff's Exhibit 1 and Plaintiff's Exhibit

have been received. I think that that that's all your honor. That's all the state has. The law provides Your Honor that if the defendants or either of them wish to make any statements they may do so without being sworn. They may make some statement now if they desire to do so. You are not required to make a statement or you can if you choose this point I'd like to have an attorney you will have a chance to have consul in the district court. Is that all you have to say. Yeah. You will be held for a hearing in the district court without bond. Or Google. Despite what lawyers call a change of venue which means only that the trial was shifted to another town where public feeling was less within less than a month. Byrne Brosh and Melvin Sullivan were tried before a jury found guilty and sentenced to die. A new top person condemned to die has a choice. He can be hanged or I can be shot by the firing squad.

BROSH and Sullivan chose the firing squad. This however is hardly the end of our story. In his Nation article Charles Lheureux writes once the legal battle to save Brosh and Sullivan began it is unlikely that they could have obtained more ingenious or industrious counsel even if they had been able to pay for them. Their attorneys carried the case four times to the Utah Supreme Court twice to the state's Board of Pardons three times to the United States Supreme Court and twice the federal district court of Utah. As a result Brosnan Sullivans lives have been extended by six years. Why was this extensive legal effort made on November 30th 1954 in the matter of the application of Sullivan in the United States District Court Chief Judge Willis to be a writter hild in the case of Barr. The defendants were boys of the age of 19 and 21. An educated destitute alone without relatives or friends in a

strange community. Neither had ever been arrested before. The defendants were denied counsel at several steps in these proceedings. BROSH and Sullivan had no counsel at the arraignment nor did they advise with counsel prior to entering their pleas. Though at the entering of a plea is one of the most critical stages in the proceedings. Defendants had no counsel when they were tricked by police in a Las Vegas Nevada jail into making incriminating admissions. They had no counsel when their written statements were taken at Las Vegas. They had no counsel during questioning in a Las Vegas jail and during the long 200 mile automobile ride from Las Vegas to Cedar City Utah. They had no council in Nevada when they waived extradition. They had no counsel until some days after the arraignment which was held October 29. The record is not clear how long after so the police had their own way with the defendants for a period of over 7 days. The defendants were denied effective counsel at the

trial itself because of what had transpired before trial. The constitutional right to counsel becomes meaningless when the prisoner cannot afford to hire a lawyer to give him the help which he needs when he is given the opportunity to obtain a lawyer for himself. When one is appointed for him until after arraignment when he is kept for over seven days completely under the control of the prosecution and until it is done with the business of extracting the last bit of information from him and when he has lost any legitimate defense long before he is put on trial. It is for these reasons that the constitutional right to a lawyer is not limited to the counsel at the trial. That right so basic and so vitally important to the preservation of our lives and our liberty must not be whittled away bit by bit by narrow or restricting limitations upon it until we shall find that we have lost it entirely.

The provision of the Constitution which guarantees the right of the accused to an attorney for this defense was designed of course to protect the innocent. But to deny constitutional protection to the guilty is also to deny that protection to the innocent. The court must be concerned that no precedent shall be made which tends to destroy those guarantees in the Bill of Rights so fundamental to the protection of free man in our constitutional system. Ours is a constitutional system of ordered liberty and not one merely giving the accused his just desserts. Persons accused of crime must be convicted in accordance with the rules. Judge Rivers opinion in the district court was not upheld by the Federal Court of Appeals not court took the same attitude that had been expressed by a judge at the Utah Supreme

Court when it heard the case. Coincidentally this was the judge who had conducted the proceedings when Brosh and Sullivan were arraigned. He conceded that the defendants had asked for an attorney and did not get one. But he continued when they were told they could have one but had to pay for it. They said no more about the matter and apparently acquiesced in going forward without the benefit of counsel. Whether they actually waived their rights to counsel or not may have been open to dispute. If not it was in violation of their right to proceed without providing them with an attorney. Be that as it may it is not every error that is prejudicial. And this can be so no matter how vital the write in question may be. There should be no reversal of the case merely because the law enforcement officers and the justice of the peace may not have done just exactly as the law prescribes. In his article in The Nation magazine Charles P. Libro writes

The contrast between this brand of legal reasoning and that expressed by Justice Frankfurter in the Sachar case is striking in the development of our Liberte insistence upon procedural regularity has been a large factor. It is not for nothing that most of the provisions of our Bill of Rights are concerned with matters of procedure. I am out of my in this court has a first conviction for the most heinous offenses even though no doubt about the guilt of the defendant was entertained. It reversed because the mode by which guilt was established disregarded those standards of procedure which are so precious and so important to our society. This view poses an even larger question than one's right to counsel. Should confessions and evidence obtained illegally be allowed to convict an accused. What pressures and forces can we bring to bear to enforce procedural standards and individual rights without allowing the guilty to go free. This is a question fundamental to all the programs in the series. That is a question we really only can ask because its

answer is dynamic. The answer is continually re-evaluated in the decisions of our high courts. The final answer in the case of brush and Sullivan leans in the direction of limiting individual rights for society's safety. Here is the majority opinion as delivered by Circuit Judge Bratton in the United States 10th Circuit Court of Appeals on October 27 1955. The constitutional provision involved here contains no express or implied command that an accused shall be furnished counsel at the preliminary hearing. Moreover petitioners did not enter pleas of guilty at the preliminary hearing did not make confessions did not testify and did not say anything of an incriminating nature. And in such circumstances the failure to furnish them counsel at such hearing did not abridge their fundamental rights which rendered fatally infirm their conviction and sentence. Petitioners did not have counsel at the time they were arraigned and entered their pleas of not guilty in the

district court but immediately thereafter separate counsel were appointed for them respectively. While it is the general rule that an accused is entitled to the benefit of counsel at every step of the proceeding where one enters a plea of not guilty and is immediately thereafter furnished counsel for the preparation for trial for the trial itself and for the post trial proceedings. The sentence imposed is not to avoid violating due process under the Fourteenth Amendment or for impingement of fundamental rights. We have examined the record with painstaking care the judgment is reversed and the cause is remanded with directions to discharge the writ and dismiss the proceedings. This decision meant that on May 11th 1956 Fearne Brosh and Melvin Sullivan were strapped to an old office chair five rifle sticking through holes in a burlap screened twenty five feet away were pointed at them and at the order to

fire they were executed by a firing squad. Six years after their case and your right to counsel were fought for the courts of the land how important is the right to counsel. There is judge your own Frank's answer as recorded especially for this program. Jerome Frank as a judge of the United States Circuit Court of Appeals and author of courts on trial. As recorded at the Yale Law School in New Haven Connecticut. Judge Frank. Under the Sixth Amendment as distinguished from the fourteenth a defendant's assistance by counsel in a criminal trial is an absolute right. A conviction in a case where the defendant has not enjoyed that fundamental right is void. To hold that this defendant can be relieved of an unconstitutional conviction. Only if he makes a showing of innocence or showing that he probably would be acquitted at a

constitutionally conducted trial would be to compound the unconstitutionality of his conviction for it would shift to him the burden of proof depriving him of the presumption of innocence and leave the determination of his guilt or innocence to a judge thus denying him a jury trial. Surely one constitutional deprivation cannot justify Still others. For another view here is Roland Watts staff counsel for the American Civil Liberties Union. Attorney Roland Watt says if you would a New York City by the producer of this series Philip get out. It is a right to counsel simply here that I'm out of the fact that our air system is so complex and technical that the average individual can't understand it. Well as we go along and move into a more and more complex society a y way and some areas have reached a point where the lawyers can understand it. But be that as it

may. The right to counsel heirs the right of a person to be entitled to help from a trained person a person who will say that all of his technical rights are protected. But the right to counsel is more than that to the right to counsel is really a protection of society. In this particular case they use voice where help for more than a week without having counsel and certainly the court faired properly help that does the right to counsel. After the trial was going to do them too much good if. By being denied counsel before the trial there are their legal rights have been taken away from them. There are a lot of people who would like to ask the writer this and that is that I must keep providing a concert in a

case where he knows his client that say he is guilty. The responsibility of a lawyer is to see that the best possible legal defense is presented. Now whether a person has actually done the act charged is one thing. Whether or not he is legally guilty of the crime that is on the statute books is another to give a quick off and ever stray sion. A person who kills someone in an automobile accident. Would certainly be entitled to the very best possible defense if he were charged with murder. Even now the fact that he has killed someone is not an shellings and every stage of a court proceeding. There are rights which the person has and it's to the interest of society that he

secured all of those rights and not only do it through proper legal representation and now for a summary of today's case. Once again here is your commentator Mr. Charles Allen Wright. What can we conclude about law enforcement and your right to counsel from this case. We have I think perhaps one answer and two questions. The answer is that these men should have had a lawyer at every step in the proceedings as both federal and Utah law require. We have seen in this dramatization how critical the confessions in the waiver of extradition obtain from Brosh and Sullivan before they had a lawyer effectively sealed their doom regardless of the brilliant legal efforts which were later put forward in their behalf. But that answer only leads us to this question. Would they have escaped the firing squad if they had had a lawyer from the first. We can never know the answer to this. A lawyer would have advised them not to talk to the police and

would have prevented them from being trapped into a confession. It would have been much harder to convict them without the confessions. Perhaps skillful police work could have built up a case against them by finding fingerprints left at the scene or identifying the fatal bullets as having come from their gun. But perhaps not. It is perfectly possible that if they had had a lawyer from the start. BROSH and Sullivan would have gone for it. And that brings us to the ultimate question not only of this case but of our entire series. These men committed the crime should their constitutional right to counsel shield them from punishment for the crime. I know of no easy answers to that question. None of us would like the idea of murderers going unpunished roaming the streets at liberty to repeat their crime. On the other hand we have a long tradition that it is better to let some criminals escape punishment if need be and to abandon the fair orderly processes of a free society. If the police can get away with examining brush

and Sullivan without a lawyer they can get away with examining others without a lawyer in future cases. BROSH and Sullivan confessed to a crime which they committed and for which they should be punished. But tomorrow a suspect may be tricked into confessing to a crime which he did not commit. Such confessions are as old as the rack and screw of medieval torture chambers and is up to date as the brainwashing is of Chinese prison camps. Do we want the innocent person tricked into a false confession to have the same disadvantages. Perhaps end up the same way as brush and Sullivan. If we do not it may be as some think that the only sure way to protect the innocent is to insist that even the guilty enjoy the constitutional rights in full measure. You have just heard the case of the missing lawyer program and your right to run riot

and cooperation with the University of Minnesota Law School under a grant from the educational television and radio. This program is distributed by the National Association of educational broadcast. The consultants for this series are professors of law Paulson and Charles Allen Wright. Mr. Wright was the commentator on today's program. Your rights are on trial is written edited and produced by Philip. Do you have the right to trial by an impartial jury. This question will be answered next week. In the US vs. the United States. Join us next week at the same time for another authoritative discussion. And. Supreme Court case in which you all right. This is the Radio Network.