Page 22 - Delaware Lawyer - Summer 2019

FEATURE
John Pollock
Gilberte Pierre, a staff attorney at Community Legal Aid Society (left), and Meghann O’Reilly Karasic, a supervising attorney in fair housing and immigration.
The Guiding
An examination of right-to-counsel law in Delaware
“You have a right to a lawyer. If you cannot afford one, one will be appointed for you.”
20 DELAWARE LAWYER SPRING 2019
Americans have heard this phrase so many times on television and in mov- ies that many have come to believe it governs every encounter with the judicial system, as opposed to the rights of a crim- inal defendant.1 Even many lawyers are unaware of the contours of the right to counsel in civil cases, believing that there is never such a right. It is true that from a U.S. Supreme Court perspective, the rights of criminal and civil litigants are polar opposites, but the states, including Delaware, have done much to fill in the gaps on the civil side.
On the criminal law side, the U.S. Supreme Court began by recognizing a right to counsel for capital cases2 and then felonies in federal court.3 After initially adopting a case-by-case approach to the right to counsel for state court felonies,4 it reversed course and established a cat- egorical right,5 famously stating, “In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”6
It then observed:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and edu- cated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompe- tent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He re- quires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of convic- tion because he does not know how to establish his innocence.”7
The Court’s treatment of civil cases
has been markedly different. After rec-
Hand of Counsel