A Court Decision in California Threatens to Erode the Constitutional Right to a Lawyer

Countless defendants could potentially be denied the ability to fend off criminal charges should a California appeal court’s opinion survive scrutiny.

Illustration: Gary Waters/Ikon Images/Getty Images

Ruth Lopez was leaving a bar in Fontana, California, when she was pulled over for a minor traffic offense. Instead of getting a ticket, she was arrested and charged with driving under the influence, a misdemeanor punishable by six months to a year in jail. But there was a problem with the evidence against her. It appeared Lopez was arrested by police employing a common and questionable tactic: Hang around a popular local bar and use a minor traffic infraction — say, failure to use a turn signal — as an excuse to pull a person over in order to determine if they might be doing something else illegal, like driving drunk.

Lopez, who speaks limited English, couldn’t afford to hire a lawyer, so in keeping with her constitutional right to representation, an attorney from the San Bernardino County Public Defender’s Office was appointed to handle her case. As a pretrial matter, that lawyer, Joy Hlavenka, challenged the legality of the stop that led the cops to secure evidence that Lopez was intoxicated. Hlavenka won the challenge, meaning the evidence against Lopez would be suppressed and prosecutors would not be able to use it to try her.

Without that evidence, they had no case, so the judge dismissed the charges. But the prosecutors were undeterred and filed what is known as an interlocutory appeal, challenging the judge’s decision to ditch the evidence. A panel of three trial judges from the San Bernardino Superior Court would hear the case. If they sided with the prosecution, the evidence would be re-introduced and Lopez would again have to face the DUI charge.

Given that the appeal was critical for Lopez, the public defender’s office sought to have a lawyer appointed to represent her interests before the appellate panel. The court refused, claiming Lopez didn’t have a right to counsel. If she had been convicted and sentenced to jail on the charge, she would have had counsel appointed to handle her first appeal. But here, the court said, since Lopez wasn’t yet jailed for any crime, she was not entitled to appellate representation.

The public defender’s office balked, challenging the decision before California’s 4th District Court of Appeal. After all, this was the state’s appeal, not Lopez’s, and denying her the right to defend the decision that had suppressed the evidence would be giving a second chance to the state — which, of course, always has an attorney to represent its position — without any pushback.

But the Court of Appeal agreed that Lopez had no constitutional right to a lawyer as the prosecutors sought to revive their evidence — logic that appears to pervert a defendant’s rights under the Sixth Amendment. At the request of the public defender’s office, the California Supreme Court has agreed to hear the case.

At issue is how to consider an interlocutory appeal, which is designed not to resolve the underlying charge (in this case, a DUI), but to address an issue that would impact the ability to resolve that charge (here, the suppression of evidence). The public defender’s office — along with members of the Innocence Network and a pair of noted law professors — argues that this kind of pretrial appeal is a “critical phase” of the initial court proceedings; if the prosecution were to win, Lopez would again be subject to potential incarceration. As such, she’s constitutionally entitled to counsel in order to protect her liberty interests.

The San Bernardino Superior Court contends that the prosecution’s appeal is inconsequential and Lopez would not be disadvantaged if the state were to win. “The state is not required to provide protection against every minor mishap that may follow from indigency,” the county court argues in its brief to the California Supreme Court.

If the high court agrees with the county court’s position, critics say, the fundamental right to counsel embodied in the Sixth Amendment would be dangerously eroded, and countless other California defendants could potentially be denied the ability to fend off criminal charges.

“A Grossly Unfair Advantage”


Clarence Earl Gideon.

Photo: Woody Wisner/State Archives of Florida
In 1961, Clarence Gideon was charged with burglarizing a pool hall in Panama City, Florida. He couldn’t afford an attorney, and the judge overseeing the case declined to appoint one, saying that state law only provided for appointed counsel in death penalty cases. Gideon defended himself at trial and was convicted. His case ultimately landed at the U.S. Supreme Court, which, in a landmark 1963 ruling, sided with Gideon and concluded that the Sixth Amendment right to counsel extended to state defendants facing felony charges.

Roughly a decade later, in a case known as Argersinger v. Hamlin, the U.S. Supreme Court reaffirmed the right to counsel and made clear that it also extended to defendants facing misdemeanor charges. The justices noted that the sheer number of misdemeanor cases brought before the courts created a hazard that a defendant’s interests wouldn’t be front and center. “The volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result,” the court wrote.

The San Bernardino public defender and the Innocence Network now say that the California appeal court ruling in Lopez’s case threatens to neuter the guarantee of counsel expressed in both the Gideon and Argersinger cases. “In the Court of Appeal’s view, defendants who are still on trial — and who are, of course, presumed innocent unless and until proven guilty — can be deprived of counsel when they need it most,” reads a friend-of-the-court brief they filed with the state Supreme Court.

The case hinges on a specific section of the California Rules of Court that requires the appointment of appellate counsel to poor defendants who have been convicted of a misdemeanor. It is important to understand that the U.S. Constitution does not explicitly guarantee the right to appeal any criminal conviction, let alone the right to counsel on appeal. But the courts have held that where a state has laid out an appeal process, there must be rules to govern it, including for the appointment of counsel to indigent defendants. Failing to do so would create a two-tiered system — one for rich defendants and one for poor — that would offend the Constitution’s due process and equal protection provisions.

Notably, the court rule now in question does not speak directly to the situation that Lopez found herself in: not convicted but facing an appellate challenge from the state that could ultimately net her significant jail time. To Stephan Willms, a veteran public defender in San Bernardino who is handling the case before the California Supreme Court, it is clear that the rule doesn’t apply — because Lopez is still a pretrial defendant, she is guaranteed a lawyer under the Sixth Amendment.

Willms and others argue that the pretrial appeal is a critical stage of the case, one where Lopez’s liberty is in jeopardy, and thus clearly a phase during which she has the right to a lawyer. “The prosecution was forced to dismiss Ms. Lopez’s case after her suppression motion was granted. It is therefore obvious that the outcome of the hearing was crucial to the People’s case,” Willms wrote in a brief to the Supreme Court. And if prosecutors win their appeal, Lopez is back on the hook, meaning the result of the state’s pretrial appeal is just as important as the trial court’s decision to block the evidence in the first place.

The amicus brief filed by members of the Innocence Network amplifies what’s at stake: In order to defend the trial court’s decision to reject the evidence against her, Lopez would be tasked with arguing notoriously intricate case law regarding the Fourth Amendment’s ban on unlawful search and seizure on her own and with very limited English skills — an almost herculean task. “To effectively argue [the] appeal, Ms. Lopez presumably would need to be versed in jurisprudence under the Fourth Amendment” and protections afforded by California’s Constitution, “a complicated and nuanced subject for a layperson, to say the least,” the brief reads.

The Court of Appeal has essentially turned its back on these concerns. In its opinion, the court sidesteps the importance of the fact that Lopez hasn’t been convicted and has a strong interest in preserving the status quo, and instead rests its decision on the fact that the proceeding at issue is an appeal — and its reading that the court rules don’t require appointment of counsel because Lopez isn’t yet in jail. “While we agree that a defendant … in the appellate division would likely fare better with an attorney than without one, we stress that showing that something might be procedurally better is not the same as showing that the state is obligated to provide it,” the court wrote.

In a truly perverse twist, the appeal court actually invoked the Gideon case to support its decision, opining that just because a person doesn’t have a lawyer on an appeal doesn’t mean things can’t work out fine in the end. “The absence of counsel is not always fatal … on appeal,” the panel wrote, noting that Gideon “was himself without counsel for the majority” of his case.

To Chris Fabricant, director of strategic litigation for the Innocence Project, which has signed on to the amicus brief, the court’s ruling is at best deeply flawed. “As made plain by its citation to Gideon v. Wainwright, the appellate court’s decision is a cynical attack on the right to counsel,” Fabricant wrote in an email to The Intercept. “If allowed to stand, any significant pretrial ruling in the defendant’s favor could be appealed by the state, which will enjoy a grossly unfair advantage of arguing its position unopposed by defense counsel, unless the defendant is wealthy.”

Willms says that following the appeal court’s ruling to its logical end produces an absurd result. It would set the courts “free to deny a defendant’s request for counsel at any critical stage” of prosecution, including at trial, but then require them to appoint counsel to represent that person after they’ve been sentenced to jail — meaning that a person would have to wait to be convicted before asserting their right to counsel at trial, which would in turn require a wholesale do-over of the prosecution.

“If the defendant is convicted and the judge imposes a term of imprisonment, the entire process, including the trial, will have to be done over,” he wrote. “That argument is nonsensical, if not just silly, and is certainly not supported by any legal authority.”

(The San Bernardino County district attorney’s office has declined to play any part in the current litigation and as such, a spokesperson wrote to The Intercept, has no comment on it.)

While there are vastly more misdemeanor charges than felony charges filed every year in the U.S., unlike felony charges, many misdemeanor cases are ultimately dismissed or resolved by means that don’t include incarceration. And the majority of those that survive that first cut are resolved by a plea deal. In the end, very few misdemeanor cases make their way to trial, and there are even fewer where evidence is actually challenged. Rarer still is a case like Lopez’s, where the defense is successful in having that evidence suppressed.

But it isn’t only that particular circumstance in which a defendant might be hamstrung by the appeal court opinion, should it survive the scrutiny of the state’s high court. A defendant who wins a pretrial argument that an indictment is flawed, or a particular statute is unconstitutional, for example, might be thrust into the same position.

“Imagine that, and then the prosecutor appeals and you don’t have a lawyer for the defense arguing the constitutionality of the statute,” said Jenny Roberts, a professor at American University’s Washington College of Law and noted expert on the misdemeanor system, plea bargaining, and the collateral consequences of a criminal conviction. “That seems crazy to me.”

Roberts, who signed on to the amicus brief, says that allowing the appeal court’s opinion to go unchecked threatens the very right to counsel guaranteed by the Sixth Amendment. “It doesn’t make sense. It’s counterintuitive. The court of appeals was making a sort of technical reading of the [court rule] and, more importantly, the constitutional right to counsel in a way that is not just counterintuitive,” she said, “but I think is wrong.”

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