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Colorado Supreme Court Announces Courts Not Required to Address All 11 Brown Factors in Ruling on Defendant’s Motion for Continuance to Change Counsel

by Harold Hempstead

In addressing an issue of first impression, the Supreme Court of Colorado en banc clarified its decision in People v. Brown, 322, P.3d 214 (Colo. 2014), by instructing that trial courts are not required to make explicit findings with respect to each and every one of the 11 Brown factors in ruling on a defendant’s motion for continuance to change counsel and held that the trial court abused its discretion in denying Palmer Gilbert’s motion for a continuance.

In September 2016, after Gilbert was questioned by a Best Buy employee about why he was sitting in another employee’s car in the store’s parking lot, he exited the car and started swinging a knife at the employee. Gilbert then fled on foot and after making several carjacking attempts at knifepoint, he stole a car that he eventually crashed. He was subsequently arrest in Cheyenne, Wyoming. 

Gilbert was charged with 10 crimes in connection with the foregoing episode. In December 2016, he posted bond, and after absconding, he was apprehended once again and arraigned in December 2017.

At a March 2018 hearing, held five days prior to trial, defense counsel told the trial court Gilbert was hiring new counsel. The court said that it was “a little too late” and indicated it would deny any motion to continue.

The next day, two new attorneys filed conditional entries of appearance and a motion to continue trial. They advised the trial court that “irreconcilable differences” have arisen between Gilbert and his current counsel and that Gilbert believes that current counsel is not prepared for trial. Shortly thereafter, at a hearing on the motion to continue, Gilbert’s new counsel reiterated the facts that were raised in their motion. The People objected and addressed each of the Brown factors.

The trial court denied the motion, contending that it was another attempt by Gilbert to delay the case, that the granting of the motion would cause at least a six-month continuance for new counsel to prepare, and that delay would cause “substantial hardship to the People.”

Gilbert’s current defense counsel requested a hearing in which he told the court about several personal issues that had negatively affected his mental health “and his ability to dedicate himself to Gilbert’s case.” He also explained that Gilbert did not have any confidence in him, that their relationship was fractured, irreconcilable, unrepairable, and “broken down to the point of [Gilbert having] extreme distrust” in him. Counsel also explained that the trial court’s disparaging comments about him throughout the case has caused him “emotional distress for which he had sought counseling.” Finally, counsel told the court that he is duty-bound to withdraw.

The trial court denied counsel’s request to withdraw, stating that it believed trial counsel would provide effective assistance of counsel.

Gilbert was convicted of seven of the ten charges by a jury and timely appealed.

The Court of Appeals ruled that the trial court’s failure to make specific findings as to each of the 11 factors in Brown made the record inadequate for the purpose of determining “if the [trial] court properly exercised its discretion.” It vacated Gilbert’s convictions and remanded with instructions that the trial court “make specific findings concerning each Brown factor” and to conduct a new trial if its findings show that Gilbert’s Sixth Amendment right to counsel of choice had been violated. The People appealed, and the Supreme Court granted review.

The Court began its analysis by observing the Sixth Amendment grants criminal defendants the right to the counsel of their choice. See Powell v. Alabama, 287 U.S. 45 (1932) (“a defendant should be afforded a fair opportunity to secure counsel of his own choice”). The right to be represented by counsel of defendant’s choice is “entitled to great deference.” Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986). Consequently, trial courts are required to “recognize a presumption in favor of a defendant’s choice of retained counsel.” Ronquillo v. People, 404 P.3d 264 (Colo. 2017).

However, the Court explained that the right to counsel of the defendant’s choice is not absolute, noting that the judicial process must be fundamentally fair to all parties. Rodriguez. In Brown, the Colorado Supreme Court had to balance competing interests in deciding whether to grant Brown’s motion for a continuance so that he could exercise his right to the counsel of his choice by replacing appointed counsel with retained counsel.

The Brown Court explained that trial courts must balance the defendant’s Sixth Amendment right with the public’s interest in the efficiency and integrity of the judicial process and set forth 11 factors for courts to consider so that reviewing courts can determine whether the trial court exercised its discretion properly: (1) the defendant’s actions surrounding the request and apparent motive for making the request; (2) the availability of chosen counsel; (3) the length of continuance necessary to accommodate chosen counsel; (4) the potential prejudice of a delay to the prosecution beyond mere inconvenience; (5) the inconvenience to witnesses; (6) the age of the case, both in the judicial system and from the date of the offense; (7) the number of continuances already granted in the case; (8) the timing of the request to continue; (9) the impact of the continuance on the court’s docket; (10) the victim’s position, if the victims’ rights act applies; and (11) any other case-specific factors necessitating or weighing against further delay.

The Brown Court stated that “no single factor is dispositive and that the weight accorded each factor will vary depending on the specific facts at issue in the case.” It instructed that the trial court’s findings should be on the record for appellate review; otherwise, it may be necessary to remand the case back to the trial court for development of the record.

The Court observed that it has not had the opportunity to address “whether a trial court must make specific findings regarding each and every factor of the Brown balancing test or whether an appellate court may review the trial court’s denial of a motion for continuance under the Brown factors based on the existing appellate record rather than remand the case for more specific findings under the Brown analysis.”

In answering the question, the Court held that “a trial court need not make explicit findings as to each and every Brown factor.” It also held “that, where the record contains relevant information, an appellate court may (but is not required to) review the trial court’s ruling on the motion to continue under the Brown balancing test rather than remand the case for the trial court to make more express findings.

Turning to the present case, the Court ruled that, after applying the relevant Brown factors, Gilbert’s right to the counsel of his choice is not outweighed by “the demands of fairness and efficiency.” Brown.

The Court based its ruling on five factors: (1) the record contradicts the trial court’s view that Gilbert’s purpose in seeking new counsel was merely a dilatory tactic, especially persuasive is the fact he was willing to waive his speedy trial rights while remaining in custody so that his new lawyers could adequately prepare for trial; (2) new counsel was ready, willing, and able to participate in the proceedings; (3) there’s no indication that new counsel would not be prepared for trial after a continuance; (4) the case moved through the system quickly following his arraignment in December 2017, and his request for a continuance came only months later in March 2018; and (5) no previous continuances had been requested by any party.

Thus, the Court ruled that the trial court abused its discretion by denying Gilbert’s motion for a continuance and thereby violated his Sixth Amendment right to the counsel of his choice. This constitutes a structural, explained the Court, and therefore, his “convictions cannot stand.” See Gonzalez v. Lopez, 548 U.S. 140 (2006).

Accordingly, the Court vacated his convictions and remanded the case for a new trial. See: People v. Gilbert, 510 P.3d 538 (Colo. 2022). 

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Related legal cases

People v. Gilbert

Lopez v. Gonzales

549 U.S. 47; 127 S.Ct. 625; 166 L.Ed.2d 462


No. 05-547

October 3, 2006, Argued

December 5, 2006, Decided

NOTICE: [*1] The LEXIS pagination of this document is subject to change pending release of the final published version.


DISPOSITION: 417 F.3d 934, reversed and remanded.


The Immigration and Nationality Act (INA) lists as an "aggravated felony" "illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of title 18)," 8 U.S.C. § 1101(a)(43)(B), but does not define "illicit trafficking." Title 18 U.S.C. § 924(c)(2) defines "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act" (CSA). Petitioner Lopez, a legal permanent resident alien, pleaded guilty to South Dakota charges of aiding and abetting another person's possession of cocaine, which state [*2] law treated as the equivalent of possessing the drug, a state felony. The Immigration and Naturalization Service (INS) began removal proceedings on the ground, inter alia, that Lopez's state conviction was for an aggravated felony. The Immigration Judge ultimately ruled that despite the CSA's treatment of Lopez's crime as a misdemeanor, see 21 U.S.C. § 844(a), it was an aggravated felony under the INA owing to its being a felony under state law. The judge ordered Lopez removed in light of 8 U.S.C. § 1229b(a)(3), which provides that the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. The Board of Immigration Appeals (BIA) affirmed, and the Eighth Circuit affirmed the BIA.

Held: Conduct made a felony under state law but a misdemeanor under the CSA is not a "felony punishable under the Controlled Substances Act" for INA purposes. A state offense comes within the quoted phrase only if it proscribes conduct punishable as a felony under the CSA. The Government argues that possession's felonious character as a state crime is enough to turn it into [*3] an aggravated felony under the INA because the CSA punishes possession, albeit as a misdemeanor, while § 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony, so that a prior conviction in state court will satisfy the felony element because the State treats possession that way. This argument is incoherent with any commonsense conception of "illicit trafficking," the term ultimately being defined. Because the statutes in play do not define "trafficking," the Court looks to the term's everyday meaning, FDIC v. Meyer, 510 U.S. 471, 476, which ordinarily connotes some sort of commercial dealing. Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern. Reading § 924(c) the Government's way, then, would often turn simple possession into trafficking, [*4] just what the English language counsels not to expect, and that result makes the Court very wary of the Government's position. Although the Government might still be right, there would have to be some indication that Congress meant to define an aggravated felony of illicit trafficking in an unorthodox and unexpected way. There are good reasons to think it was doing no such thing here. First, an offense that necessarily counts as "illicit trafficking" under the INA is a "drug trafficking crime" under § 924(c), i.e., a "felony punishable under the Controlled Substances Act," § 924(c)(2). To determine what felonies might qualify, the Court naturally looks to the definitions of crimes punishable as felonies under the CSA. If Congress had meant the Court to look to state law, it would have found a much less misleading way to make its point. The Government's argument to the contrary contravenes normal ways of speaking and writing, which demonstrate that "felony punishable under the . . . Act" means "felony punishable as such under the Act" or "felony as defined by the Act," and does not refer to state felonies, so long as they would be punishable at all under the CSA. The Government's [*5] argument is not supported by the INA's statement that the term "aggravated felony" "applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43). Rather than wrenching the expectations raised by normal English usage, this provision has two perfectly straightforward jobs to do. First, it provides that a generic description of "an offense . . . in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and, second, it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez's state crime actually fell within the general term "illicit trafficking," the state felony conviction would count as an "aggravated felony," regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U.S.C. § 844(a). Nothing in the provision in question suggests that Congress changed the meaning of "felony punishable under the [CSA]" when it took [*6] that phrase from Title 18 of the U.S. Code and incorporated it into Title 8's definition of "aggravated felony." Yet the Government admits that it has never begun a prosecution under 18 U.S.C. § 924(c)(1)(A) where the underlying "drug trafficking crime" was a state felony but a federal misdemeanor. This telling failure in the very context in which the phrase "felony punishable under the [CSA]" appears in the Code belies the Government's claim that its interpretation is the more natural one. Finally, the Government's reading would render the law of alien removal, see 8 U.S.C. § 1229b(a)(3), and the law of sentencing for illegal entry into the country, see United States Sentencing Commission, Guidelines Manual § 2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. Congress would not have incorporated its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Pp. 4-12.

417 F.3d 934, reversed and remanded.

JUDGES: SOUTER, [*7] J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

OPINION: JUSTICE SOUTER delivered the opinion of the Court.

The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." 18 U.S.C. § 924(c)(2). We hold it is not.



The Immigration and Nationality Act (INA) defines the term "aggravated felony" by a list that mentions "illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of title 18)." § 101(a)(43)(B), as added by § 7342, 102 Stat. 4469, and as amended by § 222(a), 108 Stat. 4320, 8 U.S.C. § 1101(a)(43)(B). The general phrase "illicit trafficking" is left undefined, but § 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, [*8] § 101(a)43 of the INA provides in its penultimate sentence that "the term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." 8 U.S.C. § 1101(a)(43).

An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. § 1229b(a)(3). Nor is an aggravated felon eligible for asylum. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual § 2L1.2 (Nov. 2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition of aggravated felony).


Although petitioner Jose [*9] Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person's possession of cocaine, and was sentenced to five years' imprisonment. See S. D. Codified Laws § 22-42-5 (1988); § 22-6-1 (Supp. 1997); § 22-3-3 (1988). He was released for good conduct after 15 months.

After his release, the Immigration and Naturalization Service (INS) n1 began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U.S.C. § 1227(a)(2)(B)(i), and was also for an aggravated felony, see § 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See § 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the [*10] issue, the same judge ruled that Lopez's drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata, 116 F.3d 308 (CA8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F.3d 934 (CA8 2005). n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 The INS's immigration-enforcement functions are now handled by the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Clark v. Martinez, 543 U.S. 371, 374, n. 1 (2005).

n2 Although the Government has deported Lopez, we agree with the parties that the case is not moot. Lopez can benefit from relief in this Court by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*11]

We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA. n3 547 U.S. ___ (2006). We now reverse.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 Compare United States v. Wilson, 316 F.3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F.3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F.3d 691 (CA5 1997) (same); United States v. Briones-Mata, 116 F.3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F.3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar, 74 F.3d 361 (CA1 1996) (same), with Gonzales-Gomez v. Achim, 441 F.3d 532 (CA7 2006) (state-law felony is not an aggravated felony); United States v. Palacios-Suarez, 418 F.3d 692 (CA6 2005) (same); Gerbier v. Holmes, 280 F.3d 297 (CA3 2002) (same). Two Circuits have construed the aggravated felony definition one way in the sentencing context and another in the immigration context. Compare United States v. Ibarra-Galindo, 206 F.3d 1337 (CA9 2000) (in sentencing case, state-law felony is an aggravated felony); United States v. Pornes-Garcia, 171 F.3d 142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (CA9 2004) (in immigration case, state-law felony is not an aggravated felony); Aguirre v. INS, 79 F.3d 315 (CA2 1996) (same).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*12]


The INA makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance . . . including," but not limited to, "a drug trafficking crime (as defined in section 924(c) of title 18)." 8 U.S.C. § 1101(a)(43)(B). Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S. D. Codified Laws § 22-3-3, a state felony, § 22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U.S.C. § 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see § 841 (2000 ed. and Supp. III); United States v. Kates, 174 F.3d 580, 582 (CA5 1999) (per curiam) ("Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone").

Despite this federal misdemeanor treatment, the Government argues that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. [*13] There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," § 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see § 405(a), 102 Stat. 4384, as renumbered and amended by § 1002(g), 104 Stat. 4828, 21 U.S.C. § 844(a). That is enough, says the Government, because § 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way.

There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer, 510 U.S. 471, 476 (1994). And ordinarily "trafficking" means some sort [*14] of commercial dealing. See Black's Law Dictionary 1534 (8th ed. 2004) (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also Urena-Ramirez v. Ashcroft, 341 F.3d 51, 57 (CA1 2003) (similar definition); State v. Ezell, 321 S. C. 421, 425, 468 S. E. 2d 679, 681 (App. 1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, se

Powell v. Alabama

287 U.S. 45; 53 S.Ct. 55; 77 L.Ed. 158





Nos. 98-100.
Argued Oct. 10, 1932.
Decided Nov. 7, 1932.

[287 U.S. 45, 47] Mr. Walter H. Pollak, of New York City, for petitioners.

Mr. Thomas E. Knight, Jr., of Montgomery, Ala., for the State of Alabama.

JUSTICES: Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts, Cardozo


1. The rule denying the aid of counsel to persons charged with felony, which (except as to legal questions) existed in England when our Constitution was formed, was rejected in this country by the Colonies before the Declaration of Independence, and is not a test of whether the right to counsel in such cases is embraced in the guarantee of "due process of law." P. 65.

2. The rule that no part of the Constitution shall be treated as superfluous is an aid to construction which, in some instances, may be conclusive, but which must yield to more compelling considerations whenever they exist. P. 67.

3. The fact that the right of an accused person to have counsel for his defense was guaranteed expressly (as respects the federal Government) by the Sixth Amendment, notwithstanding the presence of the due process clause in the Fifth Amendment, does not exclude that right from the concept "due process of law." Pp. 66-68.

4. The right of the accused, at least in a capital case, to have the aid of counsel for his defense, which includes the right to have sufficient time to advise with counsel and to prepare a defense, is one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment. Pp. 68-71.

5. In a capital case, where the defendant is unable to employ counsel, and is incapable of making his own defense adequately because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. P. 71.

6. In a case such as this, the right to have counsel appointed, when necessary, is a logical corollary to the right to be heard by counsel. P. 72.

7. In such circumstances, the trial court has power, even in the absence of statute, to appoint an attorney for the accused; and the attorney, as an officer of the court, is bound to serve. P. 73.

COUNSEL: Mr. Walter H. Pollak, with whom Messrs. Carl S. Stern and George W. Chamlee were on the brief, for petitioners.

Mr. Thomas E. Knight, Jr., Attorney General of Alabama, with whom Mr. Thos. Seay Lawson, Assistant Attorney General, was on the brief, for respondent.

The phrase "due process of law" antedates the establishment of our institutions. It embodies one of the broadest and most far reaching guaranties of personal and property rights. It is necessary for the enjoyment of life, liberty and property that this constitutional guaranty be strictly complied with. However, it is imperative that this Court under our system of government see that the States be not restricted in their method of administering justice in so far as they do not act arbitrarily and discriminatingly. Frank v. Mangum, 237 U.S. 309; Holden v. Hardy, 169 U.S. 366, 389; Missouri v. Lewis, 101 U.S. 22, 31; Hurtado v. California, 110 U.S. 516, 535.

A defendant in a criminal case has been accorded due process of law when there is a law creating or defining the offense, a court of competent jurisdiction, accusation in due form, notice and opportunity to answer the charge, trial according to the established course of judicial proceedings, and a right to be discharged unless found guilty. No particular form of procedure is required. The question of due process is determined by the law of the jurisdiction where the offense was committed and the trial was had. Missouri v. Lewis, 101 U.S. 22; Hurtado v. California, 110 U.S. 516; Brown v. New Jersey, 175 U.S. 172; Jordan v. Massachusetts, 225 U.S. 167; Rogers v. Peck, 199 U.S. 425; Garland v. Washington, 232 U.S. 642; Missouri ex rel. Hurwitz v. North, 271 U.S. 40; Miller v. Texas, 153 U.S. 535; Ong Chang Wing v. United States, 218 U.S. 272; Hodgson v. Vermont, 168 U.S. 262.

Here the trials were in accordance with the constitution and statutes of Alabama, the provisions of which are in no way attacked as being unconstitutional. They were conducted in compliance with the rules, practice, and procedure long prevailing in the State. The court of last resort decided these cases in compliance with those rules of appeal and error which they apply in all cases.

Under the laws of Alabama the petitioners were entitled to counsel. Const., Art. 1, § 6. When it appears that a defendant charged with a capital offense has not employed counsel, it is the duty of the court to appoint attorneys for his defense. Code (1923), § 5567. A compliance with this section is shown. At the time of the arraignment there were nine defendants; and while the record does not disclose the number of attorneys practising at the Scottsboro bar, we venture to say that there were not as many as eighteen attorneys at that bar, the number which the court could have appointed under the statute.

If there had been only one defendant, it does not seem plausible to us that he could correctly contend that he had been denied due process of law because the court appointed more than two lawyers to represent him. This was at most, a mere irregularity which would not invalidate a conviction.

The petitioners were represented by counsel from Chattanooga and by two members of the bar of Scottsboro. They were not put to trial until one week after counsel were appointed. The record affirmatively shows that counsel had conferred with them and had done everything that they knew how to do. Henry Ching v. United States, 264 Fed. 639, cert. den., 254 U.S. 630.

There was no demand or motion made for a continuance. The defendants were represented by capable counsel, one of whom has enjoyed a long and successful practise before the courts of Jackson County. Counsel, by their own statements, show that they not only had time for preparation of their case, but that they knew and proceeded along proper lines for a week prior to the trial.

JUDGES: Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts, Cardozo


OPINION: [*49] [**56] [***160] MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

These cases were argued together and submitted for decision as one case.

[**57] The petitioners, hereinafter referred to as defendants, are negroes charged with the crime of rape, committed upon the persons of two white girls. The crime is said to have been committed on March 25, 1931. The indictment was returned in a state court of first instance on March 31, and the record recites that on the same day the defendants were arraigned and entered pleas of not guilty. There is a further recital to the effect that upon the arraignment they were represented by counsel. But no counsel had been employed, and aside from a statement made by the trial judge several days later during a colloquy immediately preceding the trial, the record does not disclose when, or under what circumstances, an appointment of counsel was made, or who was appointed. During the colloquy referred to, the trial judge, in response to a question, said that he had appointed all the members of the bar for the purpose [***161] of arraigning the defendants and then of course anticipated that the members of the bar would continue to help the defendants if no counsel appeared. Upon the argument here both sides accepted that as a correct statement of the facts concerning the matter.

There was a severance upon the request of the state, and the defendants were tried in three several groups, as indicated above. As each of the three cases was called for trial, each defendant was arraigned, and, having the [*50] indictment read to him, entered a plea of not guilty. Whether the original arraignment and pleas were regarded as ineffective is not shown. Each of the three trials was completed within a single day. Under the Alabama statute the punishment for rape is to be fixed by the jury, and in its discretion may be from ten years imprisonment to death. The juries found defendants guilty and imposed the death penalty upon all. The trial court overruled motions for new trials and sentenced the defendants in accordance with the verdicts. The judgments were affirmed by the state supreme court. Chief Justice Anderson thought the defendants had not been accorded a fair trial and strongly dissented. 224 Ala. 524; id. 531; id. 540; 141 So. 215, 195, 201.

In this court the judgments are assailed upon the grounds that the defendants, and each of them, were denied due process of law and the equal protection of the laws, in contravention of the Fourteenth Amendment, specifically as follows: (1) they were not given a fair, impartial and deliberate trial; (2) they were denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial; and (3) they were tried before juries from which qualified members of their own race were systematically excluded. These questions were properly raised and saved in the courts below.

The only one of the assignments which we shall consider is the second, in respect of the denial of counsel; and it becomes unnecessary to discuss the facts of the case or the circumstances surrounding the prosecution except in so far as they reflect light upon that question.

The record shows that on the day when the offense is said to have been committed, these defendants, together with a number of other negroes, were upon a freight train on its way through Alabama. On the same train were seven white boys and the two white girls. A fight took [*51] place between the negroes and the white boys, in the course of which the white boys, with the exception of one named Gilley, were thrown off the train. A message was sent ahead, reporting the fight and asking that every negro be gotten off the train. The participants in the fight, and the two girls, were in an open gondola car. The two girls testified that each of them was assaulted by six different negroes in turn, and they identified the seven defendants as having been among the number. None of the white boys was called to testify, with the exception of Gilley, who was called in rebuttal.

Before the train reached Scottsboro, Alabama, a sheriff's posse seized the defendants and two other negroes. Both girls and the negroes then were taken to Scottsboro, the county seat. Word of their coming and of the alleged assault had preceded them, and they were met at Scottsboro by a large crowd. It does not sufficiently appear that the defendants were seriously threatened with, or that they were actually in danger of, mob violence; but it does appear that the attitude of the community was one of great hostility. The sheriff thought it necessary to call for the militia to assist in safeguarding the prisoners. Chief Justice Anderson pointed out in his opinion that every step taken from the arrest and arraignment to the sentence was accompanied by the military. Soldiers took the defendants to Gadsden for safekeeping, [***162] brought them back to Scottsboro for arraignment, returned them to Gadsden for safekeeping while awaiting trial, escorted them to Scottsboro for trial a few days later, and guarded the court house and grounds at every stage of the proceedings. It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. During the entire time, the defendants were closely confined or were under military guard. The record does not disclose their ages, except that one of them [**58] was nineteen; but the [*52] record clearly indicates that most, if not all, of them were youthful, and they are constantly referred to as "the boys." They were ignorant and illiterate. All of them were residents of other states, where alone members of their families or friends resided.

[***HR1] However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. With any error of the state court involving alleged contravention of the state statutes or constitution we, of course, have nothing to do. The sole inquiry which we are permitted to make is whether the federal Constitution was contravened ( Rogers v. Peck, 199 U.S. 425, 434; Hebert v. Louisiana, 272 U.S. 312, 316); and as to that, we confine ourselves, as already suggested, to the inquiry whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment.

[***HR2] First. The record shows that immediately upon the return of the indictment defendants were arraigned and pleaded not guilty. Apparently they were not asked whether they had, or were able to employ, counsel, or wished to have counsel appointed; or whether they had friends or relatives who might assist in that regard if communicated with. That it would not have been an idle ceremony to have given the defendants reasonable opportunity to communicate with their families and endeavor to obtain counsel is demonstrated by the fact that, very soon after conviction, able counsel appeared in their behalf. This was pointed out by Chief Justice Anderson in the course of his dissenting opinion. "They were nonresidents," he said, "and had little time or opportunity to get in touch with their families and friends who were scattered throughout two other states, and time has demonstrated [*53] that they could or would have been represented by able counsel had a better opportunity been given by a reasonable delay in the trial of the cases, judging from the number and activity of counsel that appeared immediately or shortly after their conviction." 224 Ala., at pp. 554-555; 141 So. 201.

[***HR3] It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. This will be amply demonstrated by a brief review of the record.

April 6, six days after indictment, the trials began. When the first case was called, the court inquired whether the parties were ready for trial. The state's attorney replied that he was ready to proceed. No one answered for the defendants or appeared to represent or defend them. Mr. Roddy, a Tennessee lawyer not a member of the local bar, addressed the court, saying that he had not been employed, but that people who were interested had spoken to him about the case. He was asked by [***163] the court whether he intended to appear for the defendants, and answered that he would like to appear along with counsel that the court might appoint. The record then proceeds:

"The Court: If you appear for these defendants, then I will not appoint counsel; if local counsel are willing to appear and assist you under the circumstances all right, but I will not appoint them.

"Mr. Roddy: Your Honor has appointed counsel, is that correct?

"The Court: I appointed all the members of the bar for the purpose of arraigning the defendants and then of course I anticipated them to continue to help them if no counsel appears.

[*54] "Mr. Roddy: Then I don't appear then as counsel but I do want to stay in and not be ruled out in this case



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