In Ross v. Moffitt (1974), it was held by the U.S. Supreme Court that the indigent criminal defendant is not entitled to the right of an appointed counsel at State’s cost as the indigent defendant is already entitled to the right of the appointed counsel at the courts below i.e., the trial court and first court of appeal where a counsel’s advise and presence is required at the various stages of trial and to point out to the Appellate court the errors committed by the court below. What is more important is the due process clause rather than the equal protection clause of the 14th Amendment. There will be no differences in the outcome of the Supreme Court between that of a wealthy defendant and that of an indigent defendant for the same matter as the Supreme court is armed with all the details for a decision and therefore it will be a luxury for the indigent criminal defendant at this stage to have a free counsel adding to the State’s burden.
In Ross v. Moffitt ( , the U.S. Supreme Court ruled that there is no compulsion for a State under the Fourteenth Amendment to provide free counsel in the aid of indigent criminal defendants for preparing petitions for discretionary review in the State courts or for certiorari to the U.S. Supreme Court. The case therefore decides the upper limit for the defendants to have free counsel. The rationale in Ross decision can be seen in the light of other decisions especially Douglass v California which gives importance to the Due Process clause rather than the Equal Protection clause of the Fourteenth Amendment in deciding the extent to which a State must consider appointed counsel for the indigent criminal defendants. In Ross, the respondent had been convicted on separate charges of forgery and uttering a forged document. The respondent was provided with court appointed counsel both during the Trial and appeal as of right to the North Carolina Court of Appeals. However, on the affirmation of his conviction, Ross sought right of a counsel for pursuing his discretionary review in the North Carolina Supreme Court but it was turned down on the ground that State was not obligated to provide a counsel at that stage. The U.S. Supreme Court also held that a State is not constitutionally liable to provide free counsel to indigent defendants for discretionary review in State courts or for Certiorari by the U.S. Supreme Court. The U.S. Supreme Court sought to clarify the ambiguity in the decisions in Griffin and Douglass. Therefore, in Ross, the U.S. Supreme Court dealt with due process and equal protection clauses of the fourteenth amendment. The due process refers to the fairness between the State and the individual dealing with the state irrespective of how the different individuals in the same situation will be treated.
Equal protection on the other hand, deals with the disparity in treatment by the State between classes of individuals whose situations are not distinguishable. The reason why there is a distinction between classes of individuals in the first appeal and no distinction for different classes of individuals in subsequent appeals is that the Fourteenth Amendment does not mandate a State to ensure absolute equality, equal advantages or to equalize economic conditions. The equal protection clause only requires that the State appellate system should be free from unreasonable distinctions. As such, if there can be a reasonable distinction between indigent criminal defendants on first appeals and the same indigent criminal defendants on the subsequent appeals, the State may be justified in providing counsel to the former and not the latter. In analyzing the North Carolina appellate system, the Court came to a conclusion that there existed a rational basis for the distinction on two factors. One, the amount of information available to the discretionary appellate court and two, the purpose of discretionary appellate review. In the first appeal of right if the defendant is denied of counsel, the defendant will be at a disadvantage of not being in possession of knowledge of any error below which the bare transcripts would not adequately show. As such, the appellate court will have difficulty in finding the errors below. Hence, advice of counsel is essential. However, in discretionary review, the indigent criminal defendant will have many more resources because the counsel at the appellate stage would have made available all information necessary for a decision.
In deciding whether or not to grant certiorari, the U.S. Supreme Court would be in possession of the same transcript, the appellate brief and opinion that a State appellate court would be in possession for discretionary review. The U.S. Supreme Court also would be concerned about other factors apart from the accuracy of the decision below. The U.S Supreme Court however concluded that right to Supreme Court review is of federal origin and not state to which the decisions in Griffin and Douglas would apply. The dissenting judge Douglas noted that the majority could not find any logical basis for differentiation between appeals of right and permissive review procedures. The dissent noted that in view of the substantial disadvantage the indigent criminal defendant might suffer relative to the wealthy defendants and in view of the fact that it will be easy for the original counsel who represented the indigent criminal defendant in State appellate court to prepare brief for the discretionary review, indigent the criminal defendant should be ideally given the right of free counsel at the discretionary review stage also. However, the right of a counsel at the discretionary review is a luxury for the indigent criminal defendant because all the informations are available for the Supreme Court to decide. Hence, the indigent criminal defendant cannot be said to suffer .
Anonymous. (1975). No Right to Counsel for Indigent Criminal Defendants on Subsequent Discretionary Appellate Review: Due Process Or Unequal Protection. Maryland Law review , 35 (1), 135-146.
Douglass v. California , 372 U.S. 353 (U.S. Supreme Court 1963).
Ingram, J. (2009). Criminal procedure: Theory and Practice (2 ed.). New Jersey: Prentice Hall.
Ross v. Moffitt , 417 U.S. 600 (U.S. Supreme Court 1974).