# Powell v. Alabama

Powell v. Alabama, 287 U.S. 45 (1932), was a United States Supreme Court decision which determined that in a capital trial, the defendant must be given access to counsel upon his or her own request. Warning: template has been deprecated.
Supreme Court of the United States
287 U.S. 45
OZIE POWELL, WILLIE ROBERSON, ANDY WRIGHT, AND OLEN MONTGOMERY v. ALABAMA
Certiorari to the Supreme Court of Alabama
No. 98, 99, and 100. Argued: Oct. 10, 1932 --- Decided: Nov. 7, 1932

## Dissenting Opinion

    Butler
1. The rule denying the aid of counsel to persons charged with felony, which (except as to legal questions) existed in England [p46] 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 jhe 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.
224 Ala. 524, 531, 540, reversed.
CERTIORARI, 286 U.S. 540, to review judgments affirming sentences to death based upon convictions for rape. There was one indictment against these petitioners and two other persons. The petitioners were tried in three groups, as shown in the caption, pursuant to an order of severance obtained by the State.
[p47] 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 du6 process is determined by the law of the jurisdiction where the offensewas 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.
[p48] 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 prac- [p50] tise 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.

## Notes

* ↑ [Together with HAYWOOD PATTERSON V. SAME, and CHARLEY WEEMS AND CLARENCE NORRIS V. SAME]
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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