You have the right.

You have the right.

You have the right.

Oral argument from the court.
Jan. 21 2004 6:46 PM

Wise Council

The Supreme Court ponders the usefulness of lawyers.

Even criminals deserve to understand the workings of the criminal-justice system. This is the basis for landmark Supreme Court cases like Miranda v. Arizona (requiring cops to advise you of your rights upon arrest). The theory is that criminals have certain rights and privileges, which are of little utility to them if they remain unknown. But it's not clear what the reasoning is behind the argument that criminals also have the right to be breastfed, burped, and cuddled by the criminal-justice system, although that seems to be the theory advanced this morning in Iowa v. Tovar.

Felipe Tovar has been arrested for drunken driving three times. In 1996 and 1998, he waived his right to an attorney and pleaded guilty. In 2001, when Tovar was found guilty of a third drunken driving offense (third time's a felony in Iowa) the court had no choice but to impose jail time. Tovar claims that the earlier convictions shouldn't count toward enhancing his third sentence because when he waived counsel and pleaded guilty, he did so without having received a proper warning about the dangers of waiving the right to a lawyer. Tovar doesn't deny driving drunk. He simply wants to go back and cancel out that first guilty plea because the judge should have told him then that lawyers are useful beings.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Before accepting his guilty plea at Tovar's 1996 hearing, the judge did tell him that a lawyer would be provided free at trial and that a lawyer could help in all sorts of ways at trial. Tovar waived counsel anyhow. He admitted that he had driven a car and did not challenge the blood-test results that revealed he had a .194 blood-alcohol level. Tovar's claim is partly that the judge needed to tell him that he had a right to counsel at the guilty-plea stage in 1996 and partly that the judge should have laid out a laundry list of ways in which a lawyer could have helped him at that stage. In 2003 the Iowa Supreme Court ruled in Tovar's favor 4-3, finding that defendants have a constitutional right to be advised explicitly on the joys of counsel. The question for the high court is whether such a warning represents the constitutionally minimal warning necessary for a valid Sixth Amendment waiver of one's right to counsel.

It is 28 degrees outside today in D.C., 19 if you count the wind chill. But for Tovar, it's far colder in the courtroom.

Iowa Attorney General Thomas Miller begins his presentation by arguing that it is constitutionally sufficient for a judge who's accepting a guilty plea to review with the defendant the elements of the crime, the range of sentences, and to establish the factual basis of guilt. Justice Sandra Day O'Connor notes that "it might be useful to have an attorney at that point." And Justice Antonin Scalia summarizes the case as being about whether defendants are constitutionally entitled to a judge advising them that they have a right to an attorney and that "Boy, you'd be really stupid to turn it down."

Justice Anthony Kennedy echoes O'Connor's observation that "it certainly would be useful" to have an attorney present at the guilty-plea phase—to look at the evidence, negotiate a plea deal, or persuade the judge to offer a reduced sentence. It would also be useful to have a warning about the dangers of gingivitis and severe sunburns, but it's hardly required by the Constitution.

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Chief Justice Rehnquist points out that the colloquy in question happens after the defendant has already admitted to the factual elements and that if he's already admitted to all the elements, "why is there any interest in telling them not to plead guilty?" Scalia hops onto the stating-the-obvious bandwagon when he says that you "don't need a court to tell you counsel would be helpful."

Justice John Paul Stevens says the defendant may know a lawyer is helpful but not that he has a right to have one at a plea hearing. The rest of the court seems to feel that this is either obvious to a defendant, or was at least obvious to this defendant.

Malcolm L. Stewart represents the solicitor general's office, which is in the case on Iowa's side, against Tovar. Stewart is very clear and very tall—qualities that must be appreciated by the aging justice population. He quotes from the Iowa Supreme Court opinion providing that judges must warn defendants that there are various defenses to criminal charges that may not be familiar to laypersons, then calls such warnings "either vacuous or misleading." He says that if the point is to tell defendants that "lawyers as a class know more than non-lawyers," well "any defendant would already know this." And it raises the possibility of defendants misunderstanding the warnings as a "veiled suggestion that there is actually a meritorious defense."

Kennedy asks whether the Miranda warning delivered by the cops is enough to warn defendants throughout the legal process that they have a right to counsel. Stewart says yes.

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Theresa Wilson represents Felipe Tovar, and she stakes out a position even more extreme than the Supreme Court of Iowa's by requiring an even more elaborate warning from judges. Justice David Souter questions whether the warning sought is "so general that it raises the question if any defendant doesn't know this already?" Wilson cites the American Bar Association as saying that to many defendants the word "counsel" doesn't mean anything. Breyer says that if the ABA felt that strongly about the necessity for this warning, they'd have lobbied to put it into the rules.

Scalia says, "when we invented the Mirandawarning, we didn't say you had to warn: 'by the way, the first thing counsel will tell you is to shut up, which would be good advice.' " All you are told of is the right to counsel. The constitutional obligation is to advise the defendant of his rights, not to quarterback his defense strategy. Wilson says guilty pleas are different since they result in a conclusive finding of guilt. She then tells the court that she may have made an error in bringing this case as an invalid waiver-of-counsel claim rather than as a denial-of-counsel case. The court debates over whether they can reverse this case on different grounds.

Ginsberg says a warning that the defendant may have valid defenses "raises false hope." She explains: "The defendant would just ask the judge, 'Can you tell me what those defenses might be?' " Wilson replies the judge should tell that defendant to get a lawyer. Scalia does a credible impression of that defendant whining, "but a lawyer is gonna cost me $200 an hour. Gimme a break!" He asks whether the instruction that "attorneys are useful" is any more helpful than no instruction.

Rehnquist asks whether other courts have found this to be a matter of federal constitutional law, and when Wilson says the 9th Circuit did, the chief shoots back, "Any other circuit?" so fast, you'd think Wilson had cited some Wisconsin traffic court. The chief asks Wilson why she didn't cite anything but Supreme Court and Iowa state cases in her brief. She replies the brief was a "cooperative effort between her office and the National Legal Aid and Public Defenders."

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"And which one of you dropped the ball?" snorts the chief.

Scalia asks if it really serves the greater good to warn criminals that "if you got an attorney, he'd find some gimmick. ... You have a right to know that you have the right to get off, even if you're guilty," adding, "We want people to admit they're guilty."

But Justice Scalia may want even the innocent to do that.

Breyer makes the point that hasn't been made all morning: that it would be helpful if judges in California had to warn defendants that this is a second strike in a three-strikes-you're-out jurisdiction or if judges in Alaska had to warn defendants in sex cases that if they plead guilty, their names would be on an offender registry for their whole lives. But Ginsburg observes that if this is bothering the legislature, maybe they should amend the rules.

I suppose that there is a possibility that some criminal defendants actually plead guilty without understanding that a lawyer might have been able to mount a defense or negotiate a lesser sentence. We'll call them Defendants Raised on the Moon. But on this planet, where it's widely known that attorneys are pretty helpful, it takes some serious moon rocks to claim that judges are constitutionally obligated to remind you of that fact.