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45 Wm. & Mary L. Rev. 783 (2003-2004)
Critical Stage: Extending the Right to Counsel to the Motion for New Trial Phase

handle is hein.journals/wmlr45 and id is 797 raw text is: CRITICAL STAGE: EXTENDING THE RIGHT TO COUNSEL TO THE MOTION FOR NEW TRIAL PHASE INTRODUCTION Only in relatively recent times has the right to counsel for criminal defendants expanded to the level that we now take for granted; namely, that any indigent defendant facing prosecution for a crime has the right to free, effective assistance of counsel for his defense.' This development in Sixth Amendment jurisprudence, however, has not come without its share of ambiguity. The current confusion over the reach of the Supreme Court's Sixth Amendment right to counsel doctrine2 as it applies to criminal defendants in the post-trial setting has resulted in a split of authority at the circuit court level.3 The gravamen of the split is whether the period for filing a motion for new trial is a critical 1. For a good overview of this history and the transition to the current constitutional framework for the Sixth Amendment's right to counsel, see ROBERT HERMANN ET AL., COUNSEL FOR THE POOR: CRIMINAL DEFENSE IN URBAN AMERICA (1977). 2. U.S. CONST. amend. VI (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... and to have the Assistance of Counsel for his defence.) (emphasis added); see also Pennsylvania v. Finley, 481 U.S. 551 (1987) (holding that the right to counsel does not extend to discretionary appeals); Argersinger v. Hamlin, 407 U.S. 25 (1972) (holding that the Sixth Amendment right to appointed counsel extends to misdemeanor prosecutions); Douglas v. California, 372 U.S. 353 (1963) (holding that the Equal Protection Clause of the Fourteeenth Amendment mandated extension of the right to counsel to all appeals of right); Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth Amendment right to counsel is made obligatory on the states by the Fourteenth Amendment); Johnson v. Zerbst, 304 U.S. 458 (1938) (holding that indigent defendants have a Sixth Amendment right to counsel for all serious cases in federal courts). 3. Compare United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991) (per curiam), overruled on other grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000), United States v. Lee, 513 F.2d 423,424 (D.C. Cir. 1975) (per curiam), and United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973) (per curiam) (holding that criminal defendants do not have a right to counsel for post-appeal motions for a new trial), with Kitchen v. United States, 227 F.3d 1014, 1018-19 (7th Cir. 2000) (per curiam), Robinson v. Norris, 60 F.3d 457, 459-60 (8th Cir. 1995), and Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989) (holding, on particular facts, that the motion for new trial phase is a critical stage of the prosecution to which the right to counsel attaches). 783

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