Ross v. Moffitt
417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed.2d 341 (1974)

  • Ross was arrested and charged with forgery in two independent cases.
    • In both trials he was appointed legal counsel because he was indigent.
  • Both Trial Courts convicted Ross. He appealed.
  • The Appellate Courts affirmed. Ross appealed.
  • The State did not appoint a legal counsel to help Ross write a petition for certiorari for his appeal to the North Carolina Supreme Court or the US Supreme Court. Both courts denied his petition.
  • Ross filed a writ of habeus corpus in Federal Court claiming that he had been denied due process because of the lack of appointed legal counsel for his appeals.
  • The Federal Trial Court denied the writ. Ross appealed.
  • The Federal Appellate Court reversed and found that Ross was entitled to appointment of legal counsel for his petitions. The prosecutor appealed.
  • The US Supreme Court reversed the Appellate Court and found that the State was not required to provide Ross with legal counsel.
    • The US Supreme Court found that a State may not dispense with the trial stage without the defendant’s consent, but it is not required to provide for an appeal at all.
    • The Court noted that convicted criminals don’t have to appeal, it is completely discretionary. Therefore, there is no requirement for the State to provide counsel for discretionary actions.
    • In the Court’s opinion, the main difference is that in a trial, the defendant is innocent and the prosecution is attempting to make him guilty. In an appeal, the defendant is guilty and is trying to prove himself innocent.
    • The Court agreed that Ross was probably handicapped in his appeal. However, that handicap was much smaller at the Supreme Court level than it would have been if he didn’t have a lawyer at the Trial level or the Appellate level. The appointed counsel asked the right questions at the trial, and prepared an appellate brief for Ross, so a lot of the foundation for the appellate process had already been completed.
      • A Supreme Court argument is the exact same argument a petitioner makes in the Appellate Court. You don’t have to come up with a new legal basis to win a Supreme Court appeal, you only have to present the same appeal you showed to the Appellate Court.
  • Compare to Douglas v. California (372 U.S. 353 (1963)) which said that you do have a right to counsel on your first appeal (aka your “appeal as of Right”). The Court distinguishes that case here by saying that it makes less of a difference.
    • In addition, State Supreme Courts are not required to hear a case, unlike Appellate Court who are required to hear all appeals.
      • Although, wouldn’t that imply that it is more important to have a counsel when applying for a writ of certiorari?