Turner v. Rogers—A Step Closer to a “Civil Gideon”?
The Philadelphia Bar Association has been actively promoting the notion of a “civil Gideon,“ the recognition of a right to court-appointed counsel for the indigent in cases involving fundamental rights. That vision may have gotten a boost from the Supreme Court’s recent decision in Turner v. Rogers, writes Al Dandridge, a partner at Schnader Harrison and law professor at Boston University. Although Turner was a civil contempt case, it did involve a 12-month prison sentence, so this is an incremental expansion. And it is certainly a far cry from the Bar Association’s vision of extension to cases involving other key issues, such as child custody and housing matters. Especially so because the Court hinted that procedural safeguards other than appointment of an attorney might suffice. This proviso stemmed from an aspect of Turner that Mr. Dandridge’s piece does not highlight: the decision is seated in the Fifth Amendment right to due process, a right the courts have deemed weaker than the Sixth Amendment right to counsel. The Court’s reasoning seems sound—indeed, it is due process, not the Sixth Amendment, that protects defendants at some non-trial proceedings, such as probation revocation hearings. See, e.g., Black v. Romano, 471 U.S. 606, 611-612 (1985). But as a due-process right, this potential right to counsel is not automatic and will almost certainly prove more difficult to vindicate, even if codified (and fortified) by statute or rule. So, although an encouraging step towards a robust “civil Gideon,” the decision in Turner is but a very small, preliminary one.