In the case of Smith v. O'Grady, Warden in 1940, the petitioner, Smith was convicted for murder and sentenced to death by a Nebraska state court. He appealed his conviction on grounds that he was denied due process under the Fourteenth Amendment because he wasn't given an opportunity to consult with counsel before being arraigned and entering a plea. The Supreme Court held that since there were no facts presented showing how lack of consultation affected his defense or resulted in any prejudice against him during trial proceedings, it could not be said that he was deprived of due process as guaranteed by the Constitution. Therefore, they affirmed his conviction.

In the dissenting opinion for Smith v. O'Grady, it was argued that the petitioner's constitutional rights were violated when he was denied a fair trial due to lack of counsel. The dissenting justices believed that this denial constituted a breach of the Fourteenth Amendment’s Due Process Clause, which guarantees every citizen equal protection under law and prohibits states from depriving any person of life, liberty or property without due process. They contended that because Smith did not have legal representation during his trial in state court - despite being charged with serious crimes and facing severe penalties if convicted - he had been unjustly deprived of his right to a fair defense. Furthermore, they asserted that this violation should be rectified by granting him habeas corpus relief so as to ensure justice is served.