The Sixth Amendment to the U.S. Constitution says that a person accused of a crime has the right “to have the assistance of counsel for his defense.” Yet for nearly 200 years in America, that language was interpreted to mean that courts can’t stop someone from hiring a lawyer — not that the courts are required to provide such lawyers.
In 1963, that changed. The U.S. Supreme Court ruled in Gideon v. Wainwright that states must offer a defense attorney to all people accused of crimes who can’t afford help themselves. It was a decision that transformed the concept of fair trials in America and sparked the creation of public defender systems in states across the union.
The story of Clarence Earl Gideon — and how his case went all the way to the Supreme Court — is the subject of the eighth episode of The Washington Post’s “Constitutional” podcast. In addition to telling the historical narrative of this landmark decision, the episode explores the challenges that have accompanied this dramatic change to the nation’s justice system in the 54 years since public defense became a public right.
The episode features Bruce Jacob, a professor at Stetson University’s College of Law and one of the lawyers who argued before the Supreme Court in Gideon v. Wainwright; Karen Houppert, author of “Chasing Gideon: The Elusive Quest for Poor People’s Justice”; and archival recordings of Anthony Lewis, former New York Times reporter and author of the acclaimed book recounting this Supreme Court case “Gideon’s Trumpet.”
Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple Podcasts, Stitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham
Transcript of “Episode 08: Fair trials”
LILLIAN CUNNINGHAM: Clarence Earl Gideon is Prisoner No. 003826. The year is 1962, and the scene is the state prison of Raiford, Florida — not far from the Georgia border.
Gideon is 51-years old, and he’s in here doing time for allegedly breaking into a pool hall near Panama City, Florida, stealing some coins from the jukebox and walking off with some wine from the bar.
He says he didn’t do it. But Gideon’s serving five years for the crime, and he’s convinced that’s because he had no lawyer to defend him. When his case came to trial, he had asked the court for a defense attorney. (He was too poor to go out and pay a lawyer.) But his request was denied. So he stood up there in the courtroom all by himself, trying to cross-examine witnesses, present evidence, deliver a closing argument, convince the jury of his innocence.
It was basically impossible. This was a man who had zero legal training going up against a trained state prosecutor. It was also a man who had no more than an eighth-grade education.
So Gideon lost his trial and he’s in prison now, for a crime he says he didn’t commit. Not having the help of a lawyer to defend him was wrong, he thinks. Unfair. Unjust.
He takes out a piece of lined paper, provided by the prison and stamped at the top. He takes out a prison-issued pencil. And in scratchy handwriting, dotted with spelling errors and grammar mistakes, Gideon writes to the Supreme Court of the United States.
I’m Lillian Cunningham with The Washington Post, and this is Constitutional.
CUNNINGHAM: “Establish justice.”
The framers wrote this ideal for the young American nation into the Constitution’s preamble. But the exact system of justice they want to build wasn’t as clearly defined.
We know from the Declaration of Independence that part of the reason the colonists wanted to break away from England had to do with unfair trials. Colonists complained that they were often denied a trial by jury. And that, in some cases, they were forced onto ships back to England “to be tried for pretended offences.”
So as the framers drafted the U.S. Constitution in 1787, they were thinking about these earlier injustices and how to create a new country that put fairness at its core.
Article III of the Constitution is where they mapped out the judicial structure for the United States — how there would be a Supreme Court and then under that a system of lower courts. They also specified that, except for presidential impeachment, all trials in the United States would be decided by juries.
Beyond that though, most of our core understanding of how these early Americans were thinking about justice and fairness comes from the Bill of Rights a couple years later, particularly the 4th through 8th amendments.
The 4th Amendment protects against unreasonable searches and seizures.
The 5th Amendment establishes grand juries for capital offenses. It also says that life, liberty and property can’t be taken away without due process. And that if you’re accused of a crime, you can’t be forced to testify against yourself.
The 6th Amendment details the rights that people accused of crimes have, like that they have the right to a speedy and public trial. Also — very important for Gideon’s story — the 6th Amendment says that an accused person has the right “to have the assistance of counsel for his defense.”
The 7th Amendment deals with civil cases.
And the 8th Amendment prohibits excessive fines or bail, as well as cruel and unusual punishment.
As we’ve seen time and again with the Constitution, though, these words set certain broad ideals in stone, but they left a lot open to interpretation and debate. What kind of search is “unreasonable”? What exactly is “due process”? What counts as “cruel” or “unusual”?
And even, as in the case of Gideon, when the Constitution says that someone accused of a crime has the right to a lawyer to help his defense — does that mean that the courts can’t stop him from hiring a lawyer? Or does that mean the courts have to provide that lawyer?
KAREN HOUPPERT: Originally the parameters of what we thought of as a fair judicial system were quite vague in the Constitution and the Bill of Rights.
CUNNINGHAM: This is Karen Houppert, the author of “Chasing Gideon: The Elusive Quest for Poor People’s Justice.” She’s also a professor in Baltimore at Johns Hopkins University.
HOUPPERT: There were obviously these protections built in for people, all geared toward not wanting to wrongly imprison people and to give them a fair trial. But our ideas about what constitute a fair trial have shifted over the years, obviously, as things have changed in this country. And one of those big shifts was the Gideon v. Wainwright case. It was this huge turning point in the way we conceive of justice and fairness in this country.
CUNNINGHAM: And it started with that letter from jail, from prisoner Clarence Earl Gideon, No. 003826.
The envelope with Gideon’s letter arrived at the Supreme Court building in Washington, D.C., on January 8, 1962. Like every other petition the court received from poor prisoners, it was opened, stamped and then placed in a red file folder.
His letter didn’t go into great detail. But the backstory was: Several months earlier, a break-in had taken place at the Bay Harbor Poolroom in Panama City shortly before dawn. A policeman discovered the front door open and a window smashed, then he saw inside that a cigarette machine and a jukebox had been broken into for coins. A man was hanging around nearby, Henry Cook; and when the policeman spoke with him, Cook said that he had seen Gideon come out of the building not long before. So Gideon was tracked down and arrested.
HOUPPERT: And indeed Gideon had like $25 worth of coins in his pocket when police arrested him.
CUNNINGHAM: He said he wasn’t guilty and he asked for a lawyer, but the judge refused. So Gideon had to conduct his own defense at the trial. And remember: He was in jail until that date, so it’s not like he could go out gathering evidence and finding great witnesses and all the things a lawyer would have done on his behalf.
HOUPPERT: So Gideon had to muddle his way through. And he was tried before a group of six people at that point — that was the size of the jury trial in his area in Florida. And the judge really kind of helped guide him.
CUNNINGHAM: He’d say: Come stand over here and give an opening argument. Or sit back down over there. Speak up so the jury can hear you. Gideon, do you want to cross-examine that witness?
But despite the judge’s help, Gideon still really floundered. He asked questions of some witnesses, but they were questions like: What does the poolhall look like? They were not questions that would help prove his innocence. And the jury quickly found him guilty.
Now, Gideon’s letter to the Supreme Court didn’t go into tons of detail about his arrest and jailing and this trial, but it did get across one major, resounding point: I didn’t have a fair trial, because I didn’t have a lawyer.
At the Supreme Court, the red file folder with Gideon’s letter went first to Chief Justice Earl Warren, who reviewed it and then circulated it among the other eight Supreme Court justices. They did this for all the petitions. They’d meet every Friday around a long table in a private oak-paneled room to discuss which cases they should dismiss and which they should hear during the court’s next term. And on Friday, June 1, 1962, they decided to hear Gideon’s.
The following Monday, a reporter for the New York Times — Anthony Lewis — saw the news.
Here’s Lewis describing how he learned of Gideon’s case:
ANTHONY LEWIS: That fact was made known to us, the few of us who then were covering the Supreme Court for the press, when the clerk posted the court’s order list — a mimeographed list — and one of the items on the list that day was that the court had agreed to hear the case of Gideon against Wainwright. And then it said: counsel are directed to argue among other questions whether this Court’s decision in Betts against Brady should be overruled.
CUNNINGHAM: Betts v. Brady was an earlier ruling about fair trials that we’ll explain in a minute.
LEWIS: Well that was like a flashing red light to me. I mean it suggested to me that the court was ready to overrule Betts and Brady. Very interesting. Court doesn’t do that very often — overrule an earlier case. So right at the beginning it struck me that you know something important might well happen.
CUNNINGHAM: This is archival tape of Lewis from 1993, from a conversation he had with the National Equal Justice Library on the 30th anniversary of Gideon’s case. Lewis has since passed away, but he followed the case more closely than anyone. Lewis then wrote a book, “Gideon’s Trumpet,” that cemented this story into the public record.
Now, to understand why the justices decided that this poor Florida man’s petition should even be heard by the highest court in America, it helps to have a sense of the context.
For the first 100-plus years of the United States, the 6th Amendment right to have counsel for defense was interpreted to mean: You were allowed to hire a lawyer if you had the money and the interest. But not that you were entitled to the help of a lawyer, provided by the government, if you couldn’t pay for one.
Back in 1789 when that amendment was written, simply permitting a lawyer to be present seemed like a big step forward for America — since in England at the time, lawyers were explicitly forbidden from helping on serious crime cases.
But, by the early 20th century in America, the interpretation that lawyers were allowed but not assured — even that started to seem unjust. It left poor people at a major disadvantage before the law.
So there was a series of cases in the 1930s that ended up establishing, first, that in all capital cases (where you could get the death penalty), courts had to provide a lawyer to poor defendants. Then, in a second case, it was decided that in all federal cases — even those for crimes that couldn’t warrant the death penalty — a lawyer had to be provided as well.
But then in 1942 the case of Betts v. Brady came along. It posed the question: What about in state cases that couldn’t have the death penalty?
Smith Betts was a man in Maryland who was accused of robbery, and — like Gideon — he had asked for the court to provide a lawyer to help defend him. And the Maryland court had refused. His case went to the Supreme Court but the court ruled against him, falling back on the old interpretation that states can’t deny lawyers but that doesn’t mean they have to provide lawyers — unless, they decided, there are special circumstances. And by special circumstances, they mean something that puts you at a clear disadvantage for getting a fair trial.
HOUPPERT: So if you’re insane, or mentally ill, or illiterate — and in some cases African American — then you can make an appeal and try to get a lawyer and you are perhaps entitled to one under those circumstances
CUNNINGHAM: Again, Karen Houppert. This Betts v. Brady ruling — that states don’t need to give you a lawyer except under “special circumstances” — this was still in place when Gideon was arrested.
HOUPPERT: But Gideon was none of those things.
CUNNINGHAM: Gideon didn’t have any mental disorders or disabilities. He was white. (He actually kind of looked like Woody Allen from the 1960s — wiry, coke-bottle glasses.) And even though he was poor and had very little education, Gideon could read and write.
So 20 years after that Betts v. Brady decision, it was actually permissible for the Florida court to have denied Gideon an attorney when he asked for one.
But the thing is: It wasn’t just Gideon who thought that seemed unfair.
HOUPPERT: I mean, even judges and lawyers and prosecutors didn’t like that system either, by 1960, because it’s pretty inefficient to have someone who doesn’t know what they’re doing try to conduct a trial. So the country was ripe for some changes and reforms on this.
CUNNINGHAM: Among those who had expressed disapproval of this “special circumstances” rule was Supreme Court justice Hugo Black. He had been a justice in 1942, when Betts v. Brady was decided, and he had adamantly opposed the decision.
So now, fast forward. In 1962, he was still on the Supreme Court. And he still thought that decision in Betts v. Brady was wrong.
And then that handwritten letter from Gideon appeared.
HOUPPERT: Gideon wrote to the Supreme Court: It makes no difference how old I am or what color I am or what church I belong to if any. The question is I did not get a fair trial. The question is very simple.
CUNNINGHAM: The simplicity of that question meant the Supreme Court had a powerful opportunity before it: It could finally overturn Betts v. Brady and rule that in order to have fair trials in America, every person should be entitled to a lawyer.
Now When the Supreme Court decides to hear a case like this, it also gets to decide which lawyer — out of all the lawyers across the United States — will get to deliver the argument before the court.
LEWIS: The clerk of the court calls up a lawyer and says the court would like you to take on the case of X and then the lawyer says “yes thank you I will” — because that’s a question like, “Would you have dinner with the queen?” You have to say yes.
CUNNINGHAM: In Gideon’s case, the court chose Abe Fortas.
LEWIS: He was one of the most prominent lawyers in Washington. I’d heard him argue a case in the Supreme Court brilliantly. I mean, it looked like as if you touched him, your hand would be electrified.
HOUPPERT: Abe Fortas was a big deal. He was 52-years old he was a partner at Arnold, Fortas and Porter and had a lot of resources at his disposal because of this law firm. He was a Yale Law School grad. And he was smart and articulate and a player on the D.C. legal scene. And on the opposite side of the court was a very young attorney representing the state of Florida.
LEWIS: Of course, the irony was that the scales had been completely turned around. At the trial, Clarence Earl Gideon was all on his own. he had nobody on his side. Now he was going to be represented in the Supreme Court by this veteran, high-powered Abe Fortas. And the State of Florida was going to be represented by someone who was very capable but really a novice.
CUNNINGHAM: That young lawyer, who had to argue on the opposing side at the Supreme Court, was named Bruce Jacob. He had been working in the attorney general’s office in Florida, and he was 26-years old.
BRUCE JACOB: Well it was very exciting. It was not only exciting, it was daunting. I knew there’d be a lot of work involved.
CUNNINGHAM: This is Bruce Jacob, who’s now a professor at Stetson’s law school in Florida.
JACOB: My wife helped me a lot during the research. We didn’t have Xerox machines back then so she would copy notes from cases, if I wanted something copied she would do it in handwriting
HOUPPERT: He’d never been before the Supreme Court. He actually had just taken a new job in another part of Florida, so he was commuting like 200 miles to look stuff up in the Stetson law school library to prepare for the case.
CUNNINGHAM: Meanwhile Abe Fortas was in Washington, dispatching every associate and young partner in his law firm to do research to help him.
HOUPPERT: The Supreme Court was definitely giving Gideon a good chance of winning his case.
CUNNINGHAM: Abe Fortas and Gideon exchanged letters as he was preparing his Supreme Court defense. But reporter Tony Lewis went down to Florida to meet with Gideon in person.
LEWIS: It was astonishingly easy to meet Gideon. The warden and the others were delighted to have me meet him. He was a sort of favorite. He was a harmless old chap. He wasn’t very old. I must say he was then about 15 years younger than I am now, but he was — he seemed a lot older. He was rather pathetic, shaky. I said in the book — I used the phrase he looked “used up.” He’d had a pretty rotten life, and he wasn’t very healthy and vigorous. But anyway, he was regarded as a harmless and nice old gent by the prison staff.
CUNNINGHAM: A description Lewis wrote in the book was: “He bore the physical marks of a destitute life: a wrinkled, prematurely aged face, a voice and hands that trembled, a frail body, white hair. He had never been a professional criminal or a man of violence; he just could not seem to settle down to work, and so he had made his way by gambling and occasional thefts.”
LEWIS: I met him in some room they’d put aside. I think it was what they called the library, a prison library where the prisoners could do work on the law to get themselves out. Well, there were a half dozen books in this room. It wasn’t much of a library. And Gideon commented sourly on “This is what they call a library.” He certainly had a firm idea that people were entitled to lawyers before they were convicted. That was engraved in him.
CUNNINGHAM: “A flame still burned in Clarence Earl Gideon,” Lewis wrote. “He had not given up caring about life or freedom; he had not lost his sense of injustice. Right now he had a passionate — some thought almost irrational — feeling of having been wronged by the State of Florida, and he had the determination to try to do something about it.”
Gideon wrote a long letter to Abe Fortas, after he learned Fortas would be representing him at the Supreme Court. In it, he shared his life story. How he was born in Hannibal, Missouri. How he had a bad relationship with his stepfather and ran away when he was young. How he had tuberculosis. He had six children with his current wife. How he had been arrested several times over the years for petty crimes.
He was ashamed of a lot of things, guilty of a lot of things, he said, but not this crime. He wrote: “I always believed that the primarily reason of trial in a court of law was to reach the truth. My trial was far from the truth.” And he ended his 22-page letter with the words: “Thank you for reading all of this. Please try to believe that all I want now from life is the chance for the love of my children the only real love I have ever had.”[BREAK]
CUNNINGHAM: While Abe Fortas was writing back and forth with Gideon, preparing to defend him before the highest court in the land, Bruce Jacob was scrambling to build Florida’s case against Gideon. He sent off letters to the attorney generals in other states, letting them know of the upcoming Supreme Court case.
JACOB: I think all of us in the attorney general’s office realized that this probably was going to be the case that the court would use to overturn Betts v. Brady and impose the flat absolute rule requiring counsel in every case.
I thought the court would probably rule with Gideon. I was pretty sure that we would lose the case. But there were a lot of issues that needed to be decided — not just the decision of whether or not counsel should be provided, but how it should be done, whether the due process clause should be used, whether the equal protection clause should be the basis for the decision, whether the new decision should be retroactive versus just be prospective in effect.
And so my feeling was not just that I was arguing against the right to counsel. I personally believe that there should be a right to counsel. I realized that there had to be a lot of thought given to how the decision should be made and so that was my function — my role was to make sure the court knew everything they needed to know to make the best decision possible.
CUNNINGHAM: In the course of alerting other states to the case, though, something unexpected happened. Jacob had thought the other states would lend support to Florida. He thought they would help Jacob present a more robust argument to the Supreme Court of how — yes, making sure the poor have legal help was important — but imposing a federal rule wasn’t the way to go. If the states had to provide legal defense to all poor people, it might be an overwhelming burden on their budgets and infringe on states’ rights to manage their own affairs. Jacob asked these other attorney general’s offices to write back to him with advice and aid on how to make his case.
But instead: Most of the reaction was the opposite of what he had predicted. Walter Mondale, the attorney general of Minnesota at the time, wrote back to Jacob that he believed in states rights but that “I also believe in the Bill of Rights.” He went on: “Nobody knows better than an attorney general or a prosecuting attorney that in this day and age furnishing an attorney to those felony defendants who can’t afford to hire one is ‘fair and feasible.’”
HOUPPERT: So across the United States, many states attorney generals were already recognizing that there were huge problems and were doing reforms at the state level. So public opinion had shifted.
CUNNINGHAM: In the end, as a result of Jacob’s letter, 23 states filed an amicus brief with the Supreme Court in support of Gideon. The amicus brief was basically a document telling the court that they agreed it should now overturn the earlier Betts v. Brady ruling.
So by the time the day came that Bruce Jacob and Abe Fortas were going to argue the case of Gideon v. Wainwright before the Supreme Court — January 15, 1963 — Bruce Jacob was a pretty nervous man.
HOUPPERT: He actually even had to go in to be registered to make an oral argument in the Supreme Court the day before, because he’d never done this and he barely made the cut off of three- or four-years experience as an attorney.
CUNNINGHAM: And now, on the day of his argument, a wintery cold was swirling outside when Jacob climbed the marble steps to the Supreme Court’s entrance, passed between the marble columns and stepped inside its hall.
JACOB: When I got there, there was one case before ours and I sat at the ready table on the lefthand side, facing the court, and there was no lawyer on the right side. But right before our case was called, Abe Fortas appeared and sat at that table just for a minute or so. He must have had the clerk call him right before our case was to be called.
CUNNINGHAM: Abe Fortas argued first. They each had one hour to make their case.
He started by retelling the story of Gideon’s alleged crime, and how he was denied a lawyer, and then said: “This record does not indicate that Clarence Earl Gideon was a person of low intelligence, or that the judge was unfair to him. But to me, this case shows the basic difficulty with Betts v. Brady. It shows that no man, however intelligent, can conduct his own defense adequately.”
His argument proceeded from there.
LEWIS: Justice Harlan, the state-minded, the most state-minded judge, asked him whether this wasn’t an infringement on state independence.
CUNNINGHAM: And Fortas was ready with an answer.
LEWIS: He had this wonderful peroration, saying this is the least intrusive way to deal with the problem. It’s the right answer. It’s the answer that history now calls for.
And Fortas argued that in fact, there was far more conflict under the existing situation because nobody could tell in advance whether the Supreme Court would find special circumstances. A guy wanders into a courtroom as a defendant, and he looks all right. And the judge says, “Looks to me like you can defend yourself.”
And then five years later, the Supreme Court says, “We find that special circumstances” — and they have to have the trial all over again, and everybody’s very irritated.
And Fortas said — I think was one of his most convincing points — that it’s a greater irritant in federal-state relations than a protection. And that impressed, I think, Justice Harlan especially
CUNNINGHAM: It was a clever approach. Fortas pointed out that overturning this “special circumstances” rule would actually reduce tension between the federal government and the states, reduce the intrusion into state’s affairs. And why? Because it would mean the federal scrutiny into states’ decisions over special circumstances would stop. Even the states themselves, as we heard, were saying they needed this change.
When the red light went on at the lectern, it meant Fortas’s time was up. And Bruce Jacob was next. He had to argue against Gideon’s right to be given a lawyer. He stood up before the nine justices, who were all seated in a row at the bench. Behind them hung long crimson, velvet drapes.
Here, in this imposing room, while hearing Jacob’s argument, they would decide the fate of those like Gideon and Betts — hundreds of thousands of people whose current and future fair trials hung in the balance. And yet, for what would become a landmark case, the room was almost eerily vacant.
JACOB: The courtroom was absolutely empty except for my wife. My wife was the only person in the entire courtroom.
CUNNINGHAM: The only person who was just there observing—
JACOB: Anyway I began arguing. As soon as I argue, the court began hammering me with questions. Just one question after another. In fact, I read the transcript: I got 92 questions or interruptions, and most of those were during the first half hour of my hour argument.
HOUPPERT: He said to me that he felt like he was in a pit and he forgot to even bring a pencil when he went up to the podium. So the Supreme Court justices are firing, rapid firing, questions at him and interrupting him at every turn and he didn’t even have a pencil to try to keep track of what they were asking.
JACOB: One justice would ask a question. I’d start to answer that question. A second justice would jump in and ask a question. I’d try to finish answering the first justice and then go on to the second justice’s question, but then a third justice and maybe a fourth justice would just jump in. So it was pretty brutal. The questioning was brutal.
LEWIS: In fairness to Bruce Jacob, one has to say that the Court was ready to overrule Betts and Brady. The Court was ready to decide that every poor criminal defendant was — in a serious case — was entitled to a free lawyer. So he was up there battling — Bruce was up there battling the odds. And he was nervous.
But here was an exchange which I remember. Justice Black, who had dissented in Betts against Brady and had many times said in court that Betts against Brady should be overruled — Justice Black had this sort of soft Southern voice. He’d sit back in his chair, looking very small behind the bench and sort of ask a soft question. And if you didn’t know what was happening as a lawyer, by the time the question and the answer and the next question were over, your head would be off.
And Justice Black said, “You say, Mr. Jacob, that Mr. Gideon was quite capable of representing himself in this case and he didn’t need a lawyer.”
“That’s right, Mr. Justice.”
“Do you think that he would have been capable of defending other people charged with crimes, acting on their behalf?”
“Yes, Mr. Justice. Quite capable.”
“Don’t you think the bar association might have had something to say about that?”
Of course the bar association would never want somebody who wasn’t a lawyer acting like a lawyer.
And Bruce said, “Oh, yes. You’re right, Mr. Justice. That was a stupid answer.”
Well, it wasn’t a stupid answer, but you know, he was a little nervous.
CUNNINGHAM: One after another of those sorts of exchanges — that’s how the hour came and went. Then time was up.
JACOB: I felt I had just done a terrible job. But as I walked out, Abe Fortas greeted me and he said: Mr. Jacob — Bruce Jacob — he said: You have a wonderful way before the court. Whatever that meant. But it sure felt good at that point, because I thought I’d really been destroyed by all those questions.
CUNNINGHAM: It was three months before the Supreme Court delivered its opinion, on March 18, 1963.
Abe Fortas and Bruce Jacob were long gone from the marble hall. Fortas was back in his DC law firm, and Jacob had returned to Florida. But Anthony Lewis was still there every day reporting — and closely watching and waiting for the Gideon decision.
JACOB: I got a phone call from Anthony Lewis. He had been in the courtroom for the New York Times. We had talked and he told me he would call me with the results because he knew it would take longer for me to get the results, so he immediately when the case was announced see he gave me a phone call.
LEWIS: I think he did a very honorable job, but I think he knew the odds were against him.
CUNNINGHAM: And that was how Bruce Jacob heard the news — from Tony Lewis here. The court had ruled unanimously, 9-0, in Gideon’s favor.
And in deference to Justice Black’s dissent two decades earlier on the Betts v. Brady case, the court had Justice Black write the majority opinion this time, finally overturning it.
LEWIS: It was assigned to him by Chief Justice Warren, I think as a kind of poetic gesture. Twenty years later, you’ve got the right to say, “I was right all along.”
CUNNINGHAM: In his opinion, Justice Black wrote: “lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him”
And so, Betts v. Brady was overruled and a new era in the criminal justice system was immediately ushered in.
Because of Gideon’s case, every state in America now had to establish a public defender system, making free lawyers available to every poor person accused of a crime.
Gideon, himself, got a retrial that summer — this time with a lawyer. He was found not guilty.
Another 2,000 or so prisoners in Florida alone were set free almost immediately after the Supreme Court ruling. And massive changes quickly rippled through the state systems.
JACOB: The first thing that happened at least in Florida was that our legislature I think in May of 63 adopted a statewide public defender system with an elected defender in each of the 20 circuits of our state. So we really immediately had a really good system and even though we had a bad system before that we had a really terrific, probably the best system in the country in May of that year.
CUNNINGHAM: But in many ways, over the past 50 years, the promise of that reform has since fallen short. The public defender system was a huge step toward fairer trials, but it wasn’t long before a new set of problems emerged.
HOUPPERT: It actually worked for quite a while and it even worked retroactively, so people who were in prison prior to the decision were able to then revisit their cases and with an attorney at their side. So it had a really significant impact on our legal system. But the war on drugs, a rising arrest rate, mandatory minimums, which means you know three strikes you’re out — all of those sorts of things started overloading the courts and the system started to fall apart.
LEWIS: The principle survives, but the question is whether the practice is as good as the principle because very often the lawyers who represent poor criminal defendants are either not very experienced, not very committed, not very competent, or they don’t have the resources. It’s a major criminal trial, and the state allows the defense lawyer — pays him a trivial sum that hardly compensates him for his time. Doesn’t. And doesn’t allow him any money to hire expert witnesses or psychiatrists or this or that.
CUNNINGHAM: Today, public defenders in nearly every state are chronically and deeply underfunded.
HOUPPERT: States kind of cobbled together different systems for paying their public defenders. Some worked better than others. And the legacy of those that did not work well we’re still seeing today.
One example of that would be in New Orleans, where for many years the public defenders pay salary was tied to the collection of traffic violation tickets. Those fines and fees were what paid the public defender’s salaries. But those are not super reliable source of income. And when Katrina happened and hit New Orleans, there was no people collecting money from the meters. There were no traffic violations being collected et cetera and the whole public defense system collapsed.
CUNNINGHAM: Another chronic, systemic issue that results from the lack of funding is that public defenders are so understaffed that each lawyer has to take on an overwhelming number of cases, more than they could possibly effectively help defend.
HOUPPERT: So just to give you a sense of what the landscape is like in terms of lawyers defending poor people in this country through the public defender system — in some places like Miami, public defenders carried caseloads as high as 2225 misdemeanors and maybe 700 felony cases.
CUNNINGHAM: That’s for a single public defender in just one year. A lawsuit in Washington State a few years ago found that in some counties, public defenders were spending on average less than one hour on each case they had.
HOUPPERT: And so we’re still seeing the legal system try to sort through the implications of Gideon v. Wainwright, and it’s interesting now to think back about that decision because it changed the legal landscape in really significant ways that we’re still seeing today.
JACOB: We haven’t made nearly as much progress as we should have in 50 years. Lawyers — if a client comes to them and the lawyer doesn’t think he’s got a terrific case, the lawyer just pleased him guilty. He just spends five minutes with the defendant and then says let’s plead guilty and that’s the end of it. And that shouldn’t happen. So this is not, in some ways it’s not a whole lot better than it was back in 1963.
CUNNINGHAM: The course of Bruce Jacob’s career, over that time, changed because of Gideon. He volunteered as a public defender in Florida, then he went into teaching at Emory University in Atlanta, where he established the Legal Assistance for Inmates Program. Then at Harvard, he co-founded the Harvard Prison Legal Assistance Project. For the past 35 years or so, he’s been at Stetson — teaching constitutional law, criminal law and workshops for students to learn about public defense.
HOUPPERT: So Gideon v. Wainwright was this you know a seismic shift in what we think about as fairness, but it is clearly being refined and reformed constantly because it wasn’t adequate. It was a beginning really. And we’re still sort of watching the legal profession try to fix and reform the system.
CUNNINGHAM: But that beginning, in a way, was as much as Gideon had ever hoped to set in motion. He died of cancer nine years later, in 1972, and was buried back in Missouri in an unmarked grave.
Yet in that 22-page letter he wrote to Abe Fortas, when he found out that Fortas would represent him at the Supreme Court, Gideon wrote a line that gave me a shiver when I first read it. And so I’ve saved it here, for the end. He wrote:
“I have no illusions about law and courts or the people who are involved in them. I have read the complete history of law ever since the Romans first started writing them down and before of the laws of religions. I believe that each era finds a improvement in law each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward.”
Many thanks to this week’s guests: Karen Houppert, the author of “Chasing Gideon,” and Bruce Jacob of the Stetson University College of Law. Also, big thanks to the National Equal Justice Library at the Georgetown University Law Center for the use of their archival recording of New York Times journalist Anthony Lewis.