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Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel capital cases for another 31 years—not until the Supreme Court’s historic decision in Gideon v. Wainwright. 11 What happened in Gideon illustrates the enormous importance of providing defense lawyers for those who cannot afford to retain their own. On June 3, 1961, there was a break-in at a pool hall in Panama City, Florida, resulting in the theft of some alcohol and change from a cigarette machine and juke box. Clarence Earl Gideon was charged with a felony under Florida law, i.e., breaking and entering with the intent to commit a misdemeanor. Gideon informed the trial judge that he could not go to trial because he needed a lawyer, and he asked the court to appoint a lawyer for him because he lacked money to hire an attorney. The judge summarily refused the request, and Gideon proceeded to defend himself, claiming that he was innocent. The jury, however, convicted Gideon, and he was sentenced to five years in prison, the maximum penalty for the offense. Gideon then sought relief from the Florida Supreme Court, arguing that the trial court’s refusal to provide counsel for him violated his rights under the federal constitution, but again his claim was rejected. With the aid of a prison library, Gideon drafted a five-page petition to the Supreme Court asking that his appeal be considered on constitutional grounds. The Court agreed to hear his case, and assigned Abe Fortas, a prominent Washington, D.C. lawyer from the firm of Arnold, Fortas & Porter to brief and argue Gideon’s appeal. 12 The unanimous decision of the Supreme Court in Gideon v. Wainwright, rendered on March 18, 1963, was written by Justice Hugo Black. Calling it an “obvious truth” 13 that lawyers in criminal cases are “necessities not luxuries,” 14 the Court held, for the first time, that the Sixth Amendment’s effective assistance of counsel provision is a fundamental and essential right made obligatory upon the states by virtue of the Fourteenth Amendment’s due process of law clause. 15 11 Gideon v. Wainwright, 372 U.S. 335 (1963). During the 25 years between Powell and Gideon, the Court decided only two major right-to-counsel cases: Johnson v. Zerbst, 304 U.S. 458 (1938) and Betts v. Brady, 316 U.S. 455 (1942), overruled by Gideon v. Wainwright, 372 U.S. 335 (1963). In Zerbst, the Court held that an indigent criminal defendant had the right to the assistance of counsel under the Sixth Amendment when charged with a federal crime and that it could only be denied if based on a defendant’s knowing, intelligent, and voluntary waiver of counsel. In Betts, the Supreme Court held that the Sixth Amendment did not apply to the states. The Court reasoned that the “appointment of counsel is not a fundamental right, essential to a fair trial” and thus was not part of the concept of “due process incorporated in the Fourteenth Amendment.” Id. at 472. 12 Gideon, at 336–38. See also, Anthony Lewis, Gideon’s Trumpet (1964); Gideon’s Trumpet (CBS television broadcast, April 30, 1980). 13 Gideon, 372 U.S. at 344. 14 Id. 15 The Court stated that, “We accept Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, 20 | The Constitution Project
With customary eloquence, Justice Black further explained: Chapter 1—The Right to Counsel 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. 16 The “obvious truth” to which the Court referred was made apparent when Gideon’s case was sent back to Florida for a new trial. This time Gideon had the “guiding hand of counsel,” 17 as a local attorney was appointed to represent him and in advance of trial spent several days investigating the case against his client. At trial, the lawyer skillfully exposed the weaknesses in the testimony of the state’s witnesses, demonstrating how the state’s eyewitness was likely the real culprit. He also called Gideon to the stand, who denied any role in the break-in and provided evidence of his innocence, rebutting testimony that went unchallenged during his first trial. The jury deliberated only an hour and acquitted Gideon of all charges. 18 Because Gideon was charged with a felony under Florida law punishable by a maximum five-year sentence, Gideon has stood for the proposition that the Sixth Amendment right to counsel applies to defendants charged with felonies in state criminal courts. Like the Powell opinion on which Gideon relied, the Supreme Court’s rationale in Gideon applies to all criminal and juvenile proceedings, not just felony cases, as the Court’s decision was based on a desire to ensure that persons charged in the justice system were treated equally and afforded a fair opportunity to defend themselves. in concluding that the Sixth Amendment’s guarantee of counsel is not one of those fundamental rights.” Id. at 342. 16 Id. at 344. 17 Id. at 345. 18 See Anthony Lewis, Gideon’s Trumpet 234–50 (1964). The attorney appointed to represent Gideon was W. Fred Turner of Panama City, Florida, who was appointed by the court upon Gideon’s specific request. Turner spent considerable time in the vicinity of the alleged break-in getting to know local people, interviewing witnesses, and understanding the case. In fact, Turner went so far as to spend a day picking pears with the mother of the State’s chief eyewitness against Gideon, Henry Cook. But Turner was not Gideon’s first counsel when the case was remanded from the Supreme Court. Initially, two ACLU attorneys from Miami represented him. This infuriated Gideon, and he demanded that they be dismissed because he was adamant about having a local attorney. The judge asked whether there was anyone he would like to have as his lawyer, and Gideon requested Turner. The Constitution Project | 21
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APPenDices The Constitution Project
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Lavallee v. Justices in Hampden Sup
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Appendix C: State Statutes Establis
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