Gideon's Trumpet (13 page)

Judging from the externals, it would be hard to imagine a figure less likely to be the subject of a great case in the Supreme Court of the United States. Gideon seems a man whose own private hopes and fears have long since been deadened by adversity—a used-up man, looking fifteen years older than his actual age of fifty-two. (He was born on August 30, 1910.) His figure is gaunt, a stooped six feet, one hundred and forty pounds. Behind light-framed glasses are worried eyes, set far back, with deep creases in the skin around them. His features are sharp, his ears prominent, his gray-white hair wavy. His lower lip trembles, and he speaks in a slow, sad, defeated voice.

It would be difficult, too, to create a setting as dejected as the locale of Gideon’s alleged crime. Panama City (1960 population 33,275) is a town in the still largely undeveloped northwest panhandle of Florida. Just outside the city limits, twenty minutes from the motels and restaurants and Post Office that make “downtown,” is a gigantic International Paper Company plant, its tall chimneys spewing out sulphurous smoke. Huddled near the plant fence, within sight and smell of the chemical fumes, is the community of Bay Harbor. Community is too grandiose a word for it; Bay Harbor is a bitter, decayed parody of a movie set for a frontier town. It is just a few dilapidated buildings separated by dirt roads and alleys and weed-filled empty lots: a bar, a two-story “hotel,” a grocery and the Bay Harbor Poolroom. One who happened onto that dark street would be eager to drive back through the dank countryside to the highway and its neon. Gideon had no illusions about Bay Harbor; he called it “Tobacco Road.”

Gideon’s temporary home, the state prison at Raiford, was cheerful by comparison. At the entrance there was no doubt that it was a prison; there were steel gates and a sign saying, that day, “1986 white males 1303 colored males.” (Quarters are completely segregated.) But inside, the scene was unexpectedly unforbidding, with small buildings separated by green lawns and beautifully kept shrubs and flowers. Trusties, wearing uniforms of white fatigues something like a hospital orderly’s outfit, wandered around freely; during the lunch hour some sat around outdoors smoking pipes and reading.

Gideon was a trusty. He met his visitor in the prison “courtroom,” a bare room with a long table used occasionally by inmates writing to courts. Gideon complained about the facilities.

“Here’s the place you have to write your petition,” he said, “and you don’t have no help. That’s what hurts you. The Supreme Court sent me a book of rules, but I still can’t understand that. The rules take a pretty educated man to understand them.”

He filled a cigarette paper and rolled it in his long, rather artistic fingers, stained with nicotine.

“There’s no real lawyers in here now. I guess I know more than most, and I help out. I have one boy in here that can’t read or write. I wrote a letter to the Supreme Court of Florida for him asking them to appoint an attorney to write him a petition for habeas corpus. They accepted that letter as a petition and denied it without a hearing, so I wrote the whole thing over and sent it to the Supreme Court of the U.S.” (This prisoner was named Allen Baxley, Jr.; the Court was holding the petition until Gideon’s case was decided.)

It was clear, in fact, that Gideon enjoyed his role as prison
legal expert. And he had some sense of what he was about. He correctly complained, for example, about his trial judge’s statement that Florida law did not
permit
appointment of counsel in a non-capital case; Florida law merely did not
require
such appointment. “That wasn’t the law,” Gideon said. “He had all the power in the world to appoint a lawyer if he wanted to.” Gideon appreciated the quality of the letters he had had from Abe Fortas: “I notice he never makes a statement that isn’t well thought out. He never writes you anything that isn’t exactly that way.”

The prison records concurred with the past that Gideon had described in his long letter to Fortas. The felonies he had listed were all there:

After that there was nothing serious until the episode of the Bay Harbor Poolroom in June, 1961. The record did show some arrests for “investigation” in Panama City and a twenty-day sentence for drunkenness there.

A prison report described Gideon as the typical recidivist type—an incurable repeater. Someone had noted in his file: “At present time does not have anyone for the mailing or visiting list.”

The prison officials did not mind Gideon’s legal activities—indeed they seemed to regard them as therapy. One said: “Usually when they’re trying to get out legally, you
know they walk on their toes around here.” They knew all about his case in the Supreme Court, but even the possible effect of a victory for Gideon on other prisoners who had been tried without counsel did not seem to bother them as it did some prosecutors. An assistant warden said: “Our feeling is: Boys, if you can get out of here legal, we’re with you.”

Gideon was asked why he had insisted so strenuously on a lawyer, all the way from the circuit court of Bay County to the Supreme Court of the United States.

“I knew that was my only chance,” he said. “I don’t know if you’ve ever been in one of these courtrooms, but the prejudice is obvious. In this state—except for Dade County [Miami], in Dade County they go by the books—they just run over people who have nothing. I’ve never taken the witness stand in this case, nobody knows what I’d say. Without a lawyer, with the criminal record I had, what I’d have said they’d never have paid any attention to.”

The idea of prejudice on the part of Florida officials against the poor and unfortunate was a fixation with Gideon. He spoke again and again about the welfare authorities and what he called their attempt to take his children from him. He spoke bitterly of the Florida Supreme Court and its refusal to do anything about counsel for the poor.

“These people are not vicious,” he said, and he seemed to be talking about the citizens as well as the officials of Florida. “They just have beliefs they’ve lived by all their lives. They think it’s perfectly all right to take a man into a courtroom and deny him all his rights. I was reading here a while back, I believe it was Milton’s essay on liberty, he writes about Socrates and Christ, which was two judicial cases tried by the people. He showed that these people were not any different from what they are now—not mean people or anything, they’re just used to things.”

As prisoners often do, Gideon complained of so many raw deals that it was hard to separate fact from feelings of persecution. He spoke of harsh sentences some of his fellow inmates had been given and of inequities in Florida law. At times his wanderings into legalism grew incoherent, and he had to be steered back to the point. But he never made any effort to justify his life; he only wanted his rights: “You can’t justify a crime, whether it’s murder or petty larceny, but they can go by the book in trying you and sentencing you.”

He would not say so, but there was every sign that Gideon expected the Supreme Court to rule in his favor. He said all the inmates were thinking about the case, “even though the intelligence of the people in here is not the greatest in the world.” A lot of the men, he said, “think they’re just going to have to call the buses in here and turn ’em loose.”

Afterward, he hoped the American Civil Liberties Union would give him an attorney to help him fight the charge of breaking and entering the Bay Harbor Poolroom at a new trial. He had also thought about what he might do if he were finally free.

“The only reason I never left Panama City was that I couldn’t get enough money to leave. That’s hard to move, a family. If I get out of here, I’m a good automobile electric mechanic. I wouldn’t begin to say I was a journeyman electrician or anything like that, but I’d like to get a maintenance job somewhere, or have a little shop of my own and work on one car at a time, generators and batteries and things like that.”

Gideon had thought, too, about the Supreme Court and its part in assuring counsel to every criminal defendant. “Without the Supreme Court it might have happened some
time,” he said, “but it wouldn’t have happened in this state soon.”

Had he read any of the recent Supreme Court decisions on the right to counsel? No, “only what you read in the paper, you know you read that some boy was given the right to a lawyer.”

If he had read the decisions, and understood them, Gideon could not have been any less confident in victory for himself and his principle. For the Court, in its own sophisticated way, had been groping toward Clarence Earl Gideon’s simple feeling about the importance of a lawyer to a poor man charged with crime.

“T
he most innocent man, pressed by the awful solemnities of public accusation and trial, may be incapable of supporting his own cause. He may be utterly unfit to cross-examine the witnesses against him, to point out the contradictions or defects of their testimony, and to counteract it by properly introducing it and applying his own.” So wrote William Rawle, a Philadelphia lawyer, in 1825. Probably no one can adequately appreciate the need for a lawyer in a criminal case until he is himself a defendant. The sense of loneliness, the confusion of guilt and outrage, the feeling that one is caught up in machinery he does not understand—all these emotions well up in a person who finds himself arrested for even a moderately serious traffic offense.

And how much greater are the chances today than in 1825 that the average citizen will at some point be caught up in the criminal law. The Jeffersonian dream of a happy rural society of sturdy, independent yeomen has died with industrialization, the growth of cities and the population explosion. The social pressures of urban industrial life are all too familiar, as are the ugly human manifestations they produce. Society has had to respond with a vast proliferation of criminal statutes, covering life with a scope and detail that would have amazed William Rawle. Judge Bernard Botein and Murray A. Gordon, in a recent book, note that more than one million Americans are convicted of crime every year, and they say that many times that number are spared only by inadequate facilities for law enforcement or the “benign discretion of police or prosecutors.” With only a little exaggeration, they argue that few citizens are truly “exempt from the coverage of a modern penal code” touching on such matters as gambling, intoxication, sex offenses, tax evasion, traffic violations and business malpractices, not to mention the more traditional crimes of violence. “There is hardly any freedom from technical guilt,” they conclude, “only from prosecution.”

If the multiplication of offenses has made the lawyer’s role more essential, so have the increasing subtlety and complexity of the criminal trial itself. Even the availability of new constitutional protections for the defendant has increased, not lessened, the need for a lawyer. The defendant cannot be expected to effectively assert his right to an impartial jury, his right to keep out illegal evidence, his right to challenge the voluntary nature of a confession; the question of the legality of evidence alone fills volumes of law books. And so, today, few would disagree with the comment of one of the most highly regarded state judges, Walter V.
Schaefer of the Supreme Court of Illinois: “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.”

The right to counsel does not, however, go so far back into history as might be assumed. The common law of England did not even allow a man accused of treason or felony to be represented by counsel, except that a lawyer could argue legal points suggested by the accused. (Full representation was allowed in misdemeanor cases; apparently the theory was that the more grave the charge, the less chance the accused should have to escape conviction.) It must be remembered that up through the Seventeenth Century, felony defendants were treated in most respects with what now seems to be unremitting harshness. They were not allowed to testify, to call sworn witnesses on their behalf or even to see the charges before trial. In 1695 Parliament mitigated the judge-made rules of the common law to the extent of allowing treason defendants to be represented by counsel. It was not until 1836, nearly a half-century after the Sixth Amendment was added to the American Constitution, that another statute extended to all felony defendants in England the privilege of being represented by counsel.

The Sixth Amendment provided, among other things, that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” As a matter of history, it is clear that the purpose of the provision was to prevent the adoption in the federal courts of the old common-law rule barring defense counsel in felony cases. Most of the thirteen colonies had rejected that rule and permitted the accused to retain counsel. The Sixth Amendment was designed to assure that right to all
who might be charged with crime by the new Federal Government.