Gideon's Trumpet (25 page)

“To continue a rule which is honored by this Court only with lip service is not a healthy thing and in the long run will do disservice to the federal system. The special-circumstances rule has been formally abandoned in capital cases, and the time has now come when it should be similarly abandoned in non-capital cases, at least as to offenses which, as the one involved here, carry the possibility of a substantial prison sentence. (Whether the rule should extend to
all
criminal cases need not now be decided.) This indeed does no more than to make explicit something that has long since been foreshadowed in our decisions.”

That was the end of Clarence Earl Gideon’s case in the Supreme Court of the United States. The opinions delivered that Monday were quickly circulated around the country by special legal services, then issued in pamphlets by the Government Printing Office. Eventually they appeared in the bound volumes of Supreme Court decisions, the United States Reports, to be cited as
Gideon v. Wainwright
, 372 U.S. 335—meaning that the case could be found beginning on page 335 of the 372nd volume of the reports.

Justice Black, talking to a friend a few weeks after the decision, said quietly: “When
Betts v. Brady
was decided, I never thought I’d live to see it overruled.”

W
hen a friend telephoned from Washington to give him the news of the decision, Bruce Jacob said: “It’s only the beginning.” And it was.

“Even if
Betts v. Brady
should be overruled tomorrow,” Justice Stewart said in 1960, “… there is no way that the Supreme Court could, or indeed that it properly should, see to it that in the day-to-day administration of criminal trials throughout the country truly adequate representation of indigent defendants were provided.” That job was up to the bar and the courts and the legislatures of the country. The Supreme Court had sounded a trumpet. The response had to come from society.

Twenty-five years before, in
Johnson v. Zerbst
, the Supreme Court had laid down the rule that federal criminal
defendants had an absolute right to counsel, but society had been slow in responding. Despite the urging of every Attorney General in that period, Congress had done nothing whatsoever to provide funds or establish any system of assuring counsel for the poor, except for a District of Columbia legal-aid measure passed in 1960. And so, in 1963, federal judges still used their own random methods to appoint counsel—who had to serve without pay, without even compensation for out-of-pocket expenses.

The result of this non-system, as might be expected, was inadequate representation for many defendants and a wholly unfair burden on a few lawyers.

James V. Bennett, for many years the director of the federal prison system, told Congress on May 20, 1963, that his observations over twenty-five years had convinced him that the use of unpaid assigned counsel for indigents too often resulted in “inept, hasty and perfunctory” representation.

One of the many horrible examples cited by Mr. Bennett from his own experience was that of an eighteen-year-old girl who “waived” the right to counsel, pleaded guilty to stealing a letter from the mails and was committed to the penitentiary for five years. “We found that she had an I.Q. of forty-five and that her behavior was that of an impulsive child,” Mr. Bennett said. “There was no question but that she was mentally incompetent both at the time of the offense and at the time of trial.… In my opinion an experienced public defender or conscientious assigned counsel would have known immediately upon talking to her that she could not intelligently waive her right to counsel. He would have had her examined, and he would have presented to the court the information that she belonged in a state institution for the mentally defective rather than in a court of the United States charged with crime.”

Senator Sam J. Ervin of North Carolina, writing in the
American Bar Association Journal
shortly after the
Gideon
decision, cited among other examples a Wyoming lawyer, in practice by himself, who was appointed defense counsel in a major federal criminal prosecution. There were ten days and three nights of actual trial time, plus extended preparation; the Government called one hundred and fourteen witnesses. “For practical purposes,” Senator Ervin said, “the lawyer was required to close his office for six weeks. As a result, he was practically bankrupted.”

Attorney General Robert F. Kennedy, testifying on May 22, 1963, spelled out the problem: “Federal courts today continue to delegate the defense of the underprivileged to assigned counsel who are not paid for their services. They are not reimbursed for their out-of-pocket costs. They do not receive a shred of investigative or expert help. They are not appointed until long after arrest, when witnesses have disappeared and leads grown stale. They often lack the trial experience essential for a competent defense.” On the last point, the competence of assigned counsel, Mr. Kennedy quoted from a national survey undertaken by the Harvard Law Review. It concluded that the responsibility for representation of indigents in the federal courts now necessarily fell mainly on “young, inexperienced lawyers, little versed in the technicalities of the criminal law,” and that the quality of representation under these circumstances was “largely fortuitous.”

Two years before the
Gideon
decision Attorney General Kennedy appointed a committee of scholars, practicing lawyers and state and federal judges to review the adequacy of provisions for the indigent in federal courts. The chairman was Professor Allen, then at the University of Michigan Law School (he returned to Chicago in September, 1963), whose law-review analyses of
Betts v. Brady
had been
so devastating. The committee proposed comprehensive legislation similar to but more complete than bills that had previously been considered. In summary, the proposal was as follows:

Every federal district court would be authorized and required to choose one of four systems for representation of needy defendants: 1, assigning members of the private bar but, for the first time, compensating them modestly for their time and expenses; 2, hiring a full-time or part-time public defender and staff; 3, using counsel supplied by a local legal-aid society or other legal organization, which would in turn be paid out of federal funds for providing their services; 4, adopting any combination of these first three approaches. Such local option would permit accommodation to the great differences between federal courts in urban areas, with a large volume of criminal cases, and those in the country, where criminal trials are a relative rarity. Those eligible for assistance under the legislation would be persons “financially unable to obtain an adequate defense.” Services would deliberately not be limited to the technically “indigent,” since the man of modest means may need help in defending against a major criminal charge; defendants would be required to pay whatever they could afford. Counsel would be provided from the moment a defendant is first brought before a judge or commissioner for preliminary hearing, shortly after arrest, and would continue through appeal. There would be funds for investigation, experts and other services.

President Kennedy submitted the Allen Committee measure to Congress, as the proposed Criminal Justice Act of 1963, just ten days before the decision in
Gideon
. It had the important support of the American Bar Association and of the Judicial Conference of the United States, representing
all the federal courts. But it faced suspicion and resistance from Republicans and some Southern Democrats in the House of Representatives. The House had always been the sticking point; three times in previous years the Senate had passed measures to provide some kind of compensated system for representation of the needy in federal courts, but no bill had ever even emerged from the House Judiciary Committee.

The Senate again acted promptly in 1963, approving a slightly modified version of the Allen Committee proposal. In the House, a bill emerged from the Judiciary Committee for the first time—but with the option of public defenders struck out and a limit of five hundred dollars put on the compensation to be paid any lawyer in a felony case, three hundred in a misdemeanor. The House passed the bill on January 15th. The necessary conference to reconcile the two versions was delayed by the congressional struggle over civil rights, but only this hurdle stood in the way of a historic first step by Congress to assist in the defense of the indigent.

The Gideon case thus coincided with, and encouraged, an outpouring of concern and activity on the problem of representation in the
federal
courts. The question was whether it would take as long on the
state
level from what Bruce Jacob had called the beginning—the declaration of the right to counsel in
Gideon v. Wainwright
—to an effective, working system of justice for the poor in all fifty states. The problem was both larger and more difficult than in the federal judicial system.

Criminal prosecutions by the Federal Government are only a handful compared to the number brought by state and local governments, which retain the primary responsibility under the Constitution for maintaining domestic
peace and security. The typical state or local prosecution, moreover, for such a crime as theft or assault or disorderly conduct, is more likely to involve a deadbeat, down-and-out defendant. The proportion of indigents among state criminal defendants is higher—about sixty percent compared to thirty-three in federal courts.

Even among those intimately concerned with the problem of counsel for the poor there is disagreement over the proper approach, especially as to the proper division of responsibility between the state and the bar. Whitney North Seymour, an eminent New York lawyer who heads the American Bar Association’s special committee on counsel for the indigent, said in a 1963 speech that representation was a public responsibility. “Just as doctors are not expected to provide all the facilities for dealing with illness of the poor,” he said, “lawyers cannot be expected to bear all the burdens of the decisions of prosecutors to prosecute the indigent.… These are not obligations imposed by the Constitution upon the bar alone, they are obligations imposed by the Constitution upon the operation of our system of criminal justice. They are as much a part of the public obligation to support that system as the provision of courthouses, judges, attendants and prosecutors.”

One way for society to meet the responsibility is through public defenders paid by the state. First tried in Los Angeles in 1913, defender offices now exist in thirteen states, though only in the largest cities of some; they handle one hundred thousand cases a year. The great advantage of a public defender is that he can match the prosecutor in experience and knowledge of judges, juries and trial tactics. The typical American lawyer has had only the briefest acquaintance with criminal law at law school and none at all in practice; he tends to look down on the “criminal bar” as
a collection of grubby characters who cannot make a go of it in the more remunerative corporate practice. Even a dedicated and obviously talented lawyer with criminal practice, such as Edward Bennett Williams of Washington, is regarded with some suspicion. Because the typical lawyer is nurtured in this tradition of distaste for criminal practice and has had little or no experience of it, he cannot be expected to perform with great efficacy when he finds himself appointed defense counsel. This is a strong argument for public defenders.

But the argument can be turned around. If, somehow, the body of American lawyers could be brought actively into the criminal courts, there to participate in the defense of the needy, the practice of criminal law might be elevated, the typical corporate lawyer might be educated in social responsibilities, and the gap in the profession might be narrowed. In England any barrister may find himself appearing in a civil case one day, a criminal case the next. That is not likely here, but some thoughtful lawyers and judges believe a thoroughgoing involvement of the bar in defense of the indigent would be a healthy step for the profession.

Another argument against public defenders is that their position on the public payroll will prevent them from fighting the prosecution as fiercely as private counsel. Communities that have experience with defenders, such as California, deny this; but an understandable feeling remains that a man in trouble will be better served by someone wholly concerned with him in a private relationship. There is also concern about the possibly deadening, conformist, bureaucratic effect of governmental control over any activity. Some of these feelings probably underlay a speech by Justice Clark in July, 1963. He called for an urgent response to the demands posed by the Gideon case
but said he did “not support the view that we must create a vast public-defender system.… Let us place this function in private hands rather than with the government. The indigent is entitled to private counsel.”

On the other hand, it is widely recognized that private counsel cannot do an adequate job if rushed into a case without preparation and given no financial support. And that is the customary situation. Chief Judge J. Edward Lumbard of the Second Circuit Court of Appeals has painted the picture: