Gideon's Trumpet (26 page)

“When advised that an indigent needs counsel, the judge usually picks out some lawyer who happens to be in the courtroom.… The lawyer then spends a few minutes with his new client at the side of the courtroom, or perhaps in an anteroom under the scrutiny of the bailiff or the marshal. In most of such assignments, after a few minutes of conference, the defendant is advised to plead guilty and he feels he has no choice but to do so.… This mock assignment of counsel and the cursory hurry-up job of a busy uncompensated lawyer makes a farce of due process of law and our Bill of Rights. Every one who participates in the farce knows this—the judge, the district attorney, the assigned lawyer, the bailiff, and of course the defendant himself.”

In the view of Seymour and other experts, there is no decent alternative in populous urban areas to an office that has a regularly employed staff of lawyers representing indigents in criminal cases. The office could be that of a public defender or, alternatively, a voluntary legal-aid organization. In New York City, for example, the Legal Aid Society provides counsel in sixty thousand criminal cases a year. But the society has had to go outside the organized bar for financial support—to private citizens and business
for donations and, finally, to the city treasury for an appropriation. Thus, experienced observers believe that some governmental participation is essential in the big cities that have the real problems of poverty and crime.

Despite their differing emphasis on the proper role of government, Seymour and Justice Clark in their 1963 appraisals agreed that existing informal arrangements for appointment of counsel were inadequate. They were in general agreement on some practical steps to be taken. The young lawyer should be exposed to the criminal law and given experience in it. Justice Clark suggested privately financed interneships for just-graduated lawyers to let them learn while helping in the defense of the needy; Seymour proposed appointment of a senior lawyer and a junior assistant in more serious cases. Where there is no regular defender system, counsel should be appointed from rotating lists of all members of the bar, so that the burden is spread. Funds must be provided for investigation, and at least modest compensation for the practitioner who has no large law firm to back him up while he does good works. To that extent at least—minimal provision of public funds for the assigned lawyer—governmental support would seem to be an inescapable element in adequate defense of the indigent. Many states now provide nothing.

Thus the process of converting the ideal of
Gideon v. Wainwright
into reality necessarily involved the participation of legislators, lawyers, judges and citizens across the country. This process got under way with surprising speed immediately after the
Gideon
decision.

Some of the members of the Supreme Court themselves took every opportunity to preach the gospel of
Gideon
. A month after the decision Justice Clark called
Gideon
an “historic case,” one that would “possibly have more physical
impact on the administration of justice than any decided by the Court.” He urged law schools to upgrade the study of criminal law and suggested that state and local bar associations undertake their own programs for criminal representation, with a paid staff and panels of available lawyers. He urged individual lawyers to volunteer more readily for service to the poor; if each lawyer handled only a case or two a year by appointment in the criminal courts, the burden could be carried “for the time being.” He said it was “imperative that the bar evidence a more active concern.” Other members of the Court sounded similar themes. Chief Justice Warren, talking to a luncheon of the Conference of Judicial Councils in May, said the Gideon case would “amount almost to a revolution in some states.” He called representation of the indigent “a public responsibility” that society should bear through orderly systems worked out locally. Whatever expense the states were put to, the Chief Justice said, they would be repaid not only in fairer treatment of the unfortunate but in criminal courts that would work more efficiently and effectively with lawyers’ help.

At the time Gideon’s case came to decision, several legal organizations launched the broadest attack in this country’s history on the problem of legal services for needy criminal defendants. The Ford Foundation made grants totaling $2,540,000 for a series of projects. The largest part of this sum, $2,300,000, went to the National Legal Aid and Defender Association to establish model defender services in six or eight counties, improve existing services in several major cities and create new law-school techniques of preparation for criminal law work. The American Bar Foundation was given $125,000 for a detailed survey of existing state and local systems of representation, to be carried out in cooperation with state bars and with the special committee,
headed by Mr. Seymour, of the Bar Foundation’s parent American Bar Association. (At the same time the federal courts undertook their own first study of what the typical appointed counsel actually does in a federal criminal case.) The Institute of Judicial Administration in New York received a grant of $115,000 to continue a noteworthy experiment in the release of impoverished criminal defendants without bail; this study, carried out by the Vera Foundation, had already indicated that men so released were as likely to turn up for trial as those who had posted bond.

The reaction of the states to
Gideon v. Wainwright
was swift and constructive. The most dramatic response came from Florida, whose rural-dominated legislature had so long refused to relieve the problem of the unrepresented indigent such as Gideon. Shortly after the decision Governor Farris Bryant called on the legislature to enact a public-defender law. “In this era of social consciousness,” he said, and his words might have given Clarence Earl Gideon wry amusement, “it is unthinkable that an innocent man may be condemned to penal servitude because he is unfamiliar with the intricacies of criminal procedure and unable to provide counsel for his defense.” Governor Bryant said the
Gideon
decision had made public defenders essential not only “to protect the innocent” but “in order that valid judgments of guilty may be entered and criminals kept confined for the protection of society.” He may have been thinking of all those inmates of the state prisons who had been tried without counsel and now might be entitled to new trials. In May, 1963, barely two months after the Supreme Court had spoken, the Florida legislature approved a statute creating a public defender in each of the state’s sixteen judicial circuits.

The four other southern states that had not provided
counsel for non-capital defendants acted quickly to adjust to the new constitutional requirement. North Carolina’s legislature passed a bill to have the state bar council and state supreme court draft rules for assignment of lawyers in all criminal cases, to authorize compensation of assigned counsel and to appropriate $500,000 for initial expenses of the new system. In Alabama, Mississippi and South Carolina, bar groups prepared rosters of lawyers available for assignment, and plans were drafted for legislation to compensate those appointed. Appraisals of the Gideon case in the South were surprisingly favorable. Howard McDonnell, the chairman of the Mississippi State Bar’s criminal law committee, told a meeting that the decision was “far-sighted.” He said, “Our penitentiary is loaded with inmates who are there because of no representation or improper representation.” The head of the Wake County, North Carolina, Bar Association, R. Mayne Albright, said: “I think few lawyers would disagree with the principle enunciated by the Supreme Court. It was time we recognized the need for the defendant who is indigent to have a lawyer.”

Nor did the response to
Gideon v. Wainwright
come only from southern states. The Colorado legislature authorized counties, in a local option statute, to employ public defenders. Oregon created a public defender’s office to handle appeals and other post-conviction proceedings by indigent prisoners. (This was a specific response to the California case decided the same day as Gideon’s, laying down the rule that indigents are entitled to lawyers on appeal also.) The Minnesota legislature authorized compensation for lawyers representing indigents on appeal. New Hampshire and Vermont moved to strike from their statutes provisions (often ignored in practice) exempting crimes with lighter sentences from the counsel guarantee. Delaware’s judges
held a meeting to plan extension of the state’s appointed counsel system to misdemeanor cases, in the apparent belief that the
Gideon
rule would sooner or later be extended to that level.

“Without the Supreme Court,” Gideon had told his visitor in the Florida penitentiary, “it might have happened sometime, but it wouldn’t have happened in this state soon.” The reaction to his case bore him out. For lawyers and legislators were taking steps that they recognized as requirements of justice—but that they had not taken without the nudge from the Court. For its part, the Court quickly made clear that it would apply continuing pressure to the states on the issue of the right to counsel. In the three months after the
Gideon
decision, during the remainder of the 1962 term, the justices set aside thirty-one lower court judgments and sent them back for reconsideration of prisoners’ claims to counsel in light of the new rule. The cases came from ten states: Alabama, Florida, Illinois, Louisiana, Maryland, Missouri, North Carolina, Ohio, Oklahoma and Pennsylvania. Among them was the case of Allen Baxley, Jr., the illiterate Florida prisoner for whom Gideon had drafted a petition. In April the Court unanimously reversed a Maryland conviction because the defendant had not had a lawyer at his preliminary hearing, at which he pleaded guilty. That decision made clear that counsel was constitutionally guaranteed not only at trial but at any earlier proceeding, however brief or informal, at which the prisoner enters a plea. In response, the Baltimore Municipal Court, which holds preliminary hearings on criminal charges to be tried later in the higher courts, called an emergency meeting and obtained a pledge from the local bar associations to supply the needed lawyers.

On the first business day of its next term, October 14,
1963, the Supreme Court began dealing with one of the difficult issues it had left undecided in
Gideon
—whether to apply the new counsel rule retrospectively, to prisoners tried when
Betts v. Brady
was the law. Ten Florida prisoners convicted without the aid of counsel before March 18, 1963, petitioned for review of the Florida courts’ refusal to grant them writs of habeas corpus. In a brief order the Court granted the petitions, set aside the Florida judgments and sent all the cases back to the Florida Supreme Court “for further consideration in light of
Gideon v. Wainwright.”
The justices had not themselves made the decision to apply the new rule retrospectively, but they seemed to be inviting the Florida court to do so. Justice Harlan dissented, saying the Supreme Court should have decided the issue itself.

Florida went ahead and applied the
Gideon
rule retrospectively, to all who had been convicted of felonies without counsel. The results were spectacular. By January 1, 1964, nine hundred seventy-six prisoners had been released outright from Florida penitentiaries, the authorities feeling that they could not be successfully retried. Another five hundred were back in the courts, and petitions from hundreds more were awaiting consideration.

It will be an enormous social task to bring to life the dream of
Gideon v. Wainwright
—the dream of a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense. England already approaches that ideal. No poor man there is tried for at least a serious crime without the offer of counsel; assignment in such cases is an expected part of a barrister’s life, and he receives a fee from the state comparable
to what a private client would pay in that kind of case. But England is, by comparison, a small and homogeneous society, with a simpler legal system and a much less serious crime problem. There is a long road to travel before every criminal court in the United States reaches the goal that appears on the façade of the Supreme Court building:
Equal Justice Under Law
.

The new responsibilities imposed by the Gideon case on the bar and the courts will be heavy, but there is no sign that the American legal community regards them as unjustified. The president of the American Bar Association, Sylvester C. Smith, Jr., hailed
Gideon
and the Supreme Court’s other criminal-law decisions on March 18, 1963, as “great advances in the administration of criminal justice in our country.” Chief Justice Carleton Harris of Arkansas, speaking to the Conference of Chief Justices in 1963, said he had “no fault to find with
Gideon
. The law as to the right of an indigent prisoner to counsel is now, for the first time, positively stated.” In the Record of the Association of the Bar of the City of New York, Ernest Angell wrote: “In retrospect the
Gideon
decision seems to have been long overdue.”

The
St. Petersburg Times
, a highly regarded newspaper in the state where Clarence Earl Gideon was tried and imprisoned without the help of a lawyer, rejoiced in his victory. “There will be those,” the
Times
said, “who will decry the Supreme Court’s ‘softness’ toward persons accused of crimes. Ironically, many uttering such criticisms are the same ones who decry the ever-increasing size and centralization of government. Most persons, we are sure, will be thankful that the Supreme Court clings to the ancient democratic tradition of protecting the individual against the tyranny of any governmental agency.”

The
Washington Post
said: “Like the Gideon of old who was summoned by an angel of the Lord to lead Israel and overcome the Midianites, Clarence Earl Gideon of Panama City, Florida, championed the cause of justice for all indigent defendants.… It is intolerable in a nation which proclaims equal justice under law as one of its ideals that anyone should be handicapped in defending himself simply because he happens to be poor.”