Gideon's Trumpet

by Anthony Lewis

  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:

  1928, burglary in Missouri, 10-year sentence, paroled after 3.

  1934, a federal charge, possession of Government property, 3 years.

  1940, another Missouri burglary, 10 years, escaped in 1944, recaptured a year later, released in 1950.

  1951, burglary in Texas, 2 years, released Sept. 25, 1952.

  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.

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  “The 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; apparent
ly 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.

  Historically speaking, the amendment was almost certainly not envisaged by its framers as reaching the problem of the man too poor to hire a lawyer for his defense. But over the years that became the real problem of counsel in American criminal justice. No precise national figures are available, but various states have estimated that between thirty and sixty percent of all those they convict these days cannot afford to retain a lawyer. Certainly the numbers are large, and every justice who was to participate in the Gideon case knew from his experience on the Supreme Court—however brief—that many of the claimed flaws in the criminal convictions brought to that Court resulted from the inability of the prisoner to pay for counsel at his trial.

  The treatment of the right-to-counsel issue in the Supreme Court is a fascinating example of how constitutional doctrine develops there, slowly, deliberately, case by case. Understanding does require discussion of a fair number of cases, for few issues have had a more thorough exploration in the Court.

  The story begins in 1932, in the Scottsboro Case, Powell v. Alabama, one of the few incontestably great cases in the Supreme Court’s history. The case started in a freight train “moving slowly across the countryside of northern Alabama,” Professor Francis A. Allen of the University of Chicago says in a classic outline of the story. “It was a time of economic distress and social unrest. As if in response to some common impulse, thousands of young people—no one knows how many—left their homes and communities to drift across the land by train and on foot, presumably in search of work, but, in reality, often without any defined or definable objective. In a gondola car of the train rode two groups of youths, one composed of Negroes, the other whites. Among the latter were two white girls. What occurred has ever since been the subject of sharp controversy. It is at least established that a dispute broke out between the Negroes and the whites. There was a fight and all but one of the white boys were thrown off the slow-moving train. Word was sent ahead, and when the freight approached the village of Scottsboro, the Negroes were met by the sheriff and a posse. The charge was rape of the white girls. Fearing the violence of the community, the sheriff moved the defendants to the neighboring town of Gadsden. The militia was called to Scottsboro to maintain order. A few days later the defendants were tried in three separate proceedings. Each of the three trials was completed in the space of a single day. All the defendants were convicted of rape, and the juries imposed the sentence of death on each.”

  Those were the convictions and sentences before the Supreme Court in Powell v. Alabama. The opinion of the Court was written by Justice George Sutherland, one of the four “conservatives” so hateful to New Deal liberals. The question he considered was whether the seven Scottsboro boys, as they were called, had had the effective assistance of counsel. They were tried six days after their indictment. At the trial there was a long, confusing colloquy between the judge and some of the lawyers of Scottsboro in which the judge said he had “appointed all the members of the bar” for the purposes of arraigning the defendants and expected them to carry on at the trial if no one else turned up to represent the accused. “With this dubious understanding,” Justice Sutherland said, “the trials immediately proceeded. The defendants, young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers, charged with an atrocious crime regarded with especial horror in the community where they were to be tried, were thus put in peril.…”

  Justice Sutherland put aside the Sixth Amendment as a guide to decision; the precedents had rejected any claim that it applied to the states or had been incorporated in the Fourteenth Amendment automatically. But the due-process clause of the Fourteenth Amendment, he said, at least required a “hearing,” and for a meaningful hearing counsel was “fundamental.”

  “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”

  On those premises, the opinion concluded that it would be a denial of due process of law—and a violation, therefore, of the Fourteenth Amendment—for a court “arbitrarily” to deny any party to a case, “civil or criminal,” the right to be heard by counsel of his choice. And the facts of this case, Justice Sutherland said, amounted to a denial of “reasonable time and opportunity to secure counsel.” But he did not stop there. “Passing that,” Justice Sutherland wrote, “and assuming their inability, even if opportunity had been given, to employ counsel, … we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.”

  For the first time, the Supreme Court had held that the Constitution could entitle the poor and friendless accused to the lawyer he could not retain himself. But Justice Sutherland carefully limited the holding of the case to its particular facts, “the circumstances just stated,” as he had said. “Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.”

  Powell v. Alabama was an historic advance for liberty. It was the first occasion on which the Supreme Court had actually reversed a state criminal conviction because of unfair procedures at trial. But by any fair reading, Justice Sutherland’s opinion meant less than the universal requirement of counsel in every criminal trial that Gideon was asking the Supreme Court to prescribe. Justice Sutherland had taken care to restrict the case to its compelling circumstances—a capital crime, an agitated community, obviously helpless defendants. It was six years before the Court considered the issue of counsel in a less agitated setting.<
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  The next landmark in the history of the right to counsel was Johnson v. Zerbst. It was a federal case—a conviction for passing counterfeit money. Justice Black, in his first term on the Court, wrote the majority opinion. He said nothing of any special difficulties under which the defendant labored, and for all that could be told there were none. The opinion quoted some of what Justice Sutherland had said in Powell v. Alabama about the importance of a lawyer, adding only the comment that “the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life and liberty, wherein the prosecution is represented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.” The opinion did not discuss the history of the Sixth Amendment, with its object of overcoming the English rule against counsel for felony defendants. Justice Black said simply that the language of the amendment now required the appointment of counsel for all who could not afford it in federal criminal cases. The amendment “withholds from federal courts in all criminal proceedings,” he said, “the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” He had a bare majority for that proposition—Chief Justice Hughes and Justices Brandeis, Harlan F. Stone and Owen J. Roberts in addition to himself.

  There matters stood for four years. In the state courts, the Fourteenth Amendment required appointment of counsel in some cases—but just which ones was not certain. In federal courts, the Sixth Amendment required counsel in all criminal cases. Many informed observers thought it was inevitable that the requirement would be extended to the states. But then, in 1942, came Betts v. Brady.