“I want to file my own motions,” Gideon said. “If this is to be a matter of just sending me back to the penitentiary I want to do it my own way. It has been more than two years now since this crime is alleged to have been committed, and if I’m going back to the penitentiary for the same crime I want to do it my way. I want to file my own motions.”
He pulled from his hip pocket two crumpled pages, typewritten single-spaced, that were the motions he had prepared. Judge McCrary asked Gideon to read them to the court reporter. The motions were full of legalistic language, and Gideon seemed to have some trouble reading them; finally the judge called a short recess to let Gideon look them over before reading them to the stenographer. These long documents made two main points: That a new trial was barred by the rule against double jeopardy and by Florida’s two-year statute of limitations on his alleged crime. (The statute of limitations does not, in fact, apply when an appeal results in a new trial.)
Judge McCrary listened attentively during the reading of the motions and said he would rule on them later. Then he set a new trial date, August 5th, exactly one month later. The judge offered to free the prisoner on $1,000 bail, but Gideon could not raise it and was returned to the penitentiary.
Simon later wrote a report on the episode for the Florida Civil Liberties Union, which he subtitled, “How the Florida Civil Liberties Union Wasted $300, and How Two Attorneys Each Traveled over 1200 Miles and Killed an Otherwise Perfectly Enjoyable July Fourth Weekend.” But by the end of the report his anger seems to have softened. He wrote:
“It has become almost axiomatic that the great rights which are secured for all of us by the Bill of Rights are constantly tested and retested in the courts by the people who live in the bottom of society’s barrel. Thus, many of our freedom-of-religion cases developed out of efforts by members of small sects to force religious tracts upon people who did not want them; our freedom-of-speech cases have developed from the efforts of the police to jail persons who ranted and raved against others, including Catholics, Jews and Negroes.…
“In the future the name ‘Gideon’ will stand for the great principle that the poor are entitled to the same type of justice as are those who are able to afford counsel. It is probably a good thing that it is immaterial and unimportant that Gideon is something of a ‘nut,’ that his maniacal distrust and suspicion lead him to the very borders of insanity. Upon the shoulders of such persons are our great rights carried.”
Gideon’s new lawyer, Fred Turner, wrote to Judge McCrary on July 12th asking that the trial be postponed three weeks. He said there were “many, many legal problems” in this case—a case once considered so simple that the defendant could be required to try it himself on a few minutes’ notice. Judge McCrary refused the postponement.
On August 1st the judge denied a series of motions including Gideon’s own, presented by Turner, to dismiss the charges. Courtroom observers thought Gideon looked pleased at the denial and was looking forward to the new trial. Judge McCrary warned him not to interfere with Turner or try to take over his own defense.
———
The courthouse in Panama City is a large brick building, painted yellow, with peeling white columns. It stands on a rather seedy square set with palms. The courtroom is a simple, good-looking room with pale green walls and seats for about one hundred and fifty. It is air conditioned, a necessity in Panama City in August.
The trial began promptly at nine A.M. on August 5th. After the sheriffs traditional opening (“… God save the United States of America, the State of Florida and this honorable court”), Judge McCrary read a prayer ending “and help us to do impartial justice, for Christ’s sake. Amen.” Forty-eight years old, with black hair, informal and gracious in his dealings with the lawyers but decisive when necessary, McCrary was not an awesome figure in his robes. To his left and below him was the court reporter, Mrs. Nelle P. Heath, a motherly figure with firmly upswept hair and pearl earrings. (“I reported this case originally, and I thought it was just another run-of-the-mill case. I never thought that Gideon was different from anyone else—that he would just keep on goin’ and goin’ and goin’.”) The prosecution table was just in front of the bench. The original prosecutor, Assistant State Attorney William E. Harris, a tanned, bulky man, again sat there. But this time, indicating the importance the case had acquired, his boss was there, too—the state attorney for the circuit, J. Frank Adams, a foxy-looking figure in a bow tie—and also another assistant, J. Paul Griffith. The prosecutors seemed confident. Adams said, “If he’d had a lawyer in the first place, he’d have been advised to plead guilty.”
Judge McCrary announced “the case of State of Florida versus Clarence Earl Gideon. Is the state ready for trial?” Harris said it was. Turner, who was sitting with Gideon at a table back near the rail that separated the spectators from the trial area, got up without waiting to be asked. “We’re ready, your Honor,” he said, enthusiastically rolling a pencil between his two flattened hands. Turner was thin and dapper, reminiscent of Fred Astaire, “forty-one summers” old, he said when asked.
Ordinarily a jury of six is used in Florida. There was a panel of twenty-eight white men in the courtroom. (Why no Negroes? “They just don’t call any,” a local newspaper man explained.) The first six men were called forward and questioned first by Harris for possible prejudice. Harris was satisfied with all of them. Then Turner questioned the same six; they said they had no prejudices in the case, and they agreed that they would give the defendant the benefit of any reasonable doubt. Without explanation. Turner excused two of the six. Later he said, privately, that he had gone over the whole jury list in advance—“you’ve got to know who they are, what they think”—and dropped the two men because he knew that one didn’t like alcohol and that the other was “a convicter.”
The jury was sworn just before ten A.M. Harris made a two-minute opening statement to the effect that the state expected to prove Gideon had broken into the Bay Harbor Poolroom through a rear window; a witness had seen him inside and in an alley after leaving. Turner waived his right to make an opening statement.
Henry Cook, the eyewitness, was the first to take the stand. He turned out to be a sallow-faced youth of twenty-two, with greasy black hair cut in a pompadour and long sideburns. Under Harris’s questioning he told the same story he had at the first trial. He had come back to Bay Harbor from a dance in Apalachicola, sixty miles away, at five-thirty that morning and had spotted Gideon inside the poolroom; he had followed Gideon down the alley to a telephone booth, then back to the poolroom; Gideon’s pockets bulged.
Turner began his cross-examination by asking who had driven Cook back from Apalachicola that night. When Cook had trouble remembering, Turner suggested some names. (Turner had driven to Apalachicola a few days earlier to try, without success, to find the other young men who had been in the car.) Cook said the car was “an old model Chevrolet.”
“Why did they put you off two blocks from your home when they’d driven you sixty miles?” Turner asked.
Cook mumbled inaudibly, then said, “I was going to hang around there till the poolroom opened up—seven o’clock.”
Turner began addressing the witness with irritation familiarity, “Well now, Henry …,” and took him back over the events of that night. Cook said he had had a beer or two, but then the stores had closed in Apalachicola at midnight. This brought Turner back to the question of why Cook and his friends had stopped outside the Bay Harbor Poolroom. Turner had a suggestion—an accusation.
“Mr. Cook,” he said, “did you go into the Bay Harbor Poolroom?”
“No, sir.”
“Did you all get a six-pack of beer out of there?”
“No, sir.”
Turner led Cook over a detailed discussion of the geography of Bay Harbor and the poolroom, indicating an intimate acquaintance with it himself. (He had spent a day nosing around Bay Harbor and talking with people, to prepare for the trial.) Weren’t there some advertising boards in the fron
t window? How could Cook have seen past them and spotted Gideon, as he claimed? Weren’t the windows on the alley too high to see through?
“You did not call the police then or later,” Turner asked. It was as much a comment as a question.
“That’s right.”
After more questions, Turner asked, “Ever been convicted of a felony?”
“No, sir, not convicted. I stole a car and was put on probation.”
That answer set off a long wrangle between the lawyers. At the first trial, when Gideon asked whether he had ever been convicted of a felony, Cook had answered: “No, sir, never have.” Turner said that was a false answer that reflected on Cook’s character and credibility as a witness. State Attorney Adams popped up and said it was not necessarily false because Cook had evidently pleaded guilty; that was not the same as being “convicted.” Turner said it was the same. There was a suggestion that the plea might have been in a juvenile court, where there are no formal convictions. Finally the judge allowed this exchange, which closed the cross-examination:
Turner: “Have you ever denied being convicted of a felony?”
Cook: “Yes, sir.”
Turner: “When and where did you deny your criminal record?”
Cook: “Right here—at his last trial.”
On redirect examination Harris got Cook to say he had not understood the question about a felony at the first trial. Turner moved to strike this testimony, saying “I don’t think this should go to the jury with any excuses or any embellishments.… I don’t care if he’s ignorant of the law or I am, that still doesn’t change the spots on the leopard. He’s a convicted felon.” Judge McCrary let Cook’s explanation stand, but Turner had made the score he wanted—impressing the jury with Cook’s record.
The prosecution’s second witness was the man who had operated the Bay Harbor Poolroom, Ira Strickland, Jr., twenty-nine years old, growing bald. He was no longer in the poolroom business; now he was a stock clerk. Questioning him, State Attorney Adams went into much greater detail about the poolroom and Gideon’s relationship to it than at the first trial. Had Gideon worked for Strickland? “Never on the payroll,” but he had helped out sometimes.
“Was he authorized to be in the poolroom on the morning of the third day of June, 1961?”
“No.”
On cross-examination Turner asked whether others had not operated the poolroom for Strickland.
“Occasionally.”
“Even this defendant, Gideon, operated it sometimes, didn’t he?”
“Well, occasionally.” There was no further explanation.
Turner pressed Strickland to say exactly what he missed from the poolroom when he arrived that morning, but Strickland said he could not be precise.
“Are you sure there was money in that cigarette machine [the night before]?”
“Yes.”
“How can you be sure?”
“I bought a pack myself.”
Shortly before noon Judge McCrary recessed the trial for lunch. Afterward the state called the detective who had arrested Gideon in 1961. Duell Pitts was a square-faced, handsome man, thirty-seven years old, wearing a sports jacket and salmon-colored tie. Like the other prosecution witnesses, he seemed to have no animus toward Gideon; indeed he spoke rather gently of him. On direct examination he testified that he had been called by the policeman who discovered the break-in, was given Gideon’s name at the scene by Cook, and arrested Gideon in a downtown Panama City bar the same morning.
Under cross-examination Pitts produced his notes of what Strickland had told him was missing from the poolroom that morning: four fifths of wine, twelve bottles of Coca-Cola, twelve cans of beer, about five dollars from the cigarette machine and sixty dollars from the juke box. Then Turner asked a question that boomeranged: “When you arrested Clarence Earl Gideon that morning, how much money did he have on him?”
Pitts answered, “Twenty-five dollars and twenty-eight cents in quarters, nickels, dimes and a few pennies.”
On redirect, that damning point was re-emphasized: “This twenty-five dollars and twenty-eight cents—he had no bills?”
“Not that I remember.”
Preston Bray, the cab driver who was called by Gideon the morning of the crime and drove him downtown, testified that Gideon had paid him six quarters. He said that Gideon had told him: “If anyone asks you where you left me off, you don’t know; you haven’t seen me.” But on cross-examination he said Gideon had told him the same thing on other occasions.
“Do you know why?”
“I understand it was his wife—he had trouble with his wife.” There were these further exchanges between Turner and Bray:
Q: “What was his condition as to sobriety?”
A: “What’s that?”
Q: “Was he drunk or sober?”
A: “He was sober.”
Q: “Did he have any wine on him?”
A: “No, sir.”
Q: “Any beer?”
A: “No, sir.”
Q: “Any Coca Cola?”
A: “No, sir.”
Q: “Did his pockets bulge?”
A: “No, sir.”
That was the prosecution’s case. The jury was sent out; and then Turner moved for a directed verdict of acquittal, arguing that the evidence went only to show Gideon in the poolroom, not breaking into it. Judge McCrary listened politely and then said without hesitation: “The motion will be denied. Call the jury back.”
Turner produced a surprise defense witness who had never appeared in the case before. He was J.D. Henderson, owner of the grocery in Bay Harbor. Between eight and nine on the morning of June 3, 1961, Henderson said, Henry Cook had come into his store and told the grocer that “the law had picked him up for questioning” about the break-in.
“Picked who up?” Turner asked with an air of mock disbelief.
“Henry Cook.”
Henderson said Cook had told him about seeing someone in the poolroom but was “not sure who it was. He said, ‘It looked like Mr. Gideon.’ ” If such a statement had been made by Cook, it was much less positive than his subsequent testimony.
On cross-examination Harris asked whether Henderson had ever had “any trouble with Henry Cook.”
“No.”
“Does he owe you any money?”
“He owes a grocery bill, forty-one dollars, for almost a year.”
The second and last witness for the defense was Clarence Earl Gideon.
Q: “On the morning of June 3, 1961, did you break and enter the Bay Harbor Poolroom?”
A: “No, sir.”
Q: “What was the purpose of your going into town?”
A: “To get me another drink.”
Q: “Where’d you get the money?”
A: “I gambled.”
Q: “What kind of games?”
A: “Mostly rummy.”
Q: “Did you ever gamble with Henry Cook?”
A: “Sure, I gambled with all those boys.”
Q: “Did you have any wine with you?”
A: “I don’t drink wine.”
Q: “Any beer? Any Coke?”
A: “No.”
Q: “What did you purchase in town?”
A: “I didn’t purchase nothin’ except somethin’ to drink.”
Q: “That’s what I mean. What did you purchase to drink?”
A: “Four or five beers, and I bought a half-pint of vodka.”
Q: “What do you say to this charge that you broke and entered the pool hall?”
A: “I’m not guilty of it—I know nothing about it.”
On cross-examination, Harris asked where Gideon was employed at the time. “I wasn’t employed. I was gambling.” There was a long exploration of when Gideon had last held a regular job. He had painted some rooms at the Bay Harbor Hotel and was given free rent (a $6-a-week room) in exchange. He had run poker games for Strickland in the poolroom. There followed some questions about gambling that Gideon answered with a puzzled air, as i
f bewildered at Harris’s failure to understand.
Q: “Why did you have all that money in coins?”
A: “I’ve had as much as one hundred dollars in my pockets in coins.”
Q: “Why?”
A: “Have you ever run a poker game?”
Q: “You would carry one hundred dollars in coins around for a couple of days at a time?”
A: “Yes sir, I sure wouldn’t leave it in a room in the Bay Harbor Hotel.”
Q: “Did you play rummy that night?”
A: “No—I was too busy drinking.”
Q: “Have you ever been convicted or pled guilty to a felony?”
A: “Yes, five times, including this one.”
At two-forty P.M. the testimony was all in. Judge McCrary recessed the trial and called the lawyers and Gideon into his chambers to discuss how he should charge the jury. The lawyers wrangled for half an hour, ending with a squabble over how much time they would have for closing arguments. Judge McCrary settled this by allowing each side forty-five minutes; as it turned out, neither used that much.
In his address to the jury Turner was the model of the practiced criminal lawyer—dramatic but not too dramatic. His whole argument focused on Henry Cook.
“This probationer,” he said scornfully, “has been out at a dance drinking beer.… He does a peculiar thing [when he supposedly sees Gideon inside the poolroom]. He doesn’t call the police, he doesn’t notify the owner, he just walks to the corner and walks back [as Cook had testified].… What happened to the beer and the wine and the Cokes? I’ll tell you—it left there in that old model Chevrolet. The beer ran out at midnight in Apalachicola.… Why was Cook walking back and forth? I’ll give you the explanation: He was the lookout.”
Having accused Cook and his friends of actually committing the crime, Turner turned to the defendant.
“Gideon’s a gambler,” he said, “and he’d been drinking whiskey. I submit to you that he did just what he said that morning—he walked out of his hotel and went to that telephone booth [to call the cab].… Cook saw him, and here was a perfect answer for Cook. He names Gideon.”
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