by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
No one says seven hundred cases per attorney is okay. And that, Brummer says, is the insane level at which public defenders in his office were expected to work. (In 2008, the New York Times reported that each lawyer handled five hundred cases a year; specific numbers from the era are hard to verify.) Attorneys who worked the misdemeanor circuit had twice as many cases: 2,225 in 2008 compared with 1,380 cases in 2005, the Times reports.
PD-11 also faced a slew of other challenges, including an 8.5 percent budget cut between 2007 and 2009 (losing a total of $2.4 million); high turnover among assistant public defenders due to low salaries ($42,000 starting salary); crippling time constraints caused by the also overburdened interpreters who were needed for so many cases in Miami—both for interviewing clients and witnesses in advance and for translating in court—and whose unavailability created delays; traffic in the Miami area, which had attorneys wasting endless hours traveling to and from the jail for interviews with their clients (significantly, this was a huge issue for them and recent technological upgrades have allowed some time-saving video conferences); and the Florida legislature’s recent decision to give prosecutors several statutory resolution avenues to increase jail time, thereby increasing the time it takes for lawyers to complete these cases.
“You do your best to cope,” Brummer says today, reflecting back on his days at PD-11 and his decision to bring his fight for reasonable caseloads to the courts themselves. “You don’t want to be complaining. You want to make sure that by the time you go to court the numbers are so clear that the court can’t in legitimacy deny your motion.” With that in mind, and after four years of suffering the consequences that came with losing dozens of lawyers, Brummer filed a motion for relief in the Trial Court of Florida in 2008, asking that his office have the right to turn down future noncapital felony cases until the lawyers had caught up on their current workload. The Office of Criminal Conflict and Civil Regional Council, one of five offices in the state created in 2007 to represent the indigent in court when public defenders have a conflict, would be enlisted to pick up the slack and the remaining unassigned indigent clients.
PD-11 won, and on June 26, 2008, Chief Judge Joseph P. Farina of the Eleventh Judicial Circuit Court of Florida found that PD-11 could sometimes appoint other counsel to noncapital felony cases that had yet to be assigned to attorneys. New cases, Judge Farina ruled, would affect the office’s ability to respond diligently to its current caseload, thus creating a conflict of interest.
But relief did not come. In July 2008, the state attorney’s office for the Eleventh District Circuit Court of Florida, who requested and was given permission to participate in this case as an “amicus curiae,” or friend of the court, filed a response to Judge Farina’s decision, saying that the Office of Criminal Conflict and Civil Regional Council, which would handle PD-11’s excessive noncapital felony cases, was not adequately staffed or funded to do so. The state attorney’s office said that the trial court’s decision to give PD-11 relief could set a precedent in which the Office of Criminal Conflict and Civil Regional Council could also file for relief if their caseloads become excessive. The state attorney’s office also took issue with the fact that PD-11 was seeking relief from the 40,651 indigent defendants it represented in noncapital felony cases, which involve more violent and dangerous crimes, instead of the 46,888 misdemeanor cases. Furthermore, the office said that PD-11’s motion for relief was not in the interest of the general public.
“I don’t know how [the state attorney’s office] can justify their positions that you can handle 700 or 800 cases a year if the lawyer is saying they can’t do it,” Brummer says, still sore about this response. The Third District Court of Appeal hasn’t helped either, according to Brummer. “The nature of the judges there, they’re like the most conservative you can imagine and the most irresponsible. . . . They put every obstacle they could in our way. They said that the office couldn’t do anything about this and the chief defender couldn’t do anything about this.”
Carlos Martinez, Brummer’s chief assistant public defender for twelve years and, since 2009, the chief public defender for PD-11, is equally baffled by the state attorney’s office’s response, pointing out that this is an ethical decision for the public defender. “I have never been able to figure out what their interest is,” he says. “Their attorneys are just as overworked as our attorneys, so it makes no sense for them to jump in and say, ‘You don’t really have a workload issue.’ . . . If the attorney can’t investigate your case or talk to you, then how on earth is that the right to an attorney?”
The case was batted around the courts for several years until the state supreme court accepted jurisdiction in May 2010. It has been sitting there ever since; public defender caseloads remain largely unchanged.
Sadly, Florida’s situation is not aberrant. It is the norm. Back in 1963, as the justices debated Gideon, one of the major concerns regarded the complexities and caseload ramifications of all the incarcerated folks asking for their cases to be retried, with attorneys to represent them. The worry (which turned out to be somewhat valid) was that states would be overburdened with old cases; after Gideon, no fewer than four thousand Florida convicts demanded new trials. But it has turned out that the bigger problem is the actual, current caseload that has exploded; in a sense, Justice Stewart’s concern about traffic violations has come true—though instead of needing a lawyer for running a red light, Florida indigent defendants need them for carrying twenty grams or fewer of marijuana.
As a result, it’s hard not to question Abe Fortas’s response to Stewart’s fears: “I see no real difficulty, Mr. Justice, in saying to . . . [someone] when they’re arrested for [a] traffic violation, ‘If you want to see the public defender, he’s in Room 102,’ and to assign a public [defender].” Fortas, unable to anticipate the changes coming with mandatory sentencing and drug laws, was blissfully ignorant and optimistic. “It really works,” he said. “It will work. It sounds crazy, perhaps, but it [will] work. It will work. I’m sure it will.”
Important legal decisions often come out of mundane circumstances and commonplace characters. Nine-year-old Linda Brown, who was denied admission to her elementary school in Topeka, Kansas, because of the color of her skin, led to Brown v. Board of Education. Ernesto Arturo Miranda, a laborer with a ninth-grade education who confessed to charges of rape and kidnapping without being informed of his right to counsel and against self-incrimination led to Miranda v. Arizona and the institution of “Miranda” rights. Fifteen-year-old John Tinker, who was suspended from his Des Moines, Iowa, high school for wearing a black armband to protest the Vietnam War, led to Tinker v. Des Moines Independent Community School District and an extension of First Amendment rights to public school children. Similarly, there is nothing extraordinary about Clarence Earl Gideon, or the circumstances of his arrest and conviction. Indeed, one of the ACLU attorneys who eventually represented him referred to Gideon as “a nut.”40
How do we have a conversation about indigent defense that allows human complexities to exist right alongside the fundamental notion that all poor are “deserving poor” and thus entitled to due process? From the very beginning—despite Henry Fonda’s heroic portrayal of him in the movie—Clarence Earl Gideon has demanded that we address this fundamental problem of perception.
When he wrote his letter to the U.S. Supreme Court in 1962, Gideon was a fifty-one-year-old petty criminal and drifter. In October of that same year, Gideon mapped out his life story for his lawyer Abe Fortas, who had sent him a letter two weeks earlier requesting “a careful and detailed biographical description,” emphasizing that he should be “absolutely accurate in any information that you send along.” Gideon promptly complied, sending Fortas a meticulously detailed twenty-two-page letter detailing a circuitous and checkered past, a life, as he put it, of “utter folly and hopelessness.” Gideon explained that he was born in Hannibal, Missouri, on August 30, 1910. His father died when he was three years old and his mother remar
ried two years later. Unhappy at home, Gideon “accepted the life of a hobo and tramp” at age fourteen, and ran away from home. His mother eventually tracked him down in California and brought him back to Hannibal, and had him put in jail. Gideon escaped, burgled a store for some clothes, was caught and put back into jail. This became the leitmotif for the next forty years of Gideon’s life—a small petty crime, incarceration, another petty crime, another incarceration, and so on. (“I suppose,” he wrote, “I am what is called individualist a person who will not conform.”) He said in his letter:
When I was arrested for stealing government property to wit an armory. [Gideon and his companions stole guns from an armory, but their getaway car got stuck in the mud and they were arrested when a deputy sheriff stopped by to help them.] I was tried in Federal Court and on a plea of guilty was sentenced to Ft. Leavenworth Kansas prison for a term of three years with a concurant sentence of three years for conspiracy. I worked in shoe factory again. During this time I saved a little money that I was paid by the prison my parents had lost their home during the depersion. So I sent them my money to make a down payment on another place. I done a little over two years and was released on contional release January 1937. There still where not an jobs all though the government was helping the people by this time I was not entitled to any of this because by this time I am a outcast.41
Gideon’s life more or less continues on this kind of trajectory. By the time he married his fourth wife, Ruthada Babineaux, in October 1955, Gideon had spent more than half of his life behind bars. He was also gambling heavily. After serving time on what he claimed were trumped-up charges in Panama City, Florida, Gideon served enough time in detention that his wife had “started to drink” and his children were placed in foster care. When Gideon was released, he found that his wife “was to far gone and I could get no help from the social workers.” Gideon, “out of desperation,” placed his children in the care of a Baptist church, a move that he eventually regretted. “Now I class that organization in the same class as I do the K.K.K. Because they hate to many persons and things. . . .”42 He eventually lost contact with his wife and children, and was again picked up on various charges, including burglary and vagrancy (he maintained his innocence on these charges). By June 1961, Gideon was making what money he could from gambling, running poker games in the Bay Harbor Poolroom, and living in a rooming house across the street. He concluded his letter to Fortas thus:
I am not proud of this biography. I hope that it may help you in preparing this case, I am sorry I could not write better I have done the best I could.
I have no illusions about law and courts or people who are involved in them. I have read the complete history of law ever since the Romans first started writing them down and before of the laws of religions. I believe that each era finds a improvement in law each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward, in the past thirty-five years I have seen great advancement in Courts in penal servitude. Thank you for reading all of this. . . .
Sincerely yours
Clarence Earl Gideon43
So the question remains, was he in fact guilty of breaking and entering, robbing the poolroom? Or was he innocent? Bruce Jacob, who represented the State of Florida in the case, tells me, when I talk to him on the phone one afternoon in the fall of 2011, that people ask him that question all the time. Instead, he says, they should be asking a different question: Did Clarence Earl Gideon really take on the U.S. Supreme Court all by himself? Or did he need a lawyer to do it?
As noted earlier, in Anthony Lewis’s book about the case, and certainly in the movie, Gideon’s Trumpet, Clarence Earl Gideon is portrayed as a down-and-out heroic everyman figure—a contradictory character. Contradictory because he simultaneously stated the obvious—the American legal system had become far too complex for the average person to navigate—and undercut it, figuring out a way to not only navigate the system but to successfully petition the highest court in the land. Gideon’s petition is full of grammatical and spelling mistakes, as noted earlier and witnessed above. He had dropped out of school in eighth grade and even before then, his education was clearly spotty. Nevertheless, he invoked the formal language of the law with his habeas corpuses and writ of certioraris and references, in his letter to the U.S. Supreme Court, to the Bill of Rights and his Fourth, Fifth, and Fourteenth Amendment rights.
This is a man who spent his life in and out of prison and made what little money he had from small-stakes gambling. But he is also a person who wrote to his lawyers that he had “read the complete history of the law ever since the Romans started writing them down,” who assisted other inmates with their legal needs, and who made a reference at one point to “Milton’s essay on liberty” (though it is possible he was actually referring to John Stuart Mill’s “On Liberty”). Fonda, in the movie Gideon’s Trumpet, reinforces the image of David meeting Goliath, Gideon taking on American jurisprudence. The movie delivered a sanitized-for-public-consumption version of Gideon’s story to the broader public. But since the book’s publication and the movie’s airing, what we know about Clarence Earl Gideon has changed—and the story’s looping complexities pile up, throwing into question the received wisdom about the landmark case—and casting a shadow of doubt on the official story line of Clarence Earl Gideon’s singular triumph.
In fact, the plot takes an odd twist.
“Fred Turner told me about [Joseph] Peel,” Jacob tells me on the phone one afternoon—and, I admit, I am puzzled. What Jacob is trying to tell me is that Gideon in fact had a jailhouse lawyer while in prison. Literally. His cellmate was a notorious local attorney who had been convicted of murder. The story is long and convoluted but does, in fact, shed new light on Gideon’s petition to the U.S. Supreme Court.
Gideon’s cellmate in the Raiford prison was a man named Joseph A. Peel Jr. Peel, who came from a respectable Florida family, had been a West Palm Beach lawyer for many years. Then, during a 1952 divorce case, he instructed a client to lie. The Florida Circuit Court judge presiding over the case, Curtis E. Chillingworth, discovered the perjury and read Peel the riot act, publicly. The judge’s rebuke destroyed Peel’s reputation, killed his practice, and forced his resignation from the Florida Bar Association. Inexplicably, given his reputation, Peel was soon thereafter appointed to serve as a municipal judge in West Palm Beach. Very quickly, he created a lucrative side business issuing warrants for the investigation of gambling dens, while simultaneously tipping off the operators—for a cool $500. He also took kickbacks from moonshiners and the sellers of illegal lottery tickets. Peel’s weekly take? Approximately $3,000, according to contemporaneous news accounts that would later surface.
Judge Chillingworth (a name and nemesis worthy of Hawthorne) discovered Peel’s nefarious schemes, and confronted him in 1955, threatening to expose his crimes. On June 15, 1955, Chillingworth and his wife Marjorie disappeared from their oceanfront home. No one knew what happened to the couple and no bodies were ever found; this was a mystery locals puzzled over for five years. Then in 1959 a man named Floyd “Lucky” Holzapfel confessed to killing the Chillingworths, after being hired by Peel. Holzapfel and his accomplice had broken into the Chillingworths’ home, he confessed. They beat the couple, bound and gagged them, and deposited them in a motorboat. Holzapfel and his accomplice took the boat four miles offshore, and after drifting for approximately an hour, tied lead weights to the couple’s legs, and threw them overboard. Marjorie Chillingworth was unconscious after being pistol-whipped; however, her fifty-eight-year-old husband, despite being weighed down by lead weights, attempted to swim ashore. In order to stop him, one of the killers hit him over the head with an oar. He sank from sight.44
In 1959, Holzapfel was lured into confessing to the murders through an elaborate sting operation, and eventually turned state’s witness against Peel in return for having his death sentence commuted to life behind bars. Holzapfel testified that Peel hired him and his accompl
ice because Chillingworth intended to go public with Peel’s misdeeds, not only forcing Peel from the bench, but dashing his hopes for higher office. On March 30, 1961, a jury convicted Peel and sentenced him to life in prison; he spent eighteen years at Raiford, where Gideon was incarcerated, before the state paroled him in 1979 in order for him to begin another eighteen-year federal sentence for mail fraud. In 1983, the parole board freed Peel after he was diagnosed with terminal cancer. Nine days after his release, he died. Not long before, Peel admitted his guilt—though barely. “I’m guilty of not using my influence to stop what was going to happen,” Peel told the Miami Herald just days before his death, adding, “and I could.”45
And here’s where it gets interesting; the plotlines intersect. In 1963, Peel was placed in a maximum security cell at Raiford because, against prison rules, he’d been caught preparing writs for other prisoners’ new trials under Florida’s then-new public defender law. After Gideon, no fewer than four thousand Florida convicts demanded new trials. Peel himself prepared so many of these kinds of writs that he was called the “jailhouse attorney,” and one prison official was quoted at the time as saying, “we just had to crack down on him for trying to practice law in prison.”46 Jacob, who went on to befriend Fred Turner, the lawyer who represented Gideon in his second criminal trial, says he and Turner had many conversations about Gideon. “Fred Turner told me that Gideon told him that Peel helped him out,” Jacob recalls. “He said they were cell mates. Since then I’ve tried to figure out if they were actually in the same cell.” The record shows they were in prison together. “I’m not 100 percent sure they were actual cell mates,” Jacob tells me, “but Turner told me that. And according to Turner, they were writing that petition in their cell—and Joe Peel would stand over Gideon’s shoulders, looking down and telling him what to say.”47 Jacob went on to suggest that Peel not only helped prepare Gideon’s writ, but masterminded the idea of not including any “special circumstances” in it, so that the Supreme Court would be more inclined to use the case as an excuse to reexamine Betts. He also cynically suggests that Peel may have retained Gideon’s misspellings and grammatical errors to impress the court with this determined but unlettered man. In any case, there is little doubt that the colorful Joseph Peel was an unrecognized character in the drama of Gideon—in a way that both challenges and affirms the reasoning behind the Supreme Court’s decision. While Americans tend to espouse the notion of an uneducated underdog taking on the unfair laws of the land, the truth may be that even Clarence Earl Gideon needed a lawyer to prove his point, that all men need lawyers in the court of law.
