Happy anniversary, Clarence Gideon

This week is not actually Clarence Gideon’s anniversary, but 50 years ago on March 18 the U.S. Supreme Court issued a unanimous opinion in Gideon v. Wainwright. Justice Hugo Black wrote that defendants in a criminal case had a constitutional right to have an attorney, and if they could not afford one the government had an obligation to provide one.

Black’s opinions were known to be brief and free of legal jargon. Succinctly he wrote, “In our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Gideon’s case returned to Florida. He initially objected to the lawyers who volunteered to represent him. The record is replete with evidence that by the time of his retrial Gideon was a difficult defendant for the judge to deal with. He filed his own motions which, unlike his petition to the United States Supreme Court, were filed with legalese that simply made no sense. Yet eventually Gideon got a lawyer and a new trial. The attorney poked holes in the prosecution’s case. A jury returned its verdict: not guilty. After nearly two full years in the state penitentiary, Gideon was a free man.

Gideon’s case

Clarence Gideon was not a man who was destined to make an important contribution toward reforming the criminal justice system. By 1961, he’d had four felony convictions when he was charged with stealing wine and money from vending machines in the Bay Harbor Poolroom. Anthony Lewis, in his book “Gideon’s Trumpet,” described him as a man “who had made his way by gambling and occasional thefts. Those who had known him, even the men who had arrested him and those who were now his jailers, considered Gideon a perfectly harmless human being, rather likeable, but one tossed aside by life. Anyone meeting him for the first time would be likely to regard him as the most wretched of men.”

The Bar Harbor Poolroom crime was pretty typical of what Gideon had done in the past. When he appeared in court, Gideon had asked the judge for a lawyer but was turned down. A jury convicted him, and the Florida Supreme Court upheld his conviction on appeal. From his Florida prison cell, Gideon wrote out his Supreme Court appeal in pencil on prison stationery. Because of errors, the clerk rejected his initial filing. Surprisingly, the Supreme Court agreed to hear his case.

Clarence Gideon did not argue his case before the Supreme Court himself. The court appointed Abe Fortas, a future justice, to represent him. Fortas was assisted by his younger partner, Abe Krash. Neither Fortas nor Krash ever met Clarence Gideon. Fortas was among the nation’s most effective appellate lawyers. He was demanding of those who assisted him. He repeatedly told Krash, “I want to know everything about the right to counsel since the invention of money.”

The final draft of the brief was meticulously written. Fortas was polished in the oral argument before the Supreme Court. Indeed, Justice William O. Douglas said Fortas’ argument on Gideon’s behalf was the finest oral argument he heard in his 36 years on the bench.

Walter Mondale’s role

Gideon v. Wainwright has a unique Minnesota connection. Walter Mondale was at the time the Attorney General of Minnesota. He had political ambition and so “siding” with a four-time convicted felon made simply no political sense. By today’s standards of politics, what Mondale did was political insanity. Minnesota already provided counsel for poor people accused of felonies as did a significant number of other states. Florida claimed Gideon’s case as a state’s rights issue. According to the Florida Attorney General, the United States Supreme Court had no business telling states what a fair criminal justice system entailed.

Rather than support Florida or simply ignore the issue, Mondale wrote,  “I believe in federalism and states’ rights too. But I also believe in the Bill of Rights. …  Nobody knows better than an attorney general or a prosecuting attorney that in this day and age furnishing an attorney to those felony defendants who can’t afford to hire one is ‘fair and feasible.’  Nobody knows better than we do that rules of criminal law and procedure which baffle trained professionals can only overwhelm the uninitiated … .”  Mondale organized an effort to gain the support of other states in Gideon’s effort to require lawyers for the poor. Mondale got 23 states to join his brief on behalf of Gideon, including three, Hawaii, Maine and Rhode Island, that had no general requirement to appoint lawyers in felony cases.

There are many legal scholars who point to Gideon v. Wainwright as the linchpin of a series of cases that reformed the American criminal justice system. Miranda followed, requiring police to tell suspects of their right to remain silent and right to a lawyer. The obligation of prosecutors to disclose favorable evidence to the defendant followed the Gideon decision. And then juveniles were granted due-process rights.

‘Left by the side of the road’

But today there are those who claim it is all a mirage. The right to counsel they say is just “another lie we tell each other to hide the truth” about unequal justice in America. Andrew Cohen wrote this week, “for all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today. We know today which path our legal and political leaders chose. Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road.”  

What happened that diminished the bright promise of Gideon? First, the reality was there was no appetite for anyone to fund the mandate or for courts to order adequate funding. Neither Fortas nor Krash (and perhaps Justice Black as well) foresaw the problems of financing the new right to counsel. Caseloads and inadequate representation stripped Hugo Black’s admonition of the importance of the right to counsel of its vitality. They did not foresee a criminal justice system dominated by plea bargaining. They did not nor could have at the time foreseen the collateral consequences that flow from a conviction today.

The biggest blow to the right to counsel

Within a decade of the decision in Gideon the United States Supreme Court ruled that a defendant did not have a right to a meaningful relationship with a lawyer; appointing one the defendant hardly met was sufficient. But the biggest blow to the right to counsel was Strickland v. Washington, a 1984 decision in which the United States Supreme Court established such a low legal standard for recognizing “effective assistance” of counsel that they effectively gutted Gideon. The Supreme Court had changed. Justices Warren, Black and Douglas and the more conservative Justices Clark and Harlan had all passed away. Justice Thurgood Marshall dissented in Strickland.

“My objection to the performance standard adopted by the Court,” Marshall  prophetically wrote, “is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave ‘reasonably’ and must act like ‘a reasonably competent attorney’ is to tell them almost nothing.”

At a symposium on Gideon in Washington, D.C., last week, Supreme Court Justice Elena Kagan said, “You see too many instances of ineffective assistance of counsel, too many instances where you think, ‘Was this lawyer crazy?’ ” She recounted a case from last term in which a lawyer advised his client to reject a plea deal with a seven-year prison term and go to trial. The lawyer said prosecutors could not prove a charge of intent to murder because the victim had been shot below the waist. The defendant was convicted and sentenced to 30 years in prison.

Justice Kagan was part of the 5-4 decision in the defendant’s favor. And that split illustrates why there is little hope for leadership to emanate from the United States Supreme Court on reinvigorating the right to counsel. Leadership to make change must be driven by state leaders. Leadership to make change must be driven by state Supreme Court justices and judges at every other level. Bar leaders and ordinary citizens must speak out for fairness.

Right to counsel is violated every day

Every day in thousands of courtrooms across the nation, from trial courts that handle felony cases to limited jurisdiction justice of the peace courts, the right to counsel is violated. Judges conduct hearings in which people accused of crimes and children accused of delinquency appear without lawyers. Some are middle class and therefore not eligible for appointed lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before. They are afraid and intimidated by the courts. Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives.

Can today’s reality be changed?  The lawyers in Minnesota who serve as public defenders are virtually all very dedicated, very committed to justice and very overworked. Like their counterparts throughout the nation, there is no substitute for adequate and stable financing of the right to counsel. The system of justice and its leaders must take a stronger stance against inadequate representation. Just as  Walter Mondale did 50 years ago, the times dictate a forthright response. Convicting innocent people is unacceptable in a civilized society, and the odds of that happening increase dramatically if the standard of acceptable practice in giving lawyers to the poor remains what it is today.

There have been more than 300 post-conviction DNA exonerations in the United States. These cases are dramatic proof that our criminal justice system can make mistakes. Eighteen people had been sentenced to death before DNA proved their innocence and led to their release. The average sentence served by DNA exonerees before their release is nearly 14 years. Exonerations have been won in 35 states and Washington, D.C.

Not every case in which DNA led to exoneration was the product of inadequate or poor lawyering, but the cost of that mistake could have killed someone and is a stark reminder of just how far we must go to reach the promise of a fair trial called for in Clarence Gideon’s case. 

Kevin Burke is a trial judge on the Hennepin County District Court and the  immediate past president of the American Judges Association. 

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