In Gideon, the justices of the Warren Court reached out eagerly to protect a suspect's fair trial rights; prosecutors around the country urged them to do so; and when Gideon got his second trial, this time with a seasoned lawyer, his quick acquittal struck home the value of the right which had just been recognized. Gideon is famous as Supreme Court precedent, and as popular narrative, because it is such an easy legal story to understand. And because all of us, at one point, may wonder what it feels like to be charged with a crime -- and to be all alone.
But 50 years later there is also much to mourn about Gideon and the Supreme Court standards that followed it. Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation's poorest litigants. Yes, you have the right to a court-appointed lawyer today -- the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer -- often just a "potted plant" -- by your side, you've earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.
Today, sadly, the Gideon ruling amounts to another unfunded mandate -- the right to a lawyer for those who need one most is a constitutional aspiration as much as anything else. And the reasons are no mystery. Over the intervening half-century, Congress and state lawmakers consistently have refused to fund public defenders' offices adequately. And, as it has become more conservative since 1963, the United States Supreme Court has refused to force legislators to do so. "I think the Court doesn't have the initiative to get involved in improving the administration of justice in every state," former Justice John Paul Stevens told me in late January. "The Court's really not the institution to get involved in that."
So today, the justices won't secure the basic fair trial rights they themselves recognized in Gideon. And today, elected officials see no political value in spending the money it would take to ensure that every American has an opportunity for equal justice. It's not that there aren't solutions to the problem of securing a meaningful right to counsel for all litigants. There are plenty of solutions floating around. The problem is the political and legal will to implement those policy choices -- to make good on the promise the Supreme Court made to America 50 years ago amid such hope and fanfare.
The 'guiding hand of counsel'
Someone broke into the Bay Harbor Poolroom in Panama City, Florida, in the early morning of Saturday, June 3, 1961. Some beer and wine were stolen, some Cokes, too, and coins from the jukebox. The take wasn't much -- far less than $50, a petty larceny -- and shortly afterward Clarence Gideon was arrested and charged with the crime. He lived nearby, was a regular at the poolroom, had a history of criminal conduct and, crucially, an eyewitness swore Gideon had been inside the poolroom at the time of the crime. Two years later, in the opening paragraphs of the Gideon ruling, here's how Justice Hugo Black would describe what happened at trial:
Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:
The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument "emphasizing his innocence to the charge contained in the Information filed in this case." The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison
But the Florida judge was wrong. The law did permit him to give Gideon a lawyer even though the case was not a capital one. And the law required the judge at least to inquire into the possibility that Gideon's Sixth Amendment right to a fair trial would be violated in that case without the appointment of counsel. We know from the official transcript of the trial that Gideon's judge did not discuss this possibility with him. We do not know, because evidently no transcript ever was made, whether this judge had such a discussion with Gideon at the latter's arraignment.
By the time of Gideon's trial, the Supreme Court had created a flexible rule wherein a criminal defendant in state court, a defendant like Gideon, could get court-appointed counsel if he could establish a "special circumstance" that warranted the appointment. His age, his educational background, his mental history, his prior experience in court, the complexity of the case, and the severity of the charges -- all of these were factors Gideon's trial judge was required to consider, on the record, before reaching a decision about the defendant's request for a lawyer. Even Gideon's drinking habit, which evidently was significant and well-known in the tight-knit community of Panama City, might have been dispositive.