Fight of the Century

by Michael Chabon

  The questioning that day seemed to implicitly acknowledge this fact to such an extent that a lot of the drama was drained from the proceeding. And for those who really had their hearts set on more criminal trials conducted by impoverished people whose formal education ended at age fourteen, it wasn’t too difficult to identify a lowlight. Asked if Gideon would’ve been allowed to represent someone else in court, Bruce Jacob, Florida’s attorney, incredibly asserted that he would. Immediately reminded by two justices that this would constitute the unlicensed practice of law and that the local bar association might object, his response spoke volumes: “I’m sorry, your honor, that was a stupid answer.”

  * * *

  Client and I are having an odd interaction. One of us believes a trial is the most dignified weapon against mass incarceration, certainly the most exciting. That person has scrutinized every element and angle of the case and identified a clear, admittedly narrow, path to victory. Narrow or not, that same person has the early symptoms of trial fever and is an egomaniac and also just feels that guilty pleas, so many guilty pleas, are just too damn dispiriting. But the other person is Client and the decision whether or not to proceed to trial is solely his.

  It’s not what he’s explicitly saying, it’s what I’m sensing within him. Sitting there together on Rikers, he outwardly agrees with everything I’m saying about the majesty of a trial and how the sole burden is on the prosecution to not just prove their case but to prove it beyond a reasonable doubt to the unanimous satisfaction of a jury of his peers and the right to counsel and to due process and to confront the witnesses and all that. If I say it, he knows it’s true. It’s just not true true. Client suspects I’m too invested or maybe uninvested to admit it: that a trial is just a mechanism by which criminal defendants are given even more incarceration than if they just pled guilty. In the communities where a lot of my clients live, there is ample anecdotal support for this belief.

  To review, Client and I are like friends, but with one crucial imbalance: no matter what unfolds from here on out, I am never going to be sentenced on the case that links us. I’m free to theorize about the evolution of the right to counsel and the strange relationships it has birthed. Client wants to know when he’s getting out.

  * * *

  The Court’s decision in Gideon v. Wainwright, 372 US 335 (1963), surprised no close observers but still managed to be seismic. Its reasoning was not extensive, but it was unimpeachable. The Sixth Amendment clearly guaranteed anyone accused of a crime the right to “the Assistance of Counsel for his defence.” It was well settled that the Fourteenth Amendment made obligatory upon the states any provision of the Bill of Rights that was “fundamental and essential to a fair trial.” Was the right to counsel that kind of fundamental? Yes, and according to the Court, this was an “obvious truth.” Obvious because “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” That certainty, undeniably warranted, maybe masked the inherent oddness of the Court’s ruling. For the first time ever, and never since, the Court had deemed that a specific human being helping another, not a general procedure or concept, was constitutionally essential.

  * * *

  We are in a trial courtroom and all the preliminaries are out of the way. Only one question remains unanswered. Does Client really want the court staff to bring a panel of potential jurors in to commence his trial, or will there be a disposition? The System is always ready for a disposition, it’s never too late to create another long-term prisoner of war and decades of toxic mass incarceration have done nothing but streamline the process.

  The judge is one of the better ones. But even she feels the need to bring up the trial tax. The tax is a powerful prosecution weapon. At its core, it’s a warning. It warns the individual debating whether to exercise their prized constitutional right to a trial that should it not work out, should he finish second, then he can expect a heavier sentence than the one currently on offer. Defenders of the tax will say that it is a necessary product of heavy volume, very usually not mentioning that the volume itself is the miscarried product of a kind of social sickness that took hold in the seventies and metastasized into a global-leading 700 percent increase in our incarceration rate.

  The tax is also illegitimate for other reasons. What sentence is appropriate given certain criminal conduct and the history of the actor is almost always entirely ascertainable months before a trial. And except in rare instances, there is no legitimate cause to enhance that sentence simply because a trial, the alleged foundation of our system, has taken place. Whatever its legitimacy, Client pleads guilty to avoid the tax even though, given the lack of actual harm, the promised sentence is way too severe for my taste. Then, in what feels like an extra little defeat, Client turns to me in great sincerity, shakes his head, and apologizes for not going to trial.

  * * *

  The aftermath of the court’s decision was immediate: states scrambled to comply, but the specifics were up to them. Some created government public defender offices (see New Jersey), others entered into contracts with nonprofit entities like mine in New York. Gideon v. Wainwright didn’t create public defenders. Brilliant legal innovator Clara Shortridge Foltz had brought the concept to Los Angeles half a century before. But by dragging the concept from contingency to necessity the Court gave it something invaluable: endurance.

  It remains a lovely concept. But we know what happens to those. This one has managed to simultaneously evolve and devolve. For example, the Court has subsequently made clear that what’s constitutionally required is the “effective” assistance of counsel, and not just before and at trial but also on direct appeal. But theory and practice don’t always meet, and too often, states do the bare minimum to comply while intentionally denying the resources that would make for a robust right to counsel for the poor. Like so much else from that Court around that time—hell, like everything American—it was primarily aspirational, these newly enunciated principles, a statement of who we wish we were. And as with any such statement, reality likes to fight back.

  Still, done right, there’s a purity to what we do. The true public defender exists outside the marketplace in an arena of pure legal combat. She pursues something intellectually based but also deeply and intimately interpersonal. The job is equal parts thinking and feeling, scholarship and friendship, with the slightest failure in either threatening dire consequences. How many activities like that even exist, let alone enjoy the imprimatur of constitutional force?

  Also there’s this. The world is full of misperceptions, may be nothing more than a giant one. An example is the common stereotype of the public defender as a kind of harried subcompetent. Harried, yes, but don’t let pop culture kid you. When we talk about public defenders, we’re mainly talking about ironclad experts. Because the volume is crushing, true, repetition also builds skill and knowledge. Pair that with the fact that the average public defender just seems really smart, not surprising when you consider the intellectual underpinnings of the work, and you start to realize that if you’re ever arrested in a big city, you’re almost certainly better off with a public defender, or at least a former one, than whatever pretender you might otherwise scare up.

  It all makes for something so organically intense it probably can’t be adequately explained to a civilian. I’ve tried and failed. But, in my defense, deep down, I probably just want it to remain private; so few things anymore have such genuine authenticity.

  * * *

  At Client’s sentencing, I calculate how old he’ll be when he gets out. He will one day be released from prolonged stasis into a vastly different world. I also can’t help calculating how old I’ll be and projecting what my life will be then. I decide it will be whatever it will be.

  I do more math. I have represented more than ten thousand clients, a city’s worth of troubled souls. Chance linked us, but once li
nked it felt like fate. Our connections traceable to Gideon but forged individually each time.

  I wish for all of them the best thing you can wish for a soul. The result we strove for together but only sometimes achieved.

  I wish them freedom.

  ESCOBEDO V. ILLINOIS (1964)

  In Escobedo v. Illinois, the ACLU of Illinois brought suit on behalf of a man convicted of murder largely based on a statement he made alone while subjected to police questioning. Although the lower courts dealt with the case primarily in terms of settled Fifth Amendment tests of voluntariness, the Supreme Court, in an opinion written by Justice Arthur Goldberg, chose instead for the first time to extend Sixth Amendment “assistance of counsel” protections to an accused person under police interrogation. This 5–4 split decision built on Gideon v. Wainwright (1963) to make such statements inadmissible due to denial of attorney assistance, a principle that was later advanced by Miranda v. Arizona (1966).

  Legal Counsel at the Moment Most Crucial

  DAVE EGGERS

  On the night of January 19, 1960, Manuel Valtierra was murdered in Chicago. The police suspected that his brother-in-law, Danny Escobedo, might have pulled the trigger, given that Escobedo’s sister, Grace, claimed that Valtierra had abused her. Escobedo was arrested a few hours after the shooting and was brought in for questioning. He said nothing substantial to the police and was released that day. On January 30, Benedict DiGerlando, also a suspect in the killing, told the police that Escobedo had fired the fatal shots, and Escobedo was brought in again on January 30.

  Once at the precinct, Escobedo told the police that he wanted his lawyer, Warren Wolfson, present during any interrogation. The police refused. Escobedo’s mother called Wolfson, notifying him of Escobedo’s arrest. Wolfson arrived at the precinct and made his presence known to the sergeant on duty. The sergeant refused to allow him to see Escobedo. At one point, Wolfson caught sight of Escobedo as he was being interrogated, but police still did not grant him the right to speak to his client until, they said, they “were done” with him. Meanwhile, during the interrogation, Escobedo repeatedly asked to have his counsel present, but police told him that Wolfson did not want to see him. During their interrogation of Escobedo, detectives extracted what they claimed was a confession, and at trial, Escobedo was convicted of murder.

  Escobedo appealed this conviction, and the case wound its way to the Supreme Court, with Bernard Weisberg arguing for the ACLU with Walter T. Fisher. The Court decided, 5–4, in Escobedo’s favor, noting that the Constitution guarantees a defendant the right to a lawyer, and thwarting that right during interrogation defeats the entire purpose of that right. “The guiding hand of counsel,” the Court wrote, was most crucial at this most delicate part of the criminal justice process. In the end, the conviction was overturned and the precedent in Escobedo v. Illinois, decided in 1964, established the right of any suspect to have a lawyer present during police questioning. In their ruling, made in the thick of the Cold War, the Court also noted that “the Soviet criminal code does not permit a lawyer to be present during an investigation. The Soviet trial has thus been aptly described as ‘an appeal from the pretrial investigation.’ ”

  Escobedo v. Illinois brought necessary progress that improved the criminal justice system. A few years later, Miranda v. Arizona established what we now know as our Miranda rights, which must be read to anyone being arrested prior to questioning and which include the right to remain silent and the right to an attorney. Miranda built on, and in a way supplanted, Escobedo. Thereafter, not only did a suspect have a right to an attorney during interrogation, but police had to inform the suspect of these rights during the arrest. All of this was positive and long overdue.

  And yet.

  And yet we still have widespread, even epidemic, problems with forced confessions. According to the Innocence Project, one out of every four defendants whose convictions were later overturned using DNA evidence were originally convicted through false or forced confessions. And the problem is diabolical. Even when innocent suspects know their rights, they often agree to answer questions without an attorney present because they know they are innocent. They want to be helpful. They feel they have nothing to hide. And they don’t want to appear guilty by hiring a lawyer.

  And thus they answer questions and are frequently tricked or pressured into a confession. Sometimes they’re interrogated so long—on average, interrogations last sixteen hours—that they’ll say anything to leave the room and go to sleep. Sometimes detectives simply lie to them, claiming evidence they actually don’t have, or they fabricate witnesses who implicate them in the crime. And then there are the instances of force, or the threat of force. And the instances of the suspect being too young or otherwise mentally unable to understand the nature of an interrogation and the gravity of what might be self-incrimination.

  Culturally, we have to change our thinking about interrogations. Every police procedural on television and film glamorizes these interrogations and implicitly approves of what are undeniable human abuses and violations of the Constitution. Suspects are kept chained to chairs, are denied food and water, are kept under hot lights, and are pitted against friends and family. They are deceived and intimidated. They are told that their conviction is assured, and their punishment will be far worse unless they confess. And all the while, audiences are expected to approve because the detectives, certain of the suspect’s guilt, simply need to get to the desired result, conviction, with a minimum of interference. This makes for good and satisfying entertainment but represents a fundamental misunderstanding of the rights of suspects in a free society.

  As a nation, we still, nearly sixty years after Escobedo v. Illinois, look askance at anyone who asks for an attorney before speaking with police. We still see this as some kind of admission of guilt. Why would an innocent person need a lawyer? we ask. This attitude must change. Waiting until an attorney is present must be seen as an act of wisdom—an acknowledgment of the wisdom of the Sixth and Fourteenth Amendments—rather than evidence of guilt.

  And after we achieve that, we have more changes ahead: all interrogations must be electronically recorded to be valid; interrogations must be limited to a reasonable amount of time (a study by the Center on Wrongful Convictions and the University of California-Irvine found that 84 percent of false confessions occurred after interrogations of more than six hours); and interrogators should be prohibited from lying to suspects—presenting false evidence, false witnesses, and false scenarios involving leniency if the suspect confesses.

  We have a ways to go to make the system better and to prevent the towering moral offense of wrongful conviction. But Escobedo was a landmark case that no doubt prevented thousands of innocent men and women from being railroaded into self-incrimination. “We have learned the lesson of history, ancient and modern,” Justice Goldberg wrote in the majority opinion, “that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuse than a system which depends on extrinsic evidence independently secured through skillful investigation.”

  NEW YORK TIMES CO. V. SULLIVAN (1964) (amicus)

  New York Times Co. v. Sullivan emerged during a tense chapter in American history. By 1960, Dr. Martin Luther King Jr. had galvanized America into grappling with its racism, past and present. Attempting to tamp down this threat to the status quo, Southern officials and law enforcement filed perjury charges against Dr. King.

  To back King, civil rights supporters purchased a full page of the New York Times’s March 29 issue. Their ad primarily solicited donations to fund King’s legal defense, but also detailed some of Southern law enforcement’s excesses, such as the penchant for using dogs, fire hoses, and tear gas on nonviolent black protesters.

  L. B. Sullivan was the Montgomery safety commissioner at the time, whose duties included supervising law enforcement. Although he was not named in the ad, Sullivan claimed the ad defamed him by inaccurately
reporting that he criticized the police, which in turn impugned his competence as the police’s watchdog.

  After several unfortunate decisions in Alabama state courts, the Times’s appeal reached the Supreme Court. The ACLU filed a thorough amicus brief on behalf of the Times and was pleased to see Justice William Brennan protect freedom of the press against de facto censorship. At its core, Sullivan creates a two-tiered system of libel law. To prove libel, private citizens must simply show that the statements were false and damaging to their interests. Conversely, public figures must prove that the statements were false and damaging, and that the speaker knew the statements were false. This higher standard forms the bedrock of freedom of the press and government accountability.

  How the First Amendment Finally Got Its Wings

  TIMOTHY EGAN

  In Alabama, in the midst of the blood, fear, and trauma of the civil rights battles, a police commissioner by the name of L. B. Sullivan took a legal whack at one of the foundational pillars of a free society. In 1960, he sued the New York Times for running a full-page advertisement from people who urged both restraint by the authorities and respect for Martin Luther King Jr.’s campaign to give African Americans the full rights of citizenship. The ad was headlined, “Heed Their Rising Voices.”