Gideon's Trumpet

by Anthony Lewis

  Senator Sam J. Ervin of North Carolina, writing in the American Bar Association Journal shortly after the Gideon decision, cited among other examples a Wyoming lawyer, in practice by himself, who was appointed defense counsel in a major federal criminal prosecution. There were ten days and three nights of actual trial time, plus extended preparation; the Government called one hundred and fourteen witnesses. “For practical purposes,” Senator Ervin said, “the lawyer was required to close his office for six weeks. As a result, he was practically bankrupted.”

  Attorney General Robert F. Kennedy, testifying on May 22, 1963, spelled out the problem: “Federal courts today continue to delegate the defense of the underprivileged to assigned counsel who are not paid for their services. They are not reimbursed for their out-of-pocket costs. They do not receive a shred of investigative or expert help. They are not appointed until long after arrest, when witnesses have disappeared and leads grown stale. They often lack the trial experience essential for a competent defense.” On the last point, the competence of assigned counsel, Mr. Kennedy quoted from a national survey undertaken by the Harvard Law Review. It concluded that the responsibility for representation of indigents in the federal courts now necessarily fell mainly on “young, inexperienced lawyers, little versed in the technicalities of the criminal law,” and that the quality of representation under these circumstances was “largely fortuitous.”

  Two years before the Gideon decision Attorney General Kennedy appointed a committee of scholars, practicing lawyers and state and federal judges to review the adequacy of provisions for the indigent in federal courts. The chairman was Professor Allen, then at the University of Michigan Law School (he returned to Chicago in September, 1963), whose law-review analyses of Betts v. Brady had been so devastating. The committee proposed comprehensive legislation similar to but more complete than bills that had previously been considered. In summary, the proposal was as follows:

  Every federal district court would be authorized and required to choose one of four systems for representation of needy defendants: 1, assigning members of the private bar but, for the first time, compensating them modestly for their time and expenses; 2, hiring a full-time or part-time public defender and staff; 3, using counsel supplied by a local legal-aid society or other legal organization, which would in turn be paid out of federal funds for providing their services; 4, adopting any combination of these first three approaches. Such local option would permit accommodation to the great differences between federal courts in urban areas, with a large volume of criminal cases, and those in the country, where criminal trials are a relative rarity. Those eligible for assistance under the legislation would be persons “financially unable to obtain an adequate defense.” Services would deliberately not be limited to the technically “indigent,” since the man of modest means may need help in defending against a major criminal charge; defendants would be required to pay whatever they could afford. Counsel would be provided from the moment a defendant is first brought before a judge or commissioner for preliminary hearing, shortly after arrest, and would continue through appeal. There would be funds for investigation, experts and other services.

  President Kennedy submitted the Allen Committee measure to Congress, as the proposed Criminal Justice Act of 1963, just ten days before the decision in Gideon. It had the important support of the American Bar Association and of the Judicial Conference of the United States, representing all the federal courts. But it faced suspicion and resistance from Republicans and some Southern Democrats in the House of Representatives. The House had always been the sticking point; three times in previous years the Senate had passed measures to provide some kind of compensated system for representation of the needy in federal courts, but no bill had ever even emerged from the House Judiciary Committee.

  The Senate again acted promptly in 1963, approving a slightly modified version of the Allen Committee proposal. In the House, a bill emerged from the Judiciary Committee for the first time—but with the option of public defenders struck out and a limit of five hundred dollars put on the compensation to be paid any lawyer in a felony case, three hundred in a misdemeanor. The House passed the bill on January 15th. The necessary conference to reconcile the two versions was delayed by the congressional struggle over civil rights, but only this hurdle stood in the way of a historic first step by Congress to assist in the defense of the indigent.

  The Gideon case thus coincided with, and encouraged, an outpouring of concern and activity on the problem of representation in the federal courts. The question was whether it would take as long on the state level from what Bruce Jacob had called the beginning—the declaration of the right to counsel in Gideon v. Wainwright—to an effective, working system of justice for the poor in all fifty states. The problem was both larger and more difficult than in the federal judicial system.

  Criminal prosecutions by the Federal Government are only a handful compared to the number brought by state and local governments, which retain the primary responsibility under the Constitution for maintaining domestic peace and security. The typical state or local prosecution, moreover, for such a crime as theft or assault or disorderly conduct, is more likely to involve a deadbeat, down-and-out defendant. The proportion of indigents among state criminal defendants is higher—about sixty percent compared to thirty-three in federal courts.

  Even among those intimately concerned with the problem of counsel for the poor there is disagreement over the proper approach, especially as to the proper division of responsibility between the state and the bar. Whitney North Seymour, an eminent New York lawyer who heads the American Bar Association’s special committee on counsel for the indigent, said in a 1963 speech that representation was a public responsibility. “Just as doctors are not expected to provide all the facilities for dealing with illness of the poor,” he said, “lawyers cannot be expected to bear all the burdens of the decisions of prosecutors to prosecute the indigent.… These are not obligations imposed by the Constitution upon the bar alone, they are obligations imposed by the Constitution upon the operation of our system of criminal justice. They are as much a part of the public obligation to support that system as the provision of courthouses, judges, attendants and prosecutors.”

  One way for society to meet the responsibility is through public defenders paid by the state. First tried in Los Angeles in 1913, defender offices now exist in thirteen states, though only in the largest cities of some; they handle one hundred thousand cases a year. The great advantage of a public defender is that he can match the prosecutor in experience and knowledge of judges, juries and trial tactics. The typical American lawyer has had only the briefest acquaintance with criminal law at law school and none at all in practice; he tends to look down on the “criminal bar” as a collection of grubby characters who cannot make a go of it in the more remunerative corporate practice. Even a dedicated and obviously talented lawyer with criminal practice, such as Edward Bennett Williams of Washington, is regarded with some suspicion. Because the typical lawyer is nurtured in this tradition of distaste for criminal practice and has had little or no experience of it, he cannot be expected to perform with great efficacy when he finds himself appointed defense counsel. This is a strong argument for public defenders.

  But the argument can be turned around. If, somehow, the body of American lawyers could be brought actively into the criminal courts, there to participate in the defense of the needy, the practice of criminal law might be elevated, the typical corporate lawyer might be educated in social responsibilities, and the gap in the profession might be narrowed. In England any barrister may find himself appearing in a civil case one day, a criminal case the next. That is not likely here, but some thoughtful lawyers and judges believe a thoroughgoing involvement of the bar in defense of the indigent would be a healthy step for the profession.

  Another argument against public defenders is that their position on the public payroll will prevent them from fighting the prosecution as fiercely as private cou
nsel. Communities that have experience with defenders, such as California, deny this; but an understandable feeling remains that a man in trouble will be better served by someone wholly concerned with him in a private relationship. There is also concern about the possibly deadening, conformist, bureaucratic effect of governmental control over any activity. Some of these feelings probably underlay a speech by Justice Clark in July, 1963. He called for an urgent response to the demands posed by the Gideon case but said he did “not support the view that we must create a vast public-defender system.… Let us place this function in private hands rather than with the government. The indigent is entitled to private counsel.”

  On the other hand, it is widely recognized that private counsel cannot do an adequate job if rushed into a case without preparation and given no financial support. And that is the customary situation. Chief Judge J. Edward Lumbard of the Second Circuit Court of Appeals has painted the picture:

  “When advised that an indigent needs counsel, the judge usually picks out some lawyer who happens to be in the courtroom.… The lawyer then spends a few minutes with his new client at the side of the courtroom, or perhaps in an anteroom under the scrutiny of the bailiff or the marshal. In most of such assignments, after a few minutes of conference, the defendant is advised to plead guilty and he feels he has no choice but to do so.… This mock assignment of counsel and the cursory hurry-up job of a busy uncompensated lawyer makes a farce of due process of law and our Bill of Rights. Every one who participates in the farce knows this—the judge, the district attorney, the assigned lawyer, the bailiff, and of course the defendant himself.”

  In the view of Seymour and other experts, there is no decent alternative in populous urban areas to an office that has a regularly employed staff of lawyers representing indigents in criminal cases. The office could be that of a public defender or, alternatively, a voluntary legal-aid organization. In New York City, for example, the Legal Aid Society provides counsel in sixty thousand criminal cases a year. But the society has had to go outside the organized bar for financial support—to private citizens and business for donations and, finally, to the city treasury for an appropriation. Thus, experienced observers believe that some governmental participation is essential in the big cities that have the real problems of poverty and crime.

  Despite their differing emphasis on the proper role of government, Seymour and Justice Clark in their 1963 appraisals agreed that existing informal arrangements for appointment of counsel were inadequate. They were in general agreement on some practical steps to be taken. The young lawyer should be exposed to the criminal law and given experience in it. Justice Clark suggested privately financed interneships for just-graduated lawyers to let them learn while helping in the defense of the needy; Seymour proposed appointment of a senior lawyer and a junior assistant in more serious cases. Where there is no regular defender system, counsel should be appointed from rotating lists of all members of the bar, so that the burden is spread. Funds must be provided for investigation, and at least modest compensation for the practitioner who has no large law firm to back him up while he does good works. To that extent at least—minimal provision of public funds for the assigned lawyer—governmental support would seem to be an inescapable element in adequate defense of the indigent. Many states now provide nothing.

  Thus the process of converting the ideal of Gideon v. Wainwright into reality necessarily involved the participation of legislators, lawyers, judges and citizens across the country. This process got under way with surprising speed immediately after the Gideon decision.

  Some of the members of the Supreme Court themselves took every opportunity to preach the gospel of Gideon. A month after the decision Justice Clark called Gideon an “historic case,” one that would “possibly have more physical impact on the administration of justice than any decided by the Court.” He urged law schools to upgrade the study of criminal law and suggested that state and local bar associations undertake their own programs for criminal representation, with a paid staff and panels of available lawyers. He urged individual lawyers to volunteer more readily for service to the poor; if each lawyer handled only a case or two a year by appointment in the criminal courts, the burden could be carried “for the time being.” He said it was “imperative that the bar evidence a more active concern.” Other members of the Court sounded similar themes. Chief Justice Warren, talking to a luncheon of the Conference of Judicial Councils in May, said the Gideon case would “amount almost to a revolution in some states.” He called representation of the indigent “a public responsibility” that society should bear through orderly systems worked out locally. Whatever expense the states were put to, the Chief Justice said, they would be repaid not only in fairer treatment of the unfortunate but in criminal courts that would work more efficiently and effectively with lawyers’ help.

  At the time Gideon’s case came to decision, several legal organizations launched the broadest attack in this country’s history on the problem of legal services for needy criminal defendants. The Ford Foundation made grants totaling $2,540,000 for a series of projects. The largest part of this sum, $2,300,000, went to the National Legal Aid and Defender Association to establish model defender services in six or eight counties, improve existing services in several major cities and create new law-school techniques of preparation for criminal law work. The American Bar Foundation was given $125,000 for a detailed survey of existing state and local systems of representation, to be carried out in cooperation with state bars and with the special committee, headed by Mr. Seymour, of the Bar Foundation’s parent American Bar Association. (At the same time the federal courts undertook their own first study of what the typical appointed counsel actually does in a federal criminal case.) The Institute of Judicial Administration in New York received a grant of $115,000 to continue a noteworthy experiment in the release of impoverished criminal defendants without bail; this study, carried out by the Vera Foundation, had already indicated that men so released were as likely to turn up for trial as those who had posted bond.

  The reaction of the states to Gideon v. Wainwright was swift and constructive. The most dramatic response came from Florida, whose rural-dominated legislature had so long refused to relieve the problem of the unrepresented indigent such as Gideon. Shortly after the decision Governor Farris Bryant called on the legislature to enact a public-defender law. “In this era of social consciousness,” he said, and his words might have given Clarence Earl Gideon wry amusement, “it is unthinkable that an innocent man may be condemned to penal servitude because he is unfamiliar with the intricacies of criminal procedure and unable to provide counsel for his defense.” Governor Bryant said the Gideon decision had made public defenders essential not only “to protect the innocent” but “in order that valid judgments of guilty may be entered and criminals kept confined for the protection of society.” He may have been thinking of all those inmates of the state prisons who had been tried without counsel and now might be entitled to new trials. In May, 1963, barely two months after the Supreme Court had spoken, the Florida legislature approved a statute creating a public defender in each of the state’s sixteen judicial circuits.

  The four other southern states that had not provided counsel for non-capital defendants acted quickly to adjust to the new constitutional requirement. North Carolina’s legislature passed a bill to have the state bar council and state supreme court draft rules for assignment of lawyers in all criminal cases, to authorize compensation of assigned counsel and to appropriate $500,000 for initial expenses of the new system. In Alabama, Mississippi and South Carolina, bar groups prepared rosters of lawyers available for assignment, and plans were drafted for legislation to compensate those appointed. Appraisals of the Gideon case in the South were surprisingly favorable. Howard McDonnell, the chairman of the Mississippi State Bar’s criminal law committee, told a meeting that the decision was “far-sighted.” He said, “Our penitentiary is loaded with inmates who are there because of no representati
on or improper representation.” The head of the Wake County, North Carolina, Bar Association, R. Mayne Albright, said: “I think few lawyers would disagree with the principle enunciated by the Supreme Court. It was time we recognized the need for the defendant who is indigent to have a lawyer.”

  Nor did the response to Gideon v. Wainwright come only from southern states. The Colorado legislature authorized counties, in a local option statute, to employ public defenders. Oregon created a public defender’s office to handle appeals and other post-conviction proceedings by indigent prisoners. (This was a specific response to the California case decided the same day as Gideon’s, laying down the rule that indigents are entitled to lawyers on appeal also.) The Minnesota legislature authorized compensation for lawyers representing indigents on appeal. New Hampshire and Vermont moved to strike from their statutes provisions (often ignored in practice) exempting crimes with lighter sentences from the counsel guarantee. Delaware’s judges held a meeting to plan extension of the state’s appointed counsel system to misdemeanor cases, in the apparent belief that the Gideon rule would sooner or later be extended to that level.

  “Without the Supreme Court,” Gideon had told his visitor in the Florida penitentiary, “it might have happened sometime, but it wouldn’t have happened in this state soon.” The reaction to his case bore him out. For lawyers and legislators were taking steps that they recognized as requirements of justice—but that they had not taken without the nudge from the Court. For its part, the Court quickly made clear that it would apply continuing pressure to the states on the issue of the right to counsel. In the three months after the Gideon decision, during the remainder of the 1962 term, the justices set aside thirty-one lower court judgments and sent them back for reconsideration of prisoners’ claims to counsel in light of the new rule. The cases came from ten states: Alabama, Florida, Illinois, Louisiana, Maryland, Missouri, North Carolina, Ohio, Oklahoma and Pennsylvania. Among them was the case of Allen Baxley, Jr., the illiterate Florida prisoner for whom Gideon had drafted a petition. In April the Court unanimously reversed a Maryland conviction because the defendant had not had a lawyer at his preliminary hearing, at which he pleaded guilty. That decision made clear that counsel was constitutionally guaranteed not only at trial but at any earlier proceeding, however brief or informal, at which the prisoner enters a plea. In response, the Baltimore Municipal Court, which holds preliminary hearings on criminal charges to be tried later in the higher courts, called an emergency meeting and obtained a pledge from the local bar associations to supply the needed lawyers.