by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
Cutting through the settlement was a small strip of commercial establishments: a grocery store, a bar, a hotel, and the Bay Harbor Poolroom. On June 3, 1961, at 8 A.M., the owner of the Bay Harbor Poolroom, Ira Strickland Jr., arrived to open the bar, only to be greeted by a local cop named Duell Pitts. Pitts told Strickland that at some point between midnight the previous night—when Strickland had closed the bar—and that morning, someone had broken into his pool hall. Strickland discovered that a window had been smashed, a cigarette machine and jukebox had been broken into and coins were taken from both machines, and a small amount of beer and wine had been stolen. A police officer by the name of Henry Berryhill Jr. had discovered the break-in during his usual rounds. Berryhill questioned Henry Cook, a young man who happened to be hanging around outside the poolroom at 5:30 that morning. Cook knew Clarence Earl Gideon, and told the cop he had seen Gideon inside the building. Cook claimed that he saw Gideon leave the bar with a bottle of wine in his hand, his pockets bulging with change, as Gideon strode over to a pay phone on the corner to make a call. According to Cook, Gideon then got into a taxi that he had evidently called. On the basis of this eyewitness, along with the account of the taxi driver, Preston Bray—who said that he had driven Gideon downtown and that Gideon had told him, “If anyone asks you where you left me off, you don’t know; you haven’t seen me”—Pitts questioned Gideon. He discovered that Gideon had $25.28 in quarters, nickels, dimes, and pennies in his pockets. The police arrested Gideon, and charged him with a felony, breaking and entering with intent to commit “petit larceny.”
When Gideon went to court on August 4, 1961, he knew the general nature of the charges against him but, having been incarcerated in the local jail awaiting trial, his ability to investigate his own case or even talk to the witnesses he hoped to call was severely curtailed. He’d been in court enough in the past to know that the law was complicated and that trials were difficult for laymen to navigate, thus his demand to the court that he be appointed an attorney to represent him. He insisted he had a constitutional right. The judge gently informed him otherwise. “I’m sorry, Mr. Gideon,” he said, explaining that it could not be done. “I’m sorry, but I will have to deny your request to appoint counsel to defend you in this case.”
“The United States Supreme Court says I am entitled to be represented by counsel,” Gideon insisted.4
In fact, the Supreme Court said the opposite. Thanks to a 1942 decision, commonly referred to as the Betts Rule, Gideon could have qualified for free counsel only if there had been “special circumstances” in the case. If a person was mentally disabled, illiterate, or insane he might qualify for a free lawyer due to the “special circumstances” of the case. Also, if the case was particularly complicated, it could count as “special circumstances.” But Gideon did not offer up any “special circumstances.” From his point of view, the Sixth Amendment was clear: “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense.” He was, essentially, taking the amendment at its word.
But without any “special circumstances”—or at least any that would be immediately apparent—the judge denied Gideon’s request. To his credit, Judge McCrary did attempt to lead Gideon through the process. But during jury selection, he did not give Gideon the option of participating meaningfully in the selection of a jury. Instead, he simply asked the prospective jurors a few questions on Gideon’s behalf. After questioning them, the judge turned to Gideon. “Now, Mr. Gideon, look these six gentlemen over and if you don’t want them to sit as a jury to try your case, just point out the one, or more, all six of them if you want to, and the Court will excuse them and we will call another, or some others, to try your case,” he said. “You don’t have to have a reason, just look them over and if you don’t like their looks, that’s all it takes to get them excused.”
Gideon didn’t argue. “They suit me alright, Your Honor,” he said, making his first—and possibly biggest—tactical mistake.5
The trial moved relatively quickly. The opening remarks by Gideon and assistant state attorney William Harris were not recorded. The state called two witnesses, Henry Cook (the eyewitness) and Ira Strickland (the pool hall owner). Gideon called eight witnesses, including two police officers, the cabbie who had picked him up, and his landlady at the rooming house. No particularly new information was brought forward from Gideon’s witnesses. Gideon then gave a closing argument of approximately eleven minutes; Harris spoke for nine. These speeches were not taken down by the court recorder. A jury of six men found Gideon guilty. (A jury of six instead of twelve was common here. Also, an all-male jury was the norm across the country. It wasn’t until 1975 when the U.S. Supreme Court ruled in Taylor v. Louisiana that women could not be excluded that women were regularly seated on juries; in Florida—and many states—the laws vaguely allowed women to serve, if they wanted to, and if they took the trouble to go to the courthouse and file a written request asserting as much, which few did.)
Three weeks later, on August 25, the judge imposed the maximum sentence of five years, and Gideon was sent to the Florida State Prison at Raiford. But Gideon refused to simply sit tight and do time. He decided to fight back, and no one quite knows why or what compelled him so painstakingly to pursue a retrial with an attorney. In any case, two months later, Gideon sent a letter to the Florida Supreme Court, appealing for a writ of habeas corpus, saying he had been unlawfully imprisoned. Handwritten mostly in pencil, and addressed to the “Suphreme Court of the State of Florida,” the letter said: “I am a pauper without funds are any possibility of obtaining financiable aid and I Beg of this court to Listen and act upon my plea.”6
“Gideon’s punctuation and spelling were full of surprises,” a charitable Anthony Lewis later wrote in his 1964 bestseller, Gideon’s Trumpet. And indeed, this was the case.
But mixed in with the kind of grammar and spelling problems that you would find in a fourth grader’s cahier, were some decent arguments that a first-year law student might make. “I was denied that rights of the 4th, 5th and 14th amendments of the Bill of rights,” he wrote, grasping for constitutional backup. “I, Clarence Earl Gideon, will show this court that I did not have a fair trial and was denied my constutional rights that is gurranteed by the constution and the Bill of rights by the United States Government. I was without funds and without a attorney. I asked this court to appoint to me a attorney but they denied me that right.”
The Florida Supreme Court denied his appeal. But Gideon was undeterred.
Some years later, on April 30, 1980, CBS aired a Hallmark Hall of Fame TV movie about Clarence Earl Gideon’s letter. Jimmy Carter would shortly thereafter lose the presidential election to Ronald Reagan—and the Hollywood fantasy of rugged individualism swept the country. Based on Lewis’s book, the movie was also called Gideon’s Trumpet and was billed as “the true story of a prisoner whose lone voice changed legal history.”7 The movie starred Henry Fonda, who plays Gideon as a hunched, simple, laconic, weatherworn, beaten-down but doggedly determined man on a mission. He is a man who stands alone, a man of few words and few friends. But he is an ethical and moral man—in the movie anyway, which leaves out many inconvenient details of Gideon’s actual life—and becomes heroic as he tackles injustice. In a David-and-Goliath plot that we Americans love, the undereducated common man takes on the fancy-pants bigwigs at the Supreme Court. The movie turns on the seminal moment when Gideon (a gaunt and distinguished Fonda in faded prison wear) strides purposefully across the penitentiary yard with his letter to the Supreme Court in his hand. The other prisoners, like a slowly gathering mob of voiceless zombies, drop what they are doing and move as one into Gideon’s wake. One man reaches out, asking to touch the letter. Gideon permits this. Then he ceremoniously drops the envelope into the prison mailbox.
In real life, on April 21, 1962, the U.S. Supreme Court received Gideon’s four-page letter among the dozens and dozens of letters from prisoners that arrived each day. Once again, it was
on prison stationery and written in pencil. He wrote:
Petitioner cannot make any pretense of being able to answer the learned attorney General of the State of Florida because the petitioner is not a attorney or versed in the law nor does not have the law books to copy down the decisions of this Court. But the petitioner knows there is many of them. . . .
The respondent claims that a citizen can get a equal and fair trial without legal counsel.
That the constitution of the United States does not apply to the state of Florida.
Petitioner will attempt to show this court that a citizen of the state of Florida cannot get a just or fair trial without the aid of counsel. . . .
Respondent claims that I have no right to file petition for a write of Habeas Corpus. Take away this right to a citizen and there is nothing left.
Most poignantly, Gideon added:
It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me a attorney and the court refused. All countrys try to give there citizens a fair trial and see to it that they have counsel.8
According to Lewis, the New York Times reporter who had covered the Supreme Court for years and retraced each step of the case in his wonderful book, the letter was delivered to Michael Rodak Jr., an assistant clerk of the Supreme Court. Lewis writes:
Mr. Rodak, among other duties, concerns himself with what the Supreme Court calls its Miscellaneous Docket. This is made up mostly of cases brought by persons who are too poor to have their court papers printed or to pay the usual fee of one hundred dollars for docketing a case in the Supreme Court—bringing it there. A federal statute permits persons to proceed in any federal court in forma pauperis, in the manner of a pauper, without following the usual forms or paying the regular costs. The only requirement in the statute is that the litigant “make affidavit” that he is unable to pay such costs or give security therefore. . . . It [also] says that in forma pauperis applications should be typewritten “whenever possible,” but in fact hand-written papers are accepted.9
Gideon’s penciled plea had a strange kind of elegance to it. The man was obviously somewhat literate. He had composed his handwritten plea to the Supreme Court. He was not claiming any mental deficiencies or problems. The only outstanding question was race which could sometimes be considered “special circumstances” by the courts. The justices did not know what race Clarence Earl Gideon was—and, since this was not part of the record in any way, this would remain unknown for some time. In any case, the very fact that Gideon was making no effort to declare “special circumstances” made his case a perfect one for the justices to consider.
In the movie, the Supreme Court justices tackled the decision about whether to hear Gideon v. Cochran in a heated debate at their weekly meeting. (The original name of the case, Gideon v. Cochran, had changed when H.G. Cochran Jr. resigned from his position as head of the Florida Division of Corrections; he was replaced by Louie L. Wainwright.) Tempers flared as they argued about what the far-reaching consequences of the decision would be. They argued at the philosophical level (what did this mean for states’ rights?) and the practical level (would every incarcerated prisoner in the nation who had been tried without counsel be freed, or entitled to a new trial, and, if so, what were the financial, administrative, and public safety consequences of such action?). They wondered how narrow or broad to go: Would the right to counsel be limited to only felony cases, or would it include misdemeanor cases? At what point in the process would a person be entitled to counsel—arrest? Arraignment? Bail hearing?
But, of course, this was in the Hollywood version of events. In reality, those conversations took place behind closed doors. They remained private and the screenwriters—and Lewis—mostly speculated about their content. Still, there was enough on the record between oral arguments and formal opinions to know where most of the justices stood. In deciding to hear the case and then making a very conscious decision to appoint the inimitable Abe Fortas (considered one of the finest lawyers in the country at that time) to represent Gideon before the court, they gave Gideon a serious leg up. It was a clear message: change was in the air and they were giving this small-town criminal his day in court. And his day in court had the potential forever to alter the way trials were conducted in this country.
What gives rise to groundbreaking changes in the law? What does it take for a constellation of judges, defendants, lawyers, and cultural forces to align—and for change to happen? For hundreds of years, legal scholars have puzzled over this, trying to find the key that allows them to replicate—or resist—monumental changes in the law.
As long ago as 1881, Oliver Wendell Holmes Jr. was grappling with the issue in the introduction to his book, The Common Law. “The life of the law has not been logic; it has been experience,” he asserted. “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.” He insisted things were uncomfortably complicated. “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”10
As he wrote that, he was offering what was then—and still is, to many people—a radical notion of how the law operates. That is, the law does not come from some essential human ethical or moral perspective, or even necessarily from precedent in our country. Instead, he argues, it comes exclusively from judicial decision itself. A judge must decide what is going to be the best outcome from present and—especially—future perspectives. In this sense, a judge must be “forward-looking”; the past is not valued for its own sake, but specifically in its relation to present and future circumstances. Also, a decision must make sense within the specific historical circumstances. She or he is not deciding in a vacuum. All of this means that a judge decides a case based on facts (but these “facts” may include larger cultural forces at play), and then writes an opinion afterward that offers justification for the decision.
The ramification of this way of thinking about jurisprudence is huge, because it suggests that the law can, and does, shift with historical circumstances. Referring to the “felt necessities of the time,” Holmes overtly acknowledged the way cultural and societal shifts, changes in moral values and attitudes, and transformations in thought changed the law. Precedent, though obviously important, is only one ingredient in the mix.
Holmes suggested that there was another way of thinking about the law. And this way of approaching the American judicial system is abhorrent to legal positivists—those folks preoccupied with precedent who are mainly concerned with finding consistency in contemporary cases with prior judgments. Positivists see the law as a series of consistent rules based in thousands of years of ethical and moral human order. To make a decision, the positivist judge must discover previous cases that have relevancy to the one at hand, and by neatly lining the precedents up—and, following this theory, they consistently line up in one direction—the positivist judge can see exactly what the appropriate decision should be. To the positivist, stare decisis—the obligation of courts to honor precedent—is key.
Saying that legal decisions are made according to the rather random interpretation of contemporary circumstances—essentially relying on gut reactions and the cultural and political landscape rather than on an expert knowledge of precedent—seems to negate the very authority of the law. It is a little like saying that a judge’s decision could be based less on the machinations of the legal system than what he had to eat for breakfast. And it offers an opportunity for radical shifts in the understanding of the law.
As scandalous as it may seem to positivists, there have certainly been circumstances when these kinds of sweeping breaks in precedent hav
e taken place. The Supreme Court’s Gideon v. Wainwright decision in 1963 is one of those cases. After all, the U.S. Supreme Court had had plenty of opportunity in the preceding years to make a different decision, as similar cases came before them. But in one case after another, the Supreme Court had resisted the kind of changes that these opportunities presented. It’s instructive to see what previous decisions had been made that carefully constrained any all-encompassing right to counsel—and how, in 1962, the judges set the stage for their reversal of precedent.
On Friday, June 1, 1962, the U.S. Supreme Court met in formal conference to decide which cases would be considered the following term. The justices announced the list of cases three days later, including among them 890 Misc. Gideon v. Cochran. The order read:
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The case is transferred to the appellate docket. In addition to other questions presented by this case, counsel are requested to discuss the following in their briefs and oral argument:
“Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?” 11
The court’s understatement here should not be misconstrued as insignificant. Betts v. Brady was the culmination of ten years of back-and-forth considerations of the portion of the Sixth Amendment to the U.S. Constitution, which reads: “In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” The framers of the Constitution probably didn’t envision their 1791 amendment as specifically pertaining to persons too poor to be able to hire lawyers. More likely, it was an effort to make sure that the new country did not adopt a British common-law tenet barring defense counsel altogether in felony cases (even privately paid counsel). Perhaps more importantly, the U.S. Supreme Court historically maintained that the Bill of Rights did not apply to the states; the federal judiciary should not get involved in issues arising out of state laws and actions. This was the logic of the precedent case of Barron v. Baltimore (1833) and then, United States v. Cruikshank (1875). In Barron, Chief Justice John Marshall made it clear that “[t]hese [first ten] amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”12