by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
“That’s not very complimentary to our profession, is it?” Justice Black observed dryly.
“Well, not completely, no, sir.”
At the end of Mentz’s argument, Justice Harlan asked a pointed question about the efficacy of Betts in contemporary legal terms. “Supposing you had the choice . . . of maintaining Betts and Brady on the books, and then having a succession of cases in this Court where in every instance where a state did not appoint counsel, the case is brought up here and you have it automatically reversed, finding special circumstances, so that while Betts and Brady is being obeyed in form—paid lip service to—any discerning person would know that unless the State does that, the case is coming up here and getting reversed?” he asked. “Do you think that between maintaining that kind of a situation and just getting Betts and Brady off the books, which would you think was the better?”
“I’d rather see each case decided individually,” Mentz said.
“Even though you know they’re all going to be decided the one way?”
“Well,” Mentz quipped, “hope springs eternal.”
As onlookers chuckled, Fortas returned to the lectern for a short, five-minute rebuttal. It was at the end of his five minutes that Justice Harlan—the last positivist holdout after Justice Felix Frankfurter’s departure and a firm advocate of stare decisis—expressed his concern about what the ramifications of this case really were: “[W] hat one is left with is to get his hands on something that has happened between 1942 and 1963 that has made what the Court then regarded as constitutional suddenly become unconstitutional.”
His comment was a fairly overt signal as to which way the justices were leaning. And indeed, the court announced its unanimous decision in favor of Gideon on March 18, 1963. Gideon overruled Betts, making the Sixth Amendment’s right-to-counsel provision applicable to all felony cases. Not surprisingly, Justice Hugo Black penned the decision. Interestingly, despite the concerns of Justice Harlan, Black made no attempt to suggest that the overruling was necessary due to legal and social shifts in the two decades since Betts. Instead, he claimed that the court had “made an abrupt break with its own well-considered precedents.”
“We think Betts was wrong . . . in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights,” he wrote. And referring to Powell v. Alabama, he said, “Ten years before Betts v. Brady, this Court . . . had unequivocally declared that ‘the right to the aid of counsel is of this fundamental character. . . .’ [I] ts conclusions about the fundamental nature of the right to counsel are unmistakable.” And he continued:
In returning to these old precedents, sounder, we believe, than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also 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. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. . . . The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two states, as friends of the Court, argue that Betts was “an anachronism when handed down,” and that it should now be overruled. We agree.33
Though the decision was unanimous, three other opinions were also entered into the record—a separate opinion from Justice Douglas, and two concurrences, one each by Justices Clark and Harlan. For his part, Harlan agreed that Betts should be overturned, but he considered it “entitled to a more respectful burial than has been accorded.” Harlan’s main point was that Betts had actually not broken precedent as Black suggested. According to Harlan, Powell rested on its own set of “special circumstances” and Betts had actually expanded indigent defense by suggesting that it could be applied in noncapital cases. “At the same time, there have been not a few cases in which special circumstances were found in little or nothing more than the ‘complexity’ of the legal questions presented, although those questions were often of only routine difficulty,” he wrote. “The Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted, in itself, special circumstances requiring the services of counsel at trial. In truth, the Betts v. Brady rule is no longer a reality.”34
And while some states have made strides in acknowledging this reality, others have failed to do so. “This evolution, however, appears not to have been fully recognized by many state courts, in this instance charged with the front-line responsibility for the enforcement of constitutional rights,” he added. “To continue a rule which is honored by this Court only with lip service is not a healthy thing, and, in the long run, will do disservice to the federal system.”35
As a result of the Supreme Court’s decision, Clarence Earl Gideon was now eligible for a new trial—this time with counsel. The Florida ACLU stepped forward with an attorney, but Gideon was oddly uncooperative about the appointment of his new lawyer. After Gideon wrote a letter to the Florida ACLU asking for support, an attorney from the organization, Tobias Simon, went to meet with him at Raiford in April of 1963. Gideon was highly agitated; he believed that he could not get a fair trial—it was scheduled to take place in the same district, before the same judge—and that the new trial would constitute “double jeopardy.” (It wouldn’t.) The new court date was July 5. Simon went to Panama City with Irwin J. Block, a criminal lawyer who had offered to assist him on the case. Gideon refused to meet with them, and the next day, when Gideon, Simon, Block, and the prosecutors met in Judge McCrary’s chambers, a distressed Gideon told the judge that he did not want the two lawyers to represent him, that he wanted a change of venue, and that he wanted to plead his own case. “I don’t want them to represent me. I DO NOT WANT THEM,” he said.36
McCrary excused Simon and Block (Simon later wrote an article about the experience, which was subtitled, “How the Florida Civil Liberties Union Wasted $300, and How Two Attorneys Each Traveled over 120 Miles and Killed an Otherwise Perfectly Enjoyable July Fourth Weekend”37), but the judge made it clear that on no account would he allow Gideon once again to conduct his own defense. He asked Gideon if there was anyone who he felt would be acceptable counsel. Gideon responded, yes, there was: W. Fred Turner, a local criminal lawyer.
Why Gideon chose Turner is unclear. It may have been because Turner had represented Gideon’s wife at one point in an attempt to get child support, so Turner was on Gideon’s radar. Also, Gideon would know that Turner was a local—Turner knew the lay of the land quite literally, where the pool hall was in relation to the phone booth and rooming house. He knew the local folks who would be in the jury pool—and they knew him.
In any case, Turner’s work on Gideon’s behalf essentially proved the point of right-to-counsel supporters—that having a lawyer can make all the difference in the world. He began by laying down the law. He sharply reprimanded Gideon for meddling in the case, telling him, “I’ll only represent you if you will stop trying to be the lawyer.”38 On August 5, when the trial began, Turner paid particular attention to the jury selection process. In contrast to Gideon’s approach (“They suit me alright, Your Honor”), Turner made sure he personally knew four out of the six of them. He quickly struck two prospective jurors, one because he was a “teetotaler” and the other because it was clear that he ge
nerally favored conviction. Three of the jurors were admitted gamblers, a point that Turner believed would work in Gideon’s favor.
The key way that Turner was useful to Gideon, however, was in planting seeds of doubt in the minds of the jurors. For example, Turner was very familiar with the prosecution’s key witness, Henry Cook—he had, in fact, represented him in a different case and knew about his previous run-ins with the law. Casting doubt on his credibility as a witness, Turner asked Cook, “Have you ever been convicted of a felony?”39
“I stoled a car one time and got put on probation for it,” Cook answered.
During the previous trial, Gideon had asked whether Cook had ever been convicted of a felony, and he responded, “No, sir, never have.” Turner jumped on this. “The last time you testified in this case you denied that, didn’t you?”
“Now, if the Court please, that is not proper cross-examination by Mr. Turner and the State objects to it,” the prosecutor quickly countered.
“Rephrase your question, Mr. Turner,” the judge said.
There was some back-and-forth as Turner rephrased and the prosecutor interrupted him with objections.
“I can point out his prior inconsistent testimony any time, Mr. Harris,” Turner said, deftly explaining to the jury just why this is not a credible witness.
“You can ask the question, Mr. Turner,” the judge said, “if you will do it properly, lay the proper predicate for the question, then ask the question, if you will do it properly, you may proceed.”
“Well, Your Honor, I’m trying to do it that way,” Turner said.
“If you are going to argue about it, let’s not do [that] in the presence of the jury,” the judge said. “Mr. Sheriff, will you take the jury out, please.”
After about ten minutes of lawyerly wrangling at the bench, the judge called the jury back in. Despite more objections from the prosecution, Turner managed to continue his line of questioning. “Mr. Cook,” he said. “Have you ever denied, under oath, that you had been convicted of a felony? Prior to today, I’m speaking of.”
“Yes, I did—” Cook said.
“When and where did you deny your criminal record, Mr. Cook?”
“Right here, the last time [Gideon] was tried, two years ago.”
Later, the prosecutor tried to restore Cook’s credibility. (“What did you mean when you said you had not been convicted of a felony and yet, you say you pled guilty to stealing an automobile?” “Well, I didn’t quite understand what a felony was.”) However, the damage was done.
By the time he gave his closing argument, Turner had masterly planted an idea in the jury’s collective head—via small, specific details about what was stolen and how much money was taken—to suggest that Cook should actually have been the one on trial. “The probationer has been out at a dance drinking beer,” he said. “He does a peculiar thing [when he sees Gideon in the poolroom]. He doesn’t call the police, he doesn’t notify the owner, he just walks to the corner and walks back. . . . Why was Cook walking back and forth? I’ll give you the explanation: He was the lookout.” Significantly, Turner had also pointed out that the owners of the pool hall ran a gambling ring—and that Gideon was often hired to run one of the games. This explained why Gideon was apprehended with so much change in his pockets. He took a cut from the winnings each night, that’s how he was paid.
After final arguments were completed, Judge McCrary reminded jurors that they must believe Gideon was guilty “beyond a reasonable doubt.” After an hour and five minutes of deliberation, the jury returned with the verdict: not guilty.
After two years in prison, Gideon was a free man. Lewis mentions an anecdote at the end of Gideon’s Trumpet in which, after the trial, a reporter sidled up to Gideon and asked him if he felt like he “accomplished something.”
“Well, I did,” Gideon replied.
Indeed, Gideon forever altered the criminal justice system for the poor in this country. There were seismic shifts in the way local governments provided indigent defense and in the various ways in which city, county, and state officials found funding for public defense programs or cobbled together alternatives. The progress was genuine and significant. But in the years since the court ruled in Gideon, the legal landscape has shifted dramatically. Between 1963 and 2013, massive changes have taken place in the culture and the courts: politicians have passed mandatory drug laws, cops have arrested folks in increasingly larger numbers, district attorneys have prosecuted more and more cases, the courts have jammed, incarceration rates have soared.
Ironically, one of the areas hardest hit by these changes—and the subsequent failure of the indigent defense system to keep pace with the demand for representation—is in Gideon’s home state of Florida. There, the crisis in the overburdened courts reached epic proportions in the last decade. The chief public defender in Miami, struggling with massive caseloads, fell on his sword a few years back, sacrificing his job and reputation by refusing to accept more cases.
A visit to the Miami-Dade County public defender’s office—or PD-11, as the program calls itself, referring to the county’s status as the Eleventh Judicial Circuit—is instructive. Walking in the door to the office, the first thing visitors see is the program’s “Commitment to Clients” printed on cream paper and showcased in a black frame in the waiting area. The sign mentions the usual commitments: the public defender’s office will treat clients fairly, consult with clients on their cases, maintain attorney/client privilege, be loyal to clients, and handle cases competently and diligently. But three commitments stand out:
“Advocate for more access to mental health and substance abuse treatment services.”
“Work to make our legal system more accessible and responsive to our clients and their families.”
“Advocate for rehabilitation laws, including removing barriers to educational and employment opportunities.”
These commitments focus on reform and a necessarily more holistic approach to the legal problems clients are encountering—a trend that is increasingly evident in large-city public defender systems—and the advocacy on behalf of this population is not all that surprising given PD-11’s history. Starting with Bennett Brummer, the county’s chief public defender for thirty-two years until 2009, and now continuing with Carlos Martinez, chief public defender since then, PD-11 has fought to reduce its excessive caseloads, which since 2004 began steadily climbing and by 2008 crept as high as seven-hundred-plus cases a year for some assistant public defenders.
“We were always overloaded,” Brummer says, reflecting back on his long career as a public defender in Miami. “I’ve been overloaded for thirty years there. One more case doesn’t make too much difference.” But something happened in 2004—and things did get dramatically worse for public defenders in his office. To explain why, Brummer has to go back to 1978, one year after he was elected to his first four-year term as chief public defender and the year he filed the first of many “motion[s] for relief from excessive caseloads.” Since then, he had been complaining to anyone who would listen that public defenders in Miami could not provide effective assistance of counsel when they had the high number of clients they were commonly assigned to cover. He filed a formal complaint, and by 1980 the case had moved up to the Third District Court of Appeal, which denied the motion. So he appealed the decision to the Supreme Court of Florida, which ruled in favor of PD-11, saying that the public defenders there should not be responsible for taking every case assigned to them, and, furthermore, if the state was not providing enough funding for indigent defense, the Miami-Dade county government would need to make up the difference.
Obviously, the county didn’t care for this shift in responsibility. The Florida Supreme Court’s decision meant Dade County would have to dedicate millions of dollars to indigent defense. And this would hold true for counties across the state that would suddenly be responsible for making up funding shortfalls. Banding together, the counties fought this decision. With their combined power, they were a
ble to get a motion on the ballot at the next state election, giving residents an opportunity to vote on whether state governments should be the legislative body responsible for the state court system. The motion passed and, in 2004, the state began fully funding indigent defense again.
However, in the meantime, there were tremendous casualties and, in the protracted battle, as the state and counties battled over who would assume the burden of paying for public defense, public defender’s offices across the state suffered. The Miami-Dade County public defender’s office lost thirty-two attorney positions in the process.
Without these lawyers, PD-11’s caseload grew worse. The American Bar Association, the National Advisory Commission on Criminal Justice System Standards and Goals, and the National Legal Aid & Defender Association all publish recommended caseload limits; the organizations advise a maximum of 150 noncapital felony cases per public defender, per year. Meanwhile, a Florida governor’s commission on public defense set a maximum standard of 100 felony cases per lawyer per year while the Florida Public Defenders’ Association recommends 200 cases.