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Sounding The Trumpet: The Gideon Case

Arnold & Porter Article

The Supreme Court's decision in Gideon v. Wainwright in 1963 affirmed the principle that every person charged with a serious criminal offense is constitutionally entitled to the assistance of a lawyer, and if he is too poor to hire counsel, the state has a duty to furnish him with an attorney. The case ranks among the Court's notable civil rights rulings during the past half century.

Gideon was a drifter who was charged in a Florida state court with breaking into a poolroom. The offense alleged is a felony under Florida law. Gideon was indigent, and he asked the trial court to appoint a lawyer to assist him. Under then applicable Florida law, a lawyer would be assigned to an indigent person only in a case involving the death penalty, and the state court accordingly denied Gideon's request. Gideon represented himself at the trial. He was found guilty, and he was sentenced to five years imprisonment. While has was confined in the state penitentiary, Gideon sent a handwritten petition to the Supreme Court seeking review of his conviction. The Court agreed to review the case. Since Gideon was penniless, the Supreme Court appointed a lawyer to argue the appeal on his behalf. Abe Fortas was named by the Court for this purpose.

Fortas asked Ralph Temple, an associate, and me to assist him in writing the brief. John Ely, a second-year student at the Yale Law School, was a summer associate at our firm in 1962, and he was assigned to work with us. John subsequently became one of the country's leading constitutional law scholars, a Professor at the Harvard Law School, and subsequently Dean of the Stanford Law School.

Fortas summoned us to his office and told us that he wanted to know everything about the right to a lawyer "since the invention of money." We wrote a great many memoranda for him that summer.

The question presented to the Supreme Court was whether, in refusing to appoint an attorney to assist Gideon at trial, the state court had violated his right to due process under the Fourteenth Amendment. In 1938, the Supreme Court had decided that in all federal criminal prosecutions for a felony, accused persons are entitled to the assistance of counsel; if the defendant is destitute, the government must provide a lawyer for him. However, the situation in the state courts in 1963 was different. In state prosecutions involving a capital offense, the accused was constitutionally entitled to counsel, but under a decision by the Supreme Court in 1942 in Betts v. Brady, an attorney had to be provided for indigent persons in all other state criminal proceedings only where "special circumstances," such as the youthfulness of the defendant or the complexity of the case, were deemed to render the proceeding unfair absent a defense lawyer. In its order agreeing to review Gideon's case, the Supreme Court directed attorneys for both sides to discuss whether the Court should reconsider Betts v. Brady.

The task Fortas set forth himself as an advocate was to convince the Supreme Court to abandon the "special circumstances" doctrine and to rule that every person accused of a serious crime in a state court is entitled to a lawyer. Moreover, Fortas wanted to persuade all of the Justices to endorse an opinion upholding an absolute right to counsel for indigent persons in all such cases. The hurdles he confronted were not only adverse precedents but a deep division within the Supreme Court concerning federalism and the scope of the Fourteenth Amendment.

In our brief, Fortas argued that the "special circumstances" rule should not be supported even by those Justices who were sensitive to "states' rights" and reluctant to expand the reach of the Fourteenth Amendment. He pointed out that in early every state criminal case involving a conviction without a lawyer, a habeas corpus petition was subsequently presented to a federal judge seeking review of the judgment of the state court. What could be more of an irritant to state judges, Fortas asked, than to have a federal court reviewing their decisions under a vague standard on a case-by-case basis? As Fortas put it in our brief, this process was "ad hoc and post facto."

In his memoirs, Justice Douglas described Fortas' oral argument in the Gideon case as the best that Douglas heard in his 36 years as a Justice.

The Supreme Court, in an opinion by Justice Black, who had dissented in Betts v. Brady, reversed Gideon's conviction and ruled that the Fourteenth Amendment requires the appointment of a lawyer for an indigent person in every case involving a serious offense. All of the Justices concurred in the judgment.

Several years later, Anthony Lewis, a reporter on The New York Times covering the Supreme Court, wrote an absorbing book about the case, Gideon's Trumpet, that is still widely read. A film was also made about the case featuring Jose Ferrar in the role of Abe Fortas. I was disappointed when Robert Redford was not selected to play my role.

The Gideon decision inspired a number of significant reforms in the representation of indigent defendants. It became the established practice to appoint a lawyer for the accused in every felony case. The decision encouraged the growth throughout the country of public defender offices. It led to more active participation by the bar in criminal cases in many states. More than three decades later, however, the high promise of the Gideon decision has yet to be fulfilled. It was not fully appreciated in 1963 that the vital point, as a practical matter, is not whether an accused person has a lawyer, but whether he has a competent lawyer, qualified to try a criminal case, who has adequate financial resources to conduct an investigation and to retain expert witnesses. However, Gideon survives as a landmark in the evolution of the ideal of a fair trial for everyone regardless of financial circumstances.