Many of us, while presenting our cases in court, have had to be cross examined by a criminal defense attorney. This right afforded criminal defendants, now for all offenses punishable by a jail term, is enshrined in our constitution:
In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense. Sixth Amendment to the U. S. Constitution.
This month we celebrate the 50th anniversary of the ruling guaranteeing that protection. We usually look to old English law to help us interpret our Constitution However, a different rule applied in England.
A rule denying the aid of counsel to persons charged with a felony, which existed in England when our Constitution was adopted, was rejected in this country by our founders. The Bill of Rights ensured that criminal defendants could hire attorneys to defend themselves. The Bill of Rights was silent as to the appointment of counsel to indigents. You may remember a line in a Shakespearean play, “The first thing we do is kill all the lawyers.” Why? Lawyers were the first line of protection against a tyrannical government.
The guarantee of the right to counsel was not always the case for indigents. It wasn’t until 1938 that the Supreme Court enforced that right for all defendants in the federal courts. The states were left free to determine their own court procedures. This legal argument continues today: what is the proper role of the federal government versus the states.
But there were cracks. In 1932, the Supreme Court guaranteed the right to appointed counsel for indigents in capital cases in state courts. In 1942, indigent defendants in non capital felony cases in state courts were given the right to court appointed lawyers, only if “special circumstances” were present.
Then Clarence Earl Gideon was arrested for a burglary in Panama City, Florida. In those days all but 13 states did appoint counsel to indigent defendants (even though they were not required to do so). Florida did not.
Gideon appeared in court and stated he could not afford counsel. The court record reflects the following:
The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
GIDEON: The Supreme Court says I am entitled to be represented by Counsel.
Gideon was forced to act as his own counsel and conduct his defense. Due to his vast experience in both state and federal courts (as a defendant!), and his age (he was 50), Gideon did not qualify for appointed counsel.
Between midnight and 8:00 a.m. on June 3, 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a door, smashed the cigarette machine and a record player, and stole money from a register. Later that day, a witness reported that he had seen Gideon in the poolroom at around 5:30 that morning leaving with a wine bottle and money in his pockets. Based on this accusation alone, the police arrested him and charged him with breaking and entering with intent to commit petty larceny.
The jury returned a guilty verdict, and the court sentenced him to five years in the state prison.
Not mentioned in the appeal, is that when interviewed for his pre-sentence report for the trial court, Gideon, admitted entering the open poolroom and taking the items reported stolen. He claimed he was only guilty of petty theft, not burglary. Florida does have a statute prohibiting “entering without breaking” or “remaining therein” with the intent to commit a crime. So regardless of Gideon’s version of the events, he did admit to a felony: burglary
From his prison cell at Florida State Prison, making use of the prison library and writing in pencil on prison stationery, Gideon appealed, first to the Florida, and then the U.S. Supreme Court. He argued that he had been denied counsel and, therefore, his Sixth Amendment rights, as applied to the states by the Due Process Clause of the Fourteenth Amendment, had been violated.
The 1942 case that established the law in this area was Betts v Brady. Strikingly similar to Gideon’s case, Betts was charged with a robbery in Maryland. He asked the state judge to appoint an attorney to represent him. He was advised that counsel was only appointed in Maryland in murder and rape cases. Betts pled not guilty, waived his right to a jury, and did his best. He cross examined the state’s witnesses, called his own, and made the decision not to testify. The court, sitting without a jury, found him guilty and sentenced him to eight years in prison.
On appeal, the U.S. Supreme Court held that his conviction did not violate the Due Process Clause of the Fourteenth Amendment. The Betts court held that the refusal to appoint counsel under the particular facts and circumstances was not “so offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process.
That ruling was to be revisited in Gideon’s appeal.
Gideon was appointed counsel to argue his case before the Supreme Court; a no lesser attorney than the soon to be appointed justice of that very court, Abe Fortas.
On March 18, 1963, Betts was overruled without a dissent.
While acknowledging that the Sixth Amendment only bound the federal courts, the question addressed was “whether the rule was so fundamental and essential to a fair trial and to due process, that it is made obligatory on the states by the Fourteenth Amendment.”
What does that mean? The Bill of Rights was enacted as a protection against the new national government. The people were comfortable with their local governments, having elected their state and colonial officials for many years. They were afraid that this new, distant, national government, originally in Philadelphia, might be just as repressive as London had been. The intent of the Sixth Amendment (and the rest of the Bill of Rights) was to place prohibitions against the national government, not the states.
However, after the Civil War, the Fourteenth Amendment was enacted to prohibit the states from denying its citizens due process and equal protection of the laws. Determining which rights were included in the Fourteenth Amendment was a slow process. Gideon was one of those steps.
Citing at length from the 1932 case (that granted the right to appointed counsel in state capital cases), the Gideon court reaffirmed that:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama (1932) rested.
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 right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”
Gideon won, as did the 5176 inmates of the Florida State Prison, of the approximately 8000 there, who had been convicted without counsel. That same year, the Florida legislature enacted the public defender system.
At his new trial, Gideon was appointed a lawyer. This jury found him not guilty.
Four years later the U.S. Supreme Court announced that the rule of Gideon was retroactive and applied to all previously convicted indigent felons without counsel and a few years later to misdemeanors as well. Eventually the right to counsel was extended to post arrest interviews (Miranda), juveniles charged with violations of law, criminal appeals and mental health proceedings. Rap sheets with uncounseled convictions were wiped out.
About fifteen years after Gideon, I was assigned the case of a career burglar. Leon Butler was an older man with a horrendously long rap sheet. At the arraignment, the public defender asked for a bond. I handed up the several pages long rap sheet to the judge and the request was denied.
Then Leon said, “But Your Honor, Gideon wiped out most of my record. You know how things were in those days. The judge told me to draw a line across 1963 and see what was left.
“Still have 15 convictions, Your Honor.” “Bond Denied.”
Leon wasn’t a bad guy, just not too bright. Seems he dropped his wallet during this daytime burglary. His driver’s license was inside. When the cops came to investigate, they showed the DL to a neighbor who ID’d the photo as the burglar.
Leon’s court appointed attorney made the usual drivel about where are the fingerprints and the neighbor is mistaken. My closing argument was simple.
“I may not have his prints, but I have his name, address, height, weight and photo in that house.”
Due to Leon’s age and the 15-year sentence the court gave him, we never saw him again. At least he “went with counsel.”
In a 1970 case, the Supreme Court recognized that “the right to counsel is the right to the effective assistance of counsel.” Later cases announced what “effective” meant:
“Because of the vital importance of counsel’s assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Strickland v. Washington (1984)
Many court-appointed attorneys and full time public defenders complain that the amount of cases they are assigned prevents them from affording the level of representation required by Gideon and later cases. The complaints include “crushing caseloads, low pay and high turnover.” Prosecutors have similar issues, but there is no great rush to fix that problem! It is suggested that when cases are not fully investigated, and there is little money for experts, innocent people can be convicted.
Many cases, primarily of people on Death Row, drag on for years with the litigation centering on whether the defendant received “effective assistance of counsel.”
In a case I tried several years ago, the defendant’s new lawyer filed a motion for a new trial, alleging 27 things the trial attorney either did or did not do, that amounted to “ineffective assistance.” Sometimes witnesses are called by both sides in an effort to prove or disprove the allegations. In the county where I practiced, the senior public defenders assigned to serious murder cases, only worked on one case at a time. The others just sat and waited, my complaints usually being ignored. I was routinely assigned over 20 such cases at any time.
Naturally, privately retained lawyers rarely turned down a case.
What is the answer? As usual I don’t have it. But in times of serious economic difficulty, shall indigent defendants be assigned to lawyers with only one case, when 85% of the cases coming in require public defenders? In another case I handled, where the death penalty was being sought, the Public Defender’s Office assigned four lawyers to the case. Did some of their other clients suffer from this choice of priorities? No one wants to be a party to an innocent person being convicted, but the law requires a balancing in all areas. In this arena, the Supreme Court has also spoken. A defendant is entitled to a “fair trial, not a perfect one.”
David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida. His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed. It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at [email protected], or thru LET.