Working Title: the Definition of Fairness

Wagner 1 Shelley Wagner

Teacher’s Name

English 3.1

9 February 2013

Working Title: The Definition of Fairness

I. Introduction A. Gideon's letter changed the justice system for all accused. B. Gideon's simple three page letter definitely changed how the poor people were treated in our justice system, but that change may not be all that the constitution intended. C. Although this letter made a powerful difference, it not occur without resistance.

II. Topic 1: Circumstances of Gideon which led to letter A. Gideon's life before prison wasn't easy, but fighting back once behind bars was incredibly difficult. B. Before Prison: He was poor. 1. “A poor man named Clarence Earl Gideon” “50 year-old drifter” 2. Poor people were not able to have a lawyer. Couldn't Afford. a. They had to defend themselves against charges “alone” b. Their opponents were trained in law & experienced in litigation c. Quote Justice William O. Douglas “there can be no equal jsutice where the kind of appeal a man enjoys depends on the amount of money he has.” C. Description of trial-convicition 1. Accused of “breaking and entering” a. Panama City, FL Bayharbor pool room b. $5.00 change from jukebox & cigarette machine c. “beers” d. “soda” e. “wine” 2. “1963, states not required to give lawyer” a. Gideon argued that he needed a free lawyer b. judge denied Gideon's request c. Gideon represented self 3. Convicted by jury a. 5 years b. Florida prison Raiford Prison, Union County, FL D. Behind Bars 1. “Read law books” 2. “Learned about Constitution” a. Admendment VI 1. Speedy trial 2. jury 3. Assistance of Cousel b. Amendment V Wagner 2 c. Amendment XIV 1. guarantees equal protection to born or naturalized Citizens 3. Supreme Court had never applied these rights to State Court 4. Gideon recognized “Unfairness” a. years behind bars b. some had lawyers, some didn't c. Justice Hugo Black “This nobel ideal cannot be realized if the poor man charged with crime has to face his accuserswithout a lawyer to assist him.”

5. Whole letters a. Not Easy – Regulations for letters 1. only 2 letters per week 2. only 2 pages - “not allowed to send out a prepared petition” “Under duress” 3. one side only 4. only write on lines 5. complete name at close 6. complete name, address, prison# & stamp on envelope 7. No packages w/o permit 8. Unauthorized will be destroyed 9. written in english only 10. books, paphlets, newspapers – only if mailed from publisher 11. Postal money orders only. b. 1 st letter 10/9/1961 1. Florida Supreme Court 2. Petition for Writ of Habeus Corpus a. Define Habeus Corpus- right to be brought before a judge or into court. b. “denied Constitutional Right” 1. “without funds” 2. “without a attorney” 3. “asked … to appoint to me a attorney” 4. “denied me that right” 5. Cites US Supreme Court ruling 6. “denied … 4th, 5th, & 14th Amendments” 7. petition to District Court & Tallahassee Sherriff's Office intercepted against laws of US Government 8. Set aside 5 yr sentence 9. “give me the aid that I need” 10. 1 page 11. label - “not to be heard” 10/16/61 12. fired 10/11/61 13. Supreme Court of Florida 14. “deny” handwritten on letter 15. Identifies himself as “a pauper” ”no means to finance aid” 16. 3 June 61 a. “arrested & charged” Wagner 3 b. “breaking & entering”, Larceny c. plead not guilty 17. 4 August 61 a. tried in Bay County, 14th district court, FL 18. 25 August 61 a. convicted b. sentenced to 5 years State Prison 19. Rhet. Analysis of letter (Logos, Ethos, Pathos) (Diction) 6. Received letters a. single page b. Gideon v. Cochran 1. H.G. Cochran was (Director) Secretary of Florida Division of Corrections 2. Original Suit c. Dated Oct. 30, 1961 d. Signed Guyte F. McCord 1. Clerk Supreme Court (FL.) e. 1 sentence 1. “The above named petitioner has filed a petition for writ of habeus corpus in the above cause, and on consideration thereof, it is ordered that said petition be and the same is hereby denied.” f. Rhet. Analysis – (Tone, Mood) 7. Wrote a Writ of Certiorari a. Appealing State Supreme Court Denial b. 5 pages c. 5 June 1962 d. Supreme Court accepted the letter and heard the Case on Jan. 15, 1963 8. Wrote Decision – a. March 18, 1963 b. said Gideon did not receive a fair trial because he “lacks skill or knowledge to present adequate defense” 9. Mandate written by Supreme Court – US a. April 15, 1963 b. ordered lower court 1. provide lawyer 2. retrial 3. charged $592.52 court costs to Florida Supreme Court 10. Response to Mandate written by Florida Supreme Court a. Describes rational for previous ruling (Bretts v. Brady 1941) set precedent b. accusatory tone 1. “instant opionion” 2. “receeded from long-established rule” 3. “confronted” 4. “belatedly recognized federal organic right to counsel authoritatively announced” c. refusal to comply Wagner 4 1. Habeus Corpus was denied “We decline to issue a writ of Habeus Corpus” 2. Rule #1 of Floriday's is identical to federal statute “the petitioner might assert in the Circut Court of Bay County” “Provisions of Criminal Procedure Rule #1” a. “relief can be obtained post-conviction where there is a claimed denial of some fundemental or organic right” b. same rights, easier to implement 3. “look action before receipt of mandate” a. “confess it to be action taken pursuant to the directive of the Gideon Judgement” 4. Announced April 1, 1963 “existance of Criminal Procedure #1 was naturally not known to US Supreme Court in the course of Gideon Proceeding” a. They didn't want to admit they were wrong b. Lie by omission c. Further proof – If Gideon had a lawyer may have gotten released sooner

III. But what about that letter? A. Writ of Certiorari 1.Notarized 5 June 1962 2.Sent to Chief Justice Warren, US Supreme Court 3.5 pages 4.“prepared in the prison library” (ct.gov) 5.Hand-written 6.Asks court to review Florida Supreme Court decision B. Did he actually write it? (Shestokas) 1. Extremely formal 2. Doesn’t seem like an uneducated “pauper” could have written it 3. Judge Joseph A Peel, Jr. a. Gideon’s cell mate b. Murdered a fellow judge “Peel was not as successful in appellate courts on his own behalf. He lost appeals related to his murder conviction. He was also convicted in federal court for violating the anti-fraud provisions of the Securities Act of 1933, the Mail Fraud Statute, and conspiracy provisions of the federal criminal Code, and lost his appeal in that case.” (Shetokas Footnote 5) c. Fred Turner - Gideon’s lawyer at 2nd trial “Peel stood over his shoulder as Gideon wrote” 4. Comparing Handwriting a. Signatures don’t match 1. 3rd page of habeus corpus 2. Writ of Centiorari 5. Language a. Word Choice 1. Legalese a. “Comes now the petitioner, Clarence Earl Gideon, a citizen of the United States of America, in proper person, and appearing as Wagner 5 his own counsel. Who petitions this honorable court...” 2. Formal 6. Comparison - for further support of Shestoka’s ideas. A. Gideon’s petition to supreme court, 1962 1. Response to respondant’s letter (ct.gov) 2. 6 April 1962, same time frame as previous writ 3. Language a. “the petitioner is not an attorney nor does not have the law books to copy...” grammar is inconsistant b. “If the petitioner had a attorney he could send out any kind of petitioon he was so minded to. Which shows he can not have equal rights to the law unless he does have a attorney.” mistakes are Gideon’s “a”, colloquial dialect. c. “would of had a attorney” d. “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.” misuse of “too”, no “question”, no punctuation e. “all countrys try to give there Citizens a fair trial and see to it that they have counsel.” “see to it”, capital “C”, misspelling countries 4. Skills for the writing of the Writ of Certiorari could not have been developed in 5 months or even a year, other letters are still written by a less educated and heavily laden southern, country dialect. 5. Judge Peel - place in history is erased due to his conviction a. Loses romance if he wrote letter b. Proved importance of having someone trained in law in your corner. C. “Sometimes there are things that people just want to believe” (Shestokas)

IV. What we want to believe v What is true A. Gideon’s achievment in creating equality in the criminal justice system was celebrated and fiercely enforced ever since it was decided, or so goes the romantic myth. 1. 40th anniversary celbrated in Connecticut and Florida 2. Senator Lieberman’s letter 3. Governor’s Proclamation B. Gideon guarantees right to lawyer, not right to “good” lawyer or extensive and rigorous defense 1. March 1997 story questions whether indigent rights are really being upheld. 2. Public Defense Attorneys a. Over-worked, back-logged 1. 400 cases per year per attorney in Michigan 2. Encouraged to “keep the docket moving” a. Guilty pleas b. Avoid trials with plea bargains c. 80 % of defendants can’t afford attorney B. Under-paid Wagner 6 1. Flat Rate 2. Lowest bid 3. Lawyers have to take on more cases to make a living, less time spent on each case, poor defense a. Edward Carter b. Fingerprints exonerated after 26 years in jail. 1. Fingerprints are basic evidence 2. He was being held in a jail cell when crime he was convicted of was commited. 3. Even an idiot could have freed him 4. Only saw lawyer twice before trial 4. Leads to increase exonerations C. Department of Jsutice 1. Crisis 2. Offering grants to improve their competition in criminal court 3. Want to change how defense lawyers are paid in Mich. C. 50th anniversary 1. Gideon’s guarantee isn’t working 2. Access to Justice initiative a. Prof. Lawrence Tribe, Harvard Law b. Indigent Defense 1. Criminal 2. Drug 3. Mental Health 4. Civil 5. Family c. Sponsored and Paid for by Dept of Justice d. Trying to bring equity D. A real blow to Gideon’s trumpet 1. Gideon’s guarantee was suspended after 9-11 terrorist attacks a. Patriot Act uspended the 5th amendment for “suspects” 1. Terrorist suspects. 2. Definitions were unclear. 3. Parts have been found unconstitutional, or limited by revision 4. Obama Extended 3 parts on 26 May 2011 A. Roving Wiretaps B. Surveilance on “Lone Wolves” C. Business Records Searches, “library records” b. Military Commisions Act 2006 (Lyden) 1. Response to attack 2. Hunting terrorist suspects 3. Suspends habeus corpus 2. Constitution hasn’t changed 3. Ideas of “fairness” have a. War time v. Peace time b. Historical 1. Japanese Internment WWII 2. Nazi Sabateurs WWII Wagner 7 c. Gideon decision and Military Commission Act 2006 Question becomes: Are unalienable, organic, fundamental, rights “given by god” (Patrick Henry) only for citizens (US Constitution. Amendment XIV) or are they for every human being despite “how old... What color... Or what church [they] belong too of any”? d. “I did not get a fair trial” 1. Guantanamo 2. Indigent 3. Mentally Challenged/Disabled 4. Illegal Aliens 5. Japanese-Americans during WWII a. What about german-americans? b. Loss of property and liberty 6. 6 of 8 Nazi sabateurs hanged in secret WWII 7. Osama Bin Ladin

V. How did Gideon’s letter change history? A. Changed the justice process for arrest, arraignment, trial for indigent americans B. Everyone gets a lawyer, not everyone gets a “good” lawyer 1. Public Defenders Offices 2. Access to experts for the poor C. Strain on monetary limits of the justice system 1. Reimbursments are needing revision since 1965 D. It still helped more than it hurt. E. Still have more work to do before the system will be “fair” for everyone. 1. Questioning the “fairness” in our current system where the Constitution hasn’t changed Wagner 8 Works Cited

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