GIDEON V. WAINWRIGHT the Right to an Attorney

GIDEON V. WAINWRIGHT The Right to An Attorney

(Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar)

Objectives: Students will be able to: 1. Explain the Sixth Amendment right of a person accused of a crime to have legal counsel. 2. Summarize and explain how the Gideon v. Wainright case has impacted the Sixth Amendment right to counsel for people who cannot afford to pay an attorney. 3. Identify and explain how court cases subsequent to Gideon v. Wainright have further defined what the right to counsel means. 4. Discuss why having effective assistance of counsel is so important for a fair trial. 5. Explain how the 14th Amendment was a very important factor in the Gideon case. 6. Discuss the purpose of the Missouri Public Defender’s Office and why it is appropriate for taxpayers to fund this program.

The Story of Gideon v. Wainright (Excerpted partially from The Missouri Bar publication, Precedent. For the entire article go to www.mobar.org, publications, Precedent.)

The case that would forever change the legal landscape regarding the rights of criminal defendants had a very ordinary beginning. During the early morning hours of June 3, 1961, someone broke into a pool hall in Panama City, Florida, and smashed both the jukebox and the cigarette machine and stole money from both of them. A witness told police that he had seen Clarence Earl Gideon in the pool room that morning. When the police found Gideon, he had a pint of wine and some change in his pocket. Gideon – a petty thief and frequent inmate in state and federal institutions – was charged in a Florida state court with breaking and entering. Unable to afford an attorney, Gideon requested that the trial court provide him with legal representation as guaranteed to him by the Sixth Amendment to the U.S. Constitution. The trial judge denied the request. Gideon ultimately represented himself and was convicted and sentenced to five years in prison.

While in prison, Gideon submitted a habeas corpus petition to the Florida Supreme Court, arguing that his conviction was unconstitutional because he was not provided with defense counsel. The Florida Supreme Court denied his petition on the grounds that the United States Supreme Court had never held that there was a right to have counsel appointed in every felony case

In January 1962, Gideon filed a five-page, handwritten petition for certiorari in the United States Supreme Court seeking review of the Florida Supreme Court’s ruling. The Court accepted the writ and appointed notable Washington, D.C. attorney Abe Fortas – who himself would be appointed to the Court in 1965 – to represent Gideon.

Ultimately, the question before the Court was a simple one: Did the Florida court’s failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as guaranteed by the Sixth and Fourteenth Amendments? The court had already answered this question for criminal defendants in a federal court in the case of Johnson v. Zerbst, 304 U.S. 458 (1938). In that case, the courts held that due process required a criminal defendant to have a lawyer. However, in Betts v. Brady, 316 U.S. 455 (1942), the court declined to extend this right to defendants in state courts.

On March 18, 1963, Justice Hugo Black, who had vigorously dissented in Betts v. Brady, wrote on behalf of a unanimous Court that the states, as with the federal government, are bound to comply with the Sixth Amendment because the Fourteenth Amendment requires that the Bill of Rights apply to the states. Thus, the states must provide defense lawyers, if necessary, because lawyers are essential to ensuring that accused persons are provided with a fair trial.

As a result of the Court’s decision, Gideon’s conviction was rendered unconstitutional and he was re-tried in a Florida state court with the assistance of counsel and acquitted of the charges against him.

Gideon’s Missouri Connection Clarence Gideon was born in Hannibal, Missouri, and was convicted at age 15 of stealing clothes in Ralls County. He eventually served time in the Missouri State Penitentiary for robbery, burglary and larceny. When he got out of prison, he moved to Texas where he also served time for a crime not specified in the records. After he was acquitted of the Florida charges that were the subject of the Gideon case, there is no record that Mr. Gideon ever committed another crime. He died in 1972 in Florida and he is buried in Hannibal, MO.

What does the Sixth Amendment Say In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. (Underlining added.)

The Role of the Fourteenth Amendment in the Gideon case One of the most difficult concepts for 21st century Americans to grasp is the idea that the rights and protections of the Bill of Rights only applied to the federal government prior to the passage of the 14th Amendment in 1868. Although on its face, it appears the 14th Amendment requires that state governments are bound by the Bill of Rights, the implementation of the guarantees in the 14th Amendment did not start until the 1920s. And then the Court, instead of holding that the states were bound by all of the rights in the United States Constitution, decided case by case which right or protection the states must honor. This process is called incorporation. The Gideon case is the case that incorporated the Sixth Amendment right to counsel although the Court had been asked to so earlier in the Betts case. (See above.) For an excellent explanation and list of what cases dealt with which rights, go to the Bill of Rights Institute website at http://my.billofrightsinstitute.org/page.aspx?pid=478 .

Note: The history of the 14th Amendment will be the subject for a future Constitution Day program.

Missouri’s Attorney General and the Gideon Case. Florida Assistant Attorney General Bruce R. Jacob was given the task of defending Florida’s decision not to appoint Gideon a lawyer. Jacob, aware of the very real possibility that the Court could use the Gideon case to overturn its own ruling in Betts, prepared a letter to the attorneys general of every state to make them aware of the potential impact of the ruling and asking them to support the State of Florida with an amicus brief. In that letter, Jacobs advised them that a decision to overturn Betts “would infringe on the right of the states to determine their own rules of criminal procedure.” Two other states – Alabama and North Carolina – submitted amicus

2 briefs on Florida’s behalf. However, 22 other attorneys general – including Missouri Attorney General Thomas F. Eagleton – filed amicus briefs in support of Gideon.

Subsequent Development of the Right to Counsel After Gideon, the court continued to define exactly what the right to counsel means and Missouri took appropriate actions to comply with the court’s holdings:

Date Case Name Holding and significance 1963 Douglas v. California Indigent criminal defendants are entitled to appointed counsel on appeal IF the state provides for an automatic appeal in criminal cases. Missouri does. 1964 Escobedo v. Illinois The court held that a suspect in custody has the right to an attorney during a police interrogation because of the possibility that a suspect may incriminate himself, which violates the 5th Amendment right not to be compelled to testify against oneself. Some constitutional scholars call this a 5th Amendment right to counsel. 1966 Miranda v. Arizona A suspect must be advised of his right to counsel upon his arrest. This case changed how law enforcement officers treat a suspect. 1967 In re Gault The right to appointed counsel is extended to juvenile defendants. 1982 The Missouri Public Instead of appointed counsel, who may or may not Defender’s Office is have criminal defense experience, indigent criminal established by the defendants will be represented by lawyers whose sole Missouri General job is criminal defense. This office also handles Assembly. criminal appeals. 1984 Strickland v. The court holds that the right to counsel means the Washington right to effective assistance of counsel. 2008 Rothgerry v. Gillespie The right to counsel begins with the first court County appearance of a criminal defendant.

Teaching Gideon There are a number of outstanding resources for teaching the Gideon case, which provide background information, lesson plans and interesting activities: 1. The United States Courts website at www.uscourts.gov under the Educational Resources tab and then under the Constitution Activities tab. 2. Streetlaw’s Landmark Cases website at www.streetlaw.org/en/landmark/cases . 3. The Constitution Project at www.constitutionproject.org .

DISCUSSION QUESTIONS FOR STUDENTS AND SUGGESTIONS FOR FURTHER STUDY AND ENRICHMENT

1. The Supreme Court of the United States had held prior to the Gideon case that there were circumstances where a criminal defendant should have appointed counsel if the defendant could not afford an attorney. Look at these cases and discuss how they are similar or different from Gideon: • Powell v. Alabama, 287 U.S. 42 (1932) • Johnson v. Zerbst, 304 U.S. 458 (1938) • See Justice Hugo Black’s dissent in Betts v. Brady, 316 U.S. 455 (1942)

2. What do you think makes a lawyer an effective defense attorney? What do you think would constitute ineffective assistance of counsel? For guidance, look up the Strickland v. Washington case.

3. In the Strickland v. Washington case, the United States Supreme Court said that for a defendant to get a new trial with more effective assistance of counsel, the defendant had to prove that a more effective lawyer would have made a difference in the case. Can you think of scenarios where a better lawyer would have made a difference? Can you think of scenarios where a better lawyer probably would not have made a difference?

4. In the Gideon decision, the court said that a criminal defendant has a fundamental right to an attorney. What is meant by a fundamental right? What other rights might be considered fundamental?

5. How is the right to counsel in a criminal proceeding, from the arrest of suspect through the appeals process, consistent with the concept of limited government? How is it consistent with the John Locke’s social contract theory?

6. Prior to the creation of a statewide public defender’s office, private attorneys were appointed by judges to represent a criminal defendant. What kinds of problems do you think arose in these situations? Why do you think an office created strictly to deal with criminal defendants might be more preferable than appointed attorneys?

7. What are the Miranda rights? How is the court’s decision in Gideon reflected in the Miranda rights?

8. Why do you think the Constitution guarantees an attorney for a criminal defendant and not for parties in civil cases? Should there be a right to an attorney in a civil action? Why or why not? Would you amend the Constitution to include that right?

9. What is a habeas corpus petition? How do prison inmates use them to appeal the constitutionality of their convictions?

10. What is an amicus brief? How are they used? Why do you think Missouri’s Attorney General, Thomas F. Eagleton, chose to support Gideon rather than his counterpart in Florida?

11. The 14th Amendment has often been called the Great Amendment. Why? How was it important in the Gideon case? 12. Criminal defendants also have a right not to be represented by counsel but they must get permission from the trial judge. Why do you think judges are reluctant to grant this request?

13. What other rights and protections are there in the Sixth Amendment?