“[A]ppointment of counsel is not a fundamental right essential for a fair trial.”
Betts v Brady, 316 U. S. 455 (1942)
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“[L]awyers in criminal cases are necessities not luxuries.”
Gideon v. Wainwright, 372 U. S. 335 (1963)
This is a year of anniversaries of major legal doctrines creating new rights for individuals, particularly here in Minnesota.
It began with the 40th anniversary of the adoption by the Minnesota Supreme Court of the doctrine of intentional infliction of emotional distress in Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. Feb. 18, 1983). See “Intentional infliction ruling marks 40 years here” in the February 16, 2023, edition of Minnesota Lawyer. It would be followed by another pair of groundbreaking decisions by that tribunal recognizing wrongful discharge due to nonconformance with an employment manual, also 40 years ago, in Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. April 29, 1983) and the establishment of the common law right of privacy 25 years ago this summer in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. July 30, 1988). (Watch this space for more about those commemorations later this year).
But one recent anniversary at the federal level that has had substantial impact in Minnesota and elsewhere but attracted less attention is the 60th anniversary of the ruling of the U.S. Supreme Court in Gideon v. Wainwright, 372 U. S. 335 (March 18, 1963). The decision six decades ago this month warrants review before the month ends.
The anniversary of the case commemorates the celebrated ruling of the justices requiring prosecuting authorities to provide an attorney without charge to an indigent criminal defendant. While widely accepted today, the tenet was hardly beyond cavil when adopted by the Supreme Court 60 years ago.
In fact, it came about as a result of a direct reversal by the court of its prior World War II-era ruling in Betts v. Brady, 326 U. S. 455 (1942), in which the justices, by a 6-3 vote, rejected the contention that the “fair trial” provision of the Sixth Amendment of the Constitution requires providing free counsel to those accused of crimes who are unable to obtain a lawyer to defend themselves. The court in that case applied the reasoning articulated by 19th century French author Anatole France that “[t]he law, in its majestic equality, forbids rich and poor alike … to steal their bread,” resulting in the refusal to furnish a lawyer for a criminal defendant unless the accused miscreant can afford to hire one.
But the Supreme Court, with a newly constituted composition, embraced the contrary position when presented with the issue anew in a landmark case brought by an indigent Florida man, Clarence Gideon, who had been charged with felony burglary for the nighttime break-in of a pool hall and beer parlor in the a dusty small town in the Florida Panhandle, stealing $55, and a few bottles of beer and soda.
Gideon, a drifter with little formal schooling, was too poor to afford a lawyer, represented himself at trial and was convicted by a jury, based largely on dubious eyewitness testimony identifying him as the culprit. He then was sentenced to five years imprisonment.
Armed with only an eighth-grade education, Gideon submitted a short handwritten petition asking the Supreme Court for relief. Despite the sketchy presentation, or perhaps because of it, the Supreme Court took the case, one of about 1% of the appeals it annually accepts. In doing so, the court appointed a lawyer for Gideon, a high-powered Washington, D.C., attorney, Abe Fortas, a Beltway insider who had previously represented Lyndon Johnson, then vice president, who ascended to the presidency later that year upon the assassination of President John F. Kennedy.
Fortas convinced the court unanimously to overturn its Brady decision. His tack was facilitated by the presence on the tribunal of two of the leading liberal justices who had dissented from the majority ruling in the no-counsel case 21 years earlier, William O. Douglas and Hugo Black, who had the gleeful pleasure, after issuing a blistering dissent in the Betts case, of authoring the opinion overturning the Betts ruling.
Declaring the right to counsel as a “fundamental” feature of the American justice system, he declared it an “obvious truth” that “any person hauled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided.”
The Gideon ruling, one of more than 200 reversals of prior case by the Supreme Court, was objected to in some quarters, particularly government bodies hampered by shortages of personnel, money, and other resources to furnish counsel for poor defendants, who comprise a large segment of people accused of crimes. Rising crime rates and accompanying perceptions of increased criminality has also led some contemporaries to question the propriety of expending large sums for publicly funded criminal defense lawyers.
Different formats arose and have evolved over time to carry out the mandate of Gideon. Some jurisdictions then created — and still maintain — protocols for appointment for indigent criminal defendants of private practice attorneys, who are paid a pittance for their representation. Others, like Minnesota, have developed publicly funded units known as public defenders that handle trial and appellate cases, although they, too, are paid far less than their counterparts in private practice and other fields of practice. The group of some 500-plus over-worked, underpaid, and dedicated attorneys and 200 or so staff handle about 150,000 cases annually. The counterpart in the federal system here has consisted of lists of private practice attorneys, paid a meager hourly rate with unrealistic low ceilings, and then a formal public defender office for indigent representation.
Gideon’s ramifications have been extended in other ways. The Supreme Court expanded the right-to-counsel from the felony stage, like Gideon’s case, to misdemeanors and other types of noncriminal cases like paternity, parental termination and juvenile proceedings, among others, that could lead to loss of liberty or other deprivations or onerous obligations. But the courts have steadfastly refused to extend the right to counsel to civil proceedings, although organizations like the Legal Aid Society and others of similar ilk, with mixtures of public, private, and charitable funding do preview such services in select matters.
As for Gideon, he was retried in the Florida court where he had previously been convicted. Represented by a competent lawyer who focused the defense on effectively challenging the flawed eyewitness testimony that condemned Gideon at his initial pro se proceeding, he was acquitted by a jury after barely an hour of deliberations. He resumed his wayward ways, although not engaged in criminality, was married five times, and died less than a decade later in Fort Lauderdale at age 61. Buried by family members in Missouri, his gravestone includes an observation he made in a letter to Fortas after his ensuing acquittal: “Each era finds an improvement in the law for the benefit of mankind.”
The case became the basis for a highly-acclaimed made-for-television movie in 1980 starring Henry Fonda as the title character, a role that led to an Emmy Award nomination, a year before he won his only Oscar for the movie “On Golden Pond” shortly before his death. Fonda, an Omaha native who attended the University of Minnesota before beginning his illustrious six-decade movie-Broadway-television career, was perfectly cast for the part. An aged thespian by that time, he resembled Gideon and had been in two prior major productions involving insightful looks at the law in the 1950s: playing a musician misidentified, like Gideon, and wrongfully accused of robbery in Alfred Hitchcock’s gritty film “The Wrong Man” and as the influential juror who swayed his 11 counterparts, including Minnesota-born actor E.G. Marshall, to reach a not-guilty verdict in a murder case in the acclaimed play-turned-movie “Twelve Angry Men.”
Others in the “Gideon” cast included an elderly Fay Wray, who five decades earlier had been the shrieking blond “beauty” that King Kong took atop the Empire State Building, and Jose Ferrer as attorney Fortas, who in real life later joined the justices on the Supreme Court before whom he had successfully argued the Gideon case. Appointed to the tribunal by President Johnson, his former client, Fortas later was named by Johnson to replace retiring Chief justice Earl Warren, but his appointment was withdrawn and he stepped off the court when a questionable relationship with a shady financier surfaced, along with some other ethical concerns.
The Gideon ruling laid the groundwork for further enlargement of rights of criminal defendants in ensuing litigation like the Miranda ruling three years later that established the well-known “warnings” that must be conveyed to criminal suspects, like the police provide on all those TV cop shows.
The Diamond Jubilee of the Gideon ruling not only recalls the landmark case that expanded Constitutional rights, but it also provides a reminder that the perception of impropriety in overturning precedent often depends upon who is benefited or disadvantaged by the outcome.
That’s a message that hearkens from Gideon’s trumpet.
Some Other Notable High Court Reversals
- Dobbs v. Jackson Women’s Health (2022): Overturning Roe v. Wade right to abortion.
- Obergefell v. Hodges (2015 ): Reversing rejection of same-sex marriage in Baker v. Nelson.
- Texas v. Lawrence (2003): Setting aside prosecution for sexual relations among intra-gender in Bowers v. Hardwick.
- Brown v. Board of Education (1954): Barring school racial segregation and overturning separate-but-equal ruling of Plessy v. Ferguson.
- West Virginia v. Barnette (1943): Departing from compulsory Pledge of Allegiance by religious-objecting students in Minersville v. Gobitis.
Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.
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