FEATURE ARTICLE
& the
Gideon
E VOLUTION
By Gary Toohey
of the right to
COUNSEL
Claren
ce Ear
l Gide
on
6
Precedent Spring 2013
FEATURE ARTICLE
By all appearances, Missouri native Clarence Earl
Gideon was an unlikely catalyst for a fundamental change in American constitutional law. With
only an eighth-grade education and a fondness
for alcohol, his life was dotted with stays in jails
and prisons. So, when he was charged in Florida
with breaking and entering, it seemed like just
another chapter in a tragic tale.
But, while Gideon may not have received a high school
education, he was by no means stupid. During his trial in
Florida state court, he had the presence of mind to request
court-appointed counsel. Though his request was denied,
Gideon had the power of his convictions. Having received
no satisfaction from the Florida Supreme Court, he took his
case all the way to the United States Supreme Court … and
the rest is legal history.
As the nation marks the 50th anniversary of the Supreme Court’s ruling in Gideon v. Wainwright, it seems an
especially timely opportunity to recall the cases that led
to this landmark decision, as well as the further expansion
of rights for which Gideon paved the way in subsequent
years.
THE COLONIES CHART THEIR OWN COURSE
As with most aspects of the American legal system, the
origins of the right to counsel for the accused in criminal
cases developed from English law. But it was a repudiation
of English law in this regard – not an endorsement – that
shaped the evolution of this right in the former colonies.
Indeed, it was the English practice to deny the assistance
of counsel in serious criminal cases, thereby requiring defendants to appear before the court and defend themselves.
The 1586 trial of Mary Stuart, Queen of Scots,
illustrates the harshness of denying the assistance
of counsel in a criminal case. Queen Mary was
charged with treason for allegedly conspiring to
assassinate Queen Elizabeth I. Mary asked for the
assistance of counsel, pleading that “the laws and
statutes of England are to me most unknown; I am
destitute of counselors … and no man dareth step
forth to be my advocate” …. Her requests were
denied, and Mary was summarily convicted and
executed by decapitation.1
In fact, English legal history is rife with distinctions drawn
between the hiring or retaining of counsel, on the
one hand, and, on the other hand, the appointment
of counsel to represent a defendant who is too poor
to pay for a lawyer. In England, centuries ago, a
person charged with a misdemeanor could appear
with retained counsel, but there was no right to
have counsel appointed at public expense if the
defendant could not afford to hire a lawyer. And in
a felony case, the defendant had no right to counsel
whatsoever, either retained or appointed. Apparently, the thinking was that, in a very serious criminal
case, the defendant should not be acquitted just
because of a defense lawyer’s skill.2
The Framers of the U.S. Constitution, on the other hand,
“considered the deprivation of counsel repugnant to basic
principles of criminal justice” and “a critical element in
maintaining an accusatorial system of justice.”3
In fact, the first eight amendments of the Bill of Rights
contain 25 specific liberties and protections for individuals.
Of those 25 protections, 15 address the criminal process.
“In other words, the Framers of our Constitution had concerned themselves, above all else, with ensuring that our
criminal trials would be fair.”4
The Sixth Amendment, adopted in 1791 along with the
other nine provisions encompassing the Bill of Rights,
requires that “In all criminal prosecutions, the accused shall
enjoy the right … to have the Assistance of Counsel for his
defense.”
When the Sixth Amendment … was adopted in
1791, its purpose was to ensure that a person
charged with any federal crime should have the
right to be represented by a retained lawyer. It
applied only in the federal courts, and it did not
include a right to have counsel appointed if the defendant was indigent and unable to obtain retained
counsel.5
“However, shortly before the Bill of Rights was adopted, Congress enacted a statute requiring federal courts
to provide defendants charged with treason or other capital
crimes with assigned counsel upon request.”6
“Also, by that time, several states, in their constitutions,
provided for appointment of counsel in capital cases or in
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FEATURE ARTICLE
cases of treason. In Connecticut, appointment took place in
noncapital cases, not because of a constitutional provision
or statute, but as a matter of practice and custom.”7
CIVIL WAR-ERA DEVELOPMENTS
The basis of the modern right to counsel for the defendant who cannot afford to pay a private lawyer can be
tracked to a case that was decided just before the outbreak
of the Civil War. “In Webb v. Baird, the Indiana Supreme
Court in 1853 recognized a right to an attorney at public
expense for an indigent person accused of crime grounded
in ‘the principles of a civilized society,’ not in constitutional
or statutory law.”8
“It is not to be thought of in a civilized community
for a moment that any citizen put in jeopardy of life
or liberty should be debarred of counsel because he
is too poor to employ such aid,” the Indiana court
wrote. “No court could be expected to respect itself
to sit and hear such a trial. The defense of the poor
in such cases is a duty which will at once be conceded as essential to the accused, to the court and
to the public.”9
The adoption of the Fourteenth Amendment shortly after
the conclusion of the Civil War was intended “to provide
protection to individuals against denials of due process or
equal protection of the laws of the states; however, it was
not intended to require that any specific protections”10 of
previous constitutional amendments – including the Sixth
Amendment’s “Right to Counsel Clause” – be extended to
defendants in state courts.
“However, even though the federal Constitution did not
do so, state legislatures enacted statutes that provided an
absolute right to counsel in capital cases. Also, courts in
both the federal and state legal system took the position that
they had the inherent power to appoint counsel for indigent
defendants in any criminal case.”11
Nevertheless, despite decisions such as that in Webb v.
Baird, the right to appointed counsel in state court proceedings remained the exception rather than the rule.
Well into the 20th century, most states relied only
on the volunteer pro bono efforts of lawyers to
provide defense for poor people accused of even
the most serious crimes. While some private programs, such as the New York Legal Aid Society,
were active as early as 1896 in providing counsel
8
to needy immigrants, and the first public defender
office began operations in Los Angeles in 1914,
such services were non-existent outside of the largest cities.12
Indeed, “[f]or 15 years, the Right to Counsel Clause was
construed as simply granting to a defendant the right to retain a private attorney. This did not mean that an impoverished criminal defendant had the right to a court-appointed
attorney without cost.”13
It would not be until the 20th century that real progress
would be made toward nationwide extension of the Sixth
Amendment right to counsel to state criminal proceedings –
and even then only “gradually and somewhat haltingly.”14
POWELL V. ALABAMA
The first major case addressing the issue of counsel in
criminal cases at the state level was Powell v. Alabama.
In that case – more famously known as the case of the
“Scottsboro Boys” – nine black youths were accused of
raping a white girl on a train traveling through Alabama in
1931. “[T]he young black boys were arrested and charged
with rape, a capital offense at that time in Alabama.”15 They
were shortly thereafter indicted, tried (with the assistance
of unprepared counsel), convicted, and sentenced to death.
With the assistance of counsel, they appealed the trial
court’s decision to the Alabama Supreme Court, which affirmed the convictions. However, the U.S. Supreme Court
reversed the convictions and remanded the case back to the
Alabama state court system.
Justice George Sutherland, writing for the majority on
the U.S. Supreme Court, emphasized the importance of the
right to counsel for those who must face the complexities of
the law:
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 crimes, 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 per-
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fect 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.16
The Court also said the trial court should have granted
a continuance to allow the young men to obtain counsel in
view of the special circumstances surrounding the case:
In the light of … the ignorance and illiteracy of the
defendants, their youth, the circumstances of public
hostility … we think the failure of the trial court
to give them reasonable time and opportunity to
secure counsel was a clear denial of due process.17
Given that the youths were charged with a capital offense
and state law required appointment of counsel, the Supreme
Court noted that “it is the duty of the court, whether requested or not, to assign counsel … as a necessary requisite
of due process of law.”18
Ultimately, the Powell decision did not mandate the appointment of an attorney for all indigent defendants; rather,
it “merely held that due process requires the appointment
of prepared counsel to indigent defendants in a case that
involves the death penalty.”19
However, given that the laws in some states at the time
imposed the death penalty for crimes other than murder
– including kidnapping, rape, burglary of a dwelling at
night, armed robbery, and others – in some jurisdictions
“the holding of Powell applied to indigents in a fairly large
proportion of felony cases.”20
JOHNSON V. ZERBST
In this 1938 decision, the U.S. Supreme Court held that
an indigent defendant accused of a serious felony in a
federal court is entitled to an attorney at the expense of the
government. In making its ruling, the Court described the
right to counsel as “one of the safeguards … deemed necessary to insure fundamental human rights of life and liberty”
while noting “the obvious truth that the average defendant
does not have the professional legal skill to protect himself.”21
While a clear expansion of the Right to Counsel Clause
of the Sixth Amendment, the decision in Johnson meant
little from a practical perspective. “Obviously, providing
free attorneys in federal criminal cases was far more manageable than attempting to provide free attorneys in state
prosecutions. Johnson, of course, being an interpretation of
the Sixth Amendment, did not apply in state courts.”22
Likewise, since the overwhelming majority of criminal matters are state crimes, not federal matters, “lawyers
who accepted the privilege of practicing before the federal
courts could easily be imposed upon to represent indigent
defendants without fee.”23
BETTS V. BRADY
In this 1942 case, defendant Betts was charged in Maryland with robbery, a non-capital felony. Unable to employ
counsel, Betts asked for an appointed attorney but was
denied by the trial judge. Following a trial at which Betts
represented himself and was convicted, he applied for a
state writ of habeas corpus. The court denied the writ, so
Betts petitioned the U.S. Supreme Court for a writ of certiorari. The Court granted certiorari, but ultimately affirmed
the state ruling.
Justice Owen Roberts, writing for the 6-3 majority, said
“the issue was whether due process of law demanded that,
in every criminal case, whatever the circumstances, a state
must furnish counsel to an indigent defendant.”24
While often characterized as a departure from the principles cited in Powell, the Betts decision “was an extension
of Powell to noncapital felony cases, for Powell had not
imposed a flat requirement that counsel must be provided
for indigents in all capital cases.”25
It would have been difficult, as a practical matter
in 1942, to require all state courts to provide free
attorneys to every indigent defendant. Therefore, in
Betts, the Court did not impose a flat, absolute rule
that counsel must be appointed for every indigent,
criminal defendant in a noncapital case. Rather, the
Court held that state trial courts must appoint counsel whenever the circumstances were such that due
process required counsel to provide a fair trial.26
A short yet noteworthy dissent written by Justice Hugo
Black focused on the inequity of convicting those who
could not afford to employ an attorney and set the stage for
the unanimous decision in Gideon 21 years later. “Whether
a man is innocent cannot be determined from a trial in
which, as here, denial of counsel has made it impossible
to conclude, with any satisfactory degree of certainty, that
the defendant’s case was adequately presented …,” Justice
Black wrote. “Denial to the poor of the request for counsel
in proceedings based on charges of serious crime has long
been regarded as shocking to the ‘universal sense of justice’
throughout this country.”27
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FEATURE ARTICLE
Justice Black’s concern was echoed in a 1951 report on
the status of legal representation in the United States:
There is no “equality before the law” in a criminal
proceeding where an experienced and skillful prosecuting attorney, backed by the power of the state
and having at his command the entire resources
of the police for investigation, is matched against
a poor and often friendless defendant, confined in
jail, unable to understand even the simplest legal
implications of the charges against him and powerless to marshal any facts to controvert them if he
did.28
THE STAGE IS SET
Throughout the 21 years between its Betts and Gideon
decisions, the Supreme Court wrestled with at least 22
cases requiring decisions as to the applicability of the “special circumstances” that would initiate the limited right to
counsel discussed in Betts.
In many of these cases, the Court found at least
one special circumstance which necessitated that
the case be reversed. In those instances, the Court
ordered that the defendant be given a second trial,
this time with the benefit of appointed counsel. Below is a partial list of the kinds of special circumstances, requiring the appointment of counsel, that
the Court developed between 1942 and the Gideon
decision in 1963:
1. serious or complex charge against the defendant;
2. ignorance of the defendant;
3. illiteracy or lack of education;
4. extreme youth or lack of experience;
5. unfamiliarity with court procedure;
6. feeble-mindedness or insanity;
7. inability to understand the English language; and
8. prejudicial conduct by the trial judge, prosecuting attorney, or public defender.29
By the early 1960s, Justice John Harlan conceded that
“[t]wenty years’ experience in the state and federal courts
with the Betts v. Brady rule has demonstrated its basic failure as a constitutional guide.”30
GIDEON V. WAINWRIGHT
The case that would forever change the legal landscape
10
regarding the rights of those accused with crimes began
inauspiciously enough when Clarence Earl Gideon – a petty
thief and frequent inmate in state and federal institutions
– was charged in a Florida state court with breaking and
entering [see “The Road Less Traveled to Legal History: A
Sketch of Clarence Earl Gideon’s Life” on page 18]. Unable to afford an attorney, Gideon requested that the trial
court provide him with legal representation per the Sixth
Amendment. The trial judge denied the request. Gideon
ultimately represented himself, but 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 “for the reason that there was no absolute right to
have counsel appointed in every felony case under United
States Supreme Court decisions.”31
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. Florida
Assistant Attorney General Bruce R. Jacob was given the
task of defending the state.
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.”32
Two other states – Alabama and North Carolina – submitted amicus briefs on Florida’s behalf. However, 22 other
attorneys general – including Missouri Attorney General
Thomas F. Eagleton – filed amicus briefs in support of
Gideon.33
Ultimately, the question before the Court was a simple
one: Did the Florida court’s failure to appoint counsel for
Clarence Earl Gideon violate his right to a fair trial and due
process of law as protected by the Sixth and Fourteenth
Amendments?
On March 18, 1963, Justice Black – who had dissented
so vigorously in Betts v. Brady – wrote on behalf of a unanimous Court that the states, as with the federal government,
are bound to the Sixth Amendment because the Fourteenth
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The Principles in the Gideon Case
JUSTICE HUGO BLACK
Born in 1886, Black represented Alabama in the U.S. Senate from 1927 to 1937 before being appointed
by President Franklin D. Roosevelt to the Supreme Court of the United States in 1937.
The fifth-longest serving justice in Supreme Court history, he is noted for his advocacy of a literal interpretation of the United States Constitution and the position that the liberties guaranteed in the Bill of Rights were
imposed on the states by the Fourteenth Amendment.
One of three dissenters when the Court issued its 1942 decision in Betts v. Brady, Justice Black was given
the task of drafting the opinion when the Court issued its unanimous decision in Gideon v. Wainwright 21
years later.
He formally resigned from the Court on September 17, 1971, but suffered a stroke just two days later. He died on September 25, 1971, at the age of 84.
ABE FORTAS
Tennessee native Abe Fortas was born in 1910. After graduating from Yale University in 1933, he spent
one year teaching at his alma mater. He went on to hold a series of positions in the then-new Securities and
Exchange Commission. In 1939, he became general counsel to the Public Works Administration and later
served as Under Secretary of the Department of the Interior.
Following World War II, Fortas and two associates established a law partnership in Washington, D.C. with
a concentration in corporate law. He continued to practice law with distinction for two decades, but is
particularly well-remembered as the man appointed by the Supreme Court of the United States to represent
Clarence Earl Gideon before the Court.
In 1965, Fortas was himself appointed to the Supreme Court by President Lyndon B. Johnson. In 1967, he wrote the
Court’s opinion in the case of In re Gault, one of a series of post-Gideon decisions expanding the rights of those accused of
criminal offenses.
Fortas served on the Court for three years before retiring in 1969 and returning to private practice. He died on April 5,
1982, at the age of 71.
BRUCE R. JACOB
A long and distinguished career in the law followed Bruce R. Jacob’s representation of the State of Florida
in the case of Gideon v. Wainwright. When Clarence Earl Gideon first professed his right to legal counsel in a
Florida courtroom, Jacob was serving as an Assistant Attorney General for the State of Florida, leading to his
assignment to the Gideon matter.
He attended both Principia College and Florida State University, from which he received his B.A. degree.
He went on to earn his J.D. from Stetson University College of Law, an LL.M. from Northwestern University
School of Law, an S.J.D. from Harvard Law School, and a second LL.M. in taxation awarded from the University of Florida.
After leaving the Florida Attorney General’s Office, he engaged in the private practice of law for two years before becoming an associate professor and assistant professor at Emory University School of Law. He then spent another two years as a
research assistant at the Center for Advancement of Criminal Justice at Harvard Law School, and simultaneously served as a
staff attorney for a legal services office run by the law school.
In 1971, he accepted a position as an associate professor of law at The Ohio State University, eventually becoming a full
professor and director of clinical programs at that institution. In 1978 he accepted a position as dean and professor at Mercer
University’s Walter F. George School of Law, and then became vice-president of Stetson University and dean and professor of
the Stetson University College of Law. Since 1994, he has served as dean emeritus and professor of law at Stetson.
He is a frequent speaker and instructor on issues related to Gideon and other criminal law issues, and still regularly handles
– with the assistance of student volunteers – criminal appeals and post-conviction cases for indigent inmates on a pro bono
basis.
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Amendment’s Due Process Clause applies the provisions of
the Bill of Right to the states:
We accept Betts v. Brady’s assumption, based as it
was on our prior cases, that a provision of the Bill
of Rights which is “fundamental and essential to
a fair trial” is made obligatory upon the States by
the Fourteenth Amendment. We think the Court
in Betts is wrong, however, in concluding that the
Sixth Amendment’s guarantee of counsel is not one
of these fundamental rights.34
In addition, the Court ruled that the Sixth
Amendment requires a state to provide defense
lawyers, if necessary, because lawyers are essential
to ensuring that accused persons are provided with
a fair trial:
Governments, both state and federal, quite properly
spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers
to prosecute are everywhere deemed essential to
protect the public’s interest in an orderly society.
Similarly, there are few defendants charged with
crime, few indeed, who fail to hire the best lawyers
they can get to prepare and present their defenses.
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. From the very beginning, our state
and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in which every defendant stands equal before
the law. This noble ideal cannot be realized if the
poor man charged with a crime has to face his accusers without a lawyer to assist him.35
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.
Fifty years later, the Gideon case remains a milestone in
American constitutional law. Though subsequent decisions
12
have expanded – and, in some cases, restricted – the rights
afforded to an accused, the basic right to counsel in a criminal prosecution is acknowledged to be a fundamental right.
DOUGLAS V. CALIFORNIA
On the same day that the U.S. Supreme Court handed
down its decision in Gideon – March 18, 1963 – it also
announced its decision in the companion case of Douglas v.
California.
In this case, William Douglas and Bennie Will Meyes,
both represented by a single public defender, were convicted of a number of felonies in a California court. Both
defendants appealed to the California District Court of
Appeal, where their convictions were affirmed. The two
men prepared and filed their own briefs without benefit
of attorney, as California law allowed for appointment of
counsel in appeals only after the court made an independent investigation to determine whether counsel would be
“of advantage to the defendant or helpful to the appellate
court.” Their convictions were affirmed.
“This gave rise to a troubling disparity between those
who could afford to retain counsel and those who could
not: the indigent defendant had the merits of his case
prejudged before he could ever receive counsel, while the
defendant of more substantial means could have representation at every stage.”36
After the California Supreme Court denied the men’s
petition, they appealed to the U.S. Supreme Court. Represented by a Supreme Court-appointed lawyer, the two men
argued that they deserved the right to an attorney on their
appeal. The Court agreed, with Justice Douglas writing that
“where the merits of the one and only appeal an indigent
has as of right are decided without benefit of counsel, we
think an unconstitutional line has been drawn between rich
and poor.”37
“According to the Court in Douglas, the equal protection
and Due Process Clauses of the Fourteenth Amendment
prevent states from granting criminal appeals in such a way
as to discriminate against poor people.”38
Thus, under the Douglas decision, a state must
provide free counsel to indigent defendants on
appeal if the state offers an appeal as a matter of
right. For discretionary appeals, or appeals that are
not granted as a matter of right – such as appeals
to the state’s highest court in states with lower
reviewing courts, and appeals to the U.S. Supreme
Court – there is no right to counsel.39
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MASSIAH V. UNITED STATES
Just a year after the Gideon and Douglas decisions,
the U.S. Supreme Court decided the Massiah case, which
further extended a defendant’s right to counsel. In this
case, defendant Winston Massiah, while free on bail after
a federal grand jury indictment on narcotics charges, was
contacted by co-defendant Jesse Colson. Colson, however,
was cooperating with federal law enforcement agents and
was wearing a wire. As a result, incriminating statements
made by Massiah were transmitted to a federal agent. These
statements were then used at Massiah’s trial, at which he
was convicted and sentenced to nine years in prison.
On appeal to the Supreme Court, Massiah argued
that he had the right to counsel while being interrogated by law enforcement, even when the interrogation was not conducted in person by an officer.
The Court agreed and reversed Massiah’s conviction. The Court in Massiah established that the
police may not interrogate someone who has been
indicted unless the person’s attorney is present or
the person has knowingly waived the right to have
counsel present.40
ESCOBEDO V. ILLINOIS
Hard on the heels of its decision in Massiah, the Supreme Court announced its ruling in the case of Escobedo v.
Illinois. Escobedo was arrested and taken to police headquarters for questioning in connection with the murder of
his brother-in-law. Although not indicted for the crime, he
was held in police custody and not allowed to leave. In addition, Escobedo’s attorney was prevented from speaking to
him. Under interrogation, Escobedo eventually confessed
to having participated in the crime. These statements were
admitted as evidence during his trial, and he was convicted
of murder.
However, the Supreme Court overturned his conviction, ruling that a suspect is effectively in custody and has
the right to consult a lawyer when an investigation is “no
longer a general inquiry into an unsolved crime but has
begun to focus on a particular suspect….”41 In essence,
the opinion “established that when a suspect asks to speak
with an attorney, the police must comply with the request,
even before formal charges have been filed against the
suspect.”42
MIRANDA V. ARIZONA
The Supreme Court’s decision in this oft-cited case that
led to the creation of the so-called “Miranda rule” actually
resulted in the reversal of four state appellate courts. In
those four cases, appealed to the nation’s highest court from
state courts in Arizona, New York and California, along
with the 9th Circuit Court of Appeals,
the defendant was questioned by police officers,
detectives, or a prosecuting attorney in a room in
which he was cut off from the outside world. In
none of these cases was the defendant given a full
and effective warning of his rights at the outset
of the interrogation process. In all the cases, the
questioning elicited oral admissions and, in three
of them, signed statements that were admitted at
trial.43
In the majority opinion, Chief Justice Earl Warren wrote that
there can be no doubt that the Fifth Amendment
privilege is available outside of criminal court
proceedings and serves to protect persons in all settings in which their freedom of action is curtailed
in any significant way from being compelled to incriminate themselves…. [T]he prosecution may not
use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any
significant way.44
In addition, the Court held that “without proper safeguards the process of in-custody interrogation of persons
suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s
will to resist and to compel him to speak where he would
otherwise do so freely.”45 Therefore, the Court continued, a
defendant
must be warned prior to any questioning that he has
the right to remain silent, that anything he says can
be used against him in a court of law, that he has
the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires.46
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IN RE GAULT
In this 1967 decision, the Supreme Court extended the
Sixth Amendment right to counsel to juveniles whose liberty is at stake. Justice Abe Fortas – who had been appointed to the Court after representing Gideon in that landmark
case – wrote the majority decision in Gault. Noting the
plain meaning of the Sixth and Fourteenth Amendements,
he wrote:
We conclude that the Due Process Clause of the
Fourteenth Amendment requires that in respect of
proceedings to determine delinquency which may
result in commitment to an institution in which
the juvenile’s freedom is curtailed, the child and
his parents must be notified of the child’s right to
be represented by counsel … [and that] if they are
unable to afford counsel, that counsel will be appointed to represent the child.47
The decision prompted one observer of the nation’s juvenile court to write that, because of Gault, “juvenile courts
throughout the nation were transformed by the simple notion that children should not be convicted of crimes without
evidence of their guilt, without fair trials and lawyers and
the chance to face their accusers. The way in which society
dealt with its troubled youth had forever changed.”48
ARGERSINGER V. HAMLIN
Following this string of right-to-counsel rulings, the
Supreme Court was faced with deciding exactly what sort
of criminal charges trigger the availability of free legal
counsel. “Under Johnson and Gideon, a defendant has the
right to counsel for all ‘serious’ cases, but this standard
proved difficult to apply. To clarify this aspect of the right
to counsel, the Court seized on Argersinger v. Hamlin ....”
In this case, the indigent defendant was charged in a
Florida state court with carrying a concealed weapon, an
offense that carried a punishment of up to six months in
prison and a $1,000 fine. Without benefit of counsel, Argersinger was convicted and sentenced to 90 days in jail.
However, the Supreme Court’s decision vacated his
conviction by noting that “the problems associated with
misdemeanor and petty offenses often require the presence
of counsel to insure the accused a fair trial.”49
Thus, under the Argersinger ruling, “an indigent defendant who is not offered the services of a court-appointed
attorney at trial may not be sentenced to prison, even if the
defendant is convicted of a crime for which incarceration is
an authorized punishment.”50
14
But while the Court clearly intended its decision in this
case to apply only in cases where incarceration is a possibility, Justice Lewis Powell’s concurrence notes that the
majority opinion contains no rationale as to why the Sixth
Amendment’s plain language regarding appointed counsel
should not extend to other, petty offenses, such as minor
driving violations. Expressing concern that expansion of
the Argersinger ruling to lesser offenses could flood the
legal system with the demand for large numbers of government-compensated attorneys, he described the majority
opinion as “disquietingly barren of details as to how this
rule be implemented.”
STRICKLAND V. WASHINGTON
Not just legal representation, but the quality of that representation, is addressed by the Supreme Court in its 1984
decision in Strickland v. Washington. The ruling confirms
that Gideon and later cases do not simply require representation; instead, the defendant must have effective representation.
“That a person who happens to be a lawyer is present
at trial alongside the accused … is not enough to satisfy
the constitutional command,”51 the majority opinion reads.
Rather, 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.”52
Strickland announced a test of effectiveness of
counsel that falls short of the ideal, and that has
been often criticized. Resisting “specific guidelines,” the Court held that a convicted defendant
must satisfy a two-prong showing to reverse a
conviction. First, the defendant must show that his
attorney’s performance was deficient, meaning that
“counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed by the
Sixth Amendment.” Second, the defendant must
show that the lawyer’s performance was so poor
as to prejudice the defense in an extraordinarily
significant fashion, i.e., “that counsel’s errors were
so serious as to deprive the defendant of a fair trial,
a trial whose result is unreliable.”53
“A defendant does not have to show that the outcome
more likely than not would have been different, but rather
that counsel’s errors undermine confidence in the outcome.”54
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FEATURE ARTICLE
ROTHGERRY V. GILLESPIE COUNTY
In this 2008 decision, the Supreme Court clarified that
the right to counsel “occurs when the government has used
the judicial machinery to signal a commitment to prosecute.”
“By the time a defendant is brought before a judicial
officer, is informed of a formally lodged accusation, and
has restrictions imposed on his liberty in aid of the prosecution, the State’s relationship with the defendant has become
solidly adversarial,” the Court wrote. Thus, “a criminal defendant’s initial appearance before a judicial officer, where
he learns the charge against him and his liberty is subject
to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right
to counsel.”55
CONCLUSION
Although Gideon is just one of the cases that have
shaped the rights of indigents accused of crimes, there is no
mistaking its importance in American legal history. While
the decisions that preceded it played a role in shaping
society’s reaction to the plight of the indigent defendant,
Gideon was the tipping point. After the basic ruling in
Gideon – that those charged with a crime who cannot afford an attorney should be provided with adequate counsel
to represent their due process interests – there followed
a torrent of Supreme Court decisions clarifying and even
expanding upon Gideon.
Since the Gideon decision in 1963, “the difficult balance
– between the Sixth and Fourteenth Amendments’ protection of the role of counsel in a fair trial and the realities
of scare resources – has often prompted compromise that
could be regarded as a retraction of some of Gideon’s protections.”56
For example, other Supreme Court decisions over the
years have ruled that an indigent defendant has no right to
counsel in a proceeding after conviction; does not have an
absolute right to counsel for revocation of parole or probation hearings; and has no constitutional right to an attorney
for a habeas corpus petition unless the defendant faces
death.57
The Supreme Court has [also] carved out other
exceptions to the right to counsel after an arrest. It
has allowed law enforcement officials to have ex
parte contacts with defendants to determine whether the defendant is in fact represented by counsel.
It has also allowed ex parte communications that
are made with the consent of defendant’s counsel;
those made pursuant to discovery procedures, such
as subpoenas; communications in the course of a
criminal investigation; communications necessary
to protect the life or safety of another person; and
those made by a represented person, so long as the
person has knowingly, intelligently, and voluntarily
waived the right to have counsel present. These exceptions apply to all persons, regardless of whether
they can afford their own attorney.
Finally, law enforcement officials need not
advise criminal suspects of the right to an attorney
until those suspects are actually taken into custody
or are not free to leave the presence of the officers.58
However, “[n]one of this can diminish the significance of
Gideon’s accomplishment, half a century ago, of giving real
meaning to the Sixth Amendment’s right to the effective
assistance of an engaged defense lawyer.”59
The 6th Amendment
Effective Date: November 3, 1791
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.
The 14th Amendment
Effective Date: July 28, 1868
Sec. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
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15
FEATURE ARTICLE
ENDNOTES
1 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_to_
Counsel.
2 Bruce R. Jacob, Memories Of and Reflections About Gideon v. Wainwright, 33 Stetson L. Rev. 181, 186 (2003).
3 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_to_
Counsel. An accusatorial system places the burden on the prosecution
to establish the guilt of the defendant. This is opposed to an inquisitorial
system, wherein guilt or innocence is determined through interrogation
of the defendant.
4 Jon Mosher, “Defining When This Right to Counsel Must Be Made
Available,” available at http://sixthamendment.org/defining-when-thisright-counsel-must-be-made-available/.
5 Bruce R. Jacob, Memories Of and Reflections About Gideon v. Wainwright, 33 Stetson L. Rev. 181, 187 (2003).
6 Id.
7 Bruce R. Jacob, Memories Of and Reflections About Gideon v. Wainwright, 33 Stetson L. Rev. 181, 186-187 (2003).
8 “History of Right to Counsel,” National Legal Aid & Defender Association, available at http://www.nlada.org/About/About_HistoryDefen
der?printipable=yes.
9 Id.
10 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 187 (2003).
11 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 187-188 (2003).
12 “History of Right to Counsel,” National Legal Aid & Defender
Association, available at http://www.nlada.org/About/About_HistoryDef
ender?printipable=yes.
13 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
14 “History of Right to Counsel,” National Legal Aid & Defender
Association, available at http://www.nlada.org/About/About_HistoryDef
ender?printipable=yes.
15 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 188 (2003).
16 “Right to Counsel Clause,” Revolutionary War and Beyond, available at http://www.revolutionary-war-and-beyond.com/right-to-counselclause.html.
17 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 189-190 (2003).
18 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 190 (2003).
19 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
20 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 191 (2003).
21 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
22 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 192 (2003).
23 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 191 (2003).
24 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 195 (2003).
25 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 193 (2003).
26 Id.
27 Peter W. Fenton and Michael B. Shapiro, Looking Back on Gideon
v. Wainwright, The Champion (June 2012).
28 Emery A. Brownell, Legal Aid in the United States: A Study for the
Availability of Lawyers’ Services for Persons Unable to Pay Fees (1951,
supplemental 1961), at 61-62.
29 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
16
Wainwright, 33 Stetson L. Rev. 181, 197 (2003).
30 Peter W. Fenton and Michael B. Shapiro, Looking Back on Gideon
v. Wainwright, The Champion (June 2012).
31 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 213 (2003).
32 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 223 (2003).
33 Bruce R. Jacob, Memories Of and Reflections About Gideon v.
Wainwright, 33 Stetson L. Rev. 181, 213 (2003).
34 Gideon v. Wainwright, 372 U.S. 335 (1963).
35 Id.
36 William R. Terpening, An Imperfect but Honorable Legacy: A Brief
Survey of Cases Following Gideon v. Wainwright, The Champion (June
2012) at 60.
37 Id.
38 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
39 Id.
40 William R. Terpening, An Imperfect but Honorable Legacy: A Brief
Survey of Cases Following Gideon v. Wainwright, The Champion (June
2012) at 60.
41 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
42 Id.
43 “Miranda v. Arizona: An Overview and Discussion Questions,”
available at http://www.uscourts.gov/Educational Resources/Classroom
Activities/Fifth Amendment.
44 Id.
45 Id.
46 Id.
47 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
48 Edward Humes, No Matter How Loud I Shout: A Year in the Life
of Juvenile Court 25 (Simon and Schuster, 1997).
49 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
50 Id.
51 William R. Terpening, An Imperfect but Honorable Legacy: A Brief
Survey of Cases Following Gideon v. Wainwright, The Champion (June
2012) at 60.
52 Id.
53 Id.
54 Ellen S. Podger, Gideon: Looking Back to the 40th Anniversary,
The Champion (June 2002) at 64.
55 Jon Mosher, “Defining When This Right to Counsel Must Be Made
Available,” available at http://sixthamendment.org/defining-when-thisright-counsel-must-be-made-available/.
56 William R. Terpening, An Imperfect but Honorable Legacy: A Brief
Survey of Cases Following Gideon v. Wainwright, The Champion (June
2012) at 60.
57 “Right to Counsel,” available at http://lawbrain.com/wiki/Right_
to_Counsel.
58 Id.
59 William R. Terpening, An Imperfect but Honorable Legacy: A Brief
Survey of Cases Following Gideon v. Wainwright, The Champion (June
2012) at 60.
Precedent Spring 2013
Gary Toohey is Director of Communications
for The Missouri Bar. He may be contacted at:
garyt@mobar.org.