Looking Back on Gideon v. Wainwright
“Lawyers in criminal courts are necessities, not luxuries.”
By Peter W. Fenton and
Michael B. Shapiro
Photo: Library of Congress; NAACP
mith Betts was indicted for robbery by
the state of Maryland. An unemployed
farmhand without funds to pay for an
attorney, his request for counsel in a noncapital case was denied. He was a 43-year-old
man of ordinary intelligence with one prior experience in criminal court. While the state’s case consisted of evidence identifying the accused as the robber, Betts claimed an alibi. Following a bench trial,
he was found guilty and sentenced to eight years in
The Scottsboro Boys
prison.
The case of Betts v. Brady1 seems simple enough, but its legacy spawned significant cases, including Gideon
v. Wainwright,2 which is celebrating its 50th anniversary. Only 10 years before Betts, the Supreme Court began a
70-year process of applying the Sixth Amendment’s guarantee of “the assistance of counsel” to the states in Powell
v. Alabama,3 sometimes called the “Scottsboro Boys” case. Finding the right to access to counsel was fundamental due process, the Court held that in a state capital (death penalty) case, a defendant must be given access to
counsel upon request. Previously the Court had refrained from requiring counsel in state criminal proceedings.
Six years later, in 1938, the Court extended the right to “the assistance of counsel” to all federal criminal proceedings in Johnson v. Zerbst.4 Associate Justice Hugo Black, writing for the six-member majority (the decision
was 6-2 with Associate Justice Benjamin Cardozo abstaining), stated:
Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal
court’s authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and
sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.5
24 Perspectives on Gideon at 50
THE CHAMPION
The Supreme Court in 1963
“Lawyers in
criminal courts
are necessities,
not luxuries.”1
These words are at the heart of the
opinion written by Justice Hugo Black in
1963 in the landmark case Gideon v.
Wainwright.2 Expanding a precedent set by
the Court in Powell v. Alabama3 in 1932, the
Court in Gideon held that the Sixth
Amendment’s right to legal representation
was “fundamental and essential to fair trials,”
thus entitling indigent felony defendants to
court-appointed counsel in all American criminal cases. This unanimous decision was all the
more remarkable in that it reversed the Court’s
own contrary ruling in Betts v. Brady4 from just
two decades before. Many factors may have contributed to the
Court’s about-face, in such a relatively short period of time, on the
critical issue of right to counsel. The 50th anniversary of Gideon is
a most appropriate time to look back at the nine justices who
spoke as one in this momentous case.
The Court that decided Gideon included some of the most
influential jurists of the 20th century as well as our entire history
as a nation. What follows is a brief description of each of them.
Arthur Goldberg — Justice Goldberg occupied the so-called
“Jewish seat” on the Supreme Court for just three years, from 1962
to 1965,5 at which time he resigned to become the U.S. ambassador to the United Nations. His legal specialty was labor; he is credited with overseeing the merger of the American Federation of
Labor (AFL) with the Congress of Industrial Organizations (CIO),
and was secretary of labor in the early Kennedy administration.
Nominated by President Kennedy for the Supreme Court,
Goldberg was considered to be the fifth “liberal” vote, rounding
out the solid majority anchored by Chief Justice Earl Warren.
Byron White — Another JFK appointee, Justice White had
served on the Court for less than a year when the Gideon case was
heard. Over time, he proved himself to be a solid conservative on
a mostly liberal Court. However, prior to his appointment, White
served as a deputy attorney general under Robert Kennedy at a
time when the Department of Justice began in earnest to promote integration of public schools and facilities.
John Harlan — An Eisenhower appointee, Justice Harlan was
known for his belief in judicial restraint. He looked to the political
processes inherent in our system of government, most notably
the separation of powers and federalism, to lead the way in protecting individual liberties.6 Thus, Harlan was the predictable dissenter in many of the Warren Court’s decisions that today would
be cited as examples of judicial activism.
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Potter Stewart — Another justice appointed to the Court by
Dwight Eisenhower, Stewart’s moderate stance often placed him
with the minority in the years of the Warren Court. He opposed
the notion that a “doctrine of incorporation” was inherent in the
Fourteenth Amendment, and thus did not believe that the Court
had a right or obligation to make all the provisions of the Bill of
Rights applicable to the states. Nevertheless, he was a staunch
defender of First Amendment rights and sided with the majority
in rulings that favored school desegregation.
William Brennan — Justice Brennan occupied the Court’s
“Catholic seat,” which had been vacant for the preceding seven
years. He was appointed by President Eisenhower in 1956, but
later Eisenhower revealed that he regretted his elevation of both
Brennan and Chief Justice Earl Warren to the Court. Although
steadfastly liberal, he was known for his persuasive powers and
the ability and willingness to form ad hoc alliances in furtherance
of garnering majority support. Thus, Brennan was a driving force
behind the solid four-vote liberal bloc that shaped what will be
forevermore known as the “Warren Court.” Brennan believed that
the Constitution was a living document, subject to new interpretations and applications as American concepts of justice evolved.
Earl Warren — Dwight Eisenhower appointed this Republican
former governor of California as chief justice in 1953, an action
that Eisenhower later described as “the biggest damned-fool mistake I ever made.”7 Over the next 16 years, Warren presided over a
Court that issued many momentous decisions in the realm of civil
liberties and constitutional rights, including the 1954 school
desegregation case Brown v. Board of Education and landmark
1960s criminal procedure cases such as Mapp v. Ohio, Miranda v.
Arizona, and Terry v. Ohio. “The Warren Court” came to be a term
associated with the Doctrine of Incorporation and a vast expansion of the protections afforded by the Bill of Rights. Vilified
throughout his tenure by many conservative Americans, particularly in the South, Warren himself would ultimately observe,
“Everything I did in my life that was worthwhile, I caught hell for.”8
JUNE 2012
25
Tom Clark — Clark was attorney general of the United States
in the early years of the Truman administration; Truman
appointed him to the Court when a vacancy occurred in 1949.
Although considered a swing vote on many issues, Clark did
side with the Warren Court majority on many cases involving
civil rights. He was the author of the majority opinion in Mapp v.
Ohio,9 in which the Court extended the Exclusionary Rule to
actions of state and local governments.
William O. Douglas — Justice Douglas was, throughout his
tenure, one of the most outspoken and controversial members
to ever serve on the Supreme Court. A former Yale law professor,
he was elevated to the Court by Franklin Roosevelt in 1939.
Douglas was only 40 when he was appointed, and served longer
than any other Justice, more than 37 years. He was perhaps best
known for his anti-establishment viewpoint and his absolutist
interpretation of the Bill of Rights.
Hugo Black — Franklin Roosevelt’s first Supreme Court
appointee, Hugo Black would serve for 34 years, throughout the
tumultuous civil rights era and all the years of the Warren Court.
Always a populist and liberal, he nevertheless faced criticism for
a brief stint in the 1920s as a member of an Alabama chapter of
the Ku Klux Klan. Like William O. Douglas, Black was an activist
justice who believed that the Court’s role was to enforce the
Constitution’s guarantees.10 He wrote the majority opinion in
Johnson v. Zerbst,11 in which the Court held that all criminal
defendants in federal prosecutions had a Sixth Amendment
right to court-appointed counsel.
Notes
1. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
2. 372 U.S. 335.
3. Powell v. Alabama, 287 U.S. 45 (1932).
4. Betts v. Brady, 316 U.S. 455 (1942).
5. Supreme Court Justices, Arthur Goldberg (1908-1990).
Retrieved
from
http://www.michaelariens.com/ConLaw/
justices/goldberg.htm on March 2, 2012.
6. Supreme Court Justices, John Marshall Harlan, II (18991971). Retrieved from http://www.michaelariens.com/ConLaw/
justices/harlan2.htm on March 2, 2012.
7. PBS, The Supreme Court: The Court and Democracy. PBS,
retrieved from http://www.pbs.org/wnet/supremecourt/
democracy/robes_warren.html on March 2, 2012.
8. ROBERT BYRNE, THE 2,548 BEST THINGS ANYBODY EVER SAID (2003).
9. Mapp v. Ohio, 367 U.S. 643 (1961).
10. Hugo L. Black, The Oyez Project at ITT Chicago-Kent
College of Law. Retrieved from http://www.oyez.org/
justices/huto_l_black on May 9, 2012.
11. Johnson v. Zerbst, 304 U.S. 458 (1938).
Photo: US Supreme Court Historical Society
Perhaps Smith Betts was counting on the
Court to extend the applicability of the Sixth
Amendment’s guarantee of counsel to the states
in noncapital offenses, but in the midst of World
War II that was unlikely. Instead, Betts is
(mis)remembered as the case that “created” “special circumstances.” For 21 years, until it decided
Gideon, the Court wrestled with which cases
were so complex, which defendants were in such
dire need, or which courts or prosecutors were
failing to safeguard constitutional rights.
Betts was a 6-3 decision, with Hugo Black
authoring the dissent, in which Justices
Douglas and Murphy joined. In that dissent, he
set the stage for future cases, and ultimately for
Justice Hugo Black
the unanimous decision in Gideon. “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. … 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.”6
Barely 20 years after Smith Betts’ trial, on June 3, 1961, someone burglarized the
Bay Harbor Poolroom.7 The police arrested Clarence Earl Gideon the same day and
charged him with the felony of breaking and entering with intent to commit petit larceny. Gideon was tried on August 4, 1961, before the Honorable Robert L. McCrary
Jr. Appearing without an attorney, Gideon sought the appointment of counsel:
The Court: Why aren’t you ready?
The Defendant: I have no Counsel.
The Court: Why do you not have Counsel? Did you not know your case was
set for trial today?
The Defendant: Yes, sir, I knew that it was set for trial today.
The Court: Why, then, did you not secure Counsel and be prepared to go to
trial?8. . .
26 Perspectives on Gideon at 50
The Defendant: Your Honor
… I request this Court to
appoint Counsel to represent
me in this trial.
The Court: Mr. Gideon, I am
sorry, but I cannot appoint
Counsel to represent you in
this case. Under the laws of the
state of Florida, the only time
the Court can appoint
Counsel to represent a
Defendant is when that person
is charged with a capital
offense.
The Defendant: The United
States Supreme Court says I
am entitled to be represented
by Counsel.
The Court: Let the record
show that the Defendant has
asked the Court to appoint
Counsel to represent him.9
Gideon was tried, without the benefit of counsel, convicted by the jury
and sentenced to the maximum punishment, five years’ imprisonment. While
at Raiford State Prison he submitted a
handwritten Petition for a Writ of
Habeas Corpus on the denial of counsel
issue to the Supreme Court of Florida.
Following that court’s rejection of the
Petition, Gideon sought relief from the
Supreme Court of the United States.
The Court accepted Gideon’s
THE CHAMPION
Petition for a Writ of Certiorari, asking
counsel to discuss whether the “Court’s
holding in Betts v. Brady … [should] be
reconsidered?”10 Abe Fortas was assigned
to argue on Gideon’s behalf, while Bruce
Jacob appeared for the state of Florida.
Also appearing as amici were Lee Rankin
of the American Civil Liberties Union,
and George Mentz, assistant attorney
general of Alabama.11 Additionally, a
brief supporting the appointment of
counsel, urging reversal, was filed by 22
state attorneys general, led by Walter
Mondale (Minnesota) and Edward J.
McCormack Jr. (Massachusetts).12
When the Court decided Gideon in
1963, only Black and Douglas remained
from the Betts Court. In a unanimous
decision written by Black,13 the Court
overruled Betts v. Brady, holding that
“Betts was ‘an anachronism when handed down,’ and … should now be overruled.” Black further stated:
[A]ny person haled into court,
who is too poor to hire a
lawyer, cannot be assured a fair
trial unless counsel is provided
for him. This seems to us to be
an obvious truth. … 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.14
Any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious
truth. … 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.
ruling inevitable.”18 “I believe that by 1963, a majority of the Supreme Court had come
to the conclusion that the ‘special circumstances’ rule engendered endless litigation
and should be supplanted by a clear-cut standard. … There were only about half a
dozen19 outlier states at that point.”20 “Frankfurter and Harlan saw that totality of the
circumstances just was not working even though there had been plenty of time for it
to do so. … I think Gideon was inevitable.”21
Fortas realized that the “special circumstances” test was unworkable, and found a
theme that tied it to the federalism issue:
If you are concerned about issues of federalism … you then should oppose
the special circumstances rule. Otherwise, federal court[s] would review
what the state court did under [a] vague, special circumstances standard …
[an] ad hoc and ex post facto review. … What could be more of an irritant
to a state court judge than to have his judgments continuously reviewed
under that kind of a standard?22
If overruling Betts was a foregone conclusion, then the issues that remained in
Gideon were whether its application would be retroactive or prospective only,23 and
ultimately how to pay for this extraordinary increase in the right to counsel.24 In
recent correspondence with Bruce Jacob, he noted that there is still an issue with “the
Was Gideon
Inevitable?
In the 21 years between Betts and
Gideon, the Court wrestled with the
right to counsel in state courts. While, to
Justice Black, this was a right so fundamental to the concept of justice that it
trumped any concession to federalism,
other members of the Court, notably
Frankfurter and Harlan, were not so easily convinced.15 Only one year before
Gideon, Harlan finally 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.”16 Then, only
seven months before Gideon was decided, Associate Justice Felix Frankfurter
stepped down from the Court.17 Finally,
a review of the no-less-than 22 cases
addressing the right to counsel between
Betts and Gideon shows a steady progression towards overruling Betts, with
fewer and fewer dissenting opinions.
“The failure of Betts over many
years to provide a workable standard for
the provision of counsel made its overW W W. N A C D L . O R G
JUNE 2012
27
practical and financial problems involved in implementing a change to an automatic
rule providing counsel in every case, regardless of the circumstances.”25
[W]e were concerned about the prospect of turning a large number of
inmates loose at one time. Florida could theoretically retry them, with
counsel provided, but often witnesses are dead or unavailable, evidence
has been misplaced, and retrials are not possible. We knew that the
chances of winning the Gideon case were slim. Our main hopes were that
the decision, if adverse to us, would not require appointment in misdemeanors, and that it would not be applied retroactively.26
How did the U.S. Supreme Court go from a 6-3 decision against requiring
states to provide counsel to indigent defendants in Betts to a unanimous decision
in favor of appointed counsel in state felony proceedings in Gideon? By 1963, none
of the Betts majority was still on the Court, and two of the three dissenters — Black
and Douglas — remained. They helped form the core of the “Warren Court” along
with Chief Justice Earl Warren, William Brennan, and briefly, Arthur Goldberg. It
has been suggested that Gideon, along with Mapp v. Ohio,27 and subsequent cases
were all part of a civil rights paradigm shift stemming from Brown v. Board of
Education.28
Finally, it is important to recognize that unanimity in Supreme Court decisions occurs in a minority of cases, and unanimity in reversing precedent is exceedingly rare. “About 30 percent of the Court’s orally argued decisions in the 19462009 period were decided unanimously,” but only 1.61 percent of those cases
decided unanimously altered precedent.29
While Gideon established the legal framework for providing counsel at the
state and local level, half a century later the practical implications of doing so
remain. “The recent report by the Constitution Project, in Washington, D.C.,
makes it clear that society has not come close to fully implementing the requirements of Gideon, even 50 years later.”30
Notes
1. Betts v. Brady, 316 U.S. 455 (1942).
2. Gideon v. Wainwright, 372 U.S. 335 (1963).
3. Powell v. Alabama, 287 U.S. 45 (1932).
4. Johnson v. Zerbst, 304 U.S. 458 (1938).
5. Id. at 467.
6. Betts, 316 U.S. at 476 (Black, J., dissenting).
7. Bruce R. Jacob, Memories of and Reflections About Gideon v. Wainwright, 33 STETSON
L. REV. 181 (2003).
8. Trial Transcript at 8, Gideon v. Wainwright, 372 U.S. 335 (1963).
9. Id. at 9.
10. 370 U.S. 908 (1962).
11. Only Alabama and North Carolina joined Florida in urging that Gideon’s conviction be affirmed.
12. The state of Oregon filed a separate brief. Gideon v. Wainwright, 372 U.S. 335
(1963); Stephen B. Bright, Legal Representation for the Poor: Can Society Afford This Much
Injustice?, 75 MO. L. REV. 683 (2010); Symposium, Gideon at 40: Facing the Crisis, Fulfilling the
Promise, 41 AM. CRIM. L. REV. 135 (2004).
13. Justice Douglas wrote a concurring opinion.
14. Gideon, supra note 2, at 344.
15. Justices Frankfurter and Harlan were not supporters of the Doctrine of
Incorporation, which addresses application of the Bill of Rights to actions by state and
local governments.
16. Justice Harlan concurring in Carnley v. Cochran, 369 U.S. 506 (1962). Note that
Justices Frankfurter and White took no part in the decision.
17. Justice Frankfurter served on the Court from January 20, 1939, to August 28,
1962.
18. Anthony Lewis, author of Gideon’s Trumpet (1964), via email March 24, 2012.
19. In fact there were only five states that did not provide for counsel in felony cases
in some form at the time of Gideon: Alabama, Mississippi, North Carolina, South Carolina,
and Florida.
20. Abe Krash, associate counsel to Abe Fortas, who represented Clarence Earl
Gideon before the U.S. Supreme Court, via email March 16, 2012.
28 Perspectives on Gideon at 50
21. Roger Newman, author of Hugo
Black, A Biography (1994), via email March
4, 2012.
22. Symposium, supra note 12.
23. Burget v. Texas, 389 U.S. 109
(1967), applied Gideon retroactively.
24. Telephone interview with Walter
Mondale, April 2, 2012.
25. Bruce R. Jacob, via email March 6,
2012.
26. Bruce R. Jacob, supra note 7.
27. Mapp v. Ohio, 367 U.S. 643 (1961).
28. Brown v. Board of Education of
Topeka, Kansas, 347 U.S. 483 (1954); telephone interview with Walter Mondale,
April 2, 2012.
29. Unanimous Decisions in the
Supreme Court, Symposium on the Legacy
of Justice Stephens, Northwestern
University Law School, May 12, 2011.
30. Bruce R. Jacob, via email March 6,
2012. n
About the Authors
Peter W. Fenton, J.D., is an Assistant Professor of Criminal
Justice at Kennesaw State University. He is a former
police officer, and
has been teaching
at the college level
for 21 years.
Peter W. Fenton
Kennesaw State University
1000 Chastain Road
Kennesaw, GA 30144
678-797-2292
Fax 770-499-3423
E- MAIL
pfenton@kennesaw.edu
Michael B. Shapiro, J.D., is an Instructor of
Criminal Justice
and Business Law
at Georgia Perimeter College. He is
the former Executive Director of the
Georgia Indigent
Defense Council
and a Past President of the Georgia Association of Criminal Defense Lawyers.
Michael B. Shapiro
Georgia Perimeter College
555 N. Indian Creek Drive
Clarkston, GA 30021
678-891-3291
Fax 678-891-3084
E- MAIL
mshapiro@gpc.edu
THE CHAMPION