Gideon v. Wainwright, 372 US 335 (1963), was decided 40 years ago. The case became somewhat ingrained in popular understanding through Anthony Lewis’ 1964 book, Gideon’s Trumpet, and a movie starring Henry Fonda.

As described by Lewis, Clarence Earl Gideon 'was a 51-year old white man who had been in and out of prison much of his life. He had served time for four previous felonies, and he bore the physical marks of a destitute life: a wrinkled, prematurely aged face, a voice and hands that trembled, a frail body, white hair.'

Though he is now a folk-hero for indigent defense, Clarence Gideon was no choir boy. In one case he admitted to stealing guns, robbing stores and planning a bank heist.

Gideon filed a handwritten petition to overturn a body of Supreme Court law that made the right to counsel in noncapital felony cases depend on special circumstances instead of an absolute constitutional requirement.

The judge in Gideon’s Florida breaking and entering trial tried to be fair. Gideon had a canny understanding of the criminal justice system. But without counsel, Gideon lost. One commentator says he called police officers as witnesses to no useful end. From Raiford Prison he asked the Supreme Court to hear his case. In his answer to Florida’s response to his petition for writ of certiorari he said in part:

…Petitioner can not make any pretense of being able to answer the learned Attorney General of the State of Florida because the petitioner is not an attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the petitioner knows there is many of them.

* * *

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. The question is very simple. I requested the court to appoint me attorney and the court refused....

Florida, attempting to stave off a Supreme Court-mandated right of indigent defendants in criminal cases to have the assistance of counsel (via the Sixth Amendment as applicable to the states by the Fourteenth), shopped its position to its sister states. The request for amicus assistance backfired. Twenty-three states, including Oregon — and including three that had no general requirement for appointment of counsel in felony cases — urged the Supreme Court to overturn Betts v. Brady, 316 US 455 (1942), and say the Sixth Amendment required counsel.¹ According to Lewis, Oregon also stated: 'The experience of the State of Oregon tends to indicate that it would provide greater protection of constitutional rights, and would be less expensive, to insist upon counsel in each original criminal proceeding, than to attempt by a post-conviction proceeding to recover justice lost by defects at the trial.' Only two states joined Florida.

The anniversary of Gideon marks a time in Oregon when the court system has been challenged by a shortage of funds. Nationwide there is concern (and litigation) that in some counties the provision of counsel for indigent defense is illusory when attorneys are given insufficient funding to provide more than cattle-car justice; fortunately these horror stories do not emanate from Oregon. Marion County Presiding Judge Paul Lipscomb states: 'One of the few silver linings in the dark economic cloud we are under is that it has forced everyone interested in the criminal justice system to recognize the critical role indigent defense now plays in the resolution of all criminal cases in our system of justice.'

On retrial Gideon had the opportunity to be represented by two out-of-town ACLU attorneys. He balked. He apparently sensed he needed an understanding of the facts and witnesses that only local counsel could provide. Gideon told the judge who he would accept, and the judge appointed him. This time there was extensive pre-trial preparation, effective cross-examination and argument. Gideon was acquitted.

'The measure of any political community is gauged by how it treats its least fortunate members. The same is true of any judicial system. Gideon v. Wainwright validates our claim to be a just society with just courts, and if we fail to follow that case’s mandate we fail as a society and as a judicial system. Indigent defense, therefore, is not a luxury — it constitutes an essential part of the foundation on which our community rests.' [David Schuman, Judge, Oregon Court of Appeals]

Gideon died broke in 1972. The ACLU donated a tombstone 12 years later. A man whose life didn’t amount to much had the gumption to articulate the right thing to do. The Supreme Court listened.

The author is an assistant attorney general with the financial fraud/consumer protection section of the Oregon Department of Justice and is the current past president of the Marion County Bar Association. He gratefully acknowledges the assistance of law clerk Angela Y. Moore. A longer version of this column appeared in the July 2003 Marion County Bar Bulletin.

Endnote
1. The later case of Argersinger v. Hamlin, 407 US 25 (1972) held the right to assistance of counsel in a criminal trial is not governed by the classification of the offense or whether or not a jury trial is required.

ABOUT THE AUTHOR
The author is an assistant attorney general with the financial fraud/consumer protection section of the Oregon Department of Justice and is the current past president of the Marion County Bar Association. He gratefully acknowledges the assistance of law clerk Angela Y. Moore. A longer version of this column appeared in the July 2003 Marion County Bar Bulletin.

© 2003 Tom Elden

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