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When I taught government to high school students, Gideon v. Wainwright, 372 U.S. 335, was one of only eight Supreme Court cases students in Maryland high schools were required to know  -  along with Marbury v. Madison, McCulloch v. Maryland, Plessy v. Ferguson, Brown v. Board of Education, Tinker v. Des Moines, New Jersey v. TLO, and Miranda v. Arizona.  Perhaps a selective review of the Cour's history, with four pairs of related cases.  One could note that in pairing Gideon with Miranda an important intervening case (Escobedo v Illinois) was somehow not required.

If one wants to review both the history leading up to the Gideon case as well as to evaluate how it applies today, one can do no better than to read Andrew Cohen's superb piece inThe Atlantic, How Americans Lost the Right to Counsel, 50 Years After 'Gideon'.  What I would like to do is focuson the impact of Gideon at the time, and - per the limiting of its reach in subsequent decisions that Cohen describes today - how far we have fallen from what was in my opinion a high point of American jurisprudence as well as a clear statement of an idea of what the rights guaranteed to the people were supposed to mean.

I was not quite 17 when the decision came down 50 years ago today.  At that time I thought I might become a lawyer, like my mother - herself at the time an Assistant Attorney General in NY State - and her father and uncle and brother-in-law and aunt . . .   Thus it was not unusual that the following day my mother and I had the first of several discussions about the case.

Let's note several things about the case.

1.  It was argued on January 15 1963, with the decision issued on March 18, a fairly quick turnaround for a case of that impact.

2.  The decision was unanimous -  it was the only unanimous decision of that term, 1962-63, of the Cour.

3. in reversing Betts v Brady (1942), which had established for states  a standard in which not all accused were required to be represented by counsel, the Court made it retroactive - in Florida alone over 2,000 inmates were released, with few being subject to retrials the way Clarence Earl Gideon was (and upon retrial with the assistance of counsel he was acquitted).

4. While there were three concurring opinions  in the case (by Justices Clark (father of LBJ's Attorney General Ramsey Clark), Harlan (grandson of his namesake Justice John Marshall Harlan who had dissented in Plessy), and Douglas, the Opinion of the Court was written by Hugo Black, who as a member of the Court in 1942 had dissented in Betts v Brady because he thought all criminal defendants should have the assistance of counsel throughout the legal process.

I focus on Black writing the opinion because of his background.  He was a former US Senator from Alabama, and during his younger years had been a member of the KKK.  The court had some interesting members on it at that point.   Chief Justice Earl Warren had been the Attorney General of California who after Pearl Harbor had beseeched FDR to intern those of Japanese background on the West Coast, and was later Governor of California and in 1948 was VP running mate for Dewey against Truman.  Arthur Goldberg had been Secretary of Labor, and would leave the Court to become UN Ambassador.  William Brennan would become a great civil libertarian in his days on the Court.  William O. Douglas had headed the SEC and been seriously considered for VP by FDR.  Byron White had BEFORE his stint as a Rhodes Scholar played in the NFL for what is now the Pittsburgh Steelers, leading the league in rushing as a Rookie (he later played for the Detroit Lions).  In short, the members of the Court had a wide range of life experiences, and one cannot help but think that - like some previous members of the Warren Court like Felix Frankfurter and Robert Jackson both on the Court 9 years earlier when Brown v Board was decided unanimously - that varied experience may well have given them a greater sensitivity to the impact of the decisions of the Court, which may well be why the Warren Court was in so many ways the high point of the expansion of protection for individual rights.

Gideon has another parallel with Brown -  the winning side of the case was argued by a future member of the Court, in Brown by Thurgood Marshall, in Gideon by Abe Fortas.  The quality of counsel can clearly make a difference.  Cohen notes of Fortas that

Justice William O. Douglas would write that Fortas' argument was probably the best single argument the justice had heard in his 36 years on the Court.
 (This is a case where the recording of the oral argumentation is available - I suggest you go here where you will see two links for oral arguments, parts 1 an 2. If you listen to the entire case, you may well be inclined to agree with Douglas about the mastery of the presentation by Fortas).

We have, as Cohen notes, somehow fallen down from the high aspirations established by the unanimous decision in Gideon.  Cohen quotes two important paragraphs from Black's decision:  

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 crime has to face his accusers without a lawyer to assist him.

Later on the Warren Court would make that more explicit in Escobedo v. Illinois, 378 U.S. 478 (1964), when it held that an accused was entitled to the assistance of counsel when being questioned by police, and in Miranda v. Arizona, 384 U.S. 436 (1966), when the Court decided that suspects had to be informed of their rights to remain silent and to have the assistance of counsel when being questioned.  What is worth noting is that both of these decision were only 5-4, the narrowest of margins:  while the members of the Court were more than willing to insist upon representation at trial in felony cases, not all were as willing to carry the principles of the 6th Amendment right to counsel to the logical conclusion.

Gideon, like several other of the landmark cases required of Maryland students (Brown, Tinker) seemed to offer a promise to all people in the American criminal justice system.  In this case it was supposed to be complete equality before the law, even if one could not afford counsel.  Yet today in far too many cases that is honored in the breech.  A subsequent decision, Strickland v Washington, 466 US 688 (1964), the Court establishe a 2-part test for a defendant to seek relief on the grounds of ineffective counsel, one that has allowed courts reject claims of ineffective counsel when attorneys have been on drugs, slept through part of the case, failed to inform defendants of some of the rights they have under the law.  Courts have allowed convictions to stand when defendants did not even know they had a public defender until after they had appeared before a judge.  It has resulted in people being held for weeks without access to counsel for misdemeanors.

I would like to quote part of what Cohen writes about the Strickland decision:  

During oral argument in Gideon, Abe Fortas had scolded the justices for their "failure to remember what happens downstairs" in criminal cases, an allusion to the rough-and-tumble world of police interrogations and prosecutorial mischief. It was an astute observation -- and a predictive one. Two decades later, in a 1984 case styled Strickland v. Washington, the Court forgot the "downstairs" truths to many criminal cases. The justices issued a decision that subsequently denied an effective right to counsel to millions of criminal defendants. "If Gideon offers the promise of justice winning out over poverty," the constitutional scholar David Cole wrote years later, "Strickland breaks that promise, allowing the forces of inequality to triumph as only the empty symbol of equality survives."
The Warren Court moved very much in the direction of equal justice and protection of rgihts That is true in Brown; it is true in the school prayer cases like Engel v. Vitale; it is true in rejecting the requirement of reading Bible verses in Abingdon v. Schempff; it was certainly true in the various criminal justice cases  beginning with Gideon.   We saw it in the Warren Court in reproductive rights in Griswold v. Connecticut, expanded on in the Burger Court with Roe v. Wade.

Yet somehow we have since moved away from what seemed to be a true increase of liberty in this nation.   We have unfortunately both legislatively an judicially moved away from that high point of liberty, and allowed or even encouraged inequality on the basis of economics and economic power.  Citizens United, with its empowering of corporations to distort our political process, is only the latest in a series of decisions that have unleveled the playing field politically as well as in criminal justice.

When states refuse to fully fund the public defender process or assure by some other means adequate access to assistance of private counsel, when the courts can accept some of the abuses and misconduct by assigned counsel such as those we have seen in recent years, when someone criminally charged has a better chance of being acquitted while guilty because of wealth and access to legal and supportive resources than an innocent person without such resources - remember, the vast majority of criminal charges are pled out - it is hard to claim that we have equal justice before the law, that Lady Justice is blind as to persons - instead her blindfold may symbolize our societal blindness to the inequality of the process.

Gideon was aspirational.

It was, and still should be, a marker of what is important if our democracy is going to survive - and if you think that last statement means I have questions about that survival, you are correct.

I said that the Cohen piece is something people should read.  I am going to let him conclude, that is, I will close with his final two paragraphs, because there is no point in my trying to say what he has already said so well:

Fifty years ago, a simple, uneducated man -- "the poorest and least powerful of men," Lewis called Gideon -- asked the justices for help and got it. Such a response from the current Court is virtually unthinkable. The fact today is that there are two levels of justice in America, one for the rich and one for the poor -- the very essence of the unequal justice that Gideon was supposed to end. As Bright pointedly puts it, "it is better to be rich and guilty than poor and innocent" in America today.

In the end, 50 years after one of the most glorious chapters in the history of the Supreme Court, we tell ourselves that we are a nation of laws, and we praise ourselves for rulings like Gideon, and we extol the virtues of the Constitution in theory, but the truth is we are just lying to ourselves and each other when we pretend that there is equal justice in America. Either there is a right to counsel or there isn't. And if there is such a right, we all have an obligation to ensure it is recognized -- not just in the history books, and not just in a television movie, and not just in a dusty law book, but in the everyday lives of our fellow citizens.

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