Chasing Gideon (11 page)

The Florida Supreme Court denied his appeal. But Gideon was undeterred.

Some years later, on April 30, 1980, CBS aired a Hallmark Hall of Fame TV movie about Clarence Earl Gideon's letter. Jimmy Carter would shortly thereafter lose the presidential election to Ronald Reagan—and the Hollywood fantasy of rugged individualism swept the country. Based on Lewis's book, the movie was also called
Gideon's Trumpet
and was billed as “the true story of a prisoner whose lone voice changed legal history.”
⁷
The movie starred Henry Fonda, who plays Gideon as a hunched, simple, laconic, weatherworn, beaten-down but doggedly determined man on a mission. He is a man who stands alone, a man of few words and few friends. But he is an ethical and moral man—in the movie anyway, which leaves out many inconvenient details of Gideon's actual life—and becomes heroic as he tackles injustice. In a David-and-Goliath plot that we Americans love, the undereducated common man takes on the fancy-pants bigwigs at the Supreme Court. The movie turns on the seminal moment when Gideon (a gaunt and distinguished Fonda in faded prison wear) strides purposefully across the penitentiary yard with his letter to the Supreme Court in his hand. The other prisoners, like a slowly gathering mob of voiceless zombies,
drop what they are doing and move as one into Gideon's wake. One man reaches out, asking to touch the letter. Gideon permits this. Then he ceremoniously drops the envelope into the prison mailbox.

In real life, on April 21, 1962, the U.S. Supreme Court received Gideon's four-page letter among the dozens and dozens of letters from prisoners that arrived each day. Once again, it was on prison stationery and written in pencil. He wrote:

Most poignantly, Gideon added:

According to Lewis, the
New York Times
reporter who had covered the Supreme Court for years and retraced each step of the case in his wonderful book, the letter was delivered to Michael Rodak Jr., an assistant clerk of the Supreme Court. Lewis writes:

Gideon's penciled plea had a strange kind of elegance to it. The man was obviously somewhat literate. He had composed his handwritten plea to the Supreme Court. He was not claiming any mental deficiencies or problems. The only outstanding question was race which could sometimes be considered “special circumstances” by the courts. The justices did not know what race Clarence Earl Gideon was—and, since this was not part of the record in any way, this would remain unknown for some time. In any case, the very fact that Gideon was making no effort to declare “special circumstances” made his case a perfect one for the justices to consider.

In the movie, the Supreme Court justices tackled the decision about whether to hear
Gideon v. Cochran
in a heated debate at their weekly meeting. (The original name of the case,
Gideon v. Cochran
, had changed when H.G. Cochran Jr. resigned from his position as head of the Florida Division of Corrections; he was replaced by Louie L. Wainwright.) Tempers flared as they argued about what the far-reaching consequences of the decision would be. They argued at the philosophical level (what did this mean for states' rights?) and the practical level (would every incarcerated prisoner in the nation who had been tried without counsel be freed, or entitled to a new trial, and, if so, what were the financial, administrative, and public safety consequences of such action?). They wondered how narrow or broad to go: Would the right to counsel be limited to only felony cases, or would it include misdemeanor cases? At what point in the process would a person be entitled to counsel—arrest? Arraignment? Bail hearing?

But, of course, this was in the Hollywood version of events. In reality, those conversations took place behind closed doors. They remained private and the screenwriters—and Lewis—mostly speculated about their content. Still, there was enough on the record between oral arguments and formal opinions to know where most of the justices stood. In deciding to hear the case and then making a very conscious decision to appoint the inimitable Abe Fortas (considered one of the finest lawyers in the country at that time) to represent Gideon before the court, they gave Gideon a serious leg up. It was a clear message: change was in the air and they were giving this small-town criminal his day in court. And his day in court had the potential forever to alter the way trials were conducted in this country.

What gives rise to groundbreaking changes in the law? What does it take for a constellation of judges, defendants, lawyers, and cultural forces to align—and for change to happen? For hundreds of years, legal scholars have puzzled over this, trying to find the key that allows them to replicate—or resist—monumental changes in the law.

As long ago as 1881, Oliver Wendell Holmes Jr. was grappling with the issue in the introduction to his book,
The Common Law
. “The life of the law has not been logic; it has been experience,” he asserted. “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.” He insisted things were uncomfortably complicated. “The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
¹⁰

As he wrote that, he was offering what was then—and still is, to many people—a radical notion of how the law operates. That is, the law does not come from some essential human ethical or moral perspective, or even necessarily from precedent in our country. Instead, he argues, it comes exclusively from judicial decision
itself. A judge must decide what is going to be the
best
outcome from present and—especially—future perspectives. In this sense, a judge must be “forward-looking”; the past is not valued for its own sake, but specifically in its relation to present and future circumstances. Also, a decision must make sense within the specific historical circumstances. She or he is not deciding in a vacuum. All of this means that a judge decides a case based on
facts
(but these “facts” may include larger cultural forces at play), and then writes an opinion afterward that offers justification for the decision.

The ramification of this way of thinking about jurisprudence is huge, because it suggests that the law can, and does, shift with historical circumstances. Referring to the “felt necessities of the time,” Holmes overtly acknowledged the way cultural and societal shifts, changes in moral values and attitudes, and transformations in thought changed the law. Precedent, though obviously important, is only one ingredient in the mix.

Holmes suggested that there was another way of thinking about the law. And this way of approaching the American judicial system is abhorrent to legal positivists—those folks preoccupied with precedent who are mainly concerned with finding consistency in contemporary cases with prior judgments. Positivists see the law as a series of consistent rules based in thousands of years of ethical and moral human order. To make a decision, the positivist judge must discover previous cases that have relevancy to the one at hand, and by neatly lining the precedents up—and, following this theory, they consistently line up in one direction—the positivist judge can see exactly what the appropriate decision should be. To the positivist,
stare decisis
—the obligation of courts to honor precedent—is key.

Saying that legal decisions are made according to the rather random interpretation of contemporary circumstances—essentially relying on gut reactions and the cultural and political landscape rather than on an expert knowledge of precedent—seems to negate the very authority of the law. It is a little like saying that a judge's decision could be based less on the machinations of the legal system than what he had to eat for breakfast. And it offers an opportunity for radical shifts in the understanding of the law.

As scandalous as it may seem to positivists, there have certainly been circumstances when these kinds of sweeping breaks in precedent have taken place. The Supreme Court's
Gideon v. Wainwright
decision in 1963 is one of those cases. After all, the U.S. Supreme Court had had plenty of opportunity in the preceding years to make a different decision, as similar cases came before them. But in one case after another, the Supreme Court had resisted the kind of changes that these opportunities presented. It's instructive to see what previous decisions had been made that carefully constrained any all-encompassing right to counsel—and how, in 1962, the judges set the stage for their reversal of precedent.

On Friday, June 1, 1962, the U.S. Supreme Court met in formal conference to decide which cases would be considered the following term. The justices announced the list of cases three days later, including among them
890 Misc. Gideon v. Cochran
. The order read:

The court's understatement here should not be misconstrued as insignificant.
Betts v. Brady
was the culmination of ten years of back-and-forth considerations of the portion of the Sixth Amendment to the U.S. Constitution, which reads: “In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” The framers of the Constitution probably didn't envision their 1791 amendment as specifically pertaining to persons too poor to be able to hire lawyers. More likely, it was an effort to make sure that the new country did not adopt a British common-law tenet barring defense counsel altogether in felony cases (even privately paid counsel). Perhaps more importantly, the U.S. Supreme Court historically maintained that the Bill of Rights did not apply to the states; the federal judiciary should not get involved in issues arising out of state laws and actions. This was the
logic of the precedent case of
Barron v. Baltimore
(1833) and then,
United States v. Cruikshank
(1875). In
Barron
, Chief Justice John Marshall made it clear that “[t]hese [first ten] amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”
¹²

However, by the twentieth century, a stronger centralized federal government, combined with a more expansive reading of the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws”
¹³
) suggested that the Bill of Rights did indeed pertain to state legislation. And by the 1930s the issue of the rights of indigents had become a point of concern around the country—at least for those lawyers working with the poor.

The infamous 1932 “Scottsboro Boys” case,
Powell v. Alabama
, was the first major case dealing with the right to counsel for the poor. The case revolved around a highly charged racial incident that took place on a freight train in rural Alabama, in which a group of nine black youths became embroiled in a dispute with another troop of seven white youths who were traveling with two white females. The altercation resulted in the black group throwing the whites off the train. The white youths informed the local sheriff, who, along with a posse, stopped the train and arrested the African Americans, charging them with rape, a capital offense at that time in Alabama. The trial was a media circus. Local officials called in the militia to “maintain order,” but the act incited greater tensions. And although Alabama law maintained that the youths were entitled to counsel, due to the fact that that they were charged with a capital offense and everyone deserved a lawyer in a death penalty case, the judge did not appoint specific lawyers for each defendant during arraignment, instead appointing “all members of the bar” of the county to represent them as a group. For the trial, the teens had a local real estate attorney and a 70-year-old lawyer who had not tried a case in years. The defendants were also not allowed access to the lawyers until just before the trial. As a
result, the lawyers' presence was practically insignificant, the trial was a mockery of justice, and a jury quickly pronounced the youths guilty.