Anthony Lewis on Gideon

I want to begin with a confession. I am by nature an optimist. You might even say a romantic. Before I go to see a movie, I make sure that it has a happy ending. I am an optimist in particular about our country: its fundamental institutions and its capacity for civilizing change.

For a person of such temperament, the Gideon case was ideal. Here was a poor, isolated prisoner, among the least influential of Americans, writing a letter to the Supreme Court of the United States—in pencil, on lined prison paper. He claimed that he had been convicted unconstitutionally, because he was a poor man and had not been given a lawyer. Just twenty years earlier the Court had rejected a similar claim; Gideon was in effect asking it to change its mind. The court did reconsider, holding that the Constitution required counsel to be provided for defendants too poor to hire their own in all serious criminal cases. Clarence Earl Gideon would have a new trial, this time with a lawyer. Would he do better? He did. The jury found him not guilty; a happy ending not only for him but for the principle that a lawyer’s help is crucial for criminal defendants.

After the Supreme Court decision I recognized that it would be, as I wrote then, “an enormous social task to bring to life the dream of Gideon v. Wainwright—the dream of a vast, diverse country in which every man charged with crime will be capably defended…with the support needed to make an adequate defense.” But despite the size of the challenge, I believed that America would meet it.

Forty years on, how have we done? I take my answer from a recent paper by Bruce Jacob, the lawyer who represented the state of Florida in the Supreme Court, arguing against Clarence Earl Gideon’s claim of a right to counsel. “I hoped that the legislatures would meet the challenge.” Jacob wrote. “That was at a time in my life when I still believed that the legislators want to do the right thing. I no longer have that confidence in legislators…[And] the record of the courts in fulfilling the hopes represented by Gideon is a dismal one.”

Bruce Jacob’s judgment rested on numerous failures to bring the promise of Gideon to life. Many states and localities have not supplied the minimal level of financial support needed for an adequate defense. And far too often, the lawyers provided for indigent defendants have not met the barest professional standards.

We have lately had a shaming example of the failure of the system. You are all familiar with it: the case of the sleeping lawyer. Calvin Burdine was on trial for his life in Texas when his appointed counsel, Joe Frank Cannon, fell asleep—several times during the trial. The Texas Court of Criminal Appeals held that that was no reason to set aside Burdine’s conviction. The U.S. Court of Appeals, considering the issue on habeas corpus, disagreed—but only by a vote of 9 to 5. That is, five of those distinguished federal judges thought a lawyer who fell asleep during a capital trial did not do enough harm to matter. How do you suppose one of those judges would feel if he were on trial for a minor criminal offense and his lawyer slept through the taking of evidence?

Steven Bright rightly concludes that the judges who saw no reason to disturb Calvin Burdine’s murder conviction have not learned the lesson of Gideon. Or perhaps, putting it more frankly, they reject the lesson. They think that assuring justice for all Americans charged with crime is too expensive, or too much trouble. They think that second-class justice is good enough for the poor.

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