A. Lewis on Gideon (cont)

The lesson of the Gideon case is simple enough. Justice Hugo L. Black, in the opinion of the Court, put it in terms that cannot be misunderstood. “The right of one charged with crime to counsel,” he wrote, “may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

The truth of the proposition that a lawyer is essential was brought home to me in a curious way in the aftermath of the Gideon decision. Years later a movie was made about the case, starring Henry Fonda as Clarence Earl Gideon. I went out to Los Angeles to watch it being filmed. I had no say in what was done; I just watched. One day they filmed Gideon’s second trial, using an old courthouse south of Los Angeles. Gideon was charged with breaking and entering the Bay Harbor Poolroom in Panama City, Florida, in the early morning hours and taking some coins and wine. At his first trial, a taxi driver, Preston Bray, had testified that Gideon had telephoned him and he had come and picked up Gideon. When he got into the cab, Bray said, Gideon told him not to tell anyone about it. That was damaging testimony. And Gideon, without a lawyer, let it stand without any cross-examination. But now, in the second trial, Gideon had a lawyer: Fred Turner.

In the movie Fred Turner was played by a young character actor, Lane Smith. After the taxi driver testified again that Gideon had told him not to say anything about picking him up that morning, Lane Smith as Turner asked: “Had he ever said that to you before?” The taxi driver answered, “Oh yes, he said that to me every time I picked him up.” “Why?” “I think it was some kind of woman trouble.” And Lane Smith, ad-libbing, walked over to the six-man jury, winked and said, “Well, we all know about that.”

Well, I sat watching that scene. I had lived with the Gideon case for years. But when the director said, “cut,” I turned to the person sitting next to me and said, “My God, it really makes a difference to have a lawyer, doesn’t it?”

I know now that we have to add one word to my statement. It makes a crucial difference to have a competent lawyer. Fred Turner was competent and then some. He not only destroyed the taxi driver’s evidence against Gideon. He destroyed the chief prosecution witness, one Henry Cook, who said he had seen Gideon near the time of the break-in. Turner suggested to the jury that it was really Cook who had committed the crime. He was in a good position to speak about Cook because he had represented Cook in another case.

If Gideon had had an uninformed lawyer, a lawyer in too much of a hurry to care, a sleeping lawyer, he would not have been acquitted at that second trial. And the sorry truth is that too many defendants have lawyers of that kind—lawyers who do not meet the barest requirements of competence to conduce a criminal trial.

Stephen Bright has given a shocking example. Gary Drinkard was put on trial for his life in Alabama with lawyers who had no criminal experience. One did collections and commercial work, another foreclosures and bankruptcy cases; a third was a recent graduate. Drinkard was convicted and sentenced to death. He spent five years on death row. Then he got a new trial, with lawyers experienced in defending against capital charges. They proved that he was at home on the night of the murder, with a back injury so severe that he could not have committed the crime. He was acquitted.

As you know, two years ago, then Governor George Ryan of Illinois put a moratorium on executions. Between 1987 and 2000, thirteen people on death row in Illinois had been released after proof that they were innocent of the crimes for which they had been convicted. Stephen Bright found that four of those thirteen had been represented at trial by lawyers who were later disbarred or suspended from practice.