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IN-DEPTH
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CITYVIEWMAG.COM JULY AUGUST 2015
right to counsel in a criminal case and the access to counsel, or lack thereof, in civil cases.
The Sixth Amendment to the
U.S. Constitution provides that “[i]
n all criminal prosecutions, the
accused shall ... have the assistance
of counsel for his defense.” In Tennessee, article I, section 9 states “[t]hat in all criminal prosecutions
the accused hath the right to be
heard by himself and his counsel.” Interestingly, my own research indicates that the Indiana Supreme Court was the first to recognize
the right about inability to pay. In
Webb v. Baird4, the Indiana court
ruled that “in a civilized commu-
nity ... [no] citizen put in jeopardy
of life or liberty should be debarred
of counsel because he is too poor ... No court could be respected or respect itself to sit and hear such a trial.” Early on, no other court in the country fol- lowed the Indiana lead. Almost 80 years passed before the U.S. Supreme Court recognized a limited right to counsel for indigent persons. In the 1932 decision of Powell v. Alabama5, the high Court declared a right to counsel but ruled that it applied in capital cases only. Ten years later, in Betts v. Brady6, the Court established the right to counsel in other felony cases, but only under “special circumstances”—such as in especially complicated cases or those involving illiterate defendants. These cases served as a prelude to another of the truly land- mark decisions in legal history.
On June 3, 1961, a drifter from Hannibal, Missouri, who had run away from home after the eighth grade and afterward engaged in a number of petty crimes, found himself in Panama City, Florida, at or near the Bay Harbor pool hall. Sometime after midnight and before 8:00 a.m. the next morning, the pool hall was burglarized. A witness by the name of Henry Cook claimed that as he was
4 6 Ind. 13 (1854).
5 287 U.S. 45 (1932). 6 316 U.S. 455 (1942).
“The criminal justice system is better for having recognized [in Gideon] the fundamental right to counsel in all criminal cases. Nevertheless, while our system may be the best in the world, we have fallen short of fulfilling the promise.”
entering a cab at about 5:30 a.m., he had seen the drifter, Clarence Earl Gideon, near the pool hall and in possession of money and wine. Gideon was arrested and kept in jail until the time of his trial. Because he had no funds, he asked for the appointment of an attorney. His request was denied, and he was tried and convicted of breaking and entering. The trial court imposed a five-year sentence. Gideon wrote his own appeal. The Supreme Court granted certiorari and appointed Abe Fortas of Memphis as his counsel. Fortas, who later became a Supreme Court Justice, had graduated from Southwestern College (now Rhodes) and Yale Law School, and
had served as General Counsel of the Public Works Administration during
the Franklin Roosevelt administration. An accomplished lawyer, Fortas had previously represented an individual persecuted by Senator Joseph McCarthy during the Red Scare. Fortas filed briefs claiming Gideon’s right to counsel despite his inability to pay. Walter Mondale, then Minnesota Attorney General, filed an amicus brief on behalf of Gideon.
Justice Hugo Black, who wrote the majority opinion in Gideon, ordered a new trial:
“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indict- ment is good or bad.
He is unfamiliar with
the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to
the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to pre- pare his defense, even though he [may] have a perfect one.”
A local attorney, Fred Turner, represented Gideon in the retrial.
It turned out that Henry Cook, the primary witness in the case, was a lookout for the real culprits. The jury heard the case in one day and, within an hour after retiring to deliberate, returned a not guilty verdict. The cost to Florida was significant. Some 2,000 convictions were set aside in that state alone. The story spawned a book, Gideon’s Trumpet, by Anthony Lewis, and a movie starring Henry Fonda as the downtrodden Clarence Gideon.
In the half-century since, the opin- ion in Gideon has enjoyed universal praise. The criminal justice system
is better for having recognized the fundamental right to counsel in all criminal cases. Nevertheless, while our system may be the best in the world, we have fallen short of fulfill- ing the promise.
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