50 years later: memories of Gideon v. Wainwright.

• Author: Jacob, Bruce R.

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"Lawyer in criminal courts are necessities, not luxuries" -Justice Hugo Black, Gideon V Wainwright, 372 U.S. 335,344(1963)

Early one morning in June 1961, a breaking and entering took place in the Bay Harbor Pool Room a few miles east of downtown Panama City, Florida. Clarence Earl Gideon, who was living across the street in a rooming house, was arrested later that morning and charged with the felony of breaking and entering with intent to commit petit larceny.

Gideon appeared in the circuit court for Bay County, where he pled not guilty and asked for a lawyer. In the 1942 case of Betts v. Brady, 316 U.S. 455 (1942), the U.S. Supreme Court held that the 14th Amendment did not require the appointment of counsel in every criminal case, but counsel should be appointed for an indigent defendant whenever a special circumstance was present that would make it difficult for that person to receive a fair trial without the assistance of counsel. If a defendant was young, inexperienced, illiterate, uneducated, or had mental problems, for example, any one of such factors could constitute a special circumstance that would require a trial judge to appoint counsel for him or her. But Gideon was about 50 years old, had previous experience as a defendant in state and federal criminal courts, and seemed to be of at least average intelligence. Consequently, Circuit Judge Robert McCrary told him that he would have to conduct his own defense.

At that time Dade and Broward counties had defender systems. Florida's population was around five million, and about one-fourth of the state's population was in those two counties. (1) Duval County had adopted a court-appointed counsel system. (2) In 1961, the Florida Legislature had enacted a "population act" that provided for the establishment of defender offices in counties with between 390,000 and 450,000 people. Hillsborough County was the only county in that category, so a public defender's office was about to be established there. (3) Also, many Florida trial judges in other parts of the state were appointing counsel at least when a defendant pled not guilty in a felony case and wanted a jury trial, whether a special circumstance was present or not.

Why didn't the trial judge in Gideon's case appoint counsel for him? I believe at least part of the reason was that there were too few lawyers available for appointment in Bay County. There were about 1,200 serious crimes committed in Bay County in 1961. (4) Of course, not all of the perpetrators would have been apprehended, and not all of those who were caught would have been indigent, but there could have been hundreds of cases requiring appointment of counsel each year. According to the 1960 edition of Martindale-Hubbell, Bay County had a population of 67,000, and only 34 licensed lawyers. (5) Not all lawyers do trial work and not all have experience in criminal cases. If Judge McCrary had wanted to provide free legal help in very many cases without compensation to the lawyers appointed, it would have been difficult to find enough lawyers to represent all those defendants.

At his trial, Gideon, representing himself, cross-examined the witnesses for the prosecution. He decided not to take the witness stand on his own behalf. He was convicted and given a five-year sentence, based on the fact that he previously had been convicted of state and federal felonies.

Gideon did not take a direct appeal. However, he did what many Florida inmates did in those days. He filed a handwritten habeas corpus petition directly to the Florida Supreme Court. In the petition, he argued that an attorney should have been appointed for him, but he did not allege that any special circumstance had been present in his case. The court denied the habeas petition, because under Betts there was no right to have counsel appointed. Gideon then sent a handwritten certiorari petition to the U.S. Supreme Court. In March 1962, that court asked the Florida attorney general's office to provide a typewritten response to Gideon's petition.

I was a 26-year-old lawyer in the criminal appeals section of the attorney general's office, and the case was assigned to me.

There were four lawyers in the criminal appeals section, handling almost all of the criminal appeals and postconviction cases for the state. When one of the four left, the remaining three would vote on a successor to fill the vacancy. After I had been in the attorney general's office for about a year, a lawyer left the criminal appeals section, and those left voted to extend the opening to me.

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Reeves Bowen, a former county judge, was the head of our section. He and the second-most experienced lawyer in the section, George Georgieff, each had handled cases in the Supreme Court. James (Jim) Mahorner had just represented the state before the Supreme Court in the case of Carnley v. Cochran, 369 U.S. 506 (1962). I was the newest and youngest and the only one of the four who had not yet argued a case before the U.S. Supreme Court. Even though I was young and less than three years out of law school, I handled 18 appeals before the district courts of appeal and the Florida Supreme Court while in the criminal appeals section and, therefore, was not inexperienced in criminal appeals at the time of the Gideon case.

Reeves Bowen enjoyed working with young lawyers and giving them valuable experience. He could have taken the case himself, but I am convinced that he knew it would provide tremendous experience for one of the younger lawyers.

Richard W. Ervin, the attorney general and later chief justice...