An Introduction to Fifty Years of Gideon

• Author: James J. Tomkovicz
• Position: Edward F. Howrey Professor of Law, University of Iowa College of Law
• Pages: 1875-1892

1875

An Introduction to Fifty Years of Gideon

James J. Tomkovicz

I

NTRODUCTION .................................................................................... 1875

I. GIDEON V. WAINWRIGHT: INDIGENTS’ CONSTITUTIONAL

ENTITLEMENT TO APPOINTED LEGAL ASSISTANCE .............................. 1876

A. APPOINTED ASSISTANCE FOR AND AT TRIAL ..................................... 1878

B. APPOINTED ASSISTANCE FOR CRITICAL PRETRIAL STAGES................. 1879

C. APPOINTED ASSISTANCE ON APPEAL ................................................ 1880

D. APPOINTED ASSISTANCE AND COLLATERAL CHALLENGES ................. 1882

II. STRICKLAND V. WASHINGTON: EVERY ACCUSED’S RIGHT TO EFFECTIVE

LEGAL ASSISTANCE ............................................................................... 1883

A. THE SCOPE AND PURVIEW OF THE “ACTUAL INEFFECTIVENESS”

DOCTRINE ...................................................................................... 1884

B. DOCTRINAL DEVELOPMENTS OF THE DEFICIENT PERFORMANCE AND

PREJUDICE REQUIREMENTS ............................................................. 1887

INTRODUCTION

Two years ago, the Iowa Law Review marked the twenty-fifth anniversary

of Batson v. Kentucky’s landmark ban on race-based peremptory jury

challenges with a remarkable symposium issue.1 Shortly thereafter, while

teaching criminal procedure, I reached the right to counsel chapter, which

opens with the Supreme Court’s ruling in Gideon v. Wainwright.2 The

realization that Gideon would arrive at the half-century milestone brought

inspiration. Surely, Gideon had also earned a scholarly event commemorating

its special anniversary.

 Edward F. Howrey Professor of Law, University of Iowa College of Law. I am very

grateful to Dean Gail Agrawal for her energetic and unflinching support and encouragement

and to Stephanie Hernan for her diligence and the excellence of her research assistance in the

preparation of this Introduction.

1. See 97 IOWA L. REV. 1393, 1393–1744 (2012).

2. Gideon v. Wainwright, 372 U.S. 335 (1963).

1876 IOWA LAW REVIEW [Vol. 99:1875

Fortunately, Dean Gail Agrawal was more than supportive. She

enthusiastically urged me to follow through. Gail’s unflagging

encouragement doubled my determination. Once the Iowa Law Review

editors eagerly jumped on board, agreeing to sponsor the celebration, the

dream of this symposium became a certainty. That certainty took flight this

past October when the Review hosted a gathering of right-to-counsel

scholars. This volume is the tangible fruit of the provocative presentations at

that assembly.

The Supreme Court’s fifty-year-old decision in Gideon v. Wainwright is an

icon in the annals of constitutional criminal procedure that has weathered

the test of time. It is among a small number of Warren Court rulings in that

field widely known to lawyers, law students, and, indeed, to many outside the

legal profession and academy. Gideon has become an integral part of our

national fabric. I have devoted considerable scholarly attention to the right

to the assistance of counsel that is Gideon’s foundation. It is with enormous

pleasure that I pen this introduction to the symposium celebrating its

golden anniversary.

The goal here is to set the stage for the insightful reflections of the

symposium participants. Although Gideon inspired this symposium, we did

not limit submissions to the topic at the core of Gideon—appointed counsel

for indigent defendants. Instead, we entertained proposals pertaining to any

facet of the right to legal assistance. Readers will learn many and varied

lessons about that fundamental guarantee. Several pieces do center around

issues raised by Gideon’s extension of appointed assistance. A number of

others focus on questions generated by the significant ruling in Strickland v.

Washington, more than two decades later.3 Strickland explained that the right

to counsel encompasses an entitlement to effective assistance and

announced a doctrinal framework for assessing constitutional efficacy. This

introduction addresses those two basic topics: an indigent defendant’s right

to state-funded legal aid and every accused’s entitlement to effective

counsel. First, it summarizes the law prior to Gideon, highlights the ruling in

Gideon, and sketches the post-Gideon developments regarding appointed

counsel. Next, it turns to the pre-Strickland law, describes the Strickland

opinion, and recounts the evolution of ineffectiveness doctrine for the past

thirty years.

I. GIDEON V. WAINWRIGHT: INDIGENTS’ CONSTITUTIONAL ENTITLEMENT TO

APPOINTED LEGAL ASSISTANCE

Gideon is unquestionably the most renowned and significant Supreme

Court decision regarding the government’s obligation to ensure that

criminal defendants financially unable to retain lawyers have access to legal

assistance, but it was not the first such ruling. Over three decades before

3. Strickland v. Washington, 466 U.S. 668 (1984).