Gideon and the Golden Thread

• Author: Lawrence Herman
• Position: President's Club Professor of Law Emeritus, Moritz College of Law, The Ohio State University
• Pages: 2015-2033

2015

Gideon and the Golden Thread

Lawrence Herman

I. INTRODUCTION .................................................................................... 2016

II. TWO MODELS OF THE CRIMINAL PROCESS ........................................... 2017

A. CRIME CONTROL MODEL ................................................................ 2017

B. THE DUE PROCESS MODEL .............................................................. 2018

C. PROFESSOR PACKER’S POSTSCRIPT ................................................... 2019

III. TWO ILLUSTRATIVE CASES FROM MY ARMY JAG EXPERIENCE ............. 2020

A. CASE ONE: HOMICIDE AT THE GUARD POST ..................................... 2022

B. CASE TWO: AGGRAVATED ASSAULT WITH A TWO-BY-FOUR ................ 2024

IV. PROBLEMS AND SOLUTIONS ................................................................. 2026

A. PROBLEMS ..................................................................................... 2026

B. SOME SOLUTIONS ........................................................................... 2028

C. ANOTHER SOLUTION? .................................................................... 2030

V. CONCLUSION ....................................................................................... 2032

 President’s Club Professor of Law Emeritus, Moritz College of Law, The Ohio Stat e

University. Loving thanks to my wife, Ann Brace, for reading the first and penultimate drafts of

this Essay, making many cogent suggestions, and finding more errors than I could have found

in ten readings. I am grateful to Daniel Inscore, a 3L student at Moritz, who wants to be a

public defender (bless him), for effective research, formatting the text, and putting the

footnotes into proper form. I tip my hat to the staff of the Iowa Law Review for editorial changes

that make this Essay more readable and for the thankless task of checking footnote accuracy. I

dedicate this Essay to my parents, Ben and Kate Herman, who taught me by word and deed that

due process of law is for everyone, not just for a privileged few.

2016 IOWA LAW REVIEW [Vol. 99:2015

I. INTRODUCTION

And when London is but a memory and the Old Bailey has sunk

back into the primeval mud, my country will be remembered for

three things: the British Breakfast, The Oxford Book of English Verse

and the Presumption of Innocence! That Presumption is the

Golden Thread which runs through the whole history of our

Criminal Law . . . .

Thus spoke Barrister Horace Rumpole, addressing a judge, who was also

the trier of fact in a criminal case, in John Mortimer’s delightful story

Rumpole and the Golden Thread.1

On the other hand:

I have discerned a series of “rules” that seem—in practice—to

govern the justice game in America today . . . .

Rule I: Almost all criminal defendants are, in fact, guilty.

Rule II: All criminal defense lawyers, prosecutors and judges

understand and believe Rule I.2

Thus wrote Professor of Law (and highly successful criminal defense

lawyer) Alan Dershowitz.

Although Barrister Rumpole was specifically referring to an aspect of

the English criminal law process, he was coincidentally referring also to an

aspect of the American process, as was Professor Dershowitz. However,

Barrister Rumpole and Professor Dershowitz were not referring to the same

aspect. One undeniable facet of the American criminal law process is that,

like a coin, it has two sides. One side has been described as the “Crime

Control Model” and the other side the “Due Process Model.”3 The late

Professor Herbert Packer articulated the two models to aid in analyzing the

criminal process in a much cited and highly regarded law review article.4

Later, Professor Packer updated and refined his article as a part of his classic

book, The Limits of the Criminal Sanction.5 Part II of the present Essay is a

1. JOHN MORTIMER, THE SECOND RUMPOLE OMNIBUS 274 (1988). Rumpole’s

characterization of the presumption of innocence as a “golden thread” comes from

Woolmington v. DPP, [1935] A.C. 462 (H.L.) 481 (appeal taken from Eng.), a very important

homicide case. It held that once a defendant introduces enough eviden ce to raise the defense

of “accident[],” the prosecution bears the burden of negating th e defense beyond a reasonable

doubt. Id. at 482.

2. ALAN M. DERSHOWITZ, THE BEST DEFENSE xxi (1982). Thanks to Niki Z. Schwartz, my

friend, former student, and one of Ohio’s top trial lawyers in both civil and criminal cases, fo r

calling my attention to Professor Dershowitz’s rules.

3. Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1, 6 (1964).

4. See generally id.

5. HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968). In footnotes, I

will generally refer to Professor Packer’s book because it was written five years after Gideon,

when provision-of-counsel problems had begun to surface. The book is a “must read” for