Gideon's shadow.

AuthorMarceau, Justin F.
PositionSymposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. GIDEON AS THE GREATEST RIGHT II. GIDEON OVERSHADOWING OTHER RIGHTS A. Judicial Doctrines Developed in the Shadow of Gideon 1. Retroactivity 2. General Habeas Limits 3. Challenging a Prior Conviction 4. Harmless Error B. Scholarly Proposals that Illustrate Gideon's Shadow III. ENVISIONING A LEGACY THAT GIDEON COULD BE PROUD OF CONCLUSION INTRODUCTION

The right to counsel has been described as critical to our "universal sense of justice"; (1) an "obvious truth"; (2) the "foundation for our adversary system"; (3) a weapon of antidiscrimination; (4) and the "gateway right" through which other rights are made real. (5) It is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite status, the right to counsel casts a shadow over the other, less prominent criminal procedural rights. Elaborating on this paradoxical aspect of the Gideon right--that the very prominence of the right tends to dilute other rights, or at least justify limitations on them--this Essay analyzes the judicial and scholarly practice of employing the right to counsel as a cudgel to curb other rights.

Whether it is viewed as causing limitations on other rights, or simply justifying and entrenching such limits, Gideon's shadow takes two related but distinct forms. First, in some instances it functions in a comparative sense such that the right in question is deemed undeserving of vindication because, compared to Gideon, the other right is too insubstantial and unrelated to innocence to warrant constitutional remediation. It may well be that Gideon is a much more important right in many such cases, but the point here is to illustrate the role of Gideon as a lever for limiting other rights. Specifically, courts and scholars have identified Gideon as the paradigmatic protection of the innocent, the strongest conduit to justice, and the best insurance of procedural fairness, and they have defended and justified harsh limitations on non-Gideon rights that compare unfavorably to Gideon in one or all of these respects. Second, in other contexts, the right to counsel has a substitutive effect insofar as impediments to various non-Gideon rights are regarded as defensible precisely because the right to counsel adequately safeguards innocence, fundamental fairness, and the accuracy of the trial process. In either form, then, Gideon is distinguished from other rights because of its perceived relationship to innocence and fairness--that is, Gideon is used as a vehicle for justifying limitations on non-Gideon rights by focusing our attention on certain normative values that are best protected by Gideon itself.

Notably, however, the limits flowing from Gideon's shadow are justified by an idealized, abstract conception of Gideon, and thus stand in stark contrast to the recognition that Gideon has functioned as an important decision of principle, not practice. Specifically, the indigent defense system spurred by Gideon has itself been deemed "a national crisis" by commentators and judges. (6) The problem identified in this Essay, then, is twofold: the right to counsel's presumed prominence justifies imposing limitations on other rights, but the right to counsel's reality is itself an unfulfilled, illusory promise. Practically speaking, Gideon creates a small right, but casts a massive shadow.

To develop this claim and provide some optimism about where Gideon will take us next, the Essay proceeds in three parts. Part I provides a brief overview and tribute to the judicial and scholarly recognition that Gideon is the most prominent criminal procedure right. The focus here is on the rhetoric rather than the reality of Gideon because it is the idealized conception of Gideon, unencumbered by resource and other pragmatic constraints, that makes plausible the claim that the right to counsel is more important than all other criminal procedural rights. Part II identifies several concrete examples of Gideon's shadow effect, whereby a variety of limitations on non-Gideon rights are defended or justified because of Gideon's comparative or substitutive shadows. Finally, in Part III, I propose a reading of Gideon that facilitates rather than impedes the development of other rights, and I identify two recent cases that resonate with this approach. These two cases provide a modicum of optimism that Gideon is being disentangled from innocence and accuracy.


    Although the full promise of Gideon has never come to bloom, at least as a rhetorical matter, the case instantly entered the pantheon of great cases and never receded. (7) In Gideon, a unanimous Supreme Court described the right to appointed counsel as necessary to the great and "noble ideal" of fair trials, (8) and almost overnight the right became a symbol of America's success as a nation. Attorney General Robert Kennedy remarked within months of the Gideon decision that it had fundamentally changed "the whole course of American legal history." (9) Similarly, in 1964, Abe Krash wrote that Gideon reflects our Cold War sense of competition insofar as "it stands as a notice that in the free world no man shall be condemned to penal servitude without a lawyer to defend him." (10)

    The rhetoric surrounding the right has also enjoyed a unique ability to avoid vacillation and diminution over time. Whereas most Warren Court criminal procedure innovations, such as the exclusionary rule and Miranda, are under constant assault from the courts and the public, "no one seeks to overrule" Gideon; "the validity of Gideon--at least as an abstract matter--is universally accepted." (11)

    There is good reason for the uniquely forceful and sustained celebration of the Gideon ideal. As the Court itself explained, "the Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides he lost, justice will not ... be done." (12) More generally, Gideon is conceived of as a right without rival because of its procedural trifecta: Gideon is regarded as the most fundamental check on unfairness at trial, (13) Gideon is the strongest protection for the innocent, (14) and Gideon is the primary point of entry for most other constitutional protections. (15) Speaking to this latter quality, Yale Kamisar has described Gideon as the "master key to all the rules and procedures" of the criminal trial. (16)

    In short, although Gideon's promise has been substantially unfulfilled, (17) the public acceptance and symbolic meaning of this canonical right cannot be gainsaid. (18) In the abstract, Gideon stands as the most important constitutional protection for criminal defendants. Gideon is uniquely capable of protecting the innocent and promoting accuracy of result. (19) The point of this essay, however, is not to reiterate or challenge Gideon's primacy among rights, but rather to draw attention to its use as a justification for the curtailment of other rights.


    The mismatch between the ideal and the real in the Gideon context is itself cause for concern. The right to counsel as hailed by courts and commentators is significantly different than the reality of the right's application. The problem is amplified, however, when an abstract or symbolic conception of Gideon is used as the justification for limiting other rights--the ideal impacts the real. In this Section I will outline four examples where Gideon has emerged as a lever for reducing the likelihood of vindicating other rights. In addition to the judicial doctrines, I will provide two illustrative examples of scholarly works that also invoke Gideon as a justification for limiting other rights.

    1. Judicial Doctrines Developed in the Shadow of Gideon

      1. Retroactivity

        There are several judicial doctrines in the realm of postconviction litigation that explain or justify a limitation on the vindication of non-Gideon rights by reference to Gideon itself. (20) An illustrative example is the law of retroactivity, which applies Gideon's comparative shadow. In this context, because other rights do not enjoy the same canonical status, they are deemed less deserving of retroactive application. In addition, the law of retroactivity provides an insight into why Gideon is generally deemed comparatively more important: Gideon is understood as protecting the innocent and improving the accuracy of trials.

        The Court's current retroactivity doctrine was announced in Teague v. Lane, just after the twenty-fifth anniversary of the Gideon decision. (21) The rule is easily paraphrased: nothing is as important as Gideon, so nothing is retroactive. More precisely, under Teague, a new rule of procedure does not apply to a criminal conviction that is final unless it is a "watershed rule[] of criminal procedure." (22) Merely being fundamental "in some abstract sense is not enough," rather a rule is regarded as a watershed only if it implicates "the fundamental fairness and accuracy of the criminal proceeding." (23) A watershed rule of procedure, then, is a rule that protects the innocence-serving function of the trial and the basic fairness of the proceedings. Gideon, the Court has repeatedly told us, concerns the quintessential example of a right that safeguards the accuracy and innocence-protecting function of the trial. (24) Indeed, although Gideon was decided long before the current retroactivity doctrine was announced, the Court has described Gideon as "the only case that th[e] Court has identified as qualifying under this exception." (25)

        Thus, by relying on Gideon in the abstract--that is, the rhetoric of Gideon as a pillar of accuracy and fairness--the Court has curtailed the content of other rights in reality. Stated more directly, it is as though Gideon's "noble ideal," divorced from the reality of underfunding, is the measuring stick by which other procedural rights are evaluated. Not surprisingly, with Gideon in the...

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