Gideon v. Wainwright - From a 1963 Perspective

• Author: Jerold H. Israel
• Pages: 2035-2057

2035

Gideon v. Wainwright – From a 1963

Perspective

Jerold H. Israel

INTRODUCTION .................................................................................... 2036

I. THE FOURTEENTH AMENDMENT ISSUE ................................................ 2039

II. INDIGENT EQUALITY ............................................................................ 2041

III. SIXTH AMENDMENT ISSUES .................................................................. 2043

A. OFFENSE LEVEL .............................................................................. 2044

B. STARTING POINT/STAGES ............................................................... 2046

C. THE ASSISTANCE OF EXPERTS .......................................................... 2048

D. EFFECTIVE ASSISTANCE ................................................................... 2049

2036 IOWA LAW REVIEW [Vol. 99:2035

INTRODUCTION

Gideon v. Wainwright1 is more than a “landmark” Supreme Court ruling

in the field of constitutional criminal procedure.2 As evidenced by the range

of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the

legal academy)3 and Gideon’s inclusion in the basic coverage of high school

government courses,4 Gideon today is an icon of the American justice system.

I have no quarrel with that iconic status, but I certainly did not see any such

potential in Gideon when I analyzed the Court’s ruling shortly after it was

announced in March of 1963. I had previously agreed to write an article for

the Supreme Court Review’s coverage of the Court’s 1962–63 term. Phillip

Kurland, the Review’s editor, made Gideon my assignment, noting that the

Court during that term had decided numerous constitutional criminal

procedure cases and Gideon clearly was the most prominent of those rulings.

As my research progressed, I came to the conclusion that Gideon was more

significant as a case study in the crafting of an opinion that overruled a

previous decision (Gideon had overruled Betts v. Brady5) than as a

contribution to the field of constitutional criminal procedure. Indeed, as I

noted in the introduction to my article on Gideon and the “art of

overruling,”6 Gideon appeared to have less doctrinal and practical

1. Gideon v. Wainwright, 372 U.S. 335 (1963). I have commented more extensively on

Gideon and other right-to-counsel cases in two sources that will be cited throughout this article:

Jerold H. Israel, Gideon v. Wainwright: The Art of Overruling, 1963 SUP. CT. REV. 211, and 3

WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING, & ORIN S. KERR, CRIMINAL PROCEDURE

§§ 11.1.10 (3d ed. 2013) [hereinafter CRIMPROC], available at Westlaw.

2. The “landmark” designation might suggest a very exclusive club, but dozens of

criminal procedure rulings have been admitted to membership if the test is frequent

commentator description of a decision as a “landmark” ruling. My November 1, 2013 search of

the Westlaw database for law reviews, texts, and bar journals indicates that three Supreme Court

decisions from the 196263 term alone have been described as “landmark” criminal procedure

rulings in more than twenty publications. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963)

(eighty-three publications in Westlaw search results); Fay v. Noia, 372 U.S. 391 (1963) (twenty-

nine publications—referring to the status of Fay at the time of decision and not today, as it was

later overruled); Gideon, 373 U.S. 335 (403 publications). This is not to suggest that all

landmarks are equal. In casebooks, landmarks often become reduced to note cases, but Gideon

at year 50 has escaped that fate. Whether it will retain that status as long as Boyd v. United States,

116 U.S. 616 (1886), remains to be seen.

3. See, e.g., Consulate Celebrates 50th Anniversary of Gideon v. Wainwright, CONSULATE GEN.

U.S. SHANGHAI - CHINA, http://shanghai.usembassy-china.org.cn/033012gideon.html (last visited

May 20, 2014); Gideon v. Wainwright—Case Providing Defendants an Attorney—Turns 50, CBS NEWS

(Mar. 16, 2013, 1:32 PM), http://www.cbsnews.com/8301-33816_162-57574701; Bill Mears,

‘Gideon’ at 50 and the Right to Counsel: Their Words, CNN, http://www.cnn.com/2013/03/18/

justice/Gideon-own-words (last visited May 20, 2014).

4. See, e.g., COLORADO MODEL CONTENT STANDARDS: CIVICS 13 (1998), available at

http://www.lawanddemocracy.org/pdffiles/civics.pdf; United States Era 9, NAT’L CENTER HIST.

SCHS., http://www.nchs.ucla.edu/Standards/us-history-content-standards/us-era-9-1 (last visited

May 20, 2014).

5. Betts v. Brady, 316 U.S. 455 (1942).

6. See Israel, supra note 1, at 211 n.1.