Gideon v. Wainwright - From a 1963 Perspective

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

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. O FFENSE L EVEL .............................................................................. 2044 B. S TARTING P OINT /S TAGES ............................................................... 2046 C. T HE A SSISTANCE OF E XPERTS .......................................................... 2048 D. E FFECTIVE A SSISTANCE ................................................................... 2049 2036 IOWA LAW REVIEW [Vol. 99:2035 INTRODUCTION Gideon v. Wainwright 1 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. Brady 5 ) 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. 2014] GIDEON V. WAINWRIGHT – FROM A 1963 PERSPECTIVE 2037 significance than two other criminal procedure rulings decided on the same day— Douglas v. California 7 and Fay v. Noia . 8 This Essay recounts the analysis that led me to view Gideon in 1963 as an important, but limited, decision— certainly not one destined to be an all-time landmark ruling. The Gideon extension of the state’s obligation to provide appointed counsel for indigent defendants struck me in 1963 as not nearly as significant as other recent developments in the rapidly expanding constitutional regulation of the state criminal justice processes—in particular Mapp v. Ohio ’s application of the Fourth Amendment’s exclusionary rule to the states. 9 Gideon overruled Betts v. Brady , which had held that the state’s obligation to provide appointed counsel was limited to instances in which the special circumstances of the case required counsel’s assistance in order to gain a fair trial. 10 Overruling Betts in 1963 did not mean as much as it would have if done shortly after Betts was decided in 1942. In the intervening years, the Court had recognized that appointment was required in all capital cases (the potential of the death penalty apparently constituting a per se special circumstance). 11 In non-capital felony cases, “special circumstances” had come to include some very common circumstances. 12 Appointment of counsel had been required simply because the prosecution was brought under a statute that could present interpretative issues as to its coverage, 13 or trial proceedings offered an opportunity to raise an objection or pursue a strategy that could not readily be evaluated by a layperson. 14 Thus, a leading casebook, in adding the 7. Douglas v. California, 372 U.S. 353 (1963) (discussed in CRIMPROC, supra note 1, § 11.1(d)). 8. Fay v. Noia, 372 U.S. 391 (1963) (discussed in CRIMPROC, supra note 1, §§ 28.3(b), 28.4(b)). Gideon had received considerable public attention because it overruled Betts , but apart from a “handful of states,” prosecutors were more likely to be concerned about the impact of the other two cases. Israel, supra note 1, at 212–13. Douglas imposed an appointment requirement that currently was met by “[o]nly a handful of states,” and Noia had dramatically expanded federal habeas review of state convictions by allowing review of constitutional claims forfeited in state proceedings, provided counsel had not engaged in a deliberate bypass in failing to raise the claim there. Id. at 213 & nn.8–9. 9. Mapp v. Ohio, 367 U.S. 643, 655 (1961); see CRIMPROC, supra note 1, § 3.1(a). 10. Betts , 316 U.S. at 471–72. 11. See Israel, supra note 1, at 249–50. Justice Clark joined in the overruling of Betts on the ground that having a lesser standard for non-capital cases was inconsistent with the thrust of his opinion for the Court in Kinsella v. United States ex rel. Singleton , 361 U.S. 234 (1960), rejecting such a distinction in the application of the Fifth and Sixth Amendments to the trial of civil dependents of military personnel for overseas offenses. See Gideon v. Wainwright, 372 U.S. 335, 348–49 (1963) (Clark, J., concurring). 12. See Israel, supra note 1, at 251–61. 13. Chewning v. Cunningham, 368 U.S. 443, 447 (1962). 14. Hudson v. North Carolina, 363 U.S. 697, 701–04 (1960). 2038 IOWA LAW REVIEW [Vol. 99:2035 Gideon case to its 1963 supplement, asked: “After Chewning v. Cunningham what was left of Betts v. Brady to overrule?” 15 As Justice Harlan noted in his Gideon concurrence, 16 the state court rulings applying Betts had often failed to take into account this broad reading of special circumstances. Thus, the practical impact of Gideon , in flatly rejecting Betts , had the potential to be substantially greater than the limited doctrinal extension of the constitutional right. However, by 1963, only five states were regularly relying on Betts . 17 The remainder, as a matter of state law or state practice, were regularly appointing counsel in at least all felony cases (and Gideon presented only a felony case 18 ). The limited practical and doctrinal impact of the Gideon holding did not necessarily define Gideon ’s place in the rapidly expanding field of constitutional criminal procedure. Gideon might be assigned far greater significance as a result of the implications of that decision for issues that went beyond the overruling of Betts . Before deciding against writing about Gideon ’s contributions to constitutional criminal procedure, I explored what Gideon might contribute to the resolution of a series of these other issues. 19 The issues I considered were: (1) the relationship of Fourteenth Amendment due process to the guarantees found in the Bill of Rights; (2) the expansion of constitutional regulation to eliminate distinctions based on indigence in the administration of the criminal justice process; and (3) a series of questions relating to the interpretation of the Sixth Amendment right to counsel. 20 My conclusion was that Gideon offered very 15. See WILLIAM B. LOCKHART, YALE KAMISAR & JESSE H. CHOPER, 1963 SUPPLEMENT TO DODD’S CASES ON CONSTITUTIONAL LAW 579 (1963) (citation omitted); see also The Supreme Court, 1961 Term , 76 HARV. L. REV. 75, 115 (1962) (“After Chewning , little may be left of Betts . . . . It would seem preferable for the Court squarely to overrule Betts .”). 16. See Gideon , 372...