Gideon v. Wainwright: a 40th birthday celebration and the threat of a midlife crisis.

• Author: Rashkind, Paul M.

The U.S. Supreme Court says I am entitled to be represented by counsel," the accused told the judge in anticipation of his trial for the crime of burglary. He was poor, unable to retain counsel, and was facing a felony trial. Few observers would doubt the accuracy of the defendant's explanation of his right to appointed counsel.

"I am sorry," the trial judge ruled, "but I cannot appoint counsel to represent you in this case.... I am sorry, but I will have to deny your request to appoint counsel to defend you in this case."

Generations of lawyers can cite from memory the case that holds the trial judge's ruling is wrong: Gideon v. Wainwright, 372 U.S. 335 (1963). Yet, the defendant was wrong and the judge was following Florida law. This was Bay County, Florida, August 4, 1961, and the accused was Clarence Earl Gideon. This was nearly two years before the U.S. Supreme Court decided that the Constitution guarantees the right to counsel for every person accused of a felony, in state and federal courts, and that for those who cannot afford counsel, the state must provide a lawyer free of charge.

The decision in Gideon, handed down on March 18, 1963, is about to turn 40, and as with all 40th birthdays, that's reason to celebrate. It's worth the time to reminisce and reflect on Florida's courtrooms before Gideon, the many interesting Floridians who had a hand in the development of the decision, and the future of indigent defense, particularly as Florida prepares to reallocate the funding of court-appointed counsel under Article V of the Florida Constitution.

Before Gideon, the constitutional right of an indigent defendant to court-appointed counsel was recognized only in federal court trials. Johnson v. Zerbst, 304 U.S. 458 (1938). When, during World War II, accused robber Smith Betts sought to have the federal constitutional right applied to the state of Maryland, the U.S. Supreme Court held that the Sixth Amendment did not apply to the states and did not require them to supply court-appointed counsel for criminal defendants. Betts v. Brady, 316 U.S. 455 (1942). That was the law on August 4, 1961, despite Clarence Gideon's somewhat different explanation of Supreme Court jurisprudence on that day.

In the years after Betts, however, many states began to provide court-appointed counsel to indigent defendants. Forty-five states had such a rule by the time Gideon was tried. Five southern states, including Florida, resisted the movement. There were some exceptions, even in Florida. A right to court-appointed counsel did exist in capital cases and for those who fit within a vague "special circumstances" rule, covering an accused "incapable of adequately making his own defense because of ignorance, feeble-mindedness, illiteracy or the like." Powell v. Alabama, 287 U.S. 45, 71 (1932).

Special circumstances were recognized on a case-by-case basis. In practice, the rule was difficult to apply and the finding was rarely made. Equally troubling, the U.S. Supreme Court found it necessary to reverse nearly every case brought to it in which a finding of special circumstances had been denied, yet the bulk of those denied a lawyer were incapable of perfecting appellate review of the denial of counsel.

In virtually all of Florida's counties, the majority of defendants were without legal counsel. They either pleaded guilty or represented themselves at trial, often with predictable results. They had no lawyer to appeal for them and rarely perfected one themselves. A letter handwritten by Gideon described a typical day in court:

One day when I was being arraigned, I seen two trials of two different men tried without attorneys. In one hour from the time they started they had two juries out and 15 minutes later they were found guilty and sentenced. Is this a fair trial? This is a common practice thru most of the state. (1)

It is difficult to envision now, four decades later, but prior to 1963, lawyers were likely to appear in Florida courtrooms only for the wealthy. Poverty carried the additional handicap of loss of the right to counsel.

Two Florida counties had voluntarily created public defender offices. These were the large metropolitan areas of Dade County and Broward County. A third, Duval County, had a court-appointed counsel system, and Hillsborough County was about to get a public defender office under the terms of a population act applicable only to Hillsborough County. (2) But how, one might fairly ask, could Bay County be expected to provide court-appointed counsel in the trial of all indigent defendants, when it had only 36 lawyers in the entire county, two of whom were the prosecutor and the judge, one of whom was not admitted to practice in Florida, and most of whom did not try cases or practice criminal law?

Considering both the stare decisis effect of Betts and the practical problems of the day, how did Gideon have a chance of establishing the existence of a constitutional right to court-appointed counsel? Good timing and a compelling argument by lawyers.

During the years following World War II and the Korean War, America was preoccupied with Communism, McCarthyism, the arms race, and the race to space. At the same time, the U.S. Supreme Court was brewing a renaissance of individual liberties, often directly overruling its own earlier decisions refusing to recognize the same rights and liberties. In 1954, the Court integrated public schools with its decision in Brown v. Board of Education, 347 U.S. 483 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896). Two terms later, the Court decided Griffin v. Illinois, 351 U.S. 12 (1956), requiring states to pay for appellate transcripts for those unable to afford their cost, implicitly ignoring the then-prevailing rule of federalism set down in Palko v. Connecticut, 3.02 U.S. 319 (1937). In 1957, despite a national anti-Communist fervor, the Court overturned anti-Communist Smith Act convictions in Yates v. United States, 354 U.S. 298 (1957), and for the first time set limits on the investigative authority of the powerful House Un-American Activities Committee. Watkins v. United States...