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March 29, 2013
Stuart Leavenworth: Fifty years later, 'Gideon' ruling loses its champion


(March 29) Fifty years ago this month, the U.S. Supreme Court handed down a monumental decision, ruling that state courts were required to provide legal counsel in criminal cases for defendants who could not afford to pay for their own lawyers.

Up until that point, defendants in non-capital cases had no automatic right to legal representation. Often the poor and illiterate were sent to prison after being forced to defend themselves.

Gideon v. Wainwright was one of the triumphs of the Warren era, the period from 1953 to 1969 when Chief Justice Earl Warren, former governor of California, led the high court. And like millions of people, I learned of its significance by reading "Gideon's Trumpet," a 1964 book by Anthony Lewis, a New York Times reporter and columnist who passed away Monday at the age of 85.

Lewis, who had already won two Pulitzer Prizes by the time "Gideon's Trumpet" was published, was one of the most influential journalists of his generation. I had the good fortune to take a class from him at the Columbia University Graduate School of Journalism, where he co-taught a First Amendment course with Benno Schmidt, then the dean of the Yale Law School.

The "Tony and Benno" show was taught in the Socratic method, with the two scholars using a numbered seating chart to call upon students randomly and grill them on case law. Hands down, it was the most entertaining class of my college years, and the most terrifying.

Lewis earned his reputation writing and thinking about free speech issues. But he'd also want to be remembered for his work in documenting the due process travesties that preceded and followed the Gideon decision.

"Gideon's Trumpet," a play on words, chronicles the case of Clarence Earl Gideon, a drifter accused of breaking into a pool room in Panama City, Fla., and stealing from a cash register. Police arrested Gideon solely on the account of a witness who reported he had seen Gideon in the pool room that morning. After a judge refused Gideon's request for a lawyer, a jury convicted him and sentenced him to five years in state prison.

From his prison cell, Gideon read up on the law and appealed to the Supreme Court, arguing that the state court, by denying him counsel, had violated his due process rights under the Sixth and 14th amendments.

The high court accepted the case, and assigned Abe Fortas - a future Supreme Court justice - to be Gideon's counsel. On March 18, 1963, the court decided in favor of Gideon, ruling that access to counsel was a fundamental right.

Justice Hugo Black handed down the court's opinion, stating: "Reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."

The Gideon decision helped spark the creation of a public defender system in state courts, bringing some measure of fairness to thousands of indigent defendants. But its impact was not as broad or enduring as Lewis had hoped.

Ten years ago, writing in the New York Times on the decision's 40th anniversary, Lewis lamented the "endless failures" to deliver on the promise of Gideon. "Many states and localities offer not even the minimal level of financial support needed for an adequate defense," he wrote. "And far too often the lawyers provided for indigent defendants have not met the barest standards of competence."

Why have we failed to deliver on this promise? One explanation, Lewis wrote, was the natural inclination of politicians to pander to a "tough-on-crime" electorate. "Legislators see no votes in assigning competent lawyers for poor defendants," he wrote. "The Clarence Earl Gideons of this world are constituents who can safely be ignored."

But the answer doesn't just stop there. No other Western country has such tough sentences or brutal conditions in its prisons. And following the 9/11 attacks, the federal government claimed authority, like never before, to suspend normal due process protections.

"In two cases now before the courts, Attorney General John Ashcroft is asserting that President Bush has the power to detain any American citizens indefinitely, in solitary confinement, without access to a lawyer, if he, the president, designates the detainee as an 'enemy combatant,' " Lewis wrote.

"The detainee cannot effectively challenge that designation. A court may hold a habeas corpus proceeding, but the government need produce only its own assertions of evidence, not subject to cross-examination."

Lewis, despite such writings, was not an absolutist when it came to constitutional protections. He believed the First Amendment and other cornerstones of the Bill of Rights had limits.

He infuriated some purists by arguing that the First Amendment's press clause ("Congress shall make no law ... abridging the freedom of speech, or of the press") did not give the media a far-reaching special status. He mainly saw the First Amendment as a bulwark against government censorship.

Yet when it came to basic principles of due process, Lewis never wavered. He believed, as Justice Black did, that "when the state brings its weight down on an individual, he or she cannot get justice without the help - the effective help - of a lawyer."

On the 50th anniversary of Gideon, it is impossible to know whether Lewis would be optimistic or pessimistic about the fair administration of justice.

Surely he would want others to step up to ensure that Gideon's Trumpet isn't silenced.

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