Anthony Lewis is a columnist for The New York Times. He has twice won the Pulitzer Prize. He is the author of three books: Gideon's Trumpet, Portrait of a Decade and Make No Law: The Sullivan Case and the First Amendment. For 15 years, he was a Lecturer on Law at Harvard Law School, teaching a course on The Constitution and the Press. He has taught at many universities as a visitor, among them the Universities of California, Illinois, Oregon and Arizona. Since l983 he has held the James Madison Visiting Professorship at Columbia University. NACDL honored him in 1997 with a Champion of Justice Award for Journalism.
There could hardly be anything more familiar to criminal defense lawyers than the story of Clarence Earl Gideon. A drifter and ex-convict, seemingly the least influential of men, he insisted against all the odds that the Constitution of the United States entitled him to a lawyer at state expense when he was charged with breaking and entering the Bay Harbor Poolroom in Panama City, Florida. Without a lawyer, he was convicted and sentenced to five years in prison. He wrote a letter from prison to the Supreme Court, and on March 18, 1963, the Court overruled its earlier decisions and held that there could be no fair trial in a serious criminal case without a right to counsel for the defendant.
"This seems to us to be an obvious truth," Justice Hugo L. Black wrote in his opinion. But it is easy to overlook the obvious -- to forget what a difference a lawyer can make. So I found when I watched the filming of a movie based on my book, Gideon's Trumpet. The producers used an old courthouse south of Los Angeles as the setting of Gideon's second trial, this time with a lawyer, after his case was remanded from the Supreme Court.
One of the witnesses against Gideon was a taxi driver. He testified that Gideon had telephoned him around 2:00 a.m. and asked to be picked up on a corner outside the pool room, which had been burgled. The prosecutor asked: "Did Mr. Gideon say anything when he got in the cab?" The taxi driver answered: "Yes. He said, 'Don't tell anybody you picked me up.'"At the first trial Gideon, representing himself, asked no questions on cross-examination, leaving that damaging testimony untouched. But the second trial, as I watched its filmed recreation, was different.
It Really Makes a Difference
The lawyer who was appointed at Gideon's request to represent him, Fred Turner, was played by a skillful character actor, Lane Smith. After the taxi driver quoted Gideon's apparently incriminating statement as he got in the cab, Lane Smith asked, "Had he ever said that to you before?" The taxi driver answered: "Oh yes. He said that to me every time I picked him up." "Why?" "I think it was some kind of woman trouble." And Lane Smith, ad-libbing, walked over to the six-man jury, winked and said, "Well, we all know about that."
The director said "cut," and I turned to the person next to me and said, "My God, it really makes a difference to have a lawyer, doesn't it?"
Thirty-five years after the decision, Clarence Earl Gideon remains a fascinating figure in his cantankerous obsession with justice. But we have to take a less romantic view of what was accomplished in his case. Experience has taught us the need to amend Justice Black's statement 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 adjective "competent" must be inserted before the word "counsel" in the last phrase. And after counsel we must add "with adequate resources." There can be no fair trial of a poor person charged with crime unless he is assured of representation by competent counsel with adequate resources.
Competence is far from assured today in the lawyers appointed to represent indigent defendants. The American Lawyer sent reporters out five years ago to look at the realities of that representation, and the stories it told made depressing reading. Too often lawyers were appointed for political reasons, or because they had little or no practice, and they performed with a casualness -- to put it politely -- that shamed the ethical command of the profession that counsel owes the client zealous representation.
Bobby Houston spent 19 months in jail in Indianapolis without ever being tried. Four of those months came after the charge against him, child molesting, had been dismissed. The public defender handling his case never told him, or the prison authorities, about the dismissal. Houston finally got out of jail with the help of a chaplain and a newspaper reporter.
Politics and Money
Why hadn't the public defender informed the prisoner and his jailers that the charge had been dismissed? Houston kept trying to make collect calls to his lawyer from jail, but the lawyer refused to accept the charge. The American Lawyer came to no conclusions about the defender's performance, although we can at least surely say that he lacked due diligence. But politics and money are also involved.
At the time, the public defenders in Marion County, Indiana, which includes Indianapolis, were chosen by its six Superior Court judges. Each judge picked one -- and tended to choose someone from his political party, probably a contributor to his campaign for the judgeship. It was not exactly merit selection. And it was not likely to attract lawyers of high merit. At the time of Bobby Houston's case, Marion County public defenders were paid $20,800 a year plus $60 a month for all office expenses. They were so grossly underpaid and overworked that they often could simply not take collect calls -- hence Houston's problem.
However poorly compensated, someone who is called a public defender has no excuse for failing to get a client out of jail if the charges against him are dismissed. But the most dedicated lawyer could not do the job with the money that Indiana provided. That is the problem of resources, and it is a grim fact of life in large parts of the country.
In Detroit, which has an effective criminal justice system, poor defendants nevertheless suffer. In a case found by The American Lawyer, Linda Lambert was charged with urging a friend to commit a burglary that ended in murder. Tried by a judge without a jury, she was convicted and sentenced to 7 to 15 years in prison. Her court-appointed lawyer called no defense witnesses and spent five minutes or less cross-examining each prosecution witness. Why? One reason may be that court-appointed lawyers in Detroit get a flat fee, regardless of how much time they spend on a case. So there is an incentive to keep things short, and if possible get the client to plead guilty.
When a poor defendant faces the possibility of a death sentence, we might expect a greater assurance of competent counsel. There at least an appointed lawyer surely would provide dedicated representation. But that is not so, not at all. Stephen Bright has shown that in case after capital case, the performance of lawyers for indigent defendants has been dismal.
Judy Haney, tried for murder in Alabama, had a court-appointed lawyer who got so drunk during the trial that one day the judge held him in contempt and sent him to jail. The lawyer failed to introduce hospital records that would have corroborated Haney's claim that she had been beaten by her husband for years. She was sentenced to death. So was a schizophrenic Georgia man whose lawyer had not presented any evidence of his mental illness.
The American Bar Association (ABA) did a comprehensive study of state capital cases in which prisoners on death row took constitutional claims to the federal courts on habeas corpus. The study found that their claims were sustained in an astonishing 40 percent of the cases. One factor was largely responsible for the number of habeas corpus reversals, the ABA said: the way capital trials were conducted by unprepared, underpaid and incompetent defense lawyers.
The constitutional guarantee is said to be of competent counsel, but the Supreme Court has given the adjective so little meaning that it might almost be omitted. Those who have tried to litigate the issue of a defense lawyer's competence -- unsuccessfully -- speak of "the spoon test." If you hold a spoon up to a defense lawyer's mouth and it shows that he is breathing, he passes the competence test.
The problem of inadequate counsel for poor defendants, especially in capital cases, has become even graver in recent years because of what has happened to federal habeas corpus. The Supreme Court, at the urging of Chief Justice Rehnquist, has imposed ever tougher technical rules restricting issuance of the Great Writ. And now Congress has changed the statute to make it even more difficult to get a decision on the merits in a federal court -- no matter how tainted the state criminal trial was.
In fact this is not a happy time for civil liberties. The years of the Clinton Administration have seen some of the worst statutory incursions on those liberties: changes written into our permanent law. The virtual destruction of federal habeas corpus is one example. Another is a statute allowing the deportation on secret evidence of resident aliens alleged to have some connection with terrorism.
The 1996 immigration act contains a number of extremely harsh provisions on admission of foreigners to this country and deportation. The act makes it very hard for prisoners to bring civil rights actions challenging conditions in prisons -- conditions that in this country are too often degrading and cruel. Moreover, Congress at the urging of President Clinton has provided for the death sentence in dozens of federal crimes.
All this seems to me to put a new responsibility on lawyers and their associations. Despite the particular failures I have mentioned in this article, I am a passionate admirer of the legal profession. I have seen lawyers perform nobly -- that is not too strong a word -- in all kinds of cases over the decades, from those who defended supposed security risks in the McCarthy years to those who fight for immigrants and poor men and women on death row today. They have done so in many cases without compensation: financial compensation, that is. For there is compensation of another kind.
Standing up for justice is a privilege, after all: an honor that gives meaning to a lawyer's professional life. The lawyers who briefed and argued Gideon -- Abe Fortas and Abe Krash and John Hart Ely and others from the firm of Arnold, Fortas and Porter on behalf of Gideon; Bruce Jacob for the state of Florida -- performed a service that gave satisfaction to their lives and will forever mark their names with distinction. So it is with hundreds and thousands of American lawyers who struggle to maintain our constitutional commitment to ordered liberty.
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