2013]

Gideon at Fifty

71

GIDEON AT F IFTY
Gloria Cadder*
On March 18, 2013, Brandeis University invited a panel of guests to Rapaporte Treasure Hall to discuss the legacy of the Supreme Court Case Gideon v. Wainwright on its 50th anniversary. The Gideon decision was a rare move for the Supreme Court because it overturned a previous case, Betts v. Brady, and established the right to a lawyer for all indigent criminal defendants under the Sixth Amendment right to a fair trial. The guests included Margot Botsford, an Associate Justice on the Massachusetts Supreme Judicial Court; University President Frederick M. Lawrence, a professor, lawyer, and civil rights expert; William Leahy, the Director of the New York State Office of Indigent Legal Services; and lastly, Anthony Lewis, journalist and author of the definitive book on the case, Gideons Trumpet. Unfortunately, Anthony Lewis passed away a week after this event. The questions posed by moderator David Bunis, the University Chief of Staff, and an abridged transcript of the panelists responses follows.

QUESTION AND ANSWER

DB: Let me start our discussion by asking Anthony Lewis, what was it about the Gideon decision that you became so passionate about? AL: Something of rare importance was happening; a case [Betts v. Brady] that had become the basis for many, many criminal law cases in the Supreme Court had just disappeared at a whiff because the judges had decided they were wrong at the start the decision then was that you could deny the right to a lawyer, if the defendantthe criminal defendantdid not have any special circumstances making him disabled for arguing his case [] [Justice] Black thought that was just wrong from the start and he never stopped thinking that So when he said those words, Now
*

Undergraduate at Brandeis University, Class of 2015.

72

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

weve decided that we were wrong, it had a powerful emotional impact on me It was really a remarkable moment for me Of the oral arguments at the Supreme Court: It was both a very human argument and a very revealing one. After discussing Justice Blacks tenacity, other personal qualities, and other cases Black had a significant role in overturning: That was Justice Black, and he was the spirit behind this case, I always thought. Lewis relates the particular requirements for submitting documents to the Supreme Court when asking for a case to be heard, and then explains that there was an exception, for those who couldnt afford to submit multiple, typed copies. They could submit one copy, and it could be handwritten. And Gideons was handwritten, in pencil, on prison stationary. I saw right at the beginning that it was an unusual request, that it was a letter to the Supreme Court written in pencil by a prisoner and that was in itself a romantic idea, that you can be in a prison in Bradford, Florida and write a letter to the Supreme Court and think you had any hope of hearing your case. He did have a hope, didnt he? I could see that the fact that the Court had agreed to hear this case, this extremely obscure case, from one of the most obscure human beings in the United States, a poor prisoner in a Florida penitentiary. How can you think of anyone more remote? [] And the fact that the court had agreed to hear it led me to believe instantly that they were going to reverse Betts and Brady [sic]. Anthony Lewis goes on to discuss the two lawyers appointed to the case: Abe Fortas and Bruce Chaffee. He concludes with If I go on too long, youve got to shut me up. No one seemed very eager for him to stop.1 DB: [William Leahy], from your perspective as the defense counsel, public defender, your experience in the courtroom, and your perspective over these years, can you talk
1 Gideon at 50: Anthony Lewis recalls the key figures in the case, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=sbOvdvh928&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3sUTs

2013]

Gideon at Fifty

73

a bit about your view[on] the impact of Gideon over the past half-century? WL: There is no standard of uniform or quality in the United States. When Gideon was decided, the hope was, the dream was [] would every person regardless of wealth feel, sure of the support needed to have an effective defense with a lawyer by his or her side. And would the lawyer who was appointed feel sure he or she would have the support necessary to provide an adequate defense. And the good of the past fifty years is we have, literally, not just hundreds, but thousands, of lawyers who have dedicated their careers to providing effective representation for poor people. And I have been privileged to work with many, many lawyers who are at the top of their professionnot just the indigent criminal defense profession, but the entire profession [] Some states, and I like to think Massachusetts is one of them, have done quite an impressive job of extending that right to everyone who has legal entitlement to it. But in many other jurisdictions, and the jurisdiction I work in now in New York, in upstate New York, one of the things we are now doing, 50 years after Gideon, is extending the right to counsel to the first court appearance, when bail is set. In most of New York State, that right does not now exist, 50 years later, which is a shocking thing. I did not know it when I was in Massachusetts. And it is typical, of many other states [] The other factors, notwithstanding the many good lawyers who work to make the Gideon dream real: there are two major national realities that have to be recognized, and that I hope can be addressed in the second half-century. One is that this federal Constitutional entitlement under the Sixth Amendment is absolutely unfunded. The entire burden is placed on the states, and the localities within the states. The federal government has contributed next to nothing over 50 years in the way of financial support and in the way of nationally applicable standards to guide the representation [] The second thing is that even worse than the unfunded federal mandate is that the federal government, almost from the inception of Gideon, at least starting about ten years later, has devoted billions of dollars, and even millions annually, to state and local

74

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

criminal justice efforts, but it has virtually all been on the prosecution and police side. And weve become a much, much, much more punitive society; in the course of that, the burden and the final factor I should mention is that the Supreme Court at the same time has constantly extended the Gideon right, to juveniles, to civil commitment proceedings, to, suspended sentences that can result in incarceration, to misdemeanors. So the right becomes broader, the nation becomes more punitive, costs spike up, theres no support So there are, just many, many more forces at work in a negative or punitive kind of way that have kind of washed the Gideon dream and submerged it, but hasnt drowned it, but has submerged it, so that theres an awful lot of work to be done.2 DB: Justice [Margot] Botsford both as a trial court judge, and as an appellate judge [what is] your view, from the bench? MB: In support of Massachusetts it is worth noting that eight years before Gideon was decided, by rule the court, the Supreme Judicial Court required there to be counsel available for those who couldnt afford it in felony cases The Gideon dream is totally un-funded, and that means that states can deal with it as they will. What I would notice, just as a generalization, from sitting on the bench, is that what we have now is kind of a bifurcated system. Justice Botsford describes the MA system as one in which there is a state-funded staff of attorneys, which she deems excellent in general, and a division of private attorneys who take on some public defending. She describes the latter half of the system as less excellent, and lamented the lack of uniform standards. However, she also presents a rationale for having two separate divisions. If the whole system were state employees providing services, it wouldnt work legally because youd have conflicts of interest.
Gideon at 50: William Leahy, Chief of Indigent Services for the State of New York, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=Cb0kG6JSUG4&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3s UTs
2

2013]

Gideon at Fifty

75

And, it also raises the specter that if everyone is working for the state, then the state starts cutting the funding, and so the case load increases, et cetera, et cetera She praises the MA system.3 DB: From the prosecutors perspective, President Lawrence used to be an Assistant United States Attorney from the southern district of New York [after summarizing an op-ed by Paul Butler in the New York Times] where in the overall responsibility for the administration of justice do the sentencing guidelines and the discretion that prosecutors have, fit into this conversation? FL: President Lawrence remarks upon working with Paul Butler prior to his arrival at Brandeis. He hints that Butlers ideas are just crazy enough to be true. President Lawrence goes on to examine where Lewis and other scholars have found the passion in Blacks majority opinion in Gideon. Up until the Due Process Revolution, in many ways, one thought of protections of the law as substantive protections, rights that you had under the law, but the genius of the Due Process Revolution was that if there are not procedural protections put in place, all those substantive rights dont mean anything, if there isnt some way to enforce them procedurally. Quoting a former law clerk of Justice Brandeis, The only true integrity is the integrity of process What he really meant by that is that the systems got to be fair from the get-go but [the former clerk of Justice Brandeis] would certainly say, dammit, they better have a good lawyer to be able to represent them. Otherwise, theres no integrity of process. So where does the passion come from? I think the passion comes from the fact that this integrity of process, that this due process revolution, was really built along the notion that everyone who was a member of society certainly starts with
3 Gideon at 50: William Leahy, Chief, Margot Botsford, Associate Justice of the Supreme Judicial Court of Massachusetts, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=ck0zBWSK9cc&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3s UTs

76

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

inalienable rightswe know where that comes frombut has a right to have them enforced and hereheres the payoff, it triggers your obligations of government back, to help enforce them. President Lawrence goes on to say that the Sixth Amendment right to a fair trial applies to everyone, every member of society, and that even though the criminal justice system is especially likely to make us think in terms of we and them, the due process revolution teaches us to think of everyone as we. To describe the work of a prosecutor, President Lawrence quoted a Supreme Court opinion: Prosecutors are obliged to strike hard but fair blows. He says, Our job was not to see that the government won; it was to see that justice was done. I think the real challenge of the criminal justice system is to break down that we/they stuff.4 DB: Lets look ahead ten years where, in your mind, is this right to counsel heading? Is it going to go to a better place? And in your opinion what could be necessary for the political willif thats whats requiredto get there? WL: Mr. Leahy comments on the political divides between the right, which beliefs there is over-harsh sentencing of white-collar criminals, and the left, which focuses more on the lack of adequate representation for poor alleged criminals. He mentions a plan that he discussed with key members of the legal system in New York, for a National Commission on the Fair Administration of Justice, which he intends to be a unifying group. He says that there was great support for that project. Weve got to break down these interest group divides where its defense versus prosecution, right versus left I hope that this can merge into what in essence needs to be a political movement because the power of Gideon comes from a court decision; it has never actually captured national political support in a way that it needs to, to make it effective.
Gideon at 50:Presdient Lawrence on prosecution and defense, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=tc4Eru9yTI8&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3sUT s
4

2013]

Gideon at Fifty

77

AL: I dont disagree with a word of that. I think it was wonderful. Of course, the people who are actually responsible for much of the trouble we have were not at [the conference Leahy mentioned]: members of Congress and theyre the guys who pass these absurd laws, piling on these outrageous punishments, which cause a lot of the trouble Whats going to make that political will come? I think a celebration of Gideon, which is what were doing over this weekend and this week, is a good thing. I think [it will] get the public to understand that this is a moment of glory for the United States. This is us at our best, you know, making a difference in the decencies of life. MB: Im not as sanguine as others I totally agree that its political will, but I think that takes both a commitment to the idea that the best way to deal with crime is not locking everybody up. And it also takes money to supply the lawyers to make the good defense. And I dont know that we have that political will. I mean, even in this state [we passed a law last year that made the system more punitive.] So its just not clear to me that, theres much to be hopeful for, but I say that and then I listen to Tony, and I think I have to change my view. Its a very tough nut to crack because of the combination, which is a pretty lethal combination of people not wanting to spend more money on taxes and not wanting to, think about ways that you let out terrible criminals from prison. David Bunis comments that the cost of incarcerating someone should also be part of the political conversation. FL: I share her Honors skepticism that theres going to be political will. President Lawrence suggests combining the young lawyers and law school students who are suffering in the job market with the underserved population of criminal defendants.

78

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

WL: Good lawyering, even at public sector rates, costs money; its not cheap.5 The event closed with questions from the audience. One, from Leigh Swigart, regarded whether we could learn from models in other countries. William Leahy thinks that, the British system is an excellent one, and despite being a little bureaucratic, is worth emulating. The discussion involved several members of the audience, students, faculty and staff alike. All of the questions were well put and showed a genuine interest in the subject matter. Overall, it appears that this celebration of Gideon achieved what Anthony Lewis would want from such an event: it helped the Brandeis community to understand what a wonderful, but as yet unmet, promise the Gideon case represents.

Gideon at 50: Panel Discussion, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=2KE_cTRMX38&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3s UTs