COMMENTARY: Gideon at 60; A right to a lawyer

This commentary was contributed by Gregory LaForge. The opinions expressed do not necessarily represent BenitoLink or other affiliated contributors. BenitoLink invites all community members to share their ideas and opinions. By registering as a BenitoLink user in the top right corner of our home page and agreeing to follow our Terms of Use, you can write counter opinions or share your insights on current issues.

You get home from work and turn on your favorite cop show.  The cops bust some poor guy, handcuff him, and ‘read him his rights’, only this time when the defendant says that he wants a lawyer, the cops tell him that he can’t have a lawyer until they are done questioning him, and if he can’t afford a lawyer, that’s just too bad, because he is not entitled to a lawyer.  He gets to represent himself; whatever happened to “You have the right to a lawyer before questioning and if you cannot afford a lawyer, one will be appointed to represent you.”?  Read on.

On March 18, 2023, America celebrated the 60^th anniversary of the landmark 1963 U.S. Supreme Court decision in Gideon v. Wainwright, in which a poor Florida prison inmate caused the single biggest change in the history of the U.S. criminal justice system.  Before Gideon, persons accused of crime could be sent to prison without any representation by a lawyer unless they were wealthy enough to hire one.  As a result of Gideon, the quality and fairness of the justice system, and its ability to guard against conviction of the innocent, have been vastly improved.

In 1961 Clarence Earl Gideon was accused of breaking into and entering the Bay Harbor Poolroom in Panama City, Florida.  When brought to trial, Gideon, a drifter without a dime in his pocket, and too poor to hire a lawyer, asked that the state appoint counsel for him.  His request was denied based upon a 1942 U.S. Supreme Court case, which said that the right to a lawyer is not essential to a fair trial.  Gideon was forced to defend himself.  He was found guilty and sentenced to five years in prison.  From prison, Gideon filed a handwritten petition, in forma pauperis, to the U. S. Supreme Court, asking that his conviction be overturned on the basis that he was denied a right to a fair trial, because he did not have the assistance of an attorney.  In 1963, the U.S. Supreme Court agreed to hear Gideon’s case and ruled that a state must provide legal counsel to anyone charged with a felony who cannot afford a lawyer.  The U.S. Supreme Court found that the Sixth Amendment’s guarantee of counsel is a fundamental right, essential to a fair trial.  Gideon was retried, this time with the assistance of a prominent attorney named Abe Fortas, who would eventually become a justice on the U.S. Supreme Court, and guess what; He was acquitted of all charges.

If the landmark case of Gideon stands for anything, it stands for the right of a criminal defendant to a vigorous defense. Many times people assume that the right to a lawyer means that you have someone to stand next to you while pleading guilty. It matters not that the attorney is standing, sleeping, or generally incompetent, as long as one is appointed. In fact, most prosecutors wish all defense attorneys would roll over; it makes their jobs easier, and they can ‘pad’ their conviction rates. U.S. Supreme Court Justice Hugo Black, who wrote the majority opinion in Gideon, felt that the right to counsel was much more than that. He felt that one should be entitled to a vigorous defense and a vigorous investigation. Justice Black was subsequently vindicated after the second trial in Gideon, when the defendant was acquitted.

The need for defense counsel in criminal trials continues to be an obvious truth.  When defendants are denied the assistance of counsel or elect to represent themselves, the government’s evidence and legal arguments do not receive meaningful adversarial testing, and the danger of unjust conviction increases dramatically, as evidenced by recent high profile cases that have been overturned, costing taxpayers millions of dollars.

While Gideon involved a felony charge, the Supreme Court has since extended its ruling to all cases involving a potential loss of liberty ( i.e. misdemeanors).

It will probably surprise you to know that a defendant in this country can still face criminal charges, with loss of liberty, without the right to counsel.  Gideon’s requirement of counsel does not extend to Indian reservations. Indigent Indians facing prosecution, alone among all Americans, have no right to counsel.

As the former public defender, quality public defense is essential for a functioning criminal justice system.  Anybody who has been accused of a crime deserves the best defense possible, (regardless of race, creed, color, or lack of a substantial bank account)- otherwise the system breaks down.  Our system relies upon the assumption that you are innocent until proven guilty.  We need to educate the public about the importance of that statement. A lot of money is spent by the prosecution, but in order to have balance in the system, there must be an adequate public defense.

As defenders, we witness the exercise of the enormous official power  described in Gideon.  As stated in Gideon, whenever we witness abuse of power, defenders become a fearless voice for the accused and  lawyers in criminal cases are necessities, not luxuries.

In closing, the Gideon case stands as a milestone in American constitutional law because it affirms a principle that is basic in a free and just society.

Gregory M. LaForge

Former prosecutor and public defender, and current criminal defense attorney