January/February 2003, Page 61

Gideon's Trumpet: The Clarion Call for Justice
By

For more than a dozen years, Clarence Earl Gideon lay buried in a nondescript, unmarked grave in Hannibal, Missouri. Most Americans outside of the legal community (and many within it) would neither recognize Gideon’s name, nor understand the seismic impact he had on our legal system. Fortunately, Anthony Lewis, the renowned journalist now retired from The New York Times, chronicled Gideon’s saga from the filing of his hand-written petition for writ of certiorari with the Supreme Court to the momentous decision of March 18, 1963. Lewis brings to life the story of the man behind the case, the legal machinations of the court appointed lawyer (and others working with him) toiling on Gideon’s behalf and the inner-workings of the Supreme Court. By telling the story, Lewis has preserved an important piece of legal and social history and we are all the richer for his doing so.

First published in 1964, Gideon’s Trumpet is a timeless treatment of one man’s passionate quest to right a perceived wrong and his unfailing belief that when the Constitution’s Sixth Amendment declared he had a right to counsel, the Constitution meant what it said. What he sought, really, was justice. Of course, Gideon’s quest was not his alone after the petition was granted, and it did not take place in a vacuum, but without his belief that the right to counsel had meaning for even the destitute, change would likely have taken significantly longer.

Clarence Gideon had spent a considerable portion of his adult life in and out of prisons. While he could not fairly be characterized as a professional criminal, or violent person, he never really adjusted to mainstream life. As Lewis puts it, “[T]hose who had known him, even the men who had arrested him and those who were now his jailers, considered Gideon a perfectly harmless human being, rather likeable, but one tossed aside by life. Anyone meeting him for the first time would be likely to regard him as the most wretched of men.” Despite this, Gideon had not surrendered his humanity. He still cared about life and freedom and maintained a keen sense of justice; he felt that he had been treated unfairly by Florida and was determined to try to correct it.

Gideon was arrested in 1961 and charged with breaking and entering a poolhall in Panama City, Florida with intent to commit larceny. When his case was called for trial Gideon was asked whether he was ready to proceed, and he replied that he was not. When questioned why he was not ready, he informed the trial court that he had no counsel, and the trial court asked Gideon whether he knew the case was set for trial that day. Gideon replied that he knew the case was set for trial, and he was then asked why he had not secured counsel to be prepared to go to trial.

Lewis writes, “The defendant answered the Court’s question, but spoke in such low tones that it was not audible.” The trial judge then directed Gideon to come closer to the bench and asked Gideon to repeat what he had said. “Your Honor, I said: I request this Court to appoint counsel to represent me in this trial.” The judge replied, “Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint counsel to defend you in this case.”

Gideon was thus compelled to represent himself and, despite trying his best, was, predictably, convicted by the jury. He was sentenced to serve five years in the penitentiary and while there he pursued his appeal, based on the pro se record he had made. Gideon did not know it at the time, but he had properly presented, framed, and preserved the issue that would ultimately create a near revolutionary change in the way the states were required to treat indigent defendants.

The claim that Gideon pursued seems basic today: to try him for a felony without providing him counsel when he was too poor to afford it deprived him of due process of law. While it seems so simple, what Gideon did not know was that he would be challenging precedent that had been established merely twenty years earlier in Betts v. Brady, a case in which the Supreme Court, by a vote of six to three, declared that the due process clause of the Fourteenth Amendment provided no guarantee of counsel in state criminal cases.

If Gideon were to prevail in his quest for the right to counsel, the Court would have to be persuaded to reverse Betts. A significant part of Gideon’s Trumpet is devoted to the strategies of Abe Fortas, a legendary lawyer of the noted Washington, D.C. firm of Arnold, Fortas & Porter (now known as Arnold & Porter) and the legal team he assembled from the firm to decide upon the arguments to be used to try to persuade the court to reverse Betts and announce a new principle of constitutional law.

Although Fortas was used to the rarefied air of the corridors of power in Washington, having served in the FDR administration and, at the time of his appointment to represent Gideon in the Supreme Court, was a trusted friend and counselor of President Lyndon Johnson, he threw himself into his task. By the time he was appointed counsel for Clarence Gideon, Fortas had acquired the reputation as one of the nation’s outstanding appellate lawyers with significant experience arguing before the Supreme Court. Even though his clients ranked among the Fortune 500, Fortas had maintained more than a casual interest in criminal law, albeit, as Lewis observed, “more on the philosophical side than in practice.” As a member of the committee suggesting revisions to the rules of criminal procedure, he was acquainted with Chief Justice Earl Warren and counted among his friends Justices Black, Brennan and Douglas. Obviously, Abe Fortas was neither a stranger to the Supreme Court, nor intimidated by the prospect of advancing Gideon’s cause.

Much of Lewis’ story concerns the strategies involved in persuading the Court to overrule Betts. Betts had sought to establish the principle that the due process clause of the Fourteenth Amendment obligated the states to furnish counsel in criminal cases. The Court’s majority held that whether the absence of counsel in a state conviction made the trial lacking in fundamental fairness was an individualized question to be found from all of the circumstances of each particular case.

Justice Hugo Black dissented in Betts and believed that the Fourteenth Amendment had been intended to incorporate the Sixth Amendment and its right to counsel. He believed that the right to counsel was a fundamental right and concluded his dissent by observing that a criminal defendant should not be “deprived of counsel merely because of his poverty. Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.” Lewis observes that the decision in Betts was the subject of severe criticism by commentators and lawyers alike, however, it retained its vitality and was firmly established at the time Gideon’s hand-written petition was filed.

In Gideon’s Trumpet, Lewis traces the evolution of the arguments that were briefed by counsel for Gideon and shows how various theories were considered, tested and either chosen or discarded. Ultimately, five sections were decided upon for inclusion in the Gideon brief, each addressing concerns which had been articulated over the years. The briefing and argument is a testament to the dedication and skill with which Gideon’s counsel approached the huge task of establishing a constitutional right to counsel. Those efforts were rewarded because on March 18, 1963, a unanimous Supreme Court reversed Betts v. Brady and announced a new guiding principle of constitutional law: due process requires that indigent defendants be provided with counsel. Although the decision was a great victory for Clarence Earl Gideon, it too was a victory for Justice Hugo Black who wrote the unanimous opinion for the Court. In many ways, Gideon’s view and that of Black were similar, and Justice Black, as Lewis so ably shows, never abandoned his deeply held belief that no society that called itself civil could decline to provide counsel to those too poor to hire one.

As a result of his Supreme Court victory, Clarence Gideon was granted a new trial. This time when he appeared for trial in the Circuit Court of Bay County, Florida, Gideon had a lawyer, and the lawyer made a difference. The jury acquitted Gideon in his retrial showing, in just one person’s case, what we know to be true: The right to counsel has profound meaning in the lives of those who are accused.

While the years have dated some of the observations made by Anthony Lewis in Gideon’s Trumpet, the story endures. It is the story of the triumph of a “little guy” who dared believe that he could correct an injustice. As the late Robert F. Kennedy said, “If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell . . . to write a letter to the Supreme Court . . . the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter, the Court did look into his case . . . and the whole course of American legal history has been changed.”

In 1984, nearly thirteen years after he was laid to rest in the unmarked grave in Hannibal, Missouri, the Eastern Missouri chapter of the ACLU placed a marker on Clarence Gideon’s grave. The marker reads, “Each era finds an improvement in law for the benefit of mankind.” Those eternal words are a fitting tribute to an ordinary American who believed in justice and pursued it with a passion. Gideon’s Trumpet is an interesting and well written recognition of that man and reminds us that there are those rare times when one person can be a catalyst for change.

Stephen R. Glassroth is a criminal defense lawyer in Montgomery, AL and a member of NACDL’s Board of Directors. (334) 263-9940 E-mail: srg@glassroth.com


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org