tv Gideon v. Wainwright and the Right to Counsel CSPAN May 28, 2017 5:00pm-6:01pm EDT
cable television companies and is brought to you today by your cable or satellite provider. the sixth amendment to the constitution gives the right to counsel. theext, we hear about supreme court case that extended that right to criminal defendants at the state level. a panel of judges and attorneys discusses witty inverses gain right -- gideon versus wainwright. about one hour. >> good morning everyone. i am vice president of the supreme court historical society. i am delighted to welcome all of you here to this very interest think program where having tonight. i must ask everybody to be sure
your cell phones are totally off because it will interfere with the sound system in the courtroom. we are here tonight with a program we are cosponsoring with the supreme court alumni association. we are delighted to be a cosponsor with them. the program was brought to us by several people from that organization. let me make sure i get them right. stephanie, matthew, elizabeth. who really came up with the idea for the program and we are very happy to be heard to present it to you. we are also particularly happy to have as our host justice breyer who will speak to you in a minute. i will tell you briefly what you don't know already about justice breyer. he is a californian. study that stanford, oxford, then harvard law school. became a law clerk europe the
supreme court in 1964 which happens to be one year after gideon v. wainwright, so he missed that activity. then he was a counsel to the senate judiciary committee, also very active in the academic world. president carter appointed him to the first circuit in 1980. he served therefore 14 years. president clinton appointed him to this court where he became one of now seven justices who also served as a law clerk in this court. he has been on the court obviously now since 1994 for 11 years. he was the most junior justice on the court, almost broke a record for that. now he is moved up quite handsomely and seniority. it is my pleasure to have justice breyer speak to us tonight.
[applause] justice breyer: thank you for introducing the introducer. i love to be at these, always interesting. usually just one person speaking about history and we have more. so what will be four times as interesting as usual. this is a joint program between the supreme court historical society and the fellows alumni program. both of these organizations where the brainchild of chief justice burger. when he joined the court, he quickly noted that every other branch has ancillary organizations. i mean, think of how many deep president has. i mean, really. we have not even thought of having securities and exchange commission -- in 1930 -- well,
these programs, these organizations help promote their work. in 1973, the judicial fellows program was established. it is now known as the supreme court fellows program to bring midcareer scholars to the court. a very good idea. we have the federal judicial center, the administrative office of the courts and mount the sentencing commission and they go to all these different organizations and survey year-long fellowship where they learned something about judicial management. i have often wondered, why do the law schools not have two or three people directly engaged in that. it is a very important field and everybody on the bench thinks that and acquaint few of lawyers do as well. but to complement the fellows
program, the supreme court fellows alumni association was established in the year 2000. it has a network so former fellows can remain connected and continue to exchange ideas. they have is their goal supporting and enhancing the fellowship efforts to improve understanding of the judiciary. i hope you are involved in that. it is so important, people don't know about it. the high school students do not. college students do not. we all can help there. they provide a mental group to the current class of fellows. the alumni association currently has 130 fellows working in a wide range of disciplines across the country and the globe. after founding the fellows program, chief justice burger turned his attention to promoting the history of the supreme court and improving understanding of the history. in 1974, he founded the supreme court historical society and ask them to save documents and artifacts related to the court
and engage in outreach by publications and lectures. since that time, the society has grown to 4000 members. a very fine organization. it has collected portraits of every supreme court justice. i don't know about is the most important but it is a task. that publishes the journal of history three times a year, that i say is important. an annual reenactment of significant history and its website is a wonderful resource for anyone interested in supreme court history and i recommend it to you, it is great. i think chief justice burger would be well-pleased to see these organizations he created working together this evening. tonight's panel is going to discuss gideon v. wainwright and its historical significance. our first panelist is over on the left, he was with chief justice warren the year he was on gideon versus wainwright.
prior, he was a chair of jones j, and adjunct professional at the university of virginia law school, georgetown law center, he served as a law clerk to justice reed and justice burton from 1961 to 1962. he is co-author of the chapter on patents, dad is a task and very important. judge james bos berg joined some on the panel. he was appointed to the district of columbia and march 2011 and served as law clerk to judge dorothy nelson on the ninth circuit. following is a clerk who was a litigation associate in san francisco from 1991-1994.
at kellogg huber from 19 95-1996, and in 1996 he went to the u.s. attorney's office for the district of colombia as a united states attorney. he was there for five point i've years and specialized in homicide prosecutions, the most difficult part. in september 2002 he became an associate judge at the district of columbia superior court where he served in the criminal army in domestic violence until his appointment to the bench in 2011. he also serves in the united states foreign intelligence surveillance court, position he took on in may 2014 after he was appointed by the current chief justice john roberts. jon stewart is an assistant u.s. attorney and is a director of training for the u.s. attorney's office for the district of columbia.
the largest u.s. attorney's office in the united states. he joined the u.s. attorney's office in 1999 and has prosecuted numerous violent and dangerous crimes including murder cases, cases involving human trafficking. she received a host of awards throughout her career with special achievement and merit awards. if you have someone who has been in a u.s. attorney's office, what was your favorite job? the odds are they would say, that one. elizabeth woodcock is an associate attorney in the criminal justice euro. she is a retired prosecutor, having served as a u.s. attorney in the district of maine, the district of columbia, and the district of vermont. in 1996-1997 mrs. woodcock was assigned to the u.s. sentencing commission. i served on that for a while, it
is not an easy job. upon graduation from law school, she was with the main judicial court. she has the secretary -- she is the secretary of the u.s. supreme court association and the treasurer for the new hampshire and chapter of the federal bar association. miss woodcock is also the moderator this morning. i could say great deal of enormously favorable things about each panelist which i would do if we had time but we don't have time, so i will not. i would rather they share their insights about clarence gideon and his famous case. woodcock, the floor is yours. >> earl warren's biographer wrote that the gideon decision that notate also affirmed that -- no tail so affirmed american
democracy. no story broadcast around the world so clearly proclaimed that not just the rich received justice in the american courts. i would like to ask my panelist to start out and tell us your general thoughts on this historic decision. >> at the time i clerked here and saw it unfold. i think it was a bit like going to watch shakespeare's hamlet in the sense that you knew what was going to happen but it was interesting to watch the performance anyway. i think there was not a large of doubt about how it would come out. it was inconsistent that it was decided how it was with powell against alabama which gave the right to appoint a council in
capital cases and with johnson's case which interpreted the sixth amendment to get the right to counsel and federal terminal trials and the bad the subsequent decisions holding that there was a right to a free transcript if you were indigent and the exclusionary rule to the state. all of these cases, this jurisprudence really made this very much of an anomaly. i think the court was clearly intent on over rolling up. i recall as a law clerk we were instructed to find a case that raised the brady issue and to call it to the court's attention because it was the job of the chiefs law clerks at the time to
summarize because chief justice did not leave and xerox machines so there was only one copy of the petition. it was not copied for the other justices. we wrote memos for the justices. there were eight carbons and the last carbon was illegible. that was what we were told to do at the time and i think the result was what it once. interestingly, that a companion case of douglas had a much more controversial history. we can get into that a bit later. >> yes. i would like to do that. you have prosecuted cases in the district of columbia and federal court. can you comment on the impact this decision had on your day-to-date lives? ms. stewart why do you into the question first?
>> gideon was decided before i was born. [laughter] >> not much more. so it is all i know. i can't imagine a case in which the defendant does not have a right to counsel. most would say the case of gideon v. wainwright, you would think the prosecutors would not be pleased with the decision that their job would be easier of gideon had been decided the other way. they would be able to obtain convictions more easily. however, that is not the case. the job of the prosecutor and is not just to obtain conviction but to seek justice. seeking justice is far easier when you have competent, ethical council on the other side. it would be a travesty in my future of an individual that has been convicted of a car not -- of a crime not because the individual was guilty but because that individual did not have the skills or the education to present an adequate defense.
so i think that the decision is quite important and has had a positive impact on criminal justice as a whole. >> ms. stewart is absolutely right. those of us are been practicing over the last couple decades cannot imagine it any other way. it is unfathomable that this was not the law prior. because it is so ingrained in everything we do, i have sat in the judge arraignment court where everybody was arrested the night before gets. there could be 100 people for anything from littering, urinating in public, prostitution, assault, battery, robbery, murder, and every single person before they appear in court is given a lawyer. yet everything stops until that
person is given a lawyer who gets a chance to his with him or her before they come in. what is amazing is only 12 years after gideon, which in 1963 decided was actually a constitutional right to counsel and every proceeding. the court required the -- that before somebody could proceed without a lawyer there must be a knowing, voluntary, intelligent waiver. today the notion of someone appear without a lawyer, we would get reversed as judges unless we conduct a search inquiry and really make sure the person does not want a lawyer. an incredible change in such a short time. >> it is interesting because at the time of gideon, 45 of 50 states did appoint counsel to indigent. so many said betz versus brady should be overruled. so even at the time of gideon, it was an anomaly for a lawyer to not be appointed for indigence. >> tell us something about the douglas case. could you fill us in on?
>> the douglas case was a companion case to gideon handed down the same day. but it had been hanging around for much longer they can gideon. the douglas case was granted early in the 1961 term and argued during the 1961 term. it involved not only the question of whether there should be counsel appointed on the appeal but whether at the trial which occurred in california, the public defender had competently represented the defendants in the case and whether he had a con -- conflict of interest. if you look at the papers and my law clerk was very helpful to me going down to the library of congress and looking at the justices papers many of which , are there. what you find is they are sitting there with this douglas
case, this was before gideon was granted, and saying we cannot very well say there should be counsel appointed on appeal when we still have brady on the books. what are we supposed to do with this? they kept puzzling about that and puzzling about that and then eventually they were going to dismiss it as him probably granted. -- improperly granted. in the court granted in gideon and they decided to have douglas re-argued along with gideon. interestingly, the theory of douglas about the right to counsel on appeal rests on the equal protection notions where if gideon rests on due process notions in hand, startlingly, the majority opinion in the douglas case does not fight
gideon even though they came down on the same day, much less discuss it. >> i gather what you were saying before we met that the decision in douglas was not unanimous. >> it was six-three. justice harlan wrote a dissenting opinion explaining why he and his feeling was perfectly fine not to have appointed counsel on appeal even though he agreed but the result in gideon itself. his explanation is very puzzling because you would have thought it would be rather difficult for an indigent defendant to did not have a lawyer to argue his appellate case but according to him it was fine. i think they were concerned about their own cases. are they going to have to appoint lawyers in the supreme court for petitions and that is one of the things that justice harlan said. >> that brings us to another
area. the decision does provide for appointed counsel under certain circumstances and not under others. is there a reason for that? would anyone offer a view as to why someone who is facing a less serious sentence is not given a court-appointed counsel? >> i think the case was meant to give counsel more cases of imprisonment not to wear other penalties might be imposed. for example, traffic court or something like that. i think they all contemplated it would apply in situations not just prison cases. they had had enough of that kind of line-drying after powell
versus alabama. >> did either of the prosecutors ever have to face pleading or actual proceedings with a pro se litigant? >> i actually have. in the district of columbia, not constitutionally but statutorily, they have the right. anytime there is a loss of liberty at stake, the defendants have a right to counsel. misdemeanor cases. there is legislation proposed now for civil litigants to have counsel appointed. housing cases and eventually the housing counsel have hopes to have it appointed for all indigent litigants in cases. the district of columbia is a totally different world. your question, have i ever tried a case against a pro se litigant, i have. however, in the district of columbia, justices -- judges
conduct extensive interviews with litigants who want to defend themselves and warn them against the risks. after that, they appoint standby counsel to sit at the table while the cases are going on. the one case i have tried was in federal court where they had fired multiple attorneys. judge appointed standby counsel -- it does not very happen because there is competent counsel guiding the defendant every step of the way. >> i remember presiding over a number of cases where people went pro se.
most of the time the defendant has some mental health issue. in order to be competent for trial, which is different than not guilty by reason of insanity, your competence as your ability to go forward in trial. that is not a terribly high -- there are some terribly high people who can pass a competency and i remember presiding over the trial of the white house fence jumper. he came from new mexico, very urgent message for president obama. jumped the fence. came to court. once released, undeterred. jumped the fence again and was held. he represented himself. it was -- i remember things were going reasonably well until one point in the trial he kept saying how thirsty was but he refused the water because he was
afraid it had been tempered with and because i was drinking a glass and offered him mine did not assuage his feelings. at one point, he rolled up his sleeves to display minor rash on his arm and proclaimed he was being poisoned at the washington, d.c., jail. the jurors are looking at me as a judge, but are you doing? how on earth are you presiding over this case with this person who is obviously struggling, so it was quite an explanation i had to give to them at the end of the trial as to how this had gone forward. >> on appeal, there were far more pro se litigants than that at the trial level. it is much more difficult. as a prosecutor, have to ensure i'm doing my job at protecting the conviction but also often i am required to do the defendants
job and refine arguments they are trying to make. when you have counsel, counsel is able to articulate and press forward clear arguments we are able to respond to. one thing i will respond to is even we have pro se litigants or counsel to mrs. arguments in cases where there is reversible error, if i find it and the defendant has not wasted, we bring it to the attention of the court to ensure that justice is served. >> this brings us to the question of how people are represented at different stages. gideon and established a right to representation at trial and douglas and established the
right to representation on appeal. what is the situation with post-conviction representation? >> there is not any constitutional right to post conviction representation or, in a second discretionary appeal as well. but the council is appointed if there is a need in the federal system and i do not know what the practices in the states. >> in the district of columbia, because there's no constitutional right, but we do have a statutory right. defendants to have statutory rights to counsel. in all of our probationer who matters, the defendants are entitled to counsel. in collateral attacks, they are generally not afforded counsel unless there is an evidentiary hearing. there is an evidentiary hearing, in that case they are afforded counsel. >> in the state of new hampshire, where i have healed from most recently, there is no right to representation in post-conviction cases.
and i handle an awful lot of them in federal court. the variety of the defendants or petitioners, as they are called, to present their cases to the federal court is very broad but there is no right to it. generally, in the first attempt in state court a lawyer will be a appointed by not always. this brings us to another aspect of the gideon case. there was a case that was decided much earlier than provided the right to representation in federal court. judge, do you want to show some thoughts about that case? bags it is a pretty amazing case. this is the case that first established in the federal system the right to a appointed counsel. it is based entirely on the sixth amendment which states you have the right to be represented at trial will stop but i would
have thought most people would not have read the sixth amendment to confer a right to free counsel if you were in indigent. and yet, in 1938, that is what the supreme court held virtually without analysis and opinion as to the original understanding of the six amendment and that respect. the reason it ended up that way was the government decided not to argue there was no constitutional right to counsel in the federal court at the trial level. instead, the argument was, if you wanted to have counsel appointment you had to ask for it and does defendant did not ask for. so, here is a major constitutional issue that is the meaning of the sixth amendment which carries all the way through into gideon where there
is no discussion of the original meaning of the amendment was and just the assumption it was meant to provide free counsel in federal cases. >> and yet the criminal justice act which afforded money for court-appointed counsel was not passed until 1964 by the united states congress. did that create any special problem? >> you know, it is interesting that the first congress enacted a statute allowing for appointed counsel. i think in cases of treason. so, dealing with this in a statutory way has a long history. >> each of you has experience with people who have had mixed results with the kind of lawyer who has been appointed for them. do you find there are any shortcomings in the promise that was offered by gideon?
judge, could you talk to us a a little about those issues? >> the strickland case a high bar on winning on ineffectiveness of counsel claim and a big barrier it presents to someone asserting such a claim that they are about to show it's a reasonable probability that the case would have come out differently. which is extremely difficult to show. i've sat on a few cases in the first circuit which involved those -- those strickland issues. and under the supreme court standard, it's very, very difficult to find ineffective assistance of counsel. i think there have only been two
cases since strickland if my memory is correct where the supreme court has held that there was ineffective assistance. those were death penalty cases where counsel hadn't brought up the mental state of the defendant. >> you said that you felt that it was your obligation in certain cases where the person is pro say to draw the court's attention to error. have you seen in your -- in the course of your work situations in which the lawyers perhaps not up to speed and what special challenges does that pose to a prosecutor? >> well, i would like to first say that i think the quality of lawyering in the district of columbia, the defense, both at the federal and public defender and the public defender service for the district of columbia is outstanding. i think that -- and the c.j.a. panel as well are very, very good lawyers. for the most part. but there have been occasions where lawyers have missed things. and it's my job to ensure that there is a fair -- there's a fair trial as i said. my job is to seek justice. and so on those occasions where defense attorneys have missed things, i have prompted the defense attorney.
in a trial where the defense attorney -- it was a murder case that i tried, the defense attorney was not from this jurisdiction. and was not familiar with the jury selection process in the district of columbia. which can be quite confusing. and it was obvious to me that he was confused and he didn't know whereby the jurors were. so i took my pad and i showed him so i didn't embarrass him where the panels were and make an educated decision on who to strike and who to keep on the panel. in have been other instances where the defense attorney may not have been prepared to call an important impeachment witness and a suggestion would be made to the attorney, would you like me to make available this impeachment witness for you? and the defense attorney will get the clue and they will say, well, yes. i would like that. that witness to be made available. so we do what we can to help all because we want to ensure that the defendant has a fair trial. >> and it makes sense to understand a little bit about how representation for indigent defendants works in the district
of columbia. as ms. stewart has made some very good points on that. and to elaborate a little bit. so in -- in both the superior court and the federal court, there is a public defender organization. the public defender service. the district of columbia. the federal public defender in the federal court. but each is supplemented by what are called c.j.a. lawyers, crem internationalus tess act. and these are lawyers who apply to be on a panel which is monitored and selected by the judges of those courts. and they are then paid an hourly rate, certainly not as much as our friends in the private bar are making but that are reasonable rates. and they're -- they're appointed by the judges. so in the superior court, the public defender service does most -- most of the important cases. the more significant cases like homicide and rape. but there are a lot of c.j. lawyers doing a lot -- misdemeanors as well as lower level felony cases like minor
drug distributions and street crime and robberies, for example. now, if you can hire your own lawyer, and you can retain your own lawyer free to do so. but there have been many, many times i've shaken my head when -- thought to myself, when the defendant says, i'm bringing in a paid lawyer as if the paid lawyer is going to clearly be better than the public defender. and most of the time she isn't. because the p.d.s. and f.p.d. have such good lawyers that the person is usually doing themselves a disservice and paying for it. >> you have to be really rich to hire johnny cochran. >> well, that brings me to another question, judge, what do you do if the lawyer who has been hired by a defendant? because defendants do have the right to -- counsel of their own choice and what do you do if that lawyer doesn't seem to be up to speed?
>> again, it's difficult particularly where the defendant has fired his public defender. and has brought in someone who is clearly not as good. now, i -- i've had certain cases where subtly and not so subtly i've encouraged the defendant as the case has proceeded to revisit his decision where i have had a defendant say actually, i want to go back to the lawyer i had originally. which i typically permit. but just because a lawyer isn't as good as -- is not a basis for disqualifying the lawyer or kicking her off the case. and so that presents a difficult situation. >> ms. stewart, you've prosecuted a number of cases in a variety of different circumstances. does the right to counsel pose any special problems for
prosecutors as the case progresses? >> well, there are a couple of instances where it becomes relevant. first, when we're working with cooperating witnesses in particular, if we have someone who's been charged with a crime, perhaps they've committed that crime with another person, and they've decided that they want to cooperate with the government, if they are detained, and -- they're onboard with us and providing information and evidence to us, we have to caution that person not to go back to the jail and question their co-defendant about the case. because if they do so, they will be questioning and obtaining a statement from that co-defendant in violation of that defendant's right to counsel. and so -- and we caution them that they cannot act as an agent for us. and go out and seek evidence on our behalf. and so in that respect, the right to counsel becomes -- it becomes a bit tricky, at least for us to explain it to the defendant so that they cannot go out and violate the rights of other defendants. >> have you ever run into a
situation in which the person who is cooperating is paying close attention to that but the person that they're recording and under cover conversation doesn't realize and that the defendant who you have charged and is headed to trial begins to talk not only about his case but also about what his lawyer told him to do? >> well, we've had instances where co-defendants have discussed or have spoken freely not answering questions by our cooperater. but they've spoken freely in front of our cooperating and we have used that evidence. i've not encountered instances where defendants have talked about what they -- what their lawyer has advised them to do. now, there are jail calls and we have -- there have been instances where defendants have -- where we have captured recordings of defendants talking
with third parties about what their lawyers have advised them to do. and we have heard those calls. >> and that poses special problems because of course that implicates their right to counsel. and now you have the prosecutor exposed maybe what the defense attorney has said. what do you do under those circumstances? >> it doesn't come up often. but we're not going to use -- now, there have been situations where we can -- where a conflict now has arisen. and the -- we have to call in special conflicts counsel to create a wall between the person who was exposed to the information and the person who is -- and hand off the case to another prosecutor to try the case. >> speaking of conflict, and a number of fun facts about the gideon case that are -- lost to history. because they're not in the supreme court opinion. but when gideon is retried, so he -- he gets a new trial. he gets a new trial with a lawyer. and they appoint a lawyer -- actually, interesting, first
appoint someone, and he's very adamant and doesn't want that person. and it almost looks like he's going to demand to be going forward by himself after a -- all of this. and he wants to represent himself at trial because he's so unhappy with who -- who will be -- and didn't want the aclu to represent him. he finally gets a local lawyer to represent him. and -- who's very good. and the lawyer, as the recounting in anthony lewis is great book, gideon explains, the lawyer is particularly good because he had represented the key eyewitness against gideon on two prior occasions. and knew all about him and could use that to cross-examine him. well, of course that's a conflict a lawyer would have been disqualified and could never have represented gideon today with any rudimentary conflicts checking. but i think that's a great conflict that goes unnoticed. and he's a hero of the saga. >> judge dike, you had experience with the court and
the chief justice had an interesting background with respect to criminal cases. is that not correct? >> he's been a prosecutor for years. and that was just central to his own identity. he thought of himself as primarily a prosecutor in his background even though he had been the presidential candidate and governor of california. in his view of these cases was that it's possible to convict people and send them to jail and to do it right. and he had that experience and he'd done it. so he had confidence that it could be done. and done properly. and that is i think one of the reasons that he had trouble with the douglas case was that it came from california. and he didn't really want to see california as having been the bad guy. but he came around. and joined the opinion. >> so protecting a little of his own -- >> of his own turf. california, we learned to do it right.
how could it be that this case, they did it wrong? >> right. now, judge fossberg mentioned the wonderful book by anthony lewis. and it is a wonderful book. i encourage anyone who has not read it to take a few days and sit down and read through it. because it is quite fascinating. and it does fill in a lot of information that is not in the supreme court opinion. of course, it's much longer. judge dike, what are your thoughts on the anthony lewis book? >> well, i think -- i think it's a wonderful book. and it's -- it's very accurate in its description of the process of litigating a case in the supreme court. he did not have access at that time to the papers of the justices. so he was hampered a little bit in that respect. but i think it's a great read as i suggested earlier.
it makes the case a little more dramatic perhaps than it actually was. but that's what you have to do to write a great book about the supreme court. >> is it accurate when it talks about the process of going through, filing a petition for cert and all of the considerations that go into granting >> as it existed at that time, yeah. i think it was very accurate. and i think he was very careful to get it accurate. and he talked to people in the clerk's office here. and he talked to the lawyers. i think many interesting things about the book. one of the most interesting things to me is that fordas who represented gideon never talked to gideon. he didn't want to meet gideon. didn't want to talk to him. i guess for him, it was an intellectual exercise. and he wasn't particularly interested in the human side. >> he did, however, write --
clarence gideon did write quite a long letter to -- >> he wrote a letter. >> to mr. fordas. and judge fossberg, when we were talking the other day, you mentioned that letter. what struck you about what clarence gideon had to relay to his lawyer? >> so it's a -- apparently a 22-page letter. and it's reprinted in full in the book. and it's an incredible story to me of what it was like to be poor and living on the margins of society. now, as a white man, if you were black, it would have been a whole lot worse at that time. but as a poor white man, he tells his story without emotion. but about growing up and in and out of jail. with gambling problem. with a long-time alcoholic problem. married three or four times. trying to hold down various jobs as a cook on a boat and running
a poker game. and having his kids taken away from him. and his wife going to jail. and his battles with all these different state agencies that it was really a poignant portrait of being a poor man on the margins of society in america at that time. but the quote that sticks with me the most is he writes, again, very simple. but at the end of his letter, this isn't a supreme court brief. he's not expecting anybody to see this except his lawyer. but he writes at the end of his letter to fordas, i believe that each era finds an improvement in law. each year brings something new for the benefit of mankind. maybe this will be one of those small steps forward.
so an incredible sentiment that he writes nor someone who's been beaten down as much as he has. >> do you think -- i'd like to ask each of the panelists, do you think that part of the appeal of the gideon case is that clarence gideon was kind of a down on your luck, not terrifying mass murderer, is there certain appeal in the kind of character that was presented to the supreme court? judge dike, do you have any thoughts on that? >> i think one of the appeals of gideon is that he probably didn't commit the offense. and i think that comes across in the anthony lewis book and that made it a great case for the right to counsel and he was acquitted and was retried. and if he had a lawyer the first time, he might have reached the same result. i think -- i think a lot of the resistance -- and we haven't talked that much about it.
the brennan center book. a lot of articles how gideon has been a failure at the state level and not in the district of columbia and elsewhere. and i think that one of the reasons that it's been a failure in some respects and that the states have been unwilling to finance the public defender service, the way that he should be financed is a feeling that not a lot of people like gideon around. that most of the people who are charged are guilty so why should we worry about getting them counsel to prove their innocence? >> and that poses another problem, i think, if we look at what goes in to proving innocence now as opposed to 1963
or not to shift the burden improperly to the defendant, but is -- is the right to counsel more complicated now, ms. stewart, with the variety of things that video cameras everywhere, all of this kind of thing, do those pose special problems? >> i think -- yes. absolutely. they pose problems not only for a defense attorney and defendants but prosecutors and everybody in the criminal justice system. this day we have police officers wearing body cameras. we have surveillance cameras all over the place. everyone has an iphone with a recording device. people are on social media. people email. they text. they're on facebook. and so now there's just a lot more information. i'll give you an example. we have a crime that's committed right outside. we'll have five officers show up on the scene. each officer is wearing a bodycam. and that is going to mean that we're going to have to review
bodycam are a evidence for hours of videotape for each officer that arrives on the scene. that information is going to have to be reviewed by the prosecutor. turned over to the defense. and the defense is going to have -- use that information in resolving the case. the problem is that the time clocks have not changed at all. i still have 30 days to indict in a case or 90 days to indict in a case in superior court. so all of this -- have to do the same -- i'm sorry. lots more work in the same amount of time. and that definitely presents problems. >> and i think that what the other -- the flip side of that is simply a lawyer enough for an accused defendant? or does that lawyer need experts, investigators, other resources in order to consider the technology to offer testimony, to combat it, to come up with their own evidence? and the answer is most likely
yes. now, their lawyers can make requests, judges have to sign off on experts or investigators. i think it's fairly routine that lawyers who seek authorization to employ an investigator or an expert in most cases are getting that approved. at least in this jurisdiction. again, when you're going to other jurisdictions, that are poorer and are barely paying the lawyers anything, you can bet they're not terribly interested in also forking over money for ancillary people on the defense team. >> in the district of columbia, there's a statute that allows for defendants to have access to investigators and experts. and we're very fortunate to have that in the district of columbia because that's not the case in other parts of the country. >> and that raises another question. judge dike made reference to this. but there are some areas of the country where the workload for
the public defenders is enormous. i read someplace recently that some of the public defenders in new orleans have crushing caseloads. does that pose a particular problem, the federal government is not stepping in to fund these particular situations, so are we looking at kind of two different levels of representation, one on the state, and a different one in the federal courts or in the district of columbia? do you have any thoughts on that, judge dike? >> i think clearly there is a different standard. there are many states that i would guess are up to the federal standard. but i think there are also many states that are nowhere near the federal standard. and there is not only not enough money for the public defenders but that there is pressure on the defendants to waive counsel particularly in connection with guilty pleas. so there's a problem. i don't think it's a problem that's likely to be solved at
the federal level. i don't know what the solution to it is. but i don't -- i don't think the -- the accused have much of a lobby in their favor. and it's -- it's not likely to change as a result of the voters rising up and saying we're -- we're not doing the right thing here. >> if you look at some of the new changes, one of the areas that has prompted a lot of interest in the last 2.5 decades is the development of d.n.a. and the use of d.n.a. in criminal prosecutions and defenses. those tests change, it seems to me, every few years. have any of you had any experience with the d.n.a.
test, and the special problems, special challenges that that poses? >> i've had a number of d.n.a. cases both as a prosecutor, i tried, one of the first d.n.a. murder cases in the district of columbia. and then also as a judge. but d.n.a., i actually don't think poses such problems. because the government typically pays for the testing. and it's required to give the results to the defense. and if the results are favorable, that's great. and if it's not, then they know. but there's no hiding the ball. there's no cost to the defense to do it. now, you'll occasionally, the defense, we want to test it ourselves. but it's hard to make a compelling showing that the lab, which is going to do the scientific test, is going to do the test in a biased way. and so d.n.a. hasn't really been -- a big issue for the defendants. in terms of getting access.
>> i would just the thought from new hampshire it posed quite an issue for us recently. the defendant had been convicted in 1973. in 2001, he sought his first d.n.a. test. and he had four more after that. each time, none of them excluding him. but each time going to the new hampshire courts, and getting a retesting until finally the new hampshire supreme court affirmed his conviction last year. some 40 plus years after the original conviction. so it does -- it does pose some interesting problems in part because the tests keep changing. now, i think that perhaps we might talk about the whole notion of what constitutes fairness in criminal trials. is it fair -- i think people
frequently look back on the warren court and see it as a court that was really breaking paths in criminal procedure. is that a fair characterization, judge dike? >> oh, i think it is. yeah. the term before gideon there was matt versus ohio which applied the fourth amendment exclusionary rule to the states. miranda. fegan. there was a revolution in criminal law. i went to harvard law school and graduated in 1961. in those days, at harvard, and it may have been different at other law schools and hope it was different at other law schools, criminal law was taught without reference to criminal procedure. my criminal law course was taught by an australian professor who knew absolutely nothing about constitutional law. it was all first degree murder, second degree murder, assault, battery, all that. and the warren court changed
that. now criminal law, to a significant extent, has been constitutionalized. that's a very important part of the prosecution. and i think most people would think that the criminal justice system is fairer as a result of that. >> and ms. stewart, you demetted guess you have admitted you were born after gideon was decided. do you see looking back as someone who has taught law, and has also obviously gone to law school and practiced law, do you see the warren court as being a path breaker? >> oh, absolutely. with the decisions that judge dike mentioned of course. but i also know that it was certainly an expansion of rights for defendants during that era. and subsequent courts sort of narrowed that expansion. and provided balance. because there are certain exceptions that need to apply for officers need to be applied for officer safety and other reasons. and so yes, i definitely think
that the warren court was path breaker. but ultimately other courts narrowed some of those decisionings. >> any thoughts on that decision? >> anybody who has practiced really over the last 50 years, just assumes that that is the framework that exists and should always exist. you don't hear people questioning the right to counsel anymore. you have -- with miranda, you don't question the idea that the police should be advising people of their rights. now, there are debates about how much should be excluded and under what circumstances evidence should be excluded in criminal trials. but really these cases establish the whole framework of how criminal prosecution exists both arrests from the police standpoint, arrests and in the courts how things proceed that governs everything we do day to day. >> and i dare say most americans who watch any of the criminal teach programs, can probably
recite their miranda rights with the -- without even having been advised now it's such a part of this culture. >> and they're wondering where the dna evidence is when it isn't introduced. >> they do wonder where the d.n.a. evidence is going to be introduced. i'm told that we're supposed to wrap this up at 7:00 exactly. so perhaps each one of my panelists has a parting shot. judge dike, would you leak to -- like to start us off? >> well, it's been a pleasure to do this. i really enjoyed it. i enjoyed learning more about what was going on in the warren court at the time. than i knew about before. and this -- these were guys who cared deeply about the criminal law. about doing the right thing. and the year of gideon is a watershed moment in another respect. because that was the year that chief justice warren finally got his liberal majority, black,
douglas, brennan, and goldberg. >> any thoughts from the prosecutor in the middle? >> sure. i think the gideon decision is incredibly important. and i hope that other states can follow the lead of the district of columbia and affording criminal defendants, indigent defendants rights at all stages of the prosecution. and in other aspects as well. because it is needed to even the playing field. it's very difficult for individuals who don't have the skills or the knowledge to navigate their way through the system. and so that i hope that it's -- funding is made available for this very important cause. >> and judge postberg a final thought. >> it's quite a legacy for someone who lived on the margins of society and was convicted of breaking and entering to commit petty larceny in the bay harbor pool room in panama city, florida. >> well, thank you all for coming this evening. [applause]
>> let me thank the panelists for an outstanding discussion of the case. and all the issues that relate to it. i want to welcome everybody to our reception in the east conference room outside after you leave this courtroom, turn right and you'll find your way to the reception. downstairs. if you haven't had a chance to look at the memorabilia relating to the gideon case which i think you may have heard was collected by a prominent news person, joe wershba from cbs who got interested in gideon's trumpet after it was written. and helped produce something for cbs reports which was then an important documentary program. and decided he would just collect what he could about the case and about gideon. and it's all down there for you to look at as is our gift shop which will remain open for the
balance of the evening. and you'll find some books down there. signed by justice breyer, justice sotomayor and lots of other interesting things as well. so please enjoy the rest of the evening and thanks for coming. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] three american history tv american artifacts visits museum, archives, and historic places. located about two miles southeast of the u.s. capitol building on the anacostia river, the washington navy yard was established in