tv Gideon v. Wainwright and the Right to Counsel CSPAN August 10, 2017 5:00pm-6:03pm EDT
american history tv continue ours look at supreme court cases regarding the rights of criminal defendants. in the 1963 case gideon v. wane wright the states are to provide defense lawyers to criminal defendants who cannot afford to hire their own attorney. up next a discussion on the case from the supreme court historical society and the supreme court alumni association. delighted to welcome you to the interesting program we're having tonight. before we get too far into it, however, i must ask everybody to be sure your cell phones, tablets, whatever you are totally off. because otherwise it does
interfere with the sound system. thank you for that. we're here tonight with a program we're cosponsoring with the supreme court fellows alumni association. we're delighted to be the cosponsor with them. the program was brought to us by several people from that organization. i want to be sure i get them right. stefanie newbold. matthew dechesney, and elizabeth witcook came up with the idea of the program. we're also particularly happy to have as our host this evening justice breyer who will be speaking to you in a minute. i will just tell you briefly what you don't know already about justice breyer. he is a californian, studied at stanford, oxford and then harvard law school, became a law clerk here at the supreme court
in 1964, which happens to be a year after gideon v. wane right. so he missed that activity then went on to become activity at the justice department, counsel to the senate judiciary committee, also very active in the academic world. president carter then appointed him to the first circuit in 1980. served there for 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 from that, but now he has moved up quite handsomely in seniority. at any rate, my pleasure to have justice breyer speak to us tonight.
[ applause ] >> thank you for introducing the introducer. it's nice to be here. i love to be at this -- it's always interesting. usually just one person is speaking about history but we have four so it's going to be four times as interesting as it usually is. it will be very nice. and this is a joint program between the supreme court historical society and the fellows, alumni program. both of these organizations were the brainchild of chief justice berger. he joined the court, berger, he quickly noted that every other branch has ancillary organizations, i mean, think of how many the president has. i mean, really. we haven't even thought of having a securities and exchange
commission. in -- well, these program -- these organizations help promote their work and in '73 the judicial fellows program was established. it's now known as the supreme court fellows program to bring mid-career scholars to the court, very good idea. we have the federal judicial center, the administrative office of the courts and now the sentencing commission and we go to all of these different organizations and they serve a year long fellowship where they learn something about judicial management. i've often wondered why do the
law schools not have two or three people who are directly engaged in that. it's a very important field and everyone thinks that on the bench and also quite a few lawyers do as well. so, anyway, it's a thought. but to compliment the fellows program, the supreme court fellows alumni association was established in the year 2000, it has a network through which former fellows can remain connected and continue to exchange ideas. they have as their goals supporting and enhancing the fellowship program's efforts to improve public understanding of the judiciary. i hope you're involved in that. that's so important. people don't know about it, high school students don't. college students don't and we all can help there. and they provide a mentoring group for the current class of fellows. the alumni association currently has about 130 members working in a wide range of professional disciplines across the country and the globe. after founding the fellows program chief justice berger turned his attention to promoting the history of the supreme court and improving the public understanding of that
history. in 1974 he founded the supreme court historical society and asked it to acquire portraits and other artifacts related to the court and to engage in education outreach by a publications and lectures. since that time the society has grown to 4,000 members. really a very, very fine organization. it's collected portraits of every supreme court justice, i'm not certain that's the most important public thing, but it is a public task. it publishes the journal of the supreme court history three times a year. that i would say is important. it hosts an annual lecture series, very important, an annual reenactment of significant supreme court history and its website is a wonderful resource for anyone interested in supreme court history and i recommend it to you. it's great. i think chief justice berger would be well pleased to see these programs he created working together this evening. now, tonight's panel is going to discuss gideon v. wainwright. our first panelist, tim dyk, he is one over from the left there, he was a clerk to chief justice
warren during the term that gideon was argued and decided. president clinton appointed judge dyk in 2,000 to the court of appeals for the federal circuit. prior to that he was a partner and chair at jones day, he was an adjunct professor at yale law school, the university of virginia law school, the georgetown university law center. he served as a law clerk to justices reed and burton from 1961 to 1962. he's co-author of the chapter on patents, that's a task, an important chapter and very good in the third edition of the treatise "business and commercial litigation in federal courts." judge james boasberg joins him on the panel. judge boasberg was appointed to the u.s. district court for the district of columbia in march 2011. he served as law clerk to judge dorothy nelson on the ninth circuit. following his clerkship he was a
litigation associate at checker and van ness in san francisco from 1991 to 1994, at kellogg huber in washington from 1995 to '96 and in '96 he went to the u.s. attorney's office for the district of columbia as an assist ant united states attorney. he was there for five and a half years. he specialized in homicide prosecutions, the most difficult part. in september 2002 he became an associate judge of the district of columbia superior court where he served in the civil and criminal divisions in the domestic violence branch until his appointment to the federal bench in 2011. he also serves on the united states foreign intelligence surveyance court, a 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. district attorney and special counsel to the us attorney for professional development and director of training for the u.s. attorneys office for the
district of columbia, the largest u.s. attorneys office in the united states. ms. stewart joined the office in 1999 and has prosecuted numerous violent and dangerous crimes including murder cases, case involving human trafficking, she received a host of awards throughout her career with the department of justice including special achievement awards and merit awards. if you ask someone who has been in a u.s. attorney's office as an ausa what was your favorite job the odds are they will say that one. elizabeth woodcock is an assistant attorney general in the criminal justice bureau. a retired federal prosecutor, having served as an assistant u.s. district attorney in the district of maine, the district of columbia and the district of vermont. in '96, '97 mrs. woodcock was a u.s. supreme court fellow assigned to the united states sentencing commission. i laugh slightly because i served on that for a while, it's
not an easy job. upon graduation from law school she clerked for the main supreme judicial court, she is a trusty emerita of bowdoin college, she is the secretary of the supreme court fellows alumni association and the treasurer of the new hampshire chapter of the federal bar association. ms. woodstock will also serve as the moderator this evening. i could say a great deal of enormously favorable things about each panelist, which i would do if we had time, but they have limited time to film this and put it on television so i won't. i want, rather, you to share their insights about clarence gideon and his famous case. ms. woodcock, the floor is yours. thank you very much. >> thank you, justice breyer. earl warren's biography ed crae wrote of the gideon decision that no tale so affirmed the american democracy, no story broadcast around the world so clearly proclaimed that not just the rich received justice in the american courts. i'd like to ask my panelists, first of all, to start off a little bit and tell us your
general thoughts briefly on this historic decision. judge dyk, perhaps you could start us off. >> well, at the time i clerked here and saw it unfold and i think it was a bit like going to watch shakespeare's family, when you went to the theater you knew what was going to happen but it was interesting to watch the performance anyway. i think there wasn't a lot of doubt as to how gideon was going to come out, it was really inconsistent that bets versus brady was decided the way it was with powell against alabama which gave the right to
appointed counsel in capital cases and with johnson versus zerbst which interpreted the sixth amendment to give the right to counsel in federal criminal trials. and then the subsequent decisions in griffin holding that there was a right to a free transcript if you were indigent and mapp versus ohio applying the fourth amendment exclusionary rule to the states, all of these cases, this jurisprudence really made betz very much of an anomaly and i think the court was clearly intend on overruling it. i recall as a law clerk that we were instructed to find a case that raised the betz versus brady issues and to call it to the court's attention because it was the job of the chief's law clerks at that time to summarize the cases because chief justice martin didn't believe in xerox machines so there was only one copy of the petition, it wasn't copied for the other justices and we wrote memos for the justices, there were eight
carbons, the last carbon was illegible, but that was what we were told to do at the time and i think the result was what it was. interestingly, the companion case of douglas had a much more controversial history. maybe we can get into that a bit later. >> yes, i'd like to do that. now, judge boasberg and ms. stewart, you prosecuted cases in both the supreme court and the district of columbia and in the federal court. can you comment on the impact of this decision in your day to day lives? ms. stewart, why don't you answer that question first. >> sure.
gideon was decided before i was born, i'm proud to say, not much more, but -- and so it's all i've ever known. i cannot actually imagine a society in which a defendant does not have the right to counsel. and most prosecutors would say that the case of gideon versus wainwright or most people would think that prosecutors would not be pleased with the decision and that they would -- their job would be easier if gideon had been decided the other way. they would be able to obtain convictions more easily, however, that's just not the case. the job of the prosecutor is not
just to obtain convictions, but rather to seek justice and seeking justice is far easier when you have competent ethical counsel on the other side. it would be a travesty in my view to have an individual defendant convicted of a crime not because that 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 that those of us who have been practicing on e. over the last few second aids can't imagine any other world, it's unfathomable that this was not the rule prior and because it's so ingrained in everything we do that i've sat as a judge in arraignment court over the supreme court where everybody was arrested the night before gets brought, so that could be 100 people from anything from littering, urinating in public, prostitution, assault, battery, robbery, murder, and every single person before they appear in court is given a lawyer and, again, everything stops until that person is given a lawyer who gets a chance to speak with him or her before they come in. and what sort is sort of amazing
is that only 12 years after gideon which in 1963 decides there's actually a constitutional right to counsel in every proceeding, by 1975 in feretta versus california the court requires that before someone can proceed without a lawyer there must be a knowing, intelligent, voluntary waiver. today the idea of someone appearing without a lawyer, we will get reversed as judges unless we conduct a search and inquiry and really make sure the person doesn't want a lawyer. so it's an incredible seat change in such a short period of time. >> it's interesting because at the time of gideon 45 of the 50 states did provide appointed counsel to intelligence and you had you had an amicus brief saying that betz versus brady should be overruled. so even at the time of gideon it was an anomaly not to allow counsel to be appointed for indigents. >> judge dyk, you were going to
tell us more about the background and something about the douglas case. could you fill us in on that? >> the douglas case of course was a companion case to -- to gideon, handed down the same day, but it had been hanging around for much longer than gideon. the douglas case was granted early in the '61 term and argued during the '61 term and it involved not only the question of whether there should be appointed counsel on appeal but also whether at the trial there which occurred in california the public defender had competently represented the defendants in the case and whether he had a conflict of interest. well, if you look at the papers in my law clerk has been very helpful to me going down to the library of congress and looking
at the justices papers, many of which are there, and what you find is that they are sitting there with this douglas case, this is before gideon was granted and saying we can't very well say that there should be counsel appointed on appeal in a criminal case while we still have betz and brady on the books. what are we supposed to do about this? and they kept puzzling about that and puzzling about it and then eventually they were going to dismiss it as improperly granted and then the court granted [ inaudible ] in gideon and they decided to have douglas reargued along with gideon. interestingly the theory of douglas about the right to counsel on appeal rests on really equal protection notions where as gideon rests on due process notions and startlingly the majority opinion in the douglas case does not cite gideon, even though they came down on the same day, much less
discuss it. >> i gather from what you were saying before we met that the decision in douglas was not unanimous. >> no, it was 6-3 and justice harlen wrote a dissenting opinion explaining why in his view it was perfectly fine not to have appointed counsel on an appeal even though he agreed with the decision in gideon himself. his explanation is puzzling because you would have thought it would be rather difficult for an indigent defendant to argue his appellate case, but according to him that was fine.
i think they were concerned about their own cases, were they going to have to appoint lawyers in the supreme court for the circ petitions an that's one of the things that harlen said. >> which brings us to another area of this decision, the decision does award -- 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 court appointed counsel? >> well, i think the case was meant to give counsel in all cases of imprisonment, not where other penalties might be imposed, for example, in traffic court or something like that, but i think they all contemplated that it was going to apply in every situation where there was imprisonment, not just felony cases. they had had enough of this kind of line drawing after powell against alabama. >> have either of the two prosecutors ever had to face pleadings or. >> that raises another question. 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 case loads. does that pose a particular problem? the federal government isn't 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. >> there are many states i would guess are up to the federal standard. but i would guess there are many states that are nowhere near the federal standard. there's not enough money for the public defenders. 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 think the accused have much of a lobby in their favor. and it's not likely to change as a result of the voters rising up and saying 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 two and a half decades is the development of dna and the use of dna in criminal prosecutions and defenses. those tests change, it seems to me, every few years. have any of you had any experience with the dna testing and the special challenges that poses? >> dna, 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. there's no hiding the ball and there's no cost to the defense to do it. occasionally the defense will
the time of the crime your competence is your ability to go forward in trial now. and that's not -- it's not a terribly high bar and there are very high functioning people with some mental illness who can pass the competency screen. i remember the white house fence jumper who had come from new mexico. very urgent message for president obama. jumped the fence. been arrested. came to court was released. undeterred. returned, jumped the fence again. it was hell. he represented himself. he kept saying i'm sorry thirsty but refused water and the fact i
was drinking a glass and offered him didn't assuage his feelings. he got on the witness stand at one point and stood up and rolled up his sleeves to display a minor rash with his arm and claimed how he was being poisoned at the d.c. jail. now the jurors, of course, they're looking at me as in, judge, what on earth are you doing? how are you presiding over this case with this person who is struggling? so my explanation i had to give to them at the end of the trial. >> on appeal we have far more pro se lit begans than at the trial level. and it is much more difficult prosecuting appellate cases where appellants are not represented. and the reason is because as a prosecutor i have to ensure that i'm doing my job and protecting the conviction but oftentimes i'm also required to do the
defendant's job and refine arguments that i think they're trying to make and then respond to those arguments. but when you have counsel, counsel is able to articulate and fast forward clear arguments we're able to respond to. one thing i'll point out is even when we have pro se litigants or counsel miss arguments in cases where there's reversible error, if i find it and the defendant has not raised it, it is -- we bring it to the attention of the court to ensure that justice is served. gideon established a right to representation at trial. and douglas established the right to representation on
appeal. >> but counsel are appointed if needed in the federal system. i don't know what the practice is in the states. >> and in the district of columbia, and, of course, there's no constitutional right. we have statutory rights. defendants have statutory rights to counsel in post conviction matters. in all of our probation matters or parole matters, the defendants are entitled to counsel. now in collateral attacks they are generally not afforded counsel unless there is an evident area hearing. if there is a evident area hearing, then in that case they're afforded counsel. >>ed in the state of new hampshire i have hailed from most recently there is no right to representation in post conviction cases.
i handle a lot of them in the federal government. the petitioners, as they're called, to present their cases to the federal government is very broad. but there is no right to it. generally in the first attempt in state court a lawyer will be appointed, but not always. it brings us another aspect of the gideon case. it was decided much earlier that provided the right to representation in federal court. do you want to share thoughts with us about the case? >> i think it's a pretty amazing case. it's based on the sixth amendment which states you have the right to be represented at trial but i would have thought most people would not have read
the sixth amendment to conifer a right to precounsel if you were indigent. in 1938, that's what the supreme court held. and the reason the case ended up that way was that the government the solicitor general decided not to argue there was no constitutional right to council in the federal courts at the trial level. if you wanted to have counsel you must ask and the defendant asked. so here is a major constitutional issue that is the meaning of the sixth amendment. which carries all the way through into gideon there's no discussion of what the original meaning of the amendment was. just an assumption it was meant to provide free counsel in federal cases. >> the criminal justice act,
which actually afforded money for court appointed counsel wasn't passed until 1964 by the united states. did it create any personal problems? you know, it's interesting that the first congress enacted a statute allowing court appointed counsel to be thinking in cases of treason. dealing with this in a statutory way is a long history. >> each of you has have experience with people who have had mixed results with the kind of lawyer who has been appointed for them. do you find that there are any shortcomings in the -- ugh, the promise offered by gideon. can you talk to us a bit about the issues involved with
ineffective assistance of counsel issues? >> of course, you have the case which creates high bar. and the big barrier it presents to some of the disearning such a claim it's about to show it's a reasonable probability that the case would have come out differently. which is extremelily difficult to show. i've sat on a few cases in the first circuit, which involved those strikeland issues. and under the supreme court standard it's very difficult to find ineffective assistance of council. i think there have been only two cases sin strikeland, if my memory is correct where the supreme court held there was ineffective assistance. those were death penalty cases where counsel hadn't brought up the mental state of the defendant.
>> you felt your obligation to draw the court's attention to error. have you seen, as in the course of your work situations in which the lawyers, perhaps got up to speed and what special challenges does that pose to a prosecutor? >> well, i would like to first say i think the quality of in the district of columbia, the defense the federal and public defendanters and the service for district of columbia i think is outstanding. i think that and the tja panel are good lawyers. me job is to seek justice. have prompted the defense attorney, for example, in a trial where the defense attorney -- in fact it was a murder case i tried. the defense attorney was not
from the jurisdiction and not familiar with the jury selection process in the district of columbia. which can be confusing. i took my pad and showed him where the panels where so he could make an educated decision on who to strike and who to keep on the panel. there have been other ininstances the defense attorney may not have been prepared to call an important impeachment witness and a suggestion will 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 than will say yes i would like that. we do when we can. >> it makes sense to understand a little bit how about how representation for indigent counsels work in the district of
columbia. in superior court and the federal government, there's a public defendanter organization the public service and the federal court. they have a criminal justice act. these are lawyers who apply to be on a panel which is monitor and selected by the judges of the courts. they're paid an hourly rate certainly not as much as our private friends of the bar are making but reasonable rates. and they're appointed the by the judges. in the pure your court public defendanters does most of the important cases. the more significant cases like homicide and rape. but there are a lot of cj lawyers doing a lot of
misdemeanors. if you can retain your own lawyer, you're free to do so. there have been many times i've shake my head when i thought to myself when the defendant says i'm bringing in a paid lawyer. as if a paid lawyer is going to clearly be better than the publ publ defender. they have such good lawyers that the person who is usually doing themselves a disservice and paying for it. what do you do if the lawyer has been hired by a defendant. defendants have right to counsel of their own choice. what do you do if the lawyer doesn't seem to be up to speed?
it's difficult where the defendant fired the public defender and brought in someone that is not clearly as good. i'm in certain cases where subtly and not so subtly i've encouraged the defendanted as t case proceeded to revisit his decision. i have had a defendant say i want to go back toot lawyer i had originally. -- go back to the lawyer i had originally. because the lawyer isn't as good is not a basis for disqualifying or lawyer or off the case. it presents a difficult situation. >> 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? >> there are a a couple of
instances it becomes relevant. we're working with cooperating witnesses in particular. if we have someone who has been charged with a crime or perhaps committed the crime with another person and decided they want to cooperate with the government if they're detained and, you know, they're on board with us. they're providing information and evidence to us. we have to caution that person not to go back to the jail and question their codefendant about the case. if they do so, they'll be questioning and obtaining a statement from that codefendant in violation of that defendant's right to counsel. in that respect the right to counsel becomes a -- it becomes a bit tricky. at least for us to explain to the defense so they cannot violate the rights of other defendants. >> have you run into a situation in which the person who is cooperating is paying close
attention to that? thor. they're recording in the undercover conversation doesn't realize and then the defendant who you have charged in and is headed to trial begins to talk not only about his case but also about his lawyer told him to do? >> well, we've had instances where codefendants have spoken freely -- not answering questions by our collaborator. but they've spoken freely and found them cooperating and we have used the evidence. i've not encountered instances where they talk about what their lawyer advised them to do. there are jail calls and will have instances where defendants have -- we have captured recordings of defendants talking with third parties about what their lawyers have advised them to do.
those are 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. there have been situations where we can -- a conflict has arisen and the we have to call in special conflicts counsel to create a wall between the person who is exposed to the information and the person who is handoff the case to another to try the case. a number of of fun fact about the case. they're not an supreme court opinion. when gideon is retried. he gets a new trial. he gets a new trial with a lawyer. and they appoint a lawyer who first appoint someone and he's
adamant he didn't want that person. it looks like he's going to be demanding to go forward by himself after all of this. he wants to represent himself at trial because he's unhappy with who -- they want the aclu to represent him. he finally gets a local lawyer to represent him. and who was very good. and the lawyer, as the recounting of anthony lewis' great book explains. laurt is particularly good because he had represented the key eye witness against gideon on two prior occasions. and knew all about him and could use it to cross examine him. of course, that's a conflict the lawyer would have been disqualified and could not have represented gideon today with any rudimentary conflicts checking. but i think that's a great conflict that goes unnoticed that he's a hero of the saga. >> judge, you had experienced with the court and the chief
justice had an interesting background with respect to criminal cases. is that not correct? >> yeah. he had been a prosecutor for years. and that was just central to his identity. he thought of himself as primarily a prosecutor in his background. of course, he'd been presidential candidate and governor of california. in his view of the cases it's possible to convict people and send them to jail and to do it right. and he'd had that experience. he'd done it. so he had confidence that it could be done and done properly. and that's, i think, one of the reasons he had trouble with the douglas case is that it came from california and he didn't really want to see california as having been the bad guy. but he came around. >> so protecting a little bit of his own. >> of his own turf. >> and california we learned to do it right.
>> how could it be in this case they did it wrong. >> judge mentioned the wonderful book by anthony lewis. it's a beautiful book. i encourage anyone who hasn't read it to take a few days and sit down and read through it. it's fascinating. it fills in a lot of information that is not in the supreme court opinion. of course, it's much longer. what are your thoughts on the anthony lewis book? >> well, i think it's a wonderful book it's very accurate in the encryption of the process of litigating cases. he did not have access, at that time, to the papers that the justices. he was hampered a little bit in that respect. i think it's a great read, as i suggested earlier. it makes the case a little more
dramatic than it was. that's what you have to do to write a great book about the court. >> is it accurate when talks about the process of going through filing a petition for all the considerations that go into granting it? >> as it existed at that time. yeah. i think it was very accurate. i think it was careful to get it accurate. and he talked to people in the courts office here and he talked to the lawyers one the most interesting things to me, is that florida of course represented gideon never talked to gideon. he didn't want to meet gideon. didn't want to talk tow him. i guess for him it was an intellectual exercise. he wasn't really interested in the human side of it. >> he did, write, however,
clearance gideon wrote a long letter to him and judge, when we were talking the other day. you mentioned that letter. what struck you about what clarence gideon had to relay to his lawyer. >> he staid it's apparently a 22-page letter. it's reprinted in full in the book. it's an incredible story, to me, of what it was like to be poor and living on the margins of society as a white man. if you were black, it would have been a whole lot worse at that time. as a poor white man, he tells his story without emotion. about growing up and in and out of jail with a gambling problem, with alcoholic problem, mayed are three or four times. trying to hold down various jobs and cook on a boat and running a poker gain game and having his
kids taken away from him and his wife going to jail. and the battles with the state agency. really a poipoignant portrait o being a poor man on the margins of society in america at that time. blue the quote that sticks with me the most he writes again in very simple but at the enof his letter, this is the supreme court brief. he's not expecting anybody to see it except his lawyer. he writes a the end of his letter i believe that each era finds and improvement in law. each year brings something new for the benefit of mankind. maybe this will be one of those small steps forward. what an incredible sentiment he writes for someone that has been beaten down as much as he has. >> you think -- i would like to ask each of the panelists. do you think the appeal of the
gideon case is that clarence kiddon was a down on your luck not terrifying mass murder of something of that sort. is there a certain appeal in the kind of character that was prevented to the supreme court? i think one of the appeals of gideon he probably didn't commit the offense. and that that comes across in the anthony lewis book. and i think that made it a great case for the right to counsel because as he said he was acquitted and retried. we didn't talk that much but the book of the brighton book.
states have been unwilling to finance the public defendanter service the way they should be financed is the way that a lot of people gideon are at most the people were charged are guilty so why should we worry about getting them counsel to prove their innocence. >> that poses another problem, i think. as opposed to 1963 or not shift the burden to the defendant.
but is the right to counsel more complicated now, miss stewart, with the variety of things that video cameras and everything poses special problems? >> these days with i 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 e-mail. they text. they're on facebook. there's a lot more information. we have a crime committed right outside. we'll have five aurss show up on the scene. each officer is wearing a body cam, and we'll have to review body camera -- for each officer
that arrives on the scene. that information will be reviewed by the prosecutor and turned over to the defense and the defense is going to have to use that information in resolving the case. the problem is, the time clocks have not changed at all. i have do the same amount -- i'm sorry lots more work in the same amount of time. the flip side 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. the answer is most likely yes. 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 expert, in most cases are getting it approved. at least in this jurisdiction. again, going to other jurisdictions that are poorer and barely paying the lawyers anything, you bet they're not terribly interesting in forking over money for the ancillary people on the defense team. >> @district of columbia there's a statute that allows them to have access to investigators and experts and we're fortune to have it in the district of columbia. as he pointed out, it's not the case in other parts of the country. >> it raises another question. judge dyk made reference to this, but there are some areas of the country where the workload for the public defenders is enormous. some of the public defenders in
new orleans have crushing case loads. is -- does that pose a particular problem the federal government is stepping in to the federal government isn't 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 dyk? >> i think clearly there is a different standard. this is not -- i mean 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. there is not only not enough money for the public defenders, but 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 is 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 accused have much of a
lobby in their favor, and it is not likely to change as a result of the voters rising up and saying, 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, i would say, two-and-a-half decades is the development of dna and the use of dna in criminal prosecutions and defenses. those tests change, it seems to me, every few years. have any of you had any experience with the dna testing and the special problems or special challenges that that poses?
>> i've had a number of dna cases, both as a prosecutor -- i tried one of the first dna murder cases in the district of columbia, and then also as a judge. but dna, i actually don't think it poses such problems because the government typically pays for the testing and it is required to give the results to the defense, and if the results are favorable that's great, and if it is not then they know. there's no hiding the ball and there's no cost to the defense to do it. now, you will occasionally have cases where the defense say, "we want to test it ourselves," but it is 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 biassed way. and so dna hasn't really been a big issue for the defendants in terms of getting access. >> i would just offer the thought from new hampshire that it posed quite an issue for us recently.
a defendant had been convicted in 1973. in 2001 he sought his first dna 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. now, 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 dyk? >> oh, i think it is. yes, right, of course, the term before gideon there was mapp versus ohio which applied the fourth amendment exclusionary rule to the states, and miranda, yeah, there were a lot of -- there was a revolution in criminal law. i remember -- 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, i 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 of that. 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. >> ms. stewart, you've admitted that 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 dyk just mention, 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 safety and other reasons. so, yes, i definitely think that the warren court was a path breaker, but ultimately other courts narrowed some of those decisions.
>> judge boasberg, do you have any thoughts on that proposition? >> well, i just think that anybody who has practiced really over the last 50 years just assumes that that's 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 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. >> i daresay most americans who watch any of the criminal tv programs can probably recite their miranda rights without even having been advised now, it
is 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 dna evidence is when it isn't introduced. i'm told we're supposed to wrap this up at 7:00 exactly. so perhaps each one of my panelists has a parting shot? judge dyk, would you like to start us off? >> well, it has been a pleasure to do this. i have really enjoyed it. i enjoyed learning more about what was going on in the warren court at the time than i knew about before. these were guys that cared deeply about the criminal law, about doing the right thing. 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 in 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 is very difficult for individuals who don't have the skills or the knowledge to navigate their way through the system, and so i hope that funding is made available for this very important cause. >> and judge boasberg, a final thought? >> it is 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 harbour poolroom in panama city, florida. >> thank you all for coming this evening. [ applause ]
>> let me thank the panelists for an outstanding discussion of the case and all of the issues that relate to it. i want to welcome everybody to our reception in the east-west conference room outside after you leave this courtroom, turn right and you will 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 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 collect what he could about the case and about gideon. it is all down there for you to look at, as is our gift shop which will remain open for the balance of the evening. you will find some books down
signed by justice breyer, justice sotomayor and other interesting things as well. please enjoy the rest of the evening and thanks for coming. [ applause ] american history tv in primetime continues tonight on c-span3 with our original series "landmark cases." at 8:00 p.m. eastern we'll look at baker versus carr. in the 1962 case the supreme court ruled that federal courts have the authority to intervene in cases about redistricting. the defendants in the case argued that drawing legislative districts is a political question, not a judicial one. but the justices ruled courts have a role in deciding the fairness of electoral maps. landmark cases on baker versus carr tonight on c-span3, 8:00 p.m. eastern.
next week at 8:00 p.m. eastern on c-span3, a civil war special featuring american history tv highlights. on monday, we're at the emerging civil war blog symposium where we look at the great defenses of the civil war including gettysburg and the siege of vicksburg. tuesday we focus on civil war leadership at the longwood university civil war seminar with talks on generals robert e. lee, ulysses s. grant and confederate colonel john mosby. friday, civil war institute conference. wednesday features lincoln scholar harold holzer. on thursday, speakers include historian john marzelaek. t.j.stiles, american history tv civil war special all next week beginning at 8:00 p.m. eastern on c-span3.
c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies and is brought to you today by your cable or satellite provider. up next on american history t on c-span3, more about the case mapp v. ohio in which the supreme court found that all evidence police obtained through illegal search and seizure is inadmissible in state courts. we'll hear from carolyn long, a college professor and author of a book on the case. >> good evening, everyone. i'm sure you kno