tv Gideon v. Wainwright and the Right to Counsel CSPAN August 10, 2017 1:29pm-2:32pm EDT
and colonel john mosby. wednesday through friday we are at the gettysburg college civil war institute conference, wednesday features harold holzer, thursday speakers include john marsalak and on friday we conclude with author t.j. styles. american history tvs civil war special all next week beginning at 8:00 p.m. eastern on c-span 3. american history tv continues our look at supreme court cases regarding the rights of criminal defendants. in the 1963 case gideon versus wane right the high court ruled that states are required under the sixth amendment to provide defense lawyers to criminal defendants who cannot afford to hire their own attorneys. up next here on american history tv a discussion on the case from the supreme court historical society and the supreme court fellows alumni association.
good evening to everybody. i'm jerry libin, i'm a vice president of the supreme court historical society. delighted to welcome all of us here to this very 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 have are totally off because otherwise it does interfere with the sound system in the courtroom. thank you for that. we're here today with a program we're co-sponsoring with the supreme court fellows alumni association, we're flighted to be a co-sponsor with them. the program was brought to us by several people from that organization, i want to be sure i get them right, stephanie nubold, matthew and elizabeth who really came up with the idea for the program and we're happy
to be here to present it to you. 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 jaw dish naer 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 sur veins 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 chargeest 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 amness 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 carbo 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 a jointed for end owe gents. >> 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 perfectlily 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 against alabama. >> have either of the two prosecutors ever had to face pleadings or actual proceedings with a pro se litigant? >> i actually have, but i did want to comment on your last question. in the district of columbia, not constitutionally but statutorily defendants have the right to counsel in all aspects. any time there's a loss of liberty at stake, defendants have a right to counsel. in misdemeanor cases, and there's actually legislation
proposed now for civil litigants to have counsel appointed, indigent litigants to have counsel appointed in housing cases, and eventually the council hopes to have it appointed for all indigent litigants in civil and criminal cases. so the district of columbia, it is a completely different world. i will segue into my answer to your question, which is have i ever tried a case against a pro se litigant. the answer is yes, i have. however, in the district of columbia judges conduct extensive inquiries with defendants who want to represent themselves and essentially warn them of all of the risks inherent in self-representation, and then after that they appoint stand-by counsel to sit at the table with the defendants while cases are going on. the one case that i've tried -- and i have been a prosecutor for 18 years -- the one case that i've tried against a pro se counsel was in federal court where the defendant had fired multiple attorneys and decided to represent himself, but the judge appointed stand-by counsel who happened to have been the federal public defender at the time and he actually still is, and stand-by counsel basically
examined all of the witnesses and asked all of the appropriate questions. although the defendant was technically pro se, it doesn't happen very often because there is competent counsel guiding the defendant every step of the way. >> although i remember presiding over a number of cases where people went pro se. now, most of the time the defendants have some mental health issues. now, again, in order to be competent for trial, in order to proceed at trial -- which, again, is different from not guilty by reason of insanity which is how your mental state was at the crime, your competence is the ability to go forward in trial now. that's not -- it is not a terribly high bar and there are very high functioning people with some mental illness who can pass the competency screen. i remember presiding over the trial of a white house fence jumper. this was a guy who came from new mexico, a very urgent message for president obama, jumped the
fence, had been arrest, came to court, was released, undeterred returned and jumped the fence again and was held. and so he represented himself, and i remember things were going reasonably well until at one point in the trial he refused -- he kept saying how thirsty he was but he refused water because he was worried it had been tampered with, and the fact that i was drinking a glass and offered him mine didn't assuage his feelings. i remember he then got on the witness stand at one point and stood up and rolled up his sleeves to display a minor rash on his arm and claimed how he was being poisoned at the d.c. jail. the jurors, of course, are looking at me as in, "judge, what on earth 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.
>> i will say on appeal we have far more pro se litigants than is much more difficult prosecuting appellate cases where appellants are not represented. the reason is as a prosecutor i have to make sure i'm doing my job 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 respond to those arguments. when you have counsel, counsel is able to articulate and press forward clear arguments that we're able to respond to. one thing i will point out is that if -- even when we have pro se litigants or even counsel who 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. >> this brings us to the question of how people are
represented at different stages. now, gideon established a right to representation at trial and douglas established the right to representation on appeal. what's the situation with post conviction representation? >> there is no constitutional right to post-conviction representation or in a second discretionary appeal as well. but counsel are appointed if they're needed in the federal system, and i don't know what the practice is in the states. >> in the district of columbia, of course, there's no constitutional right but we do have statutory rights. defendants do have statutory rights to counsel in post-conviction matters. in all of our probation matters, parole matters, defendants are entitled to counsel.
now, in collateral attacks they're generally not afforded counsel unless there is an evidentiary hearing. if there's an evidentiary hearing, then in that case they are afforded counsel. >> in the state of new hampshire where i have hailed 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 ability of the defendants or the petitioners as they're 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 appointed, but not always. this brings us to another aspect of the gideon case. there was a case that was decided much earlier that provided the right to representation in federal court.
the zurbs case. judge dyk, do you want to share some thoughts with us about that case? >> i think it is a pretty amazing case. this was the case that, of course, first established in the federal system the right to appointed counsel, and it is based entirely on the sixth amendment, which states that you have the right to be represented at trial. but i would have thought most people would not have read the sixth amendment to confer a right to free counsel if you were an indigent, and yet in 1938 that's what the -- what the supreme court held, virtually without analysis in the opinion as the original understanding of the sixth amendment in that respect. the reason the case ended up that way was that the government, the solicitor general decided not to argue that there was no constitutional right to counsel in the federal courts at the trial level. instead, the solicitor general's argument was, well, if you wanted to have counsel appointed
you had to ask for it, and this defendant didn't ask for it. so here's a major constitutional issue, that is the meaning of the sixth amendment, which carries all the way through into gideon where there's no discussion of what the original meaning of the amendment was and just an assumption that it was meant to provide free counsel in federal cases. >> and yet the criminal justice act, which actually afforded money for court-appointed counsel, wasn't passed until 1964 by the united states congress. did that create any special problems? >> you know, it is interesting. 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 had
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 promise that was offered by gideon? judge dyk, could you talk to us a little bit about the issues involved with ineffective assistance of counsel issues? >> well, of course, you have the strickland case which created the high bar to winning on an ineffective assistance of counsel claim and the big barrier it presents to someone asserting such a claim is that they've got to show there'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 strickland issues, and
under the supreme court standard it is 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. >> ms. stewart, you said you felt it was your obligation in certain cases where the person is pro se to draw the court's attention to error. have you seen in the course of your work situations in which the lawyer is 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 service and the public defender's service for the district of columbia i think is outstanding. i think that -- and the cja
panelists as well are very, very good lawyers for the most part. but there have been occasions where lawyers have missed things, and it is my job to ensure that there is a fair -- there's a fair trial. as i said, my job is to seek justice. so on those occasions where defense attorneys have missed things, i have prompted the defense attorney. for example, in a trial where the defense attorney -- in fact, 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. it was obvious to me that he was confused and he didn't know where the jurors were, so i just took my pad and i showed him discreetly so i didn't embarrass him where all of the panelists were so that he could make an educated decision on who to strike and who to keep on the panel. there 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 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. in both the superior court and the federal court there is a public defender organization, the public defender service in the district of columbia and federal court. each are supplemented by criminal justice act lawyers, and these are lawyers who apply to be on a panel which is monitored and selected by the judges of those courts. 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 are appointed by the judges. so in the superior court the public defender service 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 as well as lower level felony cases like minor drug distributions and street crime, robberies for example. now, if you can hire your own lawyer and you can retain your own lawyer, of course you're free to do so, but there have been many, many times when i have shaken my held, i 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. most of the time she isn't because pds and fpd 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 johnnie cochran. >> well, that brings me to another question. judge boasberg, 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. what do you do if that lawyer does not seem to be up to speed? >> well, again, it is difficult particularly where the defendant has fired his public defender and has brought in someone who is clearly not as good. now, i have in certain cases where subtly and not so subtly i have encouraged the defendant as the case has proceeded to revisit his decision. 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 the lawyer isn't as good is not a basis for disqualifying the lawyer or
kicking her off the case, and so that presents a difficult situation. >> ms. stewart, you 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 are working with cooperating witnesses in particular, if we have someone who has 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, 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 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.
so, you know, we caution them that they cannot act as an agent for us and go out and seek evidence on our behalf. so in that respect the right to counsel becomes -- it becomes a bit tricky, at least for us to explain it to the defendants 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's cooperating is paying close attention to that but the person that they're recording in their undercover conversation doesn't realize, and that defendant 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 cooperator, but they've spoken freely in front of our cooperator and we have used that evidence. i have not encountered instances
where defendants have talked about what their lawyer has advised them to do. now, there are jail calls and we have -- there have been instances where defendants have -- 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 to maybe what the defense attorney has said. what do you do under those circumstances? >> it doesn't come up often, but we are 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 conflicts, i think there are 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 gets a new trial, he gets a new trial with a lawyer. they appoint a lawyer -- it is actually interesting, they first appoint someone and he's very adamant he doesn't want that person, it almost looks like he is going to demand to be going forward by himself after all of this, he now wants to represent himself at trial because he's not happy with -- he didn't want the aclu to represent him. he finally gets a local lawyer to represent him, who is very good, and the lawyer as the recounting in anthony lewis's great book "gideon trumpet" explains, the lawyer is particularly good because he represented the key eyewitness against gideon on two prior occasions and knew all about him
and could use that to cross-examine him. of course that's a conflict. a lawyer would have been disqualified and could never have represented gideon today with any rudimentary conflicts checking. i think that's a great conflict that goes unnoticed and he is a hero of the saga. >> now, judge dyk, you had experience with the court and the chief justice had an interesting background with respect to criminal cases, is that not correct? >> he had 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, of course, he had been a presidential candidate and governor of california. his view of these cases was that it is possible to convict people and send them to jail and to do it right, and he had had that experience. he had done it, so he had confidence that it could be done
and done properly. that's 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 bit of his own turf? >> of his own turf. in california we learn to do it right. how could it be that this case, they did it wrong? >> right. now, judge boasberg just mentioned the wonderful book by anthony lewis. it is a wonderful book. i encourage anyone that 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 is much longer. judge dyk, what are your thoughts on the anthony lewis book? >> well, i think -- i think it is a wonderful book and it is
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 is 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 it? >> 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. there are many interesting things about the book. one of the most interesting
things to me is that fordis 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 of it. >> he did, however, write -- clarence gideon did write quite a long letter -- >> he wrote a letter, yes. >> -- to mr. fordyce. judge boasberg, when we were talking the other day you mentioned that letter. what struck you about what clarence gideon had to relay to his lawyer? >> apparently it is a 22-page letter and it is reprinted in full in the book, and it is 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 of these different state agencies. 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 is not a supreme court brief, he is not expecting anybody to see this
but his lawyer. he writes at the end of his letter to fordyce, 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. it is an incredible sentiment that he writes for someone who has been beaten down as much as he has. >> do you think -- i would 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 or something of that sort, is there a certain appeal in the kind of character that was presented to the supreme court? judge dyk, 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. i think that made it a great case for the right to counsel, because as judge boasberg said, he was acquitted when he was retried. if he had had a lawyer the first time, he might have reached the same result. i think a lot of the resistance -- and we haven't talked that much about it, the brennan center book, the bright book, there are lots of articles about how gideon has been a failure at the state level, not in the district of columbia but elsewhere. i think that one of the reasons that it's been a failure in some respects and that states have been unwilling to finance the public defender service the way they should be financed is the feeling that there are 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 into proving innocence now as opposed to 1963 -- or not to shift the burden improperly to the defendant, but 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 they -- yes, absolutely. they pose problems not only for defense attorneys and defendants but for prosecutors and every participant in the criminal justice system. these days we have, you know,
police officers wearing boldy 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. so now there's just a lot more information. i will give you an example. we have a crime that's committed, you know, right outside. we will have five officers show up on the scene. each officer is wearing a body cam, and that's going to mean that we're going to have to review body camera evidence for, you know, 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 to use that information in resolving the case. the problem is the time clocks have not changed at all. i still have 30 days to indict a case or 90 days to indict a case in superior court. so all of this -- you know, i have to do the same -- i'm sorry, lots more work in, you know, the same amount of time,
and that unfortunately presents problems. >> and i think the flip side of that is that 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. now, lawyers can make requests. judges have to sign off on experts or investigators, but i think it is 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 are 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. >> and in the -- >> go ahead. >> and 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 as judge boasberg pointed out it is not the case in other parts of the country. >> that 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. 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? 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 affirm 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 of-need to be applied for officer 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 enjoy 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 there sign by justice briar, 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 v vicksburg. tuesday, talks on general robert
e. lee, ulysses s. grant and colonel john mosby. friday, civil war institute conference. wednesday features lincoln scholar harold holzer. and on friday we conclude the conference with author t.j.stiles, american history tv civil war special all next week beginning at 8:00 p.m. eastern on c-span3. all persons having business before the honorable the established united states supreme court give their cases. >> "landmark cases," produced in cooperation with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> number 759, earnest