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tv   Landmark Cases Gideon v. Wainwright  CSPAN  March 27, 2018 12:10am-1:42am EDT

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[captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2018] >> all persons having business before the honorable the supreme court of the united states give their attention. >> landmark cases. c-span's special history series.
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produced in partnership with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> may it please the court. >> quite often in many of our most famous decision, they are unpopular. >> let's go through a few cases that illustrate what it means to live in a society of different people who stick together because they believed in a rule of law. >> good evening and welcome to landmark cases. tonight's case is gideon vs. wainwright. the supreme court ruled that the right to counsel is so fundamental to our governmental system that states must provide lawyers to defend its who cannot afford one.
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the hero of tonight story is an unlikely one. clarence gideon was a drifter in florida who was accused of breaking into a pool hall. as we begin tonight, we are going to go to some historic videos. you will see the real mr. gideon and the florida judge who sentenced to jail. they reacted the case for cbs in 1965. >> the next case on the docket is the state of florida vs. clarence gideon. are you ready for trial? >> i am not ready. >> did you plead guilty to this charge by reason of insanity? >> no sir. >> why are you ready? >> i have no counsel. >> did you know that your case was set for trial today? >> yes sir, i knew. >> why then, did you not secure counsel? >> your honor, i request the
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court to appoint counsel to represent me in this trial. >> mr. gideon, i cannot appoint counsel to represent new this case. under the laws of the state of florida, the only time the state can give counsel is when that person is charged with a capital offense. i'll have to deny your request to appoint counsel to defend new this case. >> the united states supreme court says i am entitled to be epresented by counsel. >> let me introduce you to two guests at our table tonight. paul clement, former u.s. solicitor general under president george w. bush 2004 to twafmente he's now a lawyer in private practice in washington, d.c. he has the distinction of honoring more cases before the supreme court, 85 times, than nyone in private practice. glad to have you back. he is a law professor at yale and a visiting professor at the
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university of pennsylvania. author of numerous books on constitutional law. his latest is gone because edition today, timeless lessons for the issues of our era. was mr. gideon correct? does the constitution guarantee him the right to counsel? >> he said the supreme court said it. the supreme court hadn't said it. it would in the case he would eventually help get to the supreme court. which is what we'll talk about this evening. what the supreme court had said before is that federal defendants being prosecuted for ederal crimes in federal court could have appointed counsel but the case that people may not have heard of was called johnson vs. zerps, that the court had never said that that was true for all noncapital cases, the nondeath penalty cases being tried in every state court.
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>> mr. gideon had that notion because of the six amendment. which says in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial and to have the his tance of counsel for defense. paul, he also turned to the 14th amendment because he was really quite a student of the constitution. which says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states. nor shall any state deprive any person of life, liberty, which he was about to be deprived of, or property without due process of law. nor deny to any person within its jurisdiction the equal protection of the law. so why did that entitle him to a lawyer? >> that again is a question that the supreme court would eventually decide but i think mr. gideon was quite right to focus on the due process clause in addition to the sixth amendment. one problem that he had is that the sixth amendment applies only to the federal government. it constrains the federal government, not the state government.
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but the 14th amendment and its drew to -- due process laws, directly con strains the states. that's why he was quite right to point to the due process clause as ultimately being the basis for what florida, as opposed to the united states government, why florida had to give him a lawyer. >> on facebook i followed criticism who says liberal case. c-span is picking another liberal case tonight. is there something about this case that both liberals and conservatives can find to like? let me start with conservative. >> i don't think of gideons a being a left-right case. i think there are things for everybody about this case. i think, particularly for a conservative, the idea that when someone is facing the awesome power of the government and the power of the government is about to take away their life or liberty, to be able to have the assistance of counsel and make that guarantee real is something that conservatives and i would think liberals would value as a
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cherished right. >> in the era since the warren court, it's basically been a court in my entire adult lifetime where democrat appointees have not been a majority on the court, since 1970. it's been a berger court, a rehnquist court, republican chief justices appointed by republican presidents with a majority of members being republican party members. the court might not like everything the warren court did, but gideon is absolutely bedrock across the board, 9-0. and other things aren't. for example, the exclusionary rule, which comes out, applied against the states at about the same time, conservatives don't like that and i might be with them on that. but we all believe, left, right and center, in this bedrock
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right to have a lawyer. the right to have rights. if you don't have a lawyer, you really can't defend any of your other rights. even from a conservative point, if you're going to put people in prison because you believe in law and order you want to put the people in prison who actually did it. who are guilty. that legitimizes the whole system, is that you do have lawyers who can put the government to its prove, to prove that these folks really are guilty of something, rather than guilty of simply being too poor to hire a lawyer. >> i think one of the great champions of the sixth amendment in recent years has been justice scalia. i think that just underscores this is not a left-right issue. >> this is a case with some interesting and big characters. we are going to tell you about them them as we wade into our story. first is clarence gideon himself. anthony lewis, pulitzer prize winning new york times reporter, wrote a best-selling book about this case at the time called, gideon's trumpet.
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later made into a movie. here's how he describes clarence gideon. he was a 51-year-old white man who has been in and out of prison much of his life. he had served time for four previous felonies and he bore the physical remarks of a destitute life. a wrinkled face. a frail body, whitehair. he had never been a professional criminal or a man of violence. he just could not seem to settle down to work and so he'd made his way by gambling and occasional theft. those who knew him, even the men who had arrested him and now his jailers, considered gideon a perfectly harmless human being. rather likable but one toss aid side by life. -- tossed aside by life. can you add any more to the story of clarence gideon? >> anthony lewis can really write. that is a really nice portrait. we are going to talk a lot about the man in the case. truth be told, if gideon had not
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been the vehicle or instrument for this supreme court ruling, i do believe that some other litigant would have been. because there are larger structural forces at play in the development of the united states supreme court's case law that made in the right time for the court. the court was looking for a case like this one. that is the other thing i would emphasize. >> we're going to hear about earl warren, chief justice of the united states. tell me briefly who he was. >> he is an incredibly large figure in the supreme court history and he's the embodiment of the warren court. he's also the embodiment at one level of what a chief justice should look like. he looked like a judge should look. and he had a very personal presence. he came from california, he had been the governor. he had experienced a career before the supreme court but what he is probably best known
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for is leading the warren court and the warren court's revolution in criminal justice procedure of which gideon is an important component. >> he's a republican. he ran for the vice president of the united states on the republican party ticket in 1948. if dewey had defeated truman and earl warren would have been the republican vice president, he's put on the court by a republican president. dwight eisenhower. this is to the earlier point about whether this is just a liberal case. the other justice that i would mention is going to play a very role in our coverage is hugo black. a very interesting character. he's going to write majority opinion in the gideon case. earl warren is going to assign the opinion to hugo black and houko black is someone who had -- hugo black is someone who had been a lawyer in private practice and had defended people
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from indigents, to poor people and wealthier clients. >> we're also going to heart name abe fortas. >> abe fortas comes into this drama not as a supreme court justice, though he would later become a supreme court justice, then a failed nominee for the chief justiceship. but here it's abe fortas the lawyer. at the time that he is appointed to represent gideon, he is at the top of the legal profession. he is one of these great washington fixers and lawyers at he time. gideon goes from not having any lawyer to having one of the greatest in the country. >> across from him was bruce jacob. do you know anything about him? >> only what i know of him from anthony lewis' book. but i think we're going to see him in the course of the evening. >> he argued two cases before the supreme court and really interesting history about both of them. we'll learn that later. then the other namesake. wainwright. louie wainwright.
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he really has very little role to play in this case. he was the head of the florida prisons. how were those names assigned to cases? >> they are assigned in the first instances in which party is sued in the action. the reason why this is wainwright as opposed to the state of florida is this gets to the supreme court in a habeas petition as opposed to a direct appeal. and so when you file a petition for writ of habeas corpus, it's really -- you sue your jailer. that's why the head of the florida prison system was the defendant. of course wainwright really is a pretty small player in this drama because when the case is first filed in the supreme court, there's a different head of the agency and it's just the official title and they just swap them out one after the other. but wainwright's the one that stays in the caption of the case hat we all know.
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>> earned his way in history by not even being around for the case. we love to hear your participation in this program. in about 10 minutes, we will be going to phone calls across the country. if you live it mountain time zopes 20rks2-748-8906789 you can also tweet us, use the #landmarkcases or go to c-span's facebook page and you'll see a posting about tonight's case and already a conversation under way. we're going to go back to some video and we're going to take a look at how clarence gideon ended up facing criminal charges in panama city, florida. >> i was on saturday that i was arrested. i was arraigned on monday morning. think gave me a preliminary trial the next day, on tuesday. that was the first time i found out that actual direct evidence they had against me of break
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into this place here. >> this is the file folder for the gideon case. we keep that separate from all our case files now because of all the interest we have in the case. and the historical value of it. the original case file. some of that, since it is getting so old, it's really hard to read. this is the charging document from the state's attorney's office. from 1961, when he was charged with breaking and entering in the bar, the pooth the pool room. real brief summary. they're saying that mr. gideon did in fact break into the pool room. and he stole money or property. this one is actually the verdict sheet, finding mr. gideon guilty . so the defendant was sent to state prison on september 7, 1961. or a term of five years. >> even though panama city was on the losing side of this case
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they've become a part of history. it's fun to see how that local city in florida has preserved all of the papers for this case and has a bit of a museum that preserves their place in history. explain why judge mccrary, when you watch more of this, you see he's trying to help clarence along. but the law only allows him to go so far. what would florida allow -- law allow at that point and was florida unique in not having assigned judges for indigent defendants? >> florida law at the time only allowed for the appointment of couple in a narrow band of cases. principally capital cases or death penalty cases. they weren't alone at that time in not providing counsel to indigent defendants, poor defendants. but they were in the minority at that point. and the trend of history was clearly going against them. so -- i'm not sure about the
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precise number, but i think you were down to about a dozen jurisdictions that didn't provide counsel in all cases to poor defendants. >> it was even more dramatic than that. so two things. one, the judge is trying to help gideon out a little bit. but it's very difficult to be a coach and the umpire. and some folks who say, gee, the constitution doesn't say appointed counsel, it's true. and the framers only provided for appointed counsel in death penalty cases, but in the other cases the judge was actually the -- supposed to help the defendant, but as time went on, it became clear that you couldn't play these two roles. so one argument for the rightness of the case is just judges can't be effectively coaches and umpires. but a second argument is actually, as paul said, trend of history had very strongly moved in the direction. by the time of the gideon case,
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only five states were not giving appointed counsel in all felony cases and even among those five, they were all former confederacy, and florida was one of those five, even then in some f the big cities, apointed counsel was being offered. all was in capital cases -- always in capital cases. and what the judge also says, he says, i can't do it. no, he wasn't required to do it under florida law. but even judges who weren't required to do it often were choosing to do it. and from a state perspective, here's an amazing fact about the case. on ates actually weigh in one side of the other, friend of the court briefs, 22 of them, led by the then attorney general of minnesota, 22 side with gideon and only two join florida. saying, we shouldn't be forced
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to do this. >> mr. gideon's case went to the florida supreme court. did >> based on the laws of the state, i do not think they had much choice. i think they probably would have been open. i do not think there was much of an appetite for that. unlike the supreme court, the florida supreme court did not pick gideon's case as a vehicle to make a change in the law. this was just another case, another prisoner with out another valid claim. in their eyes. so i think that when you get to the way the supreme court of the united states treats this petition, it is night and day, compared to the florida supreme court which uses as another
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hopeless petition. >> other supreme court's at the time were not recognizing council even when the constitution was not entirely clear. state courts in other states were saying, we are in charge of the justice system in our state. and we are going to improvise in some ways, because even if the united states supreme court has not yet required as you so, think about it this way -- if the supreme court ever does require us to do this, are we going to have to go back and redo all of these convictions? do wer our own purposes, ever wants to be convicting able might be innocent, just because they might not have good lawyers? state supreme courts were more forward leaving them florida supreme court. susan: you mentioned one earlier case in which you talk about beth versus brady in the supreme
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1942. court had ruled on the right to counsel. >> i mentioned hugo black who himself was a very interesting character. a southerner, former senator from alabama. who jeff sessions would be, today. he does not come from any fancy family background. that shehard-working was from a hard-working alabama family. , butd not go to ice cool he pulled himself by his own bootstraps and gets himself elected in the senate and he is franklin roosevelt's first appointee to the united states supreme court after roosevelts reelection in 1930's six. in a 1938, in his first big up the new, he writes saying that the six amendment requires of the federal government appoint counsel to a defendant. as you this case mentioned, four years later, the question is, what about the state?
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hugo black hat a dissent in that case. he thinks that the bill of rights, which originally applied to the federal government, should also apply to the states. the theory is called the corporation of the bill of rights. the bill of rights is incorporated within the states. it says, congress shall make no law -- but it applies all of these rights, speech, due process, counsel, speedy trial, public trial, he thinks that all of them apply to the states. the first case where he says this is in the does and in bets versus brady. later on in 1963, he finally has a chance to take that defense and turn into a majority of any and. susan: so he is sentenced to five years to what seems to us like a pretty small crime. he took some wine, beer.
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if he was in fact guilty, which he says he was not. what was also missing was some change from the jukebox and the cigarette machine and he was sentenced to five years. it was said earlier that this is a man with an eighth-grade education. what did he do when he got to jail? >> when he got to jail, he started the process of becoming a pretty good job house lawyer. -- jailhouse lawyer. one of the things that he did, he gave us this constitutional right. history,accident of some have said. if the supreme court had been ,eady at the time of bets brady would be talking about smith as the person who brought up the constitutional right. he got lucky in a sense, but he was also smart. if he had not preserved his
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request for a right to counsel, then his case not have been the and if he hadn't understood that he had the right habeous a petition and take the case to the supreme court, we would not have gideon versus wainwright. we may still have the right to counsel, but it would not be gideon's case. susan: he wrote a letter to the supreme court. it was one of many that they received every year. it looks had written with pencil. we're also going to listen to , justice of the supreme court, about how justices deal with these kinds of decisions. let's take a listen. >> what happened when the court received a gideon's letter? >> the letter is written to us from a prisoner. did, ams, as mr. gideon violation of a fundamental constitutional right. we regard that letter to be an
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appeal. they may not be called on the appeal, -- it may not be called on the deal but we do deem it an appeal. that letter is circulated to all of the justices. so, when the letter was received, it was put on a conference list. the list that we consider on fridays and we going to conference. it was one of the first cases that i had the opportunity to consider after my appointment to the court. we talked about it at length. at as much length as any other case. we decided that perhaps we ought to consider again what the constitutional requirements of right of counsel really meant in a country that believes in equality. susan: the courts still handle the appeals in the same way? >> they handle them in a very
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similar way. i think the gideon case is one that for the law clerks stands out as the handwritten nature of the petition -- when you are a law clerk and looking at petitions, particularly, prisoners petitions, the vast majority of them are frivolous or. but i think the very fact that gideon's case was granted, i think it is that little voice for a lot of the law clerks but that, i have to take this seriously. because, everything in here, there may be a very important question. it was buried in the sense that gideon sometimes is very crisp and clear. but other times, his writing is meandering and he is not so clear. the law clerks are reading, if they don't give up and they are looking for the decibel needle in a haystack, this is the essence of what he wrote. the question is very simple.
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this is a quote. " i request the court to appoint me an attorney and the court refused." it is very simple. susan: you learned a little bit more about the supreme court and its case. first, it's take some phone calls. beginning with the call from josh in algona, iowa. josh, good evening. my question is, how much of just this black's opinion had to do with how he ordered it in gideon? >> hugo black believed in the text of the constitution. he was a liberal but before bork, whorobert taught me constitutional law or antonin scalia you or clarence thomas or no gorsuch, all of
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whom say that they are textualists, he always carried a copy of the constitution with him. he comes from the bible held, the fundamentalist part of the country where they take their sacred text seriously. the protestant tradition of reading their bible. a critic with say, g, you are stretching things. a critic would say, g you are stretching things. that is what a critic would say. one response is, yes but if you cannot afford an attorney, the judge is supposed to help you defend yourself but over time, it became clear that you cannot be an umpire and a coach at the same time.
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>> i would say, i don't think that gideon is just black chekov most textual or originalist of union. it really relies more on the logical extension of the courts ? other cases principally, the that you case referenced about giving the right to counsel in the federal system. >> another thing that the court really relies on, that we have not discussed. the scots borrow case -- scots tsboro case where the supreme court in the 1930's had basically's head, when you are on trial for your life, you are entitled to appointed counsel. of what happened in the brady case, after the scottsboro
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said no, alabama, they that is a federal case. they had to look at it from all sides. sometimes, you are entitled to a lawyer if it is a particularly difficult case, or if you are feebleminded, or if the prosecution has all sorts of resources -- we have to look at all the fact and circumstances. what black does say in this opinion, is that it is too complicated and too uncertain. as long as we are in the business of requiring counsel, when it comes to capital cases, why not just do it across the board. as in: we have a call from here in pennsylvania. color: -- : would you indulge me, i have to say something in
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defense of the span. very quickly, this is the second time i have been watching this program. from my conservative brother and out there, those who are criticizing the span, i just have to say that he span is fantastic. if you think it is biased, or, you're not watching enough. you spin does a wonderful job. people on the right, the left, front and then her, i don't understand what anyone could criticize c-span is having a liberal bias. thank you for that. my question to you wonderful guest is, i would like for you to expand on what the source of this idea of having a right to counsel when one is on trial. because, have always been taught and brought up with the notion that ignorance of the law is no excuse. just because you do not know
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what the law is, it does not give you any advantage in court or anywhere else for that matter. this notion we get that once you become a defendant, that you have a right for someone to coach you a long, to blur the metaphor of a coach? i always thought that if i was willing to testify, the whole truth, to the best of my knowledge, if i am a defendant, the judge can look at the evidence and the court will decide what the correct assumption is. susan: thank you for the call and kind words. what would you say to peter? paul: i would hate to peter that the right to have a console, the right to have a lawyer, comes from the constitution, from the sixth amendment in the federal system. the harder historical argument is to get from the right to have a counsel, if you can afford it, to the right to have the state provide the counsel for you if
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you cannot afford it. that is the leap i think is less a leap you make in history than a leap you make based on fundamental fairness and the way that the system works. because i think if you go back to even the first justice roberts's opinion in betts that goes through the historical arguments, there is not a great historical tradition at the framing anyways, for the state paying for a lawyer or the federal government paying for a lawyer. the argument ends up being, the state itself when they are trying to prosecute an individual, they pay for lawyers and they spend lots of money, and people of means, if they are accused of a crime, the first thing they do is get out across -- go out and get the best possible lawyer they can afford. so is it fair in our system to have somebody who cannot afford to pay for counsel have to face a system where the tech is
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-- where the deck is stacked, the prosecutors are paid lawyers, very highly trained lawyers, and anybody who could possibly afford it, will go into court and have a lawyer? so i think it is less an argument about his jury, then an argument about the kind of fundamental fairness that is guaranteed by the due process clause. akhil: the rules in court are very artificial rules, they are lawyerly rules, legalistic rules. at the time of the founding, there were maybe six, while -- common-law crimes. today, the statute books are very thick. there are elaborate rules of evidence. so suppose you are innocent, but you do not know the right way to ask a question. let's say, you are the prosecution witness -- i will not spoil the ending, because you have not told you what happens in the gideon case upon retrial, but suppose for
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example, you have a good defense but you are a layperson and you do not know the rules of evidence, the rules of procedure, you do not know how to show the jury actually that maybe you did not do it, that somebody else did, and as paul mentioned, the folks on the other side, the prosecution -- this is a very accomplished legal team against you and they, for example, they get to produce witnesses against you and the constitution says, to even things up, you should have the right to compel witnesses in your favor. they can present evidence, you can present evidence. they can help to pick the jury, you can help take the jury, but -- pick the jury. but none of that will work without a lawyer, because you don't have -- you don't know how to pick a jury. how to compel the production of witnesses. to cross examine within the rules of evidence and all the rest, you need a lawyer for that. susan: matt asked, did he use
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the library to get the knowledge for his letter? the answer is, yes. he also had to follow prison rules, which is what he had to read it in pencil and not in pen. are all state and federal prisons required to have law libraries? paul: they do by practice, many are required by their state. i think if he had a jurisdiction that did not provide it, you would have due process challenges to it. so for a practical matter, you have access to those resources and you have a lot of litigation coming out of these prisons, so much so, that congress passed a law -- the prison litigation reform act, to limits on it. it is a source of a lot of cases that continue to be filed. susan: ok, charlene in birmingham, alabama. welcome. caller: thank you for having me. i just wanted to know, i know that gideon deals with criminal issues, but does the federal government actually allow a
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court-appointed attorney for civil, if the person is indigent? susan: that is a good question. thank you. paul: in general, not. there are a couple of areas where people have made particularly strong arguments for a civil gideon, that is what you are asking about. akhil: for example, if they are going to take away a child in a child custody case. there been cases in the supreme court about whether that is so close to being put in prison yourself, that you deserve a lawyer. if you want to declare bankruptcy and you are so poor evenndigent but you cannot filed the bankers the papers, you have some right to government assistance in order to declare. and paul will know the details, but as a general opposition the gideon case applies to criminal
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defendants and basically felony cases and serious cases, and it has not been fully extended to all traffic court cases or to civil lawsuits, whether you are talking about civil plaintiffs, people bringing the lawsuits, or civil defendants. folks who are eating sued civilly. suedlks who are being civilly. paul can give more details. paul: that is right. obviously, there are programs available in a variety of jurisdictions to provide legal aid, lawyers and civil cases, but in a sense i think the current system for the civil system is a little like the criminal system before gideon. in that it is a piecemeal, you probably have a better chance and certain civil cases than you might and state cases. -- in certain level cases than you might in state court cases. certain jurisdictions have better legal aid systems than others. so you are much more at the
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mercy of the particular jurisdiction you're involved in. susan: james in california, you are on. caller: thank you for taking my call and think you for the show -- thank you for the show. he spent does over the years, wonderful work. first of all, i saw something on the news that brown v. board of education had passed away, miss brown. since you are talking about naming of cases earlier, i thought that was an interesting footnote, inevitable but regrettable. my question is, in the systems we have for legal assistance for criminal cases -- i am a retired attorney and i've heard people the public that defenders that we were trying to get to be executors, that they
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did not work as hard as they should have. i am wondering if the system were attorneys are appointed and eight by the state, as a host -- paid by the state, as opposed to established in the law firm, but just handles defense, with or that may be a better. or some other system perhaps, anyway, thank you very much. susan: thank you for the question. is it a right to confident -- competent counsel? paul: if you have somebody provided by the state that does an awful job, you might have your constitutional rights violated in that way, but absent that sort of constitutional minimum, the reality is that competence of counsel varies widely.
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the system, once it provides the right to a lawyer, there are a lot of ways to deliver the services in the best possible way and i am not sure that anybody has a monopoly on the best way to do that. i would say in my experience, i have run across incredibly talented public defenders, providing very good legal advice to their clients. susan: we have a call from jeff. hickory, north carolina. then we will go back to our story about gideon. jeff, you're on the air. caller: thank you for taking my call. also, i have always wondered why when the case was asked going to the supreme court, it was gideon v. cochran. then, when the decision was handed down, it was gideon versus wainwright. you answered that earlier, thank you for that. in studying this case and teaching it to my students, i
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have always wondered betts v. indy resident required that special circumstances, such as illiteracy or indigency, that counsel be appointed. and arguments in the gideon case, it was evident that lord florida hadly -- wantonly ignored in the special circumstances. talk to me a little bit about why that was done so widely when it was obviously against the supreme court precedents. akhil: that was one of justice black's argument, and a supreme fortiss, thee supreme court lawyer, said that the case-by-case approach was not working well. there was one absolute rule in a death algae, a case, you got a lawyer to riyadh that is how betts and others came to read the scottsboro case, which i mentioned out of alabama. but then after that, the
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individual facts and is, and you are absolutely right, for cases from florida, the u.s. supreme court, each and every time said, the person on these seven fax is entitled to a lawyer. where the florida supreme court is that they are not. florida supreme court and the u.s. supreme court, purporting to basically follow this name set of principles as betts v. brady, but they keep disagreeing. the last time i think the supreme court had ever upheld someone who had asked for counsel and did not get it was 1950. so hugo black and the lawyer for tiss said thatr this case-by-case system was not working well. but it was worse for the state because i'm a when we overruled
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a state decision several years after the trial, they would have to retry the person. you would have to put humpty dumpty again. the witnesses are scattered, the -- let'sis scattered just have a roof from the beginning. there will be a line, serious cases versus traffic cases. this one is illiterate, underage, who is feebleminded, whoever. -- let us have this same rule from the beginning. susan: so the court agrees to hear the case in the early part of 1963. let's take a look at the nine members of the supreme court who were destined to hear the case. we talked about earl warren and here are the others. eisenhower appointees on the court. john marshall harlan ii, some of our earlier cases where john marshall i, potter stewart. roosevelt's appointee, democrat hugo black and william o douglas. the truman appointee, tom clark.
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kennedy appointee, byron white, nicknamed wizard white on the court. left in 1965 to be u.s. ambassador to the u.n.. his or anything else about the makeup of the court that we should know about when it comes case? akhil: there is a lot we could say about the make up of the court. one thing that struck me as compared to the current court it is a relatively young court. paul: the average age is a little under 60 years old. you have new members coming on, as justice goldberg indicated in his video earlier, that this was one of the first cases he was considering coming onto the court, replacing justice frankfurter, who was a big believer in federalism and judicial restraint. and may or may not have been a vote for clarence gideon. the other justice i would highlight is the second justice harlan, who i think was one of the real components on this
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particular court of federalism. to theing more risk next states, as opposed to imposing a one-size-fits-all solution, just because we applied it in the federal context, we will apply in the state context. susan: the oral argument was heard by the court on january 15, 19 escape three. one day of oral arguments. tiss wasard, abef for empowered to represent john gideon. we will hear from abe fortas about why he wanted to get the case. >> i felt the time had arrived when the court with a proper case before it, would lay down the general rule applicable to all felony cases in the state court. but every man come the rich, the poor, and the war as well as the rich -- the poor as well as the
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rich was entitled to the benefit of console when he was defending himself against persecution by the mighty forces of this into. >> we heard from you both that he was it our house lawyer, and the federal court system. soon to be appointed to the court himself. what do you think he was selected to argue the case? it was a big deal? why did they do it? akhil: because they wanted to make sure that they were hearing the best arguments on both sides. my friend, paul, has argued more cases before the supreme court than any living person currently in private practice, and if the court doesn't have -- if one side doesn't have a lawyer, the court wants to make sure they get the best arguments, so they will pick somebody like john manning, the current dean of the harvard law school, to make sure they are getting the best argument, which is part of the answer -- and you understand how
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good lawyering is, so the judges can get it right. but boy, that is true at trial too. so the jury can get it right. we do not want people convicted just because they are poor, we want them convicted because it are guilty. we can only really be sure of that if we have good lawyers on both sides. so actually, in a way the appointment of fortas is proving the deep logic of basically gideon's claim. susan: arguing on behalf of the state of florida was bruce ?, an attorney a couple of years out of loss will. we actually spoke with him. he is in his 80's. he sat down in front of our cameras and talked about the experience, so we will listen to him explain what it was like to argue the case before the court. >> the day before the case was argued, chief justice warren for me and. swore me in.
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they were about three or four lawyers being sworn in. he was a huge man, he leaned over the bench, the bench is just a few feet away and you feel like he is right on top of you and he said, welcome to the bar of the supreme court mr. jacob. swore me in. i admired the chief justice so much, to have somebody like that talk to me. my name was really really something, special, to hear him say my name. during the argument, it was pretty nerve-racking appearing before the supreme court. they asked me at least 92 questions, most of them during the first half hour of my argument, so 92 interruptions. quite often they were not interested in the answer, instead, they were trying to make points with each other after the argument. i saw abe in the hallway and i felt terrible, like i had done a really bad job because i was hammered with a summary
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-- so many questions. and abe said, you have a wonderful way before the court, which made me feel good because i thought i did really poorly, but he made that comment and it made me feel better. suzanne: paul clement, i saw you smile. as bruce jacob talked about his experience. you have been there so many times, can you identify with a young lawyer a couple years out of law school assigned this case and being sworn in. tell us what you were thinking about when you heard him describe that? was thinking, it is almost ironic here, because whether time he gets to the supreme court, the deck is totally stacked against gideon. at the supreme court, it is almost the exact opposite. because, here is this lawyer from florida in the prosecutor's office, he is getting sworn in the day before his argument and i think i read in anthony lewi'' book that the day before was the
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first time he had ever seen a supreme court argument, and he is arrayed against abe fortas, essentially hand-picked by the court to argue this case with the court knowing even at this point, when they appointed him, that they had at least five votes to overrule betts. so it was really a stacked deck against this lawyer who was making his maiden supreme court argument, which is incredibly nerve-racking and are the best of circumstances. and he is facing tough circumstances. i cannot help but think that was a really nice thing for abe fortas to say. susan: 91 questions he was peppered with. he knows the exact number. is that common? for people arguing cases before the court? akhil: paul is the expert, but he would tell you that we might in recent memory, distinguish
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between pre-scalia and post scalia. before him, in general, the bench was a little bit cooler and quiet. but from the very first day on the supreme court justice scalia , actually began to change all of that and now most of the justices lean in in a big way. i was told the story that on justice scalia chuckled very first day, it is now hot bench. and it was not much before. paul can clarify, but the story is told, at least, that on the very first day for justice scalia on the bench, and he is asking question after question, one of the justices, a very lewis powell leans over to thurgood marshall and says, do you think he knows that we are here? that is the story i've heard. susan: you have made the story that the court wanted here the best arguments on both sides.
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they needed someone more than a twentysomething junior on the state. akhil: that is the call of florida. soon to all its resources, it could have picked anyone? so maybe it was a problem for florida. they could've sent a team of lawyers if they wanted to. susan: can you encapsulate the arguments made by each side? paul: i will try. i will try with the florida side -- fortas side. he knows he is in a position of strength, so he needs to do a couple things. one is that he needs to make clear to the court that this is the right case to overrule betts v. brady. he is in an odd position, because the supreme court doctrine says that if there are special circumstances, special disabilities for the defendant, then you are entitled to counsel, even under the betts rule.
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so in an odd way, he has to argue against his own interest a little bit. by saying that didion is not that special. and actually did not do a terrible job. he did the best he could expect a layperson to do. so he has to establish there are no special circumstances, because otherwise the court does not have a need to overrule. then his main mission i think is to get the court, all of the justices, comfortable with the idea that they can do this consistent with federalism and consistent with their jurisprudence about how the due process clause in the bill of rights applies to the states. and it is a trick. this is the case with the current court in other areas, but you are not arguing to a monolith, you are arguing to justice back and justice douglas who had a very distinct view of
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how incorporation works. and you are going to justice harlan, who is much more skeptical of applying the federal bill of rights to the states. and you are trying to pull it all off at once. i think the key, and the professor alluded to this earlier, the key was fortas decided he would argue that the current doctrine, special circumstances, the court overruling state on a case by case basis was worse for federalism. then a nice clean bright line that all will. susan: florida's case? akhil: maybe in three words, precedents, federalism and floodgates. so betts v. brady is out of the supreme court president. and why should we just follow it the way that we ordinarily follow precedent? yes, a clean bright line might be better, but florida could have chosen if it
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wanted to, as a matter of a kind of prophylactic to provide everybody a lawyer, but they decided not to. are they the best determiner of what is in the interest of florida? floodgates, there are a lot of people who are already in prisons right now and they did not have lawyers and are you not going to have to let them all out? or try, or attempt to retry them, but many years later the witnesses have disappeared, the physical evidence has evaporated, is that what you want to do? of 8000 or 10,000 people in florida, i think half of them had been convicted without appointed counsel. that is a practical argument that the court has to consider. susan: in addition to the arguments made before the court, it was mentioned earlier that 22
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briefshad filed amicus in support of gideon, and two had supported the arguments of florida. can you talk about the role of amicus briefs? can you talk about the role of these briefs? paul: they are generally briefs filed sometimes by state governments, sometimes by the aclu or other private groups offering the court their own perspectives on the issue. they can be somewhat influential in a lot of cases, but this particular dynamic where -- poor florida. [laughter] they are trying to argue for states' rights and roughly half the state of the union are on the other side of the case, so that state amicus brief. much more weight than an ordinary amicus brief, because a "nixon goes to
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china" kind of amicus brief, a - kind of bunch of states arguing that they actually want a federal right that forces them, even the ones that already provided it, they could change their mind and are the current system. but they want to be told that the federal constitution compels them to provide appointed counsel. i have to think that not just the fact that there are a couple of states on that brief, but the fact that there were 22 or 23. i think new jersey also wanted to join, when it was filed. so there were 22 or 23 toes .gainst florida are akhil: it is the final compelling paragraph of black's opinion for the court limiting the amicus briefs. susan: phone lines are open and we have time for a couple more calls, then we will get to the decision rendered on march 18, 1963. a mere two months after the court heard the oral arguments. of thewe get to the text decision, will hear from chris. caller: how are you? susan: we are doing great. what is your question? caller: i have a comment.
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i wanted to say that, i did not realize the timeframe of this area i don't know exactly when the law was passed, when defendants were given the right to have counsel. , i spentnted to a that 20 years in the military and one of my soldiers was brought in front of a court-martial, and i did not know by talking to the defense attorney, that until the mid-1980's, the soldiers who were in front of a judge, were not provided actual counsel. military officers in unit were appointed to be their defense counsel. so i thought it was an amazing fact that the government gets the prosecutor on their side, who is an actual attorney, then to turn around and say, by the way, you are an office or, you officer -- truly artillery officer, and you know have the secondary job of
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writing the defense for this soldier. my guy wentthat through, he had counsel. but i thought it was funny that after 20 years, after gideon, that soldiers joining the military, there was not a draft anymore, they join the military and of a steal, 20 years later, were not provided counsel in that aspects. there is somebody who is not a trained attorney. and also, another choice that is what are has to make is do they have a trial by their peers, a jury of their peers, or is it just the judge making the decision? that throws another dynamic into it. my soldier had to stand in front of a colonel, trying to make a defense argument, who is not trained to be an attorney. i wanted to provide that information. susan: thank you. any comments on the civil system, versus the military?
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>> the military system has always been worlds apart. constitution says, no person shall be held to answer for an infamous crime unless on indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia. so there are special rules. you do not generally have a grand jury in the military system, you do not always have a trial jury, as chris mentioned, in the military system. the judge in every other federal evening, is a buddy who has life tenure, not always true in the military system. where actually, the judge is a military officer who is in the article to executive branch chain of command. the military justice has always been a distinctive domain. susan: question from wild and wonderful on twitter, "did gideon know the issue in trial court, or doing it, was it dumb luck?" the fact that he brought a
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haboeous, but not in the heel, suggest it one way or another? >> i think he did a good job of wearing the case from prison. i think in a sense, i am just guessing, that his insistence on a lawyer and the fact that he was so insistent that the supreme court give him a right to a lawyer, even though as the professor indicated he was wrong about that, i think that just flowed from an innate sense of justice. of course he was entitled to a lawyer. i do not know if he ever read betts. i do not think so. he just thought, of course i am entitled to a lawyer. susan: steve in missouri comeau -- what is your question? caller: the state of missouri has had budget problems, so they've had to cut back on
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public defenders and public defenders are overworked. so what they have done is set up a series of cases or charges, where you can only face a fine and therefore you are not entitled to a lawyer. well, even though it is only a fine, you go to court, you are facing the entire power and weight of the state government how does gideon affected those cases? akhil: one issue abe fortas has to decide is if you are just try to win the case, or is he going to have to try to or want to establish an even broader principle. a right for only serious criminal cases, or does it apply to traffic court. as we heard in an earlier question, should it apply to civil cases? at the end of the day, he has a duty and obligation to his client and he offers the court
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the narrower option, saying all you need to decide today in order for my client to win is to say in all serious cases, not just death penalty cases, but in felonies. that is all the court really does decide. later cases, just as black's opinion is not clear on how broad or narrow the right of counsel is. he says it applies in state cases, but we will not look at all of the circumstances, like betts v. brady, only later cases established in the felony line. paul: if i can say one thing about the situation of abe fortas, he has an interesting dynamic in terms of his loyalty to his client here, because he knows he is being appointed to argue the case to overrule betts v. brady, but he has an obligation to win the case on any grounds. so one of the things he does when he is first assigned the
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case, is to search for the special circumstances that might allow him to win the case, even under betts v. brady. i was struck by that, the lawyers obligation to the client. he knows if he finds special circumstances, this will not be a landmark case, but he have to look for them anyways. susan: shaun at a virginia, you are up. caller: thank you for having me. quick question, basically, is there an example of a conviction that was overturned after this decision was rendered because it was determined that the defendant was not given adequate counsel? i will hang up and hear they answer off of the air. akhil: the principle applies not just to gideon, but to all kinds of other people, all the cases that were on appeal at the same
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time and later the cases are actually going to say it applies even more broadly than that. to all sorts of people whose final, but had in they did not have, when gideon was decided, that they did not have proper lawyers, that was going to have implications, whenever someone is prosecuted for a crime committed years after greedy gideon. the question is, whether their sentences should ever be enhanced because of an earlier conviction, that they had without the benefit of counsel? susan: we learned that the decision came down on a 1963, and that it was unanimous. hugo black authored the
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decision. here is the next of what he wrote. "even of the educated laymen has small and sometimes no skill in the science of law. left without the aid of counsel , he may be hurt on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue, or otherwise inadmissible. he lacks both the skill and knowledge adequately to prepare his defense. he faces the danger of conviction because he does not know how to establish innocence. 22 states argued that it should not be overruled and we agree." three justices, even though it was unanimous, wrote separately to express agreement. they were tom clark, john marshall harlan ii, and william o. douglas, these are concurrences. why did they do that? paul: they all had their reasons to write separately. and i think for justice clark it was, for him it was the real reason that the court had already extended the right to
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capital cases and he did not see a difference between capital cases and noncapital cases , because the due process text your life and your -- because due process protects your life and your liberty. for justice douglas, it was a very specific reason. as i alluded to earlier, he and justice black had a unique approach to the incorporation of the bill of rights and it is a little bit of an irony that just ice black, because he is assigned the majority of union, cannot fully embrace the majority of union. so just as black's opinion is not really that important in a concurring opinion. justice harlan's opinion and some respects is i think the most interesting and his vote in the majority is maybe the most surprising. and he has a line in his concurrence to the effect that the court is dealing, dealing with the betts case and he
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thinks is that the best case, although it should be overruled, deserves a more proper burial. it is that last line you read where just as black concludes -- justice black includes that basically, betts was wrong but it was decided, but justice harlan will not go that far. he says essentially the experience has shown that as a federalism matter, this does not work. he also writes to distance himself from the douglas view of incorporation. so you get a sense of those opinions of the separate opinions. although they are all short. you get a sense of the underlying currents in the court at the time. akhil: this is a case about gideon, but it is sweet vindication for hugo black, because he dissented in that, in betts, and now he cannot resist, , the court majority. natural human tendency to say, "i told you so."
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that he was right all along. and justice harlan cannot go along with that. but hugo black, this is vindication for review and that -- or a view that he had in putting forth forever. susan: we will listen to clarence gideon and the attorney for florida talk about reaction to the decision. gideon: i felt great. because i was listening for a decision on the radio when it came on. and most of the prison population heard it. you could hear us from 10 miles as opposed from there. and i also received a telegram congratulating me on the decision. >> phone call from anthony lewis, he was the reporter for the new york times at the supreme court, he was allowed to sit within the bar, anyway he promised me that when the opinion came down, he would call me and tell me what the result was.
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i was a little bit this up when it that -- i was a little bit disappointed that the decision was unanimous, i was hoping there was at least one justice, justice harlan, a couple other s that we thought might vote on our side. susan: and in fact, the country was waiting for this decision. we have a new york times front-page article, "the supreme court extends ruling on free counsel." what was the reaction to this in the media and other legal circles? akhil: i think the reaction was very positive to this decision. paul: the fact it was unanimous was an important component of that. i think if the court had come out the same way 5-4, i am not sure the decision would've had quite the effect that it did. and it went beyond just the narrow circumstances of the case, because we alluded to the fact that there was counsel provided in the federal system, but it was not always provided
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well or systematically. and this case was really a watershed development in terms of not just extending the right to the states, but also really reforming the system more generally so that counsel was available, experienced counsel in many more places than it had been. susan: florida, the floodgate argument, that they had more than 1000 prisoners in florida prisons who had trials without counsel. numeral word about having to retry all of those cases. next up, we will hear from alsoe wainwright name is in the case, the head of the florida prisons from 1962-1987, talk about the impact of the decision on his state. >> we have had a total of 5500 petitions for relief filed as a result of this decision.
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and of course, we have had over 1000 that have been totally released as a result of it. >> many people are afraid that all of these men have been released and they will go out and commit crimes again. >> yes, that has been a concern of those in law enforcement and the officials of our state. however, we have not found that to me that case, because out of the over 1000 that have been released, we've only had about 4% who have returned with a new conviction, so far as we know. >> how does that compare to the national average? >> actually, the national averages about 65%, 65% of our population and about 20% of those released on parole returned to prison. >> will you call it the gideon
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memorial hall? >> no sir, i don't believe we will go that far. you will be remembered here for a long time, i ensure. susan: anything to make up for the low recidivism? akhil: i think it is stunning. and i mean, there is no reason to think that there is something about these 1000 people that -- that somehow they were uniquely unlikely to be recidivist, if they were in fact anti-of the underlying crime. so i don't think you can listen to those remarkable statistics, 4% versus 65%, and not think about a lot of those 1000 people that were released were probably innocent of the underlying crime. said,tice hugo black's that the problem is that people were being convicted just because they were poor, rather
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than guilty. susan: earlier, you told us that gideon had argued habeas corpus, and in this book we learned that he was frustrated by the decision of the spring court because he thought if they rolled in his favor, he would be let out of jail. what happened to him? akhil: he was not a lawyer and it is not double jeopardy to retry somebody who is actually convicted the first time. he said if i get a conviction, it means you retry, you play the game again. and so he thought he was absolutely done and he was not at all pleased when he was repeatedly informed by lawyers, no, there will have to be a new trial. and eventually there is a new trial and i hope we will talk about it. susan: we are. fred turner was the lawyer who represented him in his second trial and we are going to listen to gideon now talking about his legal fortunes and having a
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lawyer represent him. here is what happened to him. >> so we go to trial, and exactly two years and one day from the first trial -- we go in the same witnesses, same judge, same colored room, same kind of a jury. and to mr. turner's efforts, it was so simple, that it would've been impossible for me to commit a crime. >> on august 5, 1963 a new six man jury found clarence gideon not guilty. >> i think him winning the acquittal was the most important thing in this whole case.
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it showed the difference between not having an attorney and being with an attorney. susan: what are your reactions? paul: this story and this case would not be the same if he was convicted again on the retrial. it dramatically shows the defense lawyer can make. if you get into sort of the details of how the retrial took toce, his lawyer was able win down the government key witness and point out to the jury, his prior criminal history and criminal activities, and bring that star witness for the prosecution, put him in a genetically different light suggests that he was actively involved in the crime himself, and not serving as a lookout.
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as opposed to this innocent eyewitness. he was able to point out that given the phone booth he was at and where he was looking he probably could not see into the pool hall. there were all these things in the government's case that looked so different when you had a lawyer who is able to very effectively cross-examine the star witness, and make a closing argument that brought it all together for the jury. akhil: so this is a perfect illustration of the points, the court room is governed by these technical rules of evidence, the star witness against him, and gideon asked him, have you ever been that? and that was object into. -- objected to. the lawyer was a what to bring out -- welcome or have you ever been convicted? and the follows that, "not
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quite. there was probation, blob blob blob." so the lawyer new how to navigate the evidence in a way that gideon didn't. susan: so the impact of the decision, how did it affect the system? "how did the case affect the criminal justice system with regard to the sixth amendment right to a speedy trial?" what happened, more systemically? paul: systemically it becomes a nationwide right. they gideon case is an impetus for reforms in the federal system, providing appointed counsel and creating the structure to provide this service and if somebody can become an expert in providing criminal law. you have public defenders' offices put in place after this decision.
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there is an interesting way too that the gideon decision is related to the rest of the warren's court revolution. it is giving criminals new rights, but they are complicated new rights that you need a lawyer to take advantage of. it is not clear to me that you could of had the rest of the war in court -- warren court from a procedure revolution if you did not have gideon in place. akhil: there are rights to have rights and in the real world basically, if you cannot vote and you are not able to protect yourself, the right to vote is preservative of all other rights. the right to have rights. that is in the real world. in the special artificial world of the courtroom, which is
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governed by rules of evidence and procedure and all kinds of legal technicalities, the lawyer has a right to have rights and without that none of your other rights are meaningful, just like in the real world, must you can back something up with the right to vote, politicians will not pay attention to what you think. so we see a lot of people right now taking to the streets for this cause or that one and both people, both sides, you cannot just march, you have to vote because if you cannot vote, you will not be heard. in the courtroom, you must have a lawyer, otherwise you will not be heard. susan: we dealt with other decisions part of this framework in our first season of landmark cases, miranda v. arizona 1966 -- they on the c-span website. you can also order landmark
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cases companion volume written by tony morrow, a longtime supreme court reporter who can give you all the framework for these cases as we work our way through the 12 on the website. and we want to say thank you in giving background and a special thanks to the national constitution center, they have been our partners in this series for season 1 and 2, helping us with the cases and booking guests for the program. so this case has been detected as we saw -- been depicted as we saw in the anthony lewis book, also in a movie. why do you think the popular movie was intrigued -- media was intrigued by this case? akhil: if he does not get acquitted in the second trial, you just see the difference between having a lawyer and not, and at the very least there is reasonable doubt, and he is an intelligent person, but he is a layperson and he was not able to tell his story the right way in court, in a way that jurors could understand.
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but with that outcome, the different outcome the second time around, it is made for hollywood. and to remind the audience, it could have been that the supreme court was looking for a vehicle to do this and it could have been another person who was guilty as all get out, and the retrial would not made a difference and it would not feel the same way. susan: in any of these cases, it is david versus goliath, isn't it? paul: the two components that made it great for television was the result of the retrial and the fact that the petition, the letter to the court was handwritten. i think -- if he is convicted henri trial, it does not make it to the hallmark series and the types the petition, i am not sure has the same resonance with people, but everybody has some innate sense that you can take your case all the way to the supreme court. and if someone as humble as
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clarence gideon can take his case to the supreme court by writing out his petition in pencil on a piece of paper, it really shows anybody can take their case all the way to the supreme court. akhil: and he was no choirboy. he had four prior felony convictions. susan: 17 years in jail prior to this. akhil: in texas, in missouri, now this is florida and the federal system. it is true for other landmark cases, that some of the litigants are characters. susan: that is why we like this series. we have a call from marco. caller: thank you. you have already answered my question about the public response to the case, but maybe you can shed light on what happened to abe fortas, why was he rejected for chief justice when he was nominated by johnson? akhil: there were allegations of financial impropriety that --
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and paul and i both commended lawyer fortas for his legal ethics, in this case representing his client's interests rather than trying to make a name for himself in a landmark case. he is nominated to replace a none other than earl warren. he was going to be elevated, he was already on the supreme court as an associate justice and he was nominated for the chief justice position, but in the court of that nomination process a second vetting occurred and allegations of financial impropriety arose, taking money he should not have. susan: if you are asks whether the representation influenced the decision to appoint him to the court in the first place. paul: i do not think it was the critical thing, i think it was some of the same characteristics
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of his practice that recommended him to the court as the appointee for this particular landmark case also would have recommended him to the president as somebody who could sit on the supreme court. susan: we have a call from greg in dayton. caller: hi. think you for taking my call. i have a question about the landmark cases. my wife and i have been in the state and federal courts on matters of insurance company fraud and we made an original instant action for a jury demand in this trial, and for 18 years we have not had are due process under the fifth and 14th amendment to uphold the seventh amendment to the right to a jury trial. do not know if your guests can make a comment on that. how do american citizens get their day in court as a pro se legate in -- as a pro se litigant, as politicians and judges, even your guest here,
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paul, why can we not have our day in court against insurance? thank you. paul: one of the backdrops for this case we have alluded to is the debate over the incorporation of the due process clause. and justice black and douglas were the foremost proponents of total incorporation, so every provision of the bill of rights would be applicable to the states. but although they argued for that position the year after year, it did not ultimately carry the day in the supreme court of the united states, so what we have is a process where some of the bill of rights apply to the states and others do not apply to the state. and the seventh amendment jury trial is one of those provisions
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that has not been incorporated against the states, so i think that is part of the answer to why a seventh amendment argument in a state court system is likely to be ineffective. susan: we are running out of time. let's use our last piece of video, gideon asked about his legacy and how it should be remembered. >> do you have any feelings about having made history in your case, have you ever felt like a historical figure? >> no. it was not nothing i have done, it was just i was fortunate enough to have a case to come along at a time that the united states supreme court wanted to. the majority, it was unanimous, and they wanted to redo this
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decision and make it possible that everybody in the united states should have a counsel. susan: clarence gideon reflecting on the role he played in the landmark decision which changed american jurisprudence. we have a minute left. we will ask each of you, what should people take away from our discussion tonight about the importance of this case? paul: the right to counsel is fundamental. when you listen to clarence gideon it is remarkable how much self-knowledge and humility he has about the role he played, because he did play an important role by preserving this argument and bringing all the way to the supreme court. even he seems to recognize, quite remarkably, that the court was ready to do this and he was in some respects very fortunate to have the right case at the right time.
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akhil: and as much as progress as gideon embodies, it can be asked whether we really have done full justice to the deep ideas, whether we are providing enough resources in the criminal domain to make gideon a full reality. there are folks that say we should have gone beyond felony cases to misdemeanor cases, traffic court cases. you heard cases about civil cases, for indigents and others, and you heard the body soldiery, civil -- about civil juries in general. both state and federal, a lot of things are pleaded out in the criminal system and they never get to trial. they do not get a jury trial. one entity that really is championing civil juries in an
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interesting way is a project at nyu law school, organized by a great lawyer named steve sexton. and you will be surprised to know he was a law clerk for the great jury trial lawyer hugo black. susan: thank you very much to akhil. and paul from being back this season. so glad to have you. and thank you all of you for watching and for those who participated. ♪

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