Clarence Gideon: History & Reflections
by Corrine Gunning, Assistant Appellate Defender
Gideon. You cannot work in the world of public defense long before you hear the name. It carries a weight and meaning that underlies everything we do. Public defender offices around the country boast photos of a slight, middle-aged man and celebrate Gideon day, week, or month. We memorize the citation – 372 U.S. 335 – and may even boast swag. Gideon is our rallying cry, our reason, our purpose.
Gideon v. Wainwright, at its core, is the reason we exist. Each year, in addition to the office celebrations and joining with fellow defenders on social media to shout about our work, I try to do two things: (1) re-read Gideon and (2) re-read Gideon’s Trumpet – a book written about the case in 1964. They both help me reflect not only on what I am doing today as a public defender, but also to understand the history of the case and how it came to be in the first place. Amongst the celebrations, I wanted to share some of that history and reflect on how to fulfill the “promise” that Gideon holds.
Like so many of our clients, Clarence Gideon had a hard life. He was born in 1910 in Hannibal, Missouri, a small town on the Mississippi River. He ran away from home at 14, living homeless and destitute, and began getting criminal convictions for property crimes by the time he was 16. He lived in poverty for most of his life, and by 1950 had served time in prison for four separate felony convictions. Upon his release from prison in Texas in 1953, Clarence moved to Orange, Texas, where he was diagnosed with tuberculosis and was hospitalized for 18 months.
Clarence married his fourth wife-Ruth-in 1955, and the two had three children by 1959, in addition to three children Ruth had from a previous marriage. The family moved to Panama City, Florida, in 1957, when Clarence was arrested for a misdemeanor.
Although he ultimately was found not guilty of the charge, his wife worked in a “Beer joint” to provide for their six children – including a newborn – for the three months he was in jail. During this time, the State determined the children “were not being taken care of proper,” and all children were removed and placed in foster homes.
After his release from jail, he had a relapse of tuberculosis and spent another 8 months hospitalized for treatment. He got a job working as a cook on a barge in Louisiana in 1960, but was laid off after less than 6 months because of his tuberculosis. By June 1961, Clarence was largely unemployed, unable to support his family, and, eventually, divorced for a fourth time.
Gideon v. Wainwright
He was arrested on June 3, 1961 for the felony of breaking and entering to commit a misdemeanor. On the day of his trial, he asked the court to appoint counsel to represent him, because he could not pay for an attorney. The court denied the request, and Clarence represented himself. The case was rife with errors – particularly those that a lawyer would have caught or not made. He was quickly convicted at trial, and sentenced to five years in prison.
While there, he began doing legal research and ultimately filed a Petition for Certiorari in the U.S. Supreme Court. It was a 5-page document, handwritten in pencil, which arrived at the Court on January 8, 1962. In a handwritten reply brief, Clarence boiled his case down to this: “The question is very simple. I requested the court to appoint me [an] attorney and the court refused.” The Court granted his petition on June 4, 1962.
As with many U.S. Supreme Court cases, the Gideon case must be viewed in the context of the law at the time it was decided. First, in 1932, the Court decided Powell v. Alabama, 287 U.S. 45, finding that, at least in capital cases, the failure to appoint counsel violated due process under the 14th Amendment “where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like.” Following this opinion, numerous courts across the country attempted to discern the reach of the case, coming to various conclusions.
In 1938, the Court unequivocally found that the 6th Amendment provides the right to appointed counsel in all federal criminal cases, explaining that the right “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U.S. 458. 462-63.
A mere four years later, the Court took up the question of whether the 14th Amendment incorporates the right to counsel guarantee of the 6th Amendment and requires appointment of counsel for those who cannot afford them. In Betts v. Brady, 316 U.S. 455, the Court found that the appointment of counsel is not a fundamental right. Rather, a court can appoint counsel “where that course seems to be required in the interests of fairness.” The appointment of counsel for state criminal cases was left to the discretion of district courts unless otherwise required by individual state laws. Justices Black, Douglas, and Murphy dissented.
Given the vague parameters for appointment of counsel, Betts largely functioned as a mechanism to continue to force poor people to represent themselves at trial or forgo their right to trial altogether, just as it did in Clarence Gideon’s case. But because of his petition, the Court was poised to reconsider the question.
It appointed (future Justice) Abe Fortas to represent Clarence at the U.S. Supreme Court, and the case was argued on January 15, 1963, and decided less than 60 days later on March 18. Justice Black now led the unanimous majority in overruling Betts and holding that the right to counsel is a fundamental right that must be incorporated as to the states under the 14th Amendment. The Court explained unequivocally the essential nature of attorneys in representing poor people charged with crimes and in ensuring fairness in criminal cases. It’s a moving read for those of us who fill that role.
The Court ordered that Clarence have a new trial with counsel. Back in Florida, Clarence requested to be represented by a local attorney named Fred Turner – who had an excellent reputation as a trial attorney. Turner had also previously represented both Clarence’s wife in their divorce and the primary witness in Clarence’s case. Contrary to what happened in Clarence’s first trial, Turner conducted a thorough investigation of the case. He also advised Clarence to plead guilty. Clarence chose to go to trial, and the jury took less than an hour to find Clarence not guilty.
There is not much information about Clarence beyond this second trial, except to say that he resumed his way of life. He died on January 18, 1972, and was buried in an unmarked grave in Hannibal. In 1984, the ACLU raised funds to mark his burial place with a headstone, which includes a quote taken from a letter Clarence had written to Fortas: “Each era finds an improvement in law for the benefit of mankind.”
Reflections on Gideon
Recently, I have had a difficult time feeling particularly celebratory about public defense and Gideon. Nearly 60 years after Gideon was decided, we continue to struggle with fulfilling its “promise.” While the Court was clear that every person charged with a crime is entitled to counsel to represent them, it provided no guidance for how states should go about providing it. And in those 60 years, it has continued to remain silent on those questions. Thus, what has evolved is a patchwork of appointed counsel across each state. As opposed to the federal system, in most states, public defenders do not match prosecutors in either sheer numbers or in resources and largely lack pay parity. The “promise” of Gideon on a large scale feels damnably unfulfilled.
Through these systemic inequalities, society demonstrates its animosity to the ideals expressed in Gideon – the belief that poor people charged with crimes are entitled to have a trained attorney represent them when the weight of the State is on the other side. As an individual defender, this reality can feel crushing.
But as I began thinking again about who Clarence Gideon was, and his role in turning the legal world upside down, I discovered that the systemic weight does not undermine the spirit of Gideon that dwells in every public defender. Every day I also see the ideals from Gideon play out in my office, throughout Kansas, and around the country. Even where individual defenders cannot fix the systemic inequalities of the criminal punishment system, we can (and do) live out the spirit of Gideon in our individual work for our clients.
We are the force envisioned by the Court. We are the people who see our clients as the Supreme Court did in 1963: worthy of the guiding hand of counsel to work for a fair trial. Even in the midst of the disparities we face, we lessen the disparity for our clients. Though we are under-resourced, we are our clients’ resource. We are the only people in the entire system who are client-centered. While we continue to battle the systemic inequalities that impact our clients, as well as our own biases, our presence, in and of itself, is the spirit of Gideon. Holding the State to its burden, challenging the evidence, investigating the allegations, listening to our clients and giving them advice, and, above all, reminding everyone of our clients’ humanity.
These realities do not lessen the continued need to fight for systemic change. To seek pay parity, to push back against legislative action or inaction, to speak out about how our clients are disadvantaged even with us by their side. But it reminds me that our role carries enormous weight and responsibility, and is a giant step in the direction of seeking equal treatment under the law for those who are rarely seen as equal.
Because, while our role would not exist without the decision in Gideon, we are not the main character. The Sixth Amendment does not exist for us; it exists for our clients. As Clarence explained to the U.S. Supreme Court, “It makes no difference how old I am or what color I am or what church I belong to if any. The question is I did not get a fair trial.” Fairness, in Clarence Gideon’s words, is having counsel to represent you if you are charged with a crime, regardless of your background. That is the spirit of Gideon that we embody when we represent our client. And it is worthy of our celebration.