Renewing the Call of Gideon
By Ralph Temple
Gripped by fear, Americans are acquiescing in a historic repeal of basic rights long taken for granted, including the right to counsel. This year, the 40th anniversary of Gideon v. Wainwright, is a good time to remember the decision and get back to basics. In the early sixties, as an associate in Arnold, Fortas & Porter, I was one of a team that worked with Abe Fortas when he was appointed to represent Clarence Gideon before the Supreme Court.
The Gideon case exemplifies the human institution of law at its very best. For this was a case in which a little man, a nobody, asserted his rights and sent a handwritten note from his cell in a penitentiary to the highest court in the land and that court sat up and noticed, appointed an outstanding lawyer to argue the case, and the result was a decision that is a landmark in the history of justice.
The Gideon case is about the people in it, the law, and America.
Clarence Earl Gideon was the activist, the man who took action to demand his rights; Abe Fortas was the lawyer appointed to argue Gideon’s case in the Supreme Court; and Robert L. McCrary Jr. was the Florida judge who had denied Gideon’s request for a lawyer and then sentenced him to five years in prison. These are the people this case was about, and we should look at them and their actions, because ultimately law and justice are what the activists, the lawyers, and the judges make them, for better or for worse.
Gideon was a drifter and a gambler who, at age 51 at the time of his trial for burglary in 1961, had served over a dozen different prison sentences. Gideon wrote of himself: “[D]ue to my limited education and also to the utter folly and hopelessness [of] parts of my life . . . I will not be proud of this biography, it will be no cause of pride.” But he also wrote: “I have no illusions about law or courts and the people who are involved in them. . . . I believe that each era finds a improvement in law[,] each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward. . . .”
Although Gideon had not made much use of his life, as Anthony Lewis wrote in his book about the case, Gideon’s Trumpet, “a flame still burned in Clarence Earl Gideon. . . . He had not lost his sense of injustice.”
The history of justice is in large part the history of people like Gideon, who, downtrodden though they may be, keep their sense of justice and have the spirit and the courage to stand up for themselves and others.
Abe Fortas, in 1962, was one of the best lawyers in the country. He had become wealthy representing big-business clients, but he never lost his sense of justice, and his law firm frequently took cases that stood for principles of liberty, whether or not they got paid for them. In the months after Fortas was appointed to represent Gideon, he put five of us to work on the case. Fortas told us at the outset that our goal was to do more than just win the case: we had to establish a solid legal ruling that would endure.
“We don’t just want to win by a 5 to 4 vote of the Supreme Court, or 6 to 3, or 7 to 2,” he told us. “We’re going to win this case 9 to 0.”
We did a ton of research, all of it directed by Fortas, covering every imaginable subject related to the issues, from the position of each Supreme Court justice in every right-to-counsel case that had come to the Court in the last 20 years, to the right to counsel in England, Russia, and each of the 50 states.
Abe Fortas designed the arguments and the structure of the brief; Abe Krash, a young partner wrote most of it; then we repeatedly honed it. Finally, as Fortas made changes on the third set of galleys, he told us not to bring them to him anymore. “I’ll never stop making changes,” he said. Fortas was a perfectionist.
Later, as Fortas and I rode in a taxi to the Supreme Court for the oral argument, he had another idea. “When we get to the Court,” he said, “go up to the fifth-floor library and find a biography on Clarence Darrow and see whether the greatest criminal defense lawyer of the 1920s was able to defend himself when he was prosecuted on a bribery charge.” I rushed up to the library, and found that, sure enough, Clarence Darrow had hired another lawyer to represent him at his trial, and when Darrow tried to participate at the beginning of the trial, his knees shook so much he could hardly stand. I wrote a quick note, went down to the courtroom, and handed it to Fortas just before the Gideon case was called. In his 30-minute presentation, Fortas told the Court that even Clarence Darrow needed a lawyer when he was on trial. Months later the Supreme Court ruled in favor of Gideon’s right to counsel, 9–0.
Abe Fortas the lawyer, who in 1965 himself became a Supreme Court justice, teaches us craftsmanship, excellence, devotion, going all the way, leaving nothing undone.
The third and most important category of people essential to make the ideals of law and liberty a reality is the judiciary, not just the nine justices on the Supreme Court, but also the trial and appeals judges in federal and local courts all over America. In the end the judges are the guardians of the Constitution; they are the ones who determine whether we are a free people who truly enjoy the civil liberties promised in the Constitution and for which this country stands.
When Clarence Gideon appeared before him in 1961 and said, I am innocent, I am penniless, I need a lawyer, Florida Judge Robert McCrary turned him down. The judge said that under Florida law lawyers were appointed only in death penalty cases. It was true that Florida law required counsel only in death cases, but the judge did not mention that Florida law allowed judges to appoint counsel in other cases, like Gideon’s. Instead of seeing the vital principles of fairness that were at stake, Judge McCrary just went along with the prevailing attitudes. In this way he did not live up to the highest calling of being a judge; he did not fulfill the highest purpose of law.
That purpose is to give the little person, the powerless person, a chance to stand up against a powerful institution, whether it be the government or a corporation.
Walter Van Tilburg Clark, in his book The Ox-Bow Incident, wrote: “True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society. . . . None of man’s temples, none of his religions, none of his weapons, his tools, his arts, his sciences, nothing else he has grown to, is so great a thing as his justice, his sense of justice. The true law . . . is the spirit of the moral nature of man. . . .”
When we enter the court, we enter the temple of justice. And that’s why the Gideon case is so important. For the right to counsel is the most important of all rights, because without it none of the other rights can be protected. In this sense, the right to counsel is the key to the temple of justice.
It is tragic that today the right to counsel is under attack by the federal government as never before. The question is whether at this time of fear and war we will abandon the traditional rights that define us as a people.
In the less than two years since the terrorist attacks of September 11, 2001, the Bush administration has vastly expanded government powers at the expense of traditional rights. Worst of all, the right to counsel has been seriously undermined in a number of ways. For one, the government claims the power to hold anyone it thinks is an “enemy combatant” for as long as it wants, without charging that person with a crime, without giving him a day in court, without allowing him to see a lawyer. Two American citizens are now being held that way, and one of them was arrested in Chicago, so the government has stretched the term enemy combatant far beyond a soldier captured on the battlefield.
Indeed the rollback of civil liberties is extending beyond the bounds of terrorism. For example, in the case of John Lee Malvo, the 17-year-old Jamaican accused of being the beltway sniper, the federal government ordered Malvo transferred from Maryland, where an attorney had been appointed to represent him, to Virginia, where there is a better chance of getting a death sentence. The authorities then maintained that, during the transfer, Maryland no longer had jurisdiction, the Maryland lawyer therefore no longer represented Malvo, and there was therefore no defense lawyer until Virginia appointed a new one. In the interim the authorities physically prevented the Maryland attorney, as well as a court-appointed guardian, from getting to Malvo, induced the boy to sign a waiver of his right to counsel, and extracted from him a confession.
This manipulative, jurisdiction-shopping subterfuge is a betrayal of the right to counsel and of the rule of law.
History also teaches us the unreliability of confessions obtained by intimidation and deceit. Let’s look at one more case, that of Abdallah Higazy, a 30-year-old Egyptian arrested by the FBI at the Millennium Hilton Hotel in New York soon after the terrorist attacks destroyed the World Trade Center. The hotel had reported to the FBI that just after the attacks hotel staff found in Higazi’s room, which looked out onto the World Trade Center, a transceiver, which is a radio device for communicating from the ground to airplanes overhead. Higazi, a graduate student at Brooklyn Polytechnic College who had also served in the Egyptian air force, repeatedly denied that he had ever seen the transceiver. Finally, under FBI interrogation, without a lawyer to counsel him, Higazi, while still denying any involvement in the attacks, confessed that the transceiver was his. The FBI charged Higazi with lying in an investigation. A day or so later an airplane pilot came to the hotel to claim the transceiver—it was not Higazi’s after all. The hotel employees had been mistaken in saying they had found it in his room. The government dropped the charges, and Higazi, after a month in jail, was released.
Why did he confess to something that was not true? He said it was because the FBI had threatened to have members of his family arrested. The FBI denied this and said that it merely told him if he didn’t admit to owning the transceiver, he would not be able to continue his schooling in Brooklyn. So by the FBI’s own admission, it got the false confession by intimidating Higazi.
The great principle of the Gideon case is in danger today. A frightened nation hunkers down and begins cutting corners on the rule of law and on civil liberties. We need to remind ourselves what we are about as a nation, a society, a people.
Let’s talk about America. The Bill of Rights of the United States Constitution is intended to place restrictions on the public’s fears, angers, and passions directed toward individuals and minority groups. It does this by defining certain rights that are fundamental. As Thomas Jefferson expressed it in the opening lines of the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Civil liberties, including the right to counsel, are the gift, the endowment, given us by “the Creator,” not by the American Civil Liberties Union, not by “legal technicalities,” not even by the people who wrote the Constitution. In short, and in less religious terms, certain rights come with the condition of being human—they come with the skin—and no one, no group, no government, not even the majority of the people in a democratic society like ours, has the moral, the social, or the political right to deprive any one of us of those rights. It was the purpose of our constitutional system and the Bill of Rights to establish a form of government in which the liberty of the individual would be a higher priority than the interests of the government, of the collective society, of the public. The philosophy is that each individual does not exist for the protection of government, but that government exists for the protection of individual liberty.
The government still has ample means to protect the public from dangerous individuals and groups. But the means must be within the rule of law, law that makes certain rights of the individual ironclad, no matter what the collective temptation to violate them.
The argument that we can’t afford civil liberties in times like these is wrong. The Bill of Rights is by design antidemocratic, intended to restrain the public’s reactions to the offensive, the unpopular, and the threatening; intended to stand as an iron wall of protection against popular will when the public is most upset; intended for harsh times, groups, and people, which is when the rights are really needed.
The purpose of the Bill of Rights is to protect the individual and minorities from an aroused and tyrannical majority.
What kind of individual rights against the whole society would you vote for if you didn’t know when you woke up tomorrow whether you would be black, white, Arab, Christian, Jewish, Muslim, rich or poor, or mistakenly suspected of a crime, like Abdallah Higazy? Philosopher John Rawls in his 1971 book, A Theory of Justice, concluded that when people put themselves in another person’s place and choose laws that “do unto others as you would have others do unto you,” the chances are very high they will vote to have an unconditional right to counsel and the other rights provided in the Constitution.
As the country passes through a hard time and abandons its commitment to civil liberties, what can be done, what can make a difference? We need activists like Clarence Earl Gideon, who speak out for the rights of themselves and others. We need first-class lawyers, like Abe Fortas, to fight for those rights.
Most of all, we need our judges to be strong and courageous, and not simply to go along with the prevailing currents, as did Judge McCrary in 1961 when he refused to give Gideon a lawyer, as did the Supreme Court in 1944 when it approved sending 120,000 Japanese Americans into concentration camps. As do judges all too often in times of war or crisis.
Aharon Barak, president of the Supreme Court of Israel, a country that has had to cope with severe terrorist attacks for decades, recently said: “The real test of judicial independence and impartiality comes in situations of war and terrorism. . . . Precisely in these times, we judges must hold fast to fundamental principles and values; we must embrace our supreme responsibility to protect democracy and the constitution.”
Today we need our judges to stand against the tide, as did those few courageous southern judges who stood against racial segregation in the 1960s: Frank Johnson in Alabama, Bryan Simpson in Florida, Skelly Wright in Louisiana. We need judges to follow those role models, to maintain their independence from the executive branch and from public passions and fears, and to challenge the arguments that protection from terrorists or beltway snipers requires us to sacrifice the right to counsel and other basic liberties.
Ralph Temple was legal director of the American Civil Liberties Union of the National Capital Area from 1966 to 1980, and served on the Board of Governors of the D.C. Bar from 1973 to 1979. He now lives in Ashland, Oregon. This article is based on an address Temple delivered at the D.C. Superior Court on March 18, 2003, the 40th anniversary of the decision in Gideon v. Wainwright.
