Criminal

Gideon v. Wainwright Right to Counsel Part 3

In early part of summer of 1962 Abe Fortas was appointed to represent Gideon. He had been the editor of those Yale law general, he had been Yale law professor. He had been the personal attorney to London Johnson. He was a member of a very, very famous Washington DC law firm Arnold Fortas and Porter. In September, 1962 while I was waiting for the brief from Fortas to the file I changed jobs, moving to Barto in central Florida to work in the firm now known as Holland and Night. I asked the attorney general of Florida Richard Ervin and my boss judge Bowen if it would be alright for me to continue handling the case after I left the attorney general’s office and they both agreed to let me do that. I also asked Chest Field Smith the head of the Holland firm if that be okay and he also said that would be fine. My wife Ann and I got married at the about the time I was moved to Barto and throughout that fall we worked on the brief in the case. The case was then called Gideon versus Cockrin and that was because at that time H G Cockrin was the director of state division of correction. In the evenings Ann and I would work on the law firm’s library or in the county law library on the 3rd floor of the historic Paul county court house in Barto. We’d been given keys to enter the court house and go up to that library. When the building was closed.

On the weekends we would drive from Barto either to Stetson law school in Saints Petersburg on the west coast of Florida to do research or to Tallahassee to work on state Supreme Court library. Library had lot of historical and all English materials that I needed for my research. Supreme Court assistant clerk and librarian Agesis Thursby gave us key to the front door of the door of Supreme Court building. And Ann and I would work in that library and in the basement where the old English and other historical materials were kept. There were no Xerox machines in those days and I would point out excerpts from cases that I needed and Ann would copy those excerpts out on …on note cards for my use in writing my brief. On Friday and Saturday nights we sometimes would work around 1 or 2 o’clock in the morning. When she provided the key to us, to the front door to the Supreme Court building the Mrs.Thursby had said, “Just be sure to lock the front door when you leave”
Fortas’s brief was filed in November 1962 he had argued that, that an unrepresented to unrepresented defendant in criminal case just cannot effectively prepare defense. The defendant is usually locked up in jail and cannot do any investigation, or take witness statement, witness’s statement. Also a defendant who’s not trained in law count adequately determines whether to plead guilty or not guilty. And he certainly doesn’t have the ability or training to defend himself during a trial. He argued that he don’t see right to counsel is not fundamental right at the time of the best case 1942 certainly was by now 1962. Our brief was typed at our homeboy Ann who had been, who was a good secretary. She had been the personal secretary to the secretary state of Florida. We didn’t had automatic typers those days so wonder why I decided to make a major change she would have to retype the entire page. I think she retype some pages 6 or 8 times.

First historically the constitution did not require that an indigent state criminal defendant in a non-capital case must be provided with counsel. The 6th amendment said a criminal defendant was entitled to the assistance of counsel but of course it only applied in federal courts. Also when the 6th amendment was adopted it only meant that you had the right to hire a lawyer, to retain a lawyer. It didn’t include the right to have a lawyer appointed for you if you were without funds to hire a lawyer.

Francisco Hernandez

Author Francisco Hernandez

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