Criminal

Trial Advocacy Part 5

By February 10, 2017 No Comments

At his trial Gideon cross examined the witnesses for the prosecution. He decided not to take the witness stand on his own behalf. He was convicted. It was given a 5 year sentence for the crime of breaking and entering with intent to committing a misdemeanor. He was given a longer sentence than usual because he had previously been convicted of both state and Federal crimes.

This is the picture of William Harris who was the prosecutor in both of the 2 Gideon trials. Gideon did not, did not say to direct appeal but instead he did what many Florida defendants, convicted defendants did. He filed a hand written Habeas Corpus petition directly in Florida Supreme Court. In this petition he did not alleged that was any special circumstance involved his case. And the Florida supreme court denied the Habeas petition for the under best versus Brady you would have to alleged at least one special circumstance to obtain relief. He then sounds a handwritten sorority petition to the United States Supreme Court. Supreme Court asked our office the criminal appeal section of the attorney general’s office and Tallahassee. He got a typewritten response to Gideon’s petition. There were only 4 of us in that office handling almost all of the criminal appeals and pulus conviction cases for the entire state. I was the newest one of the four judges and the only one who had not yet argued the case in the United States Supreme Court and certainly that was the one reason I was chosen to respond to this petition from Gideon.

Also there were some other reasons, Judge Bowen and I had written, or worked on large articles together and also we had done our detail research report to the Governor of Florida on how law and enforcement officer should treat the freedom writers they came through Florida. Judge Bowen my boss knew that I enjoyed research also I enjoyed legal history. It was March 1962 when I was assigned to the case; I was 26 years old at that time. I prepared the response. 2 months later the court ran Gideon petition and asked counsel on both sides among other things to discuss question that whether or not the doctrine of best versus Brady should be quote “reconsidered”. Those of us in the criminal appeals section of attorney general’s office court was about to overrule bets and they certainly wanted to overrule bets and we realized Gideon case would probably be the case that the court would use to accomplish this. We hoped however the rule would not be extended to misdemeanors because we believed it would be very difficult for the state as a financial or as practical matter to implement a requirement of that, of that kind. I began doing research on the brief and in early 19.

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.

I made these arguments in our brief. 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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