Trial Advocacy Part 8

The 6th amendment’s right to counsel provision which previously had applied only in Federal court now was incorporated in 14th amendment and made applicable to the states. This is picture of Louie Wainwright. Justice Black who rose for majority In the Gideon opinion said that bets had been wronged when it was decided. I think he may have done this to squelch any future debate about whether Gideon should operate retroactively or prospectively. The Gideon opinion did not specifically answer this question. But if bets were wrong it was decided Black later argued with his colleagues that the court should never have followed best versus Brady and therefore Gideon could apply retroactively to cases to settle to best versus Brady a fact. It was left for another case Berget versus Texas four years later to tell us that Gideon did apply retroactively, picture of Justice Black. The Gideon opinion contains no discussion of whether the holding should apply in Mr. Meir’s cases. That was that issue was left for Argersinger versus Hamlin.

9 years later, also the opinion to not specify the opinion whether the decision Gideon was based upon a due process clause of equal protection, clause of 14th amendment. The opinion merely said it was required by the 14th amendment. I believe that the Gideon decision marked a major turning point in our understanding of what is meant by due process in criminal cases. Clearly the selective incorporation approach should now become the method for including the guarantees of the 4t, 5th and 6th amendments of the 14th amendment. Also the due process was no longer the flexible fact based test for determining whether the trial had been fair. In the past reviewing court said review the totality of the facts, after the trial. After the trial we’d determine whether the case has been fair. Now the question was not just overall fairness looking back at a case after trial but instead whether any specific prerequirements or preroles that are required that the council must be provided have been violated. Now also the federalization, federalization of criminal procedure. The federal model has now become the national model.

Federal case laws interpreting the 4th, 5th, 6th and 8th amendments now have binding on the states. After the Gideon opinion had been released the case went back to Bay County, for retrial. Fred Turner was appointed to represent Gideon and Gideon was acquitted at the 2nd trial. At the 1st trialed there had been 2 important witnesses. One was a woman named Irene Rhodes who had been sitting out on her porch at about 6 o clock in the morning and who had seen Gideon walking outta the alley behind, from behind the Bay Harbor poolroom carrying a half empty wine bottle. She saw him get into a telephone booth. A taxi arrived and picked up Gideon to take him to a bar in downtown Panama City. That’s where he was arrested a couple of hours later. The key witness however and the one who could play Gideon inside the Bay Harbor poolroom was Henry Cook who had said that after a night at dance in Appalachia Akola about 40 miles to the East Panama city, the friend who had been with him at that dance dropped him off near the pool room which was not too far from where he lived. As he walked by the pool room he looked into the window and he saw the person he knew to be Clarence Gideon inside. He said he saw Gideon walk out to the back door of the pool room and walk up the alley obviously intoxicated to the telephone booth at the north end of the alley carrying a wine bottle with his pockets bulging with change.

After Gideon had been picked up by a Taxi Cab, Cook had a conversation with Irene Rhodes and they both agreed it was Clarence Gideon who they had seen. The police then came in and Cook and Rose told them what had happened. Henry Cook was critical to the state’s case. At the second trial, Gideon took the stand and denied that he had been in the Bay Harbor poolroom that night. Also he disputed the states contention that the small change he had when he was arrested had been taken from the cigarette machine and the jukebox in the pool hall.

He testified and said he had won that small change at a poker game 5 days earlier. At the second trial Irene Rhodes the woman sitting on the porch seen Gideon walking up the alley behind the poolroom was not called as witness. She was available but for some reason which we don’t know she was not called, at the second trial. That meant that Henry Cook was the only eye witness against Gideon and Turner, Gideon’s lawyer effectively discredited Cook. At the 1st trial Cook had been asked,” have you ever been convicted of a felony?” and his answer was,” No sir, never have”. At the 2nd trial Turner who had represented Cook in the past and who the Cook had been convicted of juvenile delinquency for joy riding and had been given probation as a juvenile offender asked,” have you ever been convicted of a felony?” this time Cook said, “ I stole a car one time and got probation for it” Turner then said,” the last time you testified and in this case you denied that, didn’t you ?” actually Cook had not lied the conviction was Juvenile Delinquency which was not a felony, which is not even a crime! But the prosecutor didn’t realize it. He didn’t know about the juvenile history of his key witness. The court allowed Turner to ask,” Mr. Cook have you ever denied under oath that you had been convicted of a felony?” the answer was,” Yes I did”.

So Cook was impeached because of supposed lie, even though he really had not lied. In order to, in trying to rehabilitate Cook, the prosecutor asked some questions and Cook happened to mention that this so called felony case had been decided by a person one of the courtroom due to be the local Juvenile Judge. Well finally the prosecutor realized that Cook had not have a criminal conviction, that he had not lied and that he that he should not have been impeached.

The prosecutor tried to explain this but Turner objected and judge McCrary sustained the objection. Therefore the key witness who testified against Gideon was impeached on the basis of a lie but it turned out it was not a lie and he should not have been impeached. Having counsel at that 2nd trial certainly made a difference in the outcome.

Fred Turner and I became good friends from 2000 until he died in 2003. And he shared with me the pre-sense investigation portha was made with following the 1st trial. In it Gideon admitted that he had been on the Bay Harbor poolroom and he had taken the item shoes charged with taking. He admitted he was guilty of Petty Larceny but he said that back door had been open when he entered and therefore he thought that he should not be guilty of the more serious crime of breaking and entering with intents to commit misdemeanor… instead he should only be guilty of Petty Larceny. To credit of the courts legislature merely after the Supreme Court decided Gideon in an act to the status which created the state wide defender system in Florida

When the Florida legislator adopted this status in 1963 that law included a permission that a lot private lawyers to become unpaid volunteers special assistance over defendants. On the day the law into effect I went to the circuit court in Barto and signed up under that provision and was appointed to cases under that, as a special assistant public defender. I tell my students that just because the Supreme Court has decided a case does not mean that, that decision will have immediate effect, it will immediately be followed. Sometimes it takes 50 years or so for a decision to catch on. And to become the law of land, law of the land and actual fact.

Now certainly it’s true with regards to the case of Gideon versus Wainwright. We had high hopes in 1963 that Gideon would solve the problem of lack of representation of defendants and all kinds of criminal cases but the constitution project of Washington DC reports in 2009 that the promise of Gideon is not even close to being fulfilled. Case lawyers and public defendants are excessive.

The constitution project found for example that in Missouri, the public defendants found handling near 400 felony cases in a year In Miami Dade county public defendants had annual case laws of nearly 500 or over 2000 misdemeanors per defender. In the summer of 2012 last year, the supreme court of Missouri ruled that trial judge could not appoint the public defender to take a case when the case capacity give that defender office, already had been exceeded.