New York Times Magazine

by ANTHONY LEWIS 

Forty-one years ago, a poor, iso­lat­ed pris­on­er in Florida, the least influ­en­tial of Americans, wrote a let­ter to the Supreme Court — a let­ter in pen­cil, on lined prison paper — claim­ing that he had been wrong­ly denied the right to a lawyer when he was con­vict­ed. The Supreme Court agreed to hear his case and found that the Constitution required coun­sel to be pro­vid­ed in all seri­ous crim­i­nal cas­es for defen­dants too poor to hire their own. ClarenceEarl Gideon would have a new tri­al, this time with a lawyer. 

The new jury found him not guilty: a hap­py end­ing not only for him but also for the prin­ci­ple that a lawyer’s help is cru­cial for crim­i­nal defendants. 

After the Supreme Court deci­sion, I rec­og­nized that it would be, as I wrote then, an enor­mous social task to bring to life the dream of Gideon v. Wainwright — the dream of a vast, diverse coun­try in which every man charged with crime will be capa­bly defend­ed … sure of the sup­port need­ed to make an ade­quate defense.” 

On this 40th anniver­sary, how have we done? I take my answer from a recent paper by Bruce Jacob, the lawyer who rep­re­sent­ed the State of Florida in the Supreme Court, argu­ing against Gideon’s claim of a right to coun­sel. I hoped that leg­is­la­tures would meet the chal­lenge,” Jacob wrote. That was at a time in my life when I still believed that leg­is­la­tors want to do the right thing.… The record of the courts in ful­fill­ing the hopes rep­re­sent­ed by Gideon is a dis­mal one.” 

I was cov­er­ing the Supreme Court when it decid­ed Gideon v. Wainright, and the case has always had spe­cial mean­ing for me. It is painful to hear Bruce Jacob express dis­ap­point­ment at today’s court­room inad­e­qua­cies. Even more alarm­ing is the asser­tion by the Bush admin­is­tra­tion that in a whole new class of cas­es it can deny the right to coun­sel alto­geth­er. Those are the cas­es of American cit­i­zens des­ig­nat­ed by Bush as ene­my combatants.” 

One of them is Jose Padilla, born in Brooklyn in 1970 and arrest­ed by fed­er­al agents last May at O’Hare International Airport in Chicago. The admin­is­tra­tion claims that it can hold Padilla in soli­tary con­fine­ment indef­i­nite­ly, with­out tri­al and with­out access to a lawyer. 

Bruce Jacob’s judg­ment rests on end­less fail­ures to bring the promise of Gideon to life. Many states and local­i­ties offer not even the min­i­mal lev­el of finan­cial sup­port need­ed for an ade­quate defense. 

And far too often the lawyers pro­vid­ed for indi­gent defen­dants have not met the barest stan­dards of com­pe­tence. Take the case of the sleep­ing lawyer. Calvin Burdine was on tri­al for his life in Texas when his appoint­ed coun­sel, Joe Frank Cannon, fell asleep sev­er­al times dur­ing the tri­al. The Texas Court of Criminal Appeals held that that was no rea­son to set aside Burdine’s con­vic­tion. The United States Court of Appeals, con­sid­er­ing the issue on habeas cor­pus, dis­agreed, but only by a vote of 9 to 5. That is, five of those dis­tin­guished fed­er­al judges thought a lawyer who fell asleep dur­ing a cap­i­tal tri­al did not do enough harm to matter. 

The truth of the propo­si­tion that a lawyer is essen­tial was vivid­ly demon­strat­ed to me by some­thing that hap­pened in Gideon’s sec­ond tri­al. Gideon had been charged with break­ing and enter­ing the Bay Harbor Poolroom in Panama City, Fla., in the ear­ly morn­ing hours and tak­ing some coins and wine. At his first tri­al, a taxi dri­ver, Preston Bray, tes­ti­fied that Gideon had tele­phoned him and that he had gone to the pool­room and picked him up. When he got into the cab, Bray said, Gideon told him not to tell any­one about it. That was dam­ag­ing tes­ti­mo­ny. And Gideon, with­out a lawyer, let it stand with­out any cross-examination. 

In the sec­ond tri­al, Gideon had a lawyer: Fred Turner. After Preston Bray tes­ti­fied again that Gideon had told him not to say any­thing about pick­ing him up that morn­ing, Turner asked whether Gideon had ever said that to him before. The taxi dri­ver answered, yes, Gideon said that every time he called a cab. Why?” I under­stand it was his wife — he had trou­ble with his wife.” 

Nothing could demon­strate more clear­ly the val­ue of hav­ing a lawyer. But we know now that it has to be a com­pe­tent lawyer. Fred Turner was com­pe­tent, and then some. He not only destroyed the taxi dri­ver’s evi­dence against Gideon. He destroyed the chief pros­e­cu­tion wit­ness, one Henry Cook, who said he had seen Gideon near the time of the break-in. Turner sug­gest­ed to the jury that it was real­ly Cook him­self who had com­mit­ted the crime. He was in a good posi­tion to speak about Cook because he had rep­re­sent­ed Cook in two oth­er cases. 

Lawyers them­selves bear some of the respon­si­bil­i­ty for the fail­ures since the Gideon deci­sion. Of the 13 peo­ple on death row in Illinois released between 1987 and 2000 after they were found inno­cent, four had been rep­re­sent­ed by lawyers who were lat­er dis­barred or sus­pend­ed from prac­tice. But so do the author­i­ties who pick indif­fer­ent, sleepy, incom­pe­tent lawyers to defend men and women on mat­ters as seri­ous as life and death. Calvin Burdine’s lawyer, Joe Frank Cannon, was appoint­ed by judges in Houston to oth­er cas­es after he slept through Burdine’s tri­al. In Texas and oth­er places, some appoint­ments of coun­sel are regard­ed as sinecures to be giv­en to friends and supporters. 

Then there is the ques­tion of resources. Even a com­pe­tent lawyer may not be able to mount an ade­quate defense against the state, with all its resources, if he has next to noth­ing for inves­ti­ga­tion and effec­tive­ly works for star­va­tion wages. 

Bobby Houston spent 19 months in jail in Indianapolis with­out ever being tried, four of them after the charge against him, child molest­ing, had been dis­missed. The pub­lic defend­er han­dling his case nev­er told him, or told the prison author­i­ties, about the dismissal. 

We can sure­ly say that Houston’s lawyer lacked due dili­gence. But pol­i­tics and mon­ey were also involved. At the time of the case, pub­lic defend­ers in Marion County, Ind. — work­ing part time or more than part time — were paid $20,800 a year, plus $60 a month for all office expens­es. They were so gross­ly under­paid and over­worked that many could not even accept col­lect calls. 

Why does the dream of the Gideon deci­sion — the dream of a coun­try in which every per­son charged with crime will be capa­bly defend­ed — remain just that, a dream? Why do judges coun­te­nance mock­eries of legal rep­re­sen­ta­tion? Why do we, the cit­i­zens, tol­er­ate such unfair­ness? These are pro­found ques­tions, and I can do no more than spec­u­late on pos­si­ble explanations. 

One answer is plain. Criminal defen­dants and pris­on­ers have lit­tle or no polit­i­cal pow­er. Legislators see no votes in assign­ing com­pe­tent lawyers for poor defen­dants or giv­ing lawyers the resources to do their job prop­er­ly. The Clarence Earl Gideons of this world are con­stituents who can safe­ly be ignored. Many are barred from vot­ing, and the rest sel­dom bother. 

There is more to it than defen­dants’ and pris­on­ers’ lack of polit­i­cal pow­er. This coun­try dif­fers from all oth­er Western coun­tries in its atti­tude toward crime and crim­i­nals. We are tough on crime, as the advo­cates of harsh mea­sures put it. Critics might use a stronger term, like bru­tal.” American pris­ons tend to be more unpleas­ant than they are else­where; sen­tences, much longer. 

And of course we impose the death penal­ty, which has been aban­doned every­where else in the trans-Atlantic world as a sav­age relic. 

Why the United States takes so dif­fer­ent a view of how to treat crim­i­nals is a ques­tion too deep for explo­ration here. But there is no doubt that the harsh view exists, exac­er­bat­ed by politi­cians, start­ing with Richard Nixon and his war on crime.” 

Manifestations of this harsh­ness are wide­spread. The United States Court of Appeals for the Eighth Circuit recent­ly approved the invol­un­tary admin­is­tra­tion of antipsy­chot­ic drugs to a death-row inmate so he could be made sane enough to be exe­cut­ed. Then there was the pros­e­cu­tor who argued that an exe­cu­tion should pro­ceed even if the pris­on­er were to offer last-minute DNA evi­dence of his innocence. 

DNA is at the cen­ter of an extra­or­di­nary recent devel­op­ment that sheds some light on atti­tudes toward crim­i­nal jus­tice. The dis­cov­ery of incom­pe­tence — or worse — at the Houston Police crime lab­o­ra­to­ry in recent months may affect hun­dreds of pros­e­cu­tions in Harris County, where Houston is locat­ed, includ­ing many cap­i­tal cas­es. More defen­dants from Harris County have been exe­cut­ed than from any oth­er coun­ty in the United States. Now it turns out that the work of the lab­o­ra­to­ry is suspect. 

What about the defense lawyers? Many sim­ply did not have the resources to check the authen­tic­i­ty of the evi­dence that sent their clients to jail — or to death. 

Among them were the lawyers for Josiah Sutton, con­vict­ed of rape four years ago and pros­e­cut­ed in part on the basis of a DNA report from the Houston lab. After a Houston tele­vi­sion sta­tion raised ques­tions about the lab­o­ra­to­ry last fall, the sam­ple used to help con­vict Sutton was retest­ed by an inde­pen­dent lab­o­ra­to­ry in Houston, which found that it did not match Sutton’s DNA

The case of Josiah Sutton and the Houston crime lab is one more proof of what Justice Black told us in Gideon: when the state brings its weight down on an indi­vid­ual, he or she can­not get jus­tice with­out the help — the effec­tive help — of a lawyer. That is a fun­da­men­tal truth, an obvi­ous truth, as Black said. But on the anniver­sary of the deci­sion in Gideon v. Wainwright, that truth is being chal­lenged in a way that I did not believe was pos­si­ble in our country. 

In two cas­es now before the courts, Attorney General John Ashcroft is assert­ing that President Bush has the pow­er to detain any American cit­i­zen indef­i­nite­ly, in soli­tary con­fine­ment, with­out access to a lawyer, if he, the pres­i­dent, des­ig­nates the detainee an ene­my com­bat­ant.” The detainee can­not effec­tive­ly chal­lenge that des­ig­na­tion. A court may hold a habeas cor­pus pro­ceed­ing, but the gov­ern­ment need pro­duce only its own asser­tions of evi­dence, not sub­ject to cross-exam­i­na­tion. Some evi­dence” will suf­fice — that is, any evi­dence, how­ev­er unchecked and sec­ond-hand. That is the claim being made by the law offi­cers of the United States. 

I would not have believed that an attor­ney gen­er­al would argue that an American could be held indef­i­nite­ly with­out being able to speak to a lawyer. I seri­ous­ly doubt that any attor­ney gen­er­al in the years since Gideon, except the present occu­pant of the office, would have made that claim. 

One of the pend­ing cas­es con­cerns Jose Padilla, who became a gang mem­ber, was arrest­ed half a dozen times and served sev­er­al jail sen­tences. He became a Muslim. After trav­el­ing, in Pakistan among oth­er places, Padilla flew into O’Hare Airport last May 8 and was arrest­ed by fed­er­al agents. He was first detained as a mate­r­i­al wit­ness before a New York fed­er­al grand jury inves­ti­gat­ing the Sept. 11 ter­ror­ist attack on the World Trade Center. A judge appoint­ed a lawyer for him and set a hear­ing for June 11. But on June 10 Ashcroft, who hap­pened to be in Moscow, made a tele­vised state­ment about Padilla. We have cap­tured a known ter­ror­ist,” Ashcroft said. His arrest dis­rupt­ed an unfold­ing ter­ror­ist plot to attack the United States by explod­ing a radioac­tive dirty bomb.”’ There has been no way for Padilla, or his lawyer, to chal­lenge that state­ment, or for the news media to test its truth. It was a con­vic­tion by gov­ern­ment announcement. 

Padilla is con­fined in a Navy brig in South Carolina. The lawyer orig­i­nal­ly appoint­ed to rep­re­sent him in the mate­r­i­al wit­ness pro­ceed­ing, Donna R. Newman, has been try­ing to see him — with­out suc­cess. A fed­er­al judge, Michael Mukasey, decid­ed that she should have a chance to talk with him for the lim­it­ed pur­pose of exam­in­ing the evi­dence pro­duced by the gov­ern­ment in sup­port of his des­ig­na­tion as an ene­my com­bat­ant.” But that deci­sion was chal­lenged anew by gov­ern­ment lawyers. 

They offered an affi­davit by the direc­tor of the Defense Intelligence Agency, Vice Adm. Lowell E. Jacoby. He said suc­cess­ful inter­ro­ga­tion of a pris­on­er depends large­ly on cre­at­ing an atmos­phere of depen­den­cy and trust between the sub­ject and inter­roga­tor. Developing the kind of rela­tion­ship … nec­es­sary for effec­tive inter­ro­ga­tions … can take a sig­nif­i­cant amount of time. There are numer­ous exam­ples of sit­u­a­tions where inter­roga­tors have been unable to obtain valu­able intel­li­gence from a sub­ject until months, or even years, after the inter­ro­ga­tion process began.” Admiral Jacoby said any access to coun­sel, how­ev­er brief, can undo months of work and may per­ma­nent­ly shut down the inter­ro­ga­tion process.” 

There is a cer­tain para­dox in Admiral Jacoby’s affi­davit. The very fact that extend­ed inter­ro­ga­tion in the absence of coun­sel may break a sub­jec­t’s will is one rea­son that the right to coun­sel is guar­an­teed in the crim­i­nal law. It is the basis of the Miranda rule. 

The gov­ern­ment argues, and in the oth­er ene­my com­bat­ant” case the United States Court of Appeals for the Fourth Circuit agreed, that the Sixth Amendment’s guar­an­tee of the right to coun­sel in all crim­i­nal pros­e­cu­tions” does not apply because Padilla is not being pros­e­cut­ed. In oth­er words, the gov­ern­ment can hold an American in prison for life with­out let­ting him see a lawyer if it takes care not to charge him with a crime and try him. James Madison and the oth­ers who added the Sixth Amendment and the rest of the Bill of Rights to the Constitution in 1791 would sure­ly have regard­ed that argu­ment as sophistry. 

Bruce Jacob has served on both the defense and the pros­e­cu­tion side of crim­i­nal jus­tice. Forty years after Gideon v. Wainwright was decid­ed, he takes a broad view of the con­sti­tu­tion­al right to coun­sel. It should include civ­il as well as crim­i­nal pro­ceed­ings, he says in his paper: The due process and equal pro­tec­tion claus­es do not dif­fer­en­ti­ate between crim­i­nal and civ­il cas­es.” Paraphrasing Black’s opin­ion, Jacob con­cludes: Certainly any per­son haled into court or brought before any tri­bunal, whether crim­i­nal, civ­il or admin­is­tra­tive… should, if indi­gent, be afford­ed coun­sel at pub­lic expense.” With an eye on the ene­my com­bat­ant cas­es, I would amend that state­ment to include any per­son deprived of his lib­er­ty by the state. 

Clarence Earl Gideon was not a clear thinker, a man of the world or, least of all, an easy per­son to deal with. He was a pet­ty crim­i­nal, a habit­u­al one, worn out beyond his years by a dif­fi­cult life. But he knew what he want­ed. He turned down the first two lawyers offered him, when it came time for his sec­ond tri­al. He want­ed Fred Turner, and that was a wise choice. 

Fred Turner told Bruce Jacob that Gideon came to him with a valise full of motions.” Among oth­er things, he want­ed to move for a change of venue, to Tallahassee. Turner point­ed out that he knew peo­ple in Panama City — in fact, he knew most of the jurors — but none in Tallahassee. Gideon agreed to drop the idea of a change of venue. Then Turner told him, I’ll only rep­re­sent you if you will stop try­ing to be the lawyer and let me han­dle the case.” Gideon agreed. 

Clarence Gideon, who died in 1972, would be dis­ap­point­ed today at the imper­fect real­iza­tion of his dream. He would regret espe­cial­ly, I think, the fail­ure of the Supreme Court to hold that the Constitution requires a mean­ing­ful­ly com­pe­tent lawyer for the poor defen­dant — the court’s coun­te­nanc­ing, even in cap­i­tal cas­es, of lawyers who scarce­ly go through the motions while their clients are convicted. 

On the oth­er hand, the Supreme Court has held fast to the prin­ci­ple that the right to con­sult a lawyer is, as Justice Black said, fun­da­men­tal.” It is a far more con­ser­v­a­tive court than the one that decid­ed the Gideon case, with William Rehnquist as chief jus­tice instead of Earl Warren. It has over­ruled or nar­rowed many prece­dents. But it has repeat­ed­ly reaf­firmed its hold­ing in Gideon v. Wainwright. 

That is what makes the Bush admin­is­tra­tion’s claim in the ene­my com­bat­ant” cas­es so extra­or­di­nary. Of course, Jose Padilla and the oth­er man being held, Yasser Esam Hamdi, are not in pre­cise­ly Gideon’s posi­tion. They are not being pros­e­cut­ed; they are being held indef­i­nite­ly, with­out charges, in soli­tary con­fine­ment. They are not look­ing for coun­sel; they both already have lawyers, high­ly com­pe­tent ones appoint­ed by fed­er­al judges. But they are not allowed to talk to them. Those dif­fer­ences from Gideon’s sit­u­a­tion seem to make their need to con­sult the lawyers they have, if any­thing, more compelling. 

The con­sti­tu­tion­al argu­ment made by Ashcroft and his aides also seems imper­fect. Perhaps the Sixth Amendment guar­an­tee of coun­sel in all crim­i­nal pros­e­cu­tions” can be rea­soned away as inap­plic­a­ble to indef­i­nite deten­tion with­out charge, though I think the framers would have been aston­ished at the inven­tion of a severe penal­ty for a sus­pect with few­er rights than he would have as a crim­i­nal defendant. 

But the Constitution also includes the Fifth Amendment. It pro­vides that no per­son shall … be deprived of life, lib­er­ty or prop­er­ty, with­out due process of law.” Jose Padilla has been deprived of his lib­er­ty — for­ev­er, for all he knows. Has he had due process of law? 

The Bush admin­is­tra­tion’s answer to that ques­tion is essen­tial­ly this: in a war against ter­ror­ism, any process that the pres­i­dent says is essen­tial to the war is due process. Government lawyers argue that in wartime, courts must defer to the pres­i­den­t’s judgment. 

The denial of coun­sel to Jose Padilla, then, is an aspect of some­thing larg­er. About the time the Gideon case was decid­ed, we began to hear about the impe­r­i­al pres­i­den­cy. The ter­ror­ist attacks of Sept. 11, 2001, and now the war on Iraq have renewed that con­cept in even more extreme form. Bush has lit­tle trou­ble with a supine Congress. He wants the Constitution, too, as our judges enforce it, to yield to the suprema­cy of the president. 

— — — — — — —
Anthony Lewis is a for­mer New York Times colum­nist and the author of Gideon’s Trumpet.”