The Clarion Call For Justice

For more than a dozen years, Clarence Earl Gideon lay buried in a nondescript, unmarked grave in Hannibal, Missouri. Most Americans outside of the legal community (and many within it) would neither recognize Gideon's name, nor understand the seismic impact he had on our legal system. Fortunately, Anthony Lewis, the renowned journalist now retired from The New York Times, chronicled Gideon's saga from the filing of his hand-written petition for writ of certiorari with the Supreme Court to the momentous decision of March 18, 1963. Lewis brings to life the story of the man behind the case, the legal machinations of the court appointed lawyer (and others working with him) toiling on Gideon's behalf and the inner-workings of the Supreme Court. By telling the story, Lewis has preserved an important piece of legal and social history and we are all the richer for his doing so.

First published in 1964, Gideon's Trumpet is a timeless treatment of one man's passionate quest to right a perceived wrong and his unfailing belief that when the Constitution's Sixth Amendment declared he had a right to counsel, the Constitution meant what it said. What he sought, really, was justice. Of course, Gideon's quest was not his alone after the petition was granted, and it did not take place in a vacuum, but without his belief that the right to counsel had meaning for even the destitute, change would likely have taken significantly longer.

Clarence Gideon had spent a considerable portion of his adult life in and out of prisons. While he could not fairly be characterized as a professional criminal, or violent person, he never really adjusted to mainstream life. As Lewis puts it, "[T]hose who had known him, even the men who had arrested him and those who were now his jailers, considered Gideon a perfectly harmless human being, rather likeable, but one tossed aside by life. Anyone meeting him for the first time would be likely to regard him as the most wretched of men." Despite this, Gideon had not surrendered his humanity. He still cared about life and freedom and maintained a keen sense of justice; he felt that he had been treated unfairly by Florida and was determined to try to correct it.

Gideon was arrested in 1961 and charged with breaking and entering a poolhall in Panama City, Florida with intent to commit larceny. When his case was called for trial Gideon was asked whether he was ready to proceed, and he replied that he was not. When questioned why he was not ready, he informed the trial court that he had no counsel, and the trial court asked Gideon whether he knew the case was set for trial that day. Gideon replied that he knew the case was set for trial, and he was then asked why he had not secured counsel to be prepared to go to trial.

Lewis writes, "The defendant answered the Court's question, but spoke in such low tones that it was not audible." The trial judge then directed Gideon to come closer to the bench and asked Gideon to repeat what he had said. "Your Honor, I said: I request this Court to appoint counsel to represent me in this trial." The judge replied, "Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint counsel to defend you in this case."

Gideon was thus compelled to represent himself and, despite trying his best, was, predictably, convicted by the jury. He was sentenced to serve five years in the penitentiary and while there he pursued his appeal, based on the pro se record he had made. Gideon did not know it at the time, but he had properly presented, framed, and preserved the issue that would ultimately create a near revolutionary change in the way the states were required to treat indigent defendants.

The claim that Gideon pursued seems basic today: to try him for a felony without providing him counsel when he was too poor to afford it deprived him of due process of law. While it seems so simple, what Gideon did not know was that he would be challenging precedent that had been established merely twenty years earlier in Betts v. Brady, a case in which the Supreme Court, by a vote of six to three, declared that the due process clause of the Fourteenth Amendment provided no guarantee of counsel in state criminal cases.

If Gideon were to prevail in his quest for the right to counsel, the Court would have to be persuaded to reverse Betts. A significant part of Gideon's Trumpet is devoted to the strategies of Abe Fortas, a legendary lawyer of the noted Washington, D.C. firm of Arnold, Fortas & Porter (now known as Arnold & Porter) and the legal team he assembled from the firm to decide upon the arguments to be used to try to persuade the court to reverse Betts and announce a new principle of constitutional law.

Although Fortas was used to the rarefied air of the corridors of power in Washington, having served in the FDR administration and, at the time of his appointment to represent Gideon in the Supreme Court, was a trusted friend and counselor of President Lyndon Johnson, he threw himself into his task. By the time he was appointed counsel for Clarence Gideon, Fortas had acquired the reputation as one of the nation's outstanding appellate lawyers with significant experience arguing before the Supreme Court. Even though his clients ranked among the Fortune 500, Fortas had maintained more than a casual interest in criminal law, albeit, as Lewis observed, "more on the philosophical side than in practice." As a member of the committee suggesting revisions to the rules of criminal procedure, he was acquainted with Chief Justice Earl Warren and counted among his friends Justices Black, Brennan and Douglas. Obviously, Abe Fortas was neither a stranger to the Supreme Court, nor intimidated by the prospect of advancing Gideon's