In most cases, Supreme Court review is discretionary: Four justices must vote to grant a petition for certiorari — a party’s request for review of a lower court’s decision. Chief Justice Earl Warren used to assign his law clerks the responsibility of reviewing all the many cert petitions filed “in forma pauperis,” or without payment of a filing fee. Unlike petitioners with paid counsel, who send multiple copies of their petitions, indigent petitioners in the Warren Court era submitted only one document.
Those were the days before the court had a Xerox machine, an invention Warren resisted, and before the “cert pool,” a practice instituted by the next chief justice, Warren Burger, in which clerks from different chambers pool their resources to review the thousands of cert petitions the court receives each year. Warren’s clerks reproduced on carbon paper eight duplicates of potentially significant IFP petitions to distribute among the justices.
This is how Timothy Dyk, long before becoming a judge on the U.S. Court of Appeals for the Federal Circuit, came across the handwritten petition of an inmate in Florida, Clarence Gideon, in 1962. Gideon argued that under the Sixth Amendment (applied to the states through the due process clause of the 14th Amendment), he had a constitutional right to trial counsel.
Dyk, who told this story as part of a panel discussion Wednesday night at the Supreme Court sponsored by the Supreme Court Historical Society and the Supreme Court Fellows Association, had been looking for just such a petition. Warren had specifically instructed Dyk to find a case that raised the right-to-trial-counsel issue.
The previous term, the court had heard argument in a different case, Douglas v. California. Douglas asked the justices to decide whether the Constitution afforded a right to appellate counsel under the equal protection clause of the 14th Amendment. According to Dyk, a majority of the court agreed that the Constitution did guarantee this right, but felt they could not rule for the defendants in Douglas if a constitutional right to trial counsel had not been first established. Dyk added that until Gideon came along, the court was close to dismissing Douglas as improvidently granted.
Both issues were particularly important to Warren, who had been a prosecutor earlier in his career. Dyk suggested that the chief justice “thought of himself as primarily a prosecutor, and he believed that it was possible to convict people, send them to jail, and do it right.” Indications of unfairness in the criminal justice system alarmed Warren, particularly when they came from his home state of California.
Dyk compared what occurred after Gideon’s petition reached the court to Shakespeare’s “Hamlet” — “you knew what would happen but it was still interesting to watch the performance anyway.” On March 18, 1963, the court released a unanimous opinion in Gideon v. Wainwright, written by Justice Hugo Black, that established a constitutional right to trial counsel. Gideon would go on to be acquitted in a new trial in Florida. The same day, the court also ruled 6-3 for a right to appellate counsel in the Douglas case.
But before that, the court appointed Abe Fortas — who later became an associate justice (and a failed nominee for chief justice) — to represent Gideon. As Judge Jeb Boasberg of the U.S. District Court for the District of Columbia noted, Gideon wrote Fortas a 22-page letter explaining the details of his life — in Boasberg’s words, “the story of what it was like to be poor and on the margins of society, a life in and out of jail, with alcohol and marriage problems, trying to hold down various jobs, and battles with state agencies.”
Gideon finished his letter with a line that Boasberg said deeply moves him: “I believe that each era finds an improvement of law… maybe this will be one of those small steps forward.”
Fortas himself may not have been impressed — Dyk noted that Fortas didn’t want to meet or talk with Gideon, but saw the case solely as “an intellectual exercise.” Gideon was still prophetic. Boasberg described the right to counsel as “so ingrained in everything we do that it’s almost unfathomable that at one time it was not the law.” He added:
Anyone who has practiced law in last 50 years assumes that Gideon is the framework that exists and should always exist. No one anymore questions the right to counsel and Miranda [v. Arizona]. There are still some questions as to implementation and scope, but these cases establish the whole framework that governs everything we do every day.
Dyk noted that when he studied criminal law at Harvard Law School in 1961, the subject was taught without reference to criminal procedure. “It was all definition-based, as in learning first-degree murder, second-degree murder, etc.,” he explained. “Now criminal law has to a significant extent been constitutionalized, and I think many people would say that the criminal justice system is fairer because of that.”
Jelahn Stewart, a prosecutor in the office of the U.S. Attorney for the District of Columbia, characterized the Warren court as “absolutely path-breaking in terms of its expansion of rights, although subsequent courts have narrowed the scope of the ruling.”
More than 50 years after Gideon, Stewart praised the public defenders in Washington, calling the quality of their lawyering “outstanding.” Boasberg added that “many times I have shaken my head to see a defendant bring in a ‘paid lawyer’ as if that payment would make the lawyer clearly better than the public defender.”
Despite this praise, the panel — which did not include a public defender — referred as well to problems implementing and ensuring Americans’ right to trial counsel after Gideon. Dyk explained that a 1984 decision, Strickland v. Washington, established a high bar for defendants claiming ineffective assistance of counsel. Defendants must not only establish that their lawyers’ performance was deficient, but also must show a “reasonable probability that the case would have come out differently” but for the deficient performance, a showing that Dyk called “very difficult” to make on appeal.
In addition, Boasberg asked rhetorically, “is simply a lawyer even enough? Or does a lawyer need experts, investigators, and researchers?” He noted that lawyers can request such assistance, and judges often grant those requests, “but some jurisdictions are barely paying the lawyers, much less the ancillary people on the defense team.” (Boasberg did not mention McWilliams v. Dunn, a case before the court this term that asks whether an indigent defendant in a capital case is entitled to an expert who is independent of the prosecution.)
Stewart noted that the District already provides a statutory right to extra-legal trial assistance. Unlike the federal system, the city also provides a statutory right to post-conviction counsel, and Stewart reported that legislation is now before the city council for civil litigants to receive counsel in housing disputes. Stewart expressed hopes that other jurisdictions would follow the District in providing statutory rights to counsel beyond those that are constitutionally required, which she said are “needed to even the playing field, because it is too difficult for individuals to navigate the system on their own.”