Matthew T. Mangino
September 25, 2015
Is the right to counsel in America’s courtrooms
merely lip service today? Court appointed counsel and public defenders are
underpaid and overworked. According to a report by the Brennan Center for
Justice published several years ago, court appointed attorneys often spend less
than six minutes per case when their clients plead guilty.
More than 50 years ago, the U.S. Supreme Court decided Gideon v. Wainwright. In
Gideon, a landmark decision, the U.S. Supreme Court unanimously ruled that
state courts are required to provide legal counsel for those defendants accused
of a crime who cannot afford a lawyer.
The decision is recognized as one of the most important of the 20th century.
However, did the decision really alter the legal landscape a half-century ago?
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall
enjoy the right ... to have the assistance of counsel for his defense.”
In 1932, the U.S. Supreme Court decided Powell v. Alabama. The Court ruled that
the U.S. Constitution requires defendants in capital cases be given access to
counsel upon request.
Ten years later in Betts v. Brady the court refused to extend the right to
counsel to criminal charges other than capital murder. In Betts, it was held
that a refusal to appoint counsel for an indigent defendant charged with a
felony did not violate the U.S. Constitution.
Then came Clarence Earl Gideon, a 51-year-old drifter and petty-thief. He was
charged with breaking and entering in Florida. The charge was a felony and when
Gideon first appeared before the court he was without funds, without counsel
and he asked the court to appoint him a lawyer.
The judge apologized to Gideon and said that Florida law only provides for
counsel in capital cases. Gideon replied, “The United States Supreme Court says
I am entitled to be represented by counsel.”
Gideon represented himself, was convicted and appealed to the Florida Supreme
Court. His appeal was denied and his case made its way to the U.S. Supreme
Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas to
represent Gideon. Fortas would one day take a seat on the Supreme Court.
Fortas pointed out that 37 states provided for the appointment of counsel by
statute, administrative rule or court decision. Eight states provided counsel
as a matter of practice. In an unprecedented act of support for the rights of
those accused of a crime, 22 state attorneys general joined Gideon in urging
the Court to establish an absolute constitutional right to counsel in criminal
Only five states—Florida, Alabama, Mississippi, North Carolina and South
Carolina—did not provide counsel for indigent defendants.
Justice George Sutherland wrote in Powell some 30 years before Gideon, “Even
the intelligent and educated layman has small and sometimes no skill in the
science of law.” Fortas argued in Gideon, “You cannot have a fair trial without
The Gideon decision was reason for celebration, but as Andrew Cohen wrote in
The Atlantic, “years later there is also much to mourn about Gideon and the
Supreme Court standards that followed it.”
There is clearly a distinction between the defense of poor litigants and
litigants with resources. The quality of legal counsel is not the problem - the
disparity in access to investigators, experts and other litigation related
resources is enormous.
Will Gideon’s promise of fairness and justice continue to fade away or will
state and local governments step up to insure that the rights of the accused
are adequately protected?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book “The Executioner’s Toll, 2010” was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
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Michael Thomas Gargiulo, Pretrial Hearing 43
3 hours ago