GateHouse Media
March 8, 2019
More than a half a century ago the U.S. Supreme Court handed
down the landmark decision of Gideon v. Wainwright. In Gideon, the High 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. The decision brought into the national lexicon a line known
by anyone who has ever watched a television crime drama, ”(Y)ou have the right
to an attorney if you cannot afford an attorney, one will be appointed for you
...”
Today, Gideon is under attack. There is, at this point, one
pretty powerful guy who thinks Gideon, and a series of other decisions were
“incorrectly” decided. The Supreme Court precedents, attacked by Justice
Clarence Thomas, sound like a who’s who of landmark decisions from the Warren
Court of the 1960s
In a decision last week, the U.S. Supreme Court ruled 6-3
for Gilberto Garza Jr., who waived his right to appeal after entering a guilty
plea, then instructed his attorney to appeal.
The appeal deadline passed without an appeal, and Garza
challenged his lawyer’s representation, arguing his counsel had provided
ineffective assistance of counsel - the Supreme Court agreed.
In a dissenting opinion, Justice Thomas implied Gideon had
been wrongly decided in 1963. Thomas, joined by Justice Neil Gorsuch, said “our
precedents seek to use the Sixth Amendment right to counsel to achieve an end
it is not designed to guarantee.” Thomas disagrees with the idea that indigent
defendants have a right to counsel. He suggests the Sixth Amendment only
permits “the accused to employ the services of an attorney.”
This is only the most recent attack by Thomas on long
established precedent. Last month, he suggested the Supreme Court reconsider
New York Times v. Sullivan the 1964 decision that provided the press with broad
First Amendment protections against libel suits brought by public officials.
Thomas wrote, “New York Times and the court’s decisions extending it were
policy-driven decisions masquerading as constitutional law.”
In a 2018 Fourth Amendment case in which the court refused
to expand the automobile exception to the search of areas immediately around a
home, Thomas questioned whether the exclusionary rule should have been extended
to the states.
In 1961, through the iconic case of Mapp v. Ohio the U.S.
Supreme Court extended a federal remedy to state courts in an effort to squelch
unconstitutional police action - the exclusion of illegally obtained evidence
from admission in a criminal prosecution.
Cleveland police officers went to the home of Dollree Mapp
looking for a suspect in a criminal investigation. Mapp refused to let the
police in without a warrant.
The police left, when they returned they were armed with a
“fake” warrant. Chicanery took the place of real police work. Instead of going
to a judge to get a warrant, the police drew up their own. After entering
Mapp’s home, police conducted a search and confiscated obscene material
resulting in Mapp’s arrest.
The High Court excluded from trial the illegally confiscated
obscene material.
In another Fourth Amendment case, this one from 2017,
dealing with cell phone location data, Thomas challenged the “reasonable
expectation of privacy” test first articulated in Katz v. United States in
1967. Thomas wrote, “The Katz test has no basis in the text or history of the
Fourth Amendment. Until we confront the problems with this test, Katz will
continue to distort Fourth Amendment jurisprudence.”
With the court’s growing Conservative block, Thomas may
someday realize his desire to rewrite the Court’s interpretation of some of the
Constitution’s most fundamental rights.
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 @MatthewTMangino.
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