Clarence Earl Gideon

Having been charged in 1961 with the felony offence (which in the US means a crime that attracts a sentence of more than a year imprisonment or death) of breaking and entering a pool hall with intent to commit larceny in Panama City, Florida, Clarence Gideon appeared in court for trial and duly asked the judge to appoint a lawyer to represent him. The judge refused, Mr Gideon was convicted and sentenced to five years imprisonment. So sets the scene for what would become a case that would eventually strengthen the rights of citizens facing trial not just in Florida but across the entire USA.


To modern ears (well those outside of the British Parliament and Legal Aid Agency) the idea that somebody facing prison should be denied the right to a lawyer is an anathema. It may also be a surprise given that Constitution says in the Sixth Amendment that, [i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed… And to have the Assistance of Counsel for his defence.” Originally the protections in the Bill of Rights applied only to the Federal government; however, the Fourteenth Amendment requires States to observe and obey those protections as well. It states that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That phrase “due process” could be taken to mean that if a person is entitled to representation under the Sixth Amendment then breaching that right also means that the trial has not been conducted in accordance with the Fourteenth Amendment.


Let’s look at that line in the Sixth Amendment, “have the Assistance of Counsel for his defence”, which would seem to suggest that the judge had breached Mr Gideon’s Constitutional rights; however, that’s not how the Sixth Amendment was understood in 1961. You see in 1942 the US Supremes (I assume that’s how American lawyers refer to their Supreme Court Justices) had heard the case of Betts v Brady 316 US 455 (1942), which turned on an identical point namely whether a person who could not afford a lawyer had the right to have one appointed. Betts held that the Sixth Amendment provided no right to have a lawyer appointed in state courts for felony offences except where you faced a sentence of death. Justice Owen Roberts gave the majority judgment, which held that the right to counsel merely prevented the state from interfering in a defendant’s request for representation rather than requiring a state to offer counsel. In other words, a court cannot stop you having a lawyer but the State government is under no obligation to provide one for you to meet its obligations under the US Constitution.


That view makes some sense if you remember that when the Bill of Rights was ratified in 1791 there was no right to a defence lawyer in most criminal trials in England and Wales – William Hawkins, a jurist, writing in 1721 encapsulated the view that criminal defence “… requires no manner of skill to make a plain and honest defence which is always the best…” (well that’s me out of a job then I guess). Indeed the Supreme Court considered the laws of the thirteen original states at the time the Bill of Rights was ratified and noted that each state had its own rule on the appointment of Counsel, which may have suggested that the original framers of the Constitution did not intend the Sixth Amendment to impose an obligation on states to provide free lawyers for their citizens. At the heart of Betts is a uniquely American legal tussle that many English lawyers like myself struggle to understand as between the rights of the individual States to pass laws governing themselves and the rights of the Federal government to make laws binding the States – at first glance some may see some similarities between the UK and EU relationship but my impression is that the US version runs far deeper than ours.

Abe Fortas


You can always tell a bad legal rule because it breeds exceptions and by the time Mr Gideon appeared in court there were several exceptions to the general rule. Betts itself established the principle that States should provide representation to defendants if the case was especially complicated or there were special circumstances such as illiteracy that would prevent the defendant from making an effective defence; Powell v Alabama had established the right to free representation in cases where the defendant could be sentenced to death.


Mr Gideon applied to the Florida Supreme Court for a writ of habeas corpus demanding his release as he had been denied his right to due process by the refusal to appoint counsel in breach of the Constitution. His application was denied and so he hand wrote a five page petition for an order of certiorari (following the Woolf reforms these are now called quashing orders in the UK) from the US Supreme Court against the decision of the Florida Supreme Court. The petition was duly accepted for argument before the court and preparations began for the hearing.


The US Supreme Court isn’t silly, they know how difficult it is for an unrepresented layman to present a case effectively and so they require cases to be presented by a professional advocate. So, they appointed Abe Fortas a high profile lawyer who would one day become a Justice of the Supreme Court himself. Mr Fortas was based in Washington who appeared regularly in the Supreme Court. He was a partner in a large firm that had significant resources to devote to Mr Gideon’s case. Facing Mr Fortas was the 28 year old Bruce Jacob, a relatively inexperienced assistant attorney general in Florida who apparently had very few resources in contrast to those of Mr Fortas – an interesting reversal of firepower for Mr Gideon. Realising that this case would have a serious impact on other States, Mr Jacob took the sensible decision or contacting other States Attorney Generals for assistance. He received responses but probably not quite the ones he expected as 22 other states filed briefs… in support of Mr Gideon!

Bruce Jacob

The other states had recognised that it was time to bring the rule in Betts to an end because delays caused by unrepresented defendants led to unfairness, delays and excessive court and prosecutorial costs – they actually wanted defendants to be properly represented, a lesson today’s UK government would do well to learn.


Ultimately, Mr Jacob put up a good fight on behalf of Florida but he faced a hostile panel and there was little doubt about the result. The Supremes held that representation in criminal felony trials is a fundamental right guaranteed by the US Constitution. The judgment was written by Justice Hugo Black – the only surviving member of the court that heard Betts and one of the minority who had felt that Betts was wrongly decided in 1942. Mr Gideon’s case was remitted back to the Florida Supreme Court with a direction that that the case be reconsidered in light of their opinion. This was done, the Florida Supreme Court directed a retrial at which Mr Gideon was both represented and acquitted.


A few years later the constitutional right to a lawyer would be extended again to cover misdemeanour offences as well as felonies.


As an interesting footnote, Mr Fortas would be appointed to the Supreme Court as an associate justice four years after Gideon. In 1968 President Johnson put his name forward as Chief Justice of the Supreme Court but he would be unsuccessful. The Republicans had taken a dislike to Mr Fortas after he successfully represented his friend, Lyndon B. Johnson to overturn a court order barring him from standing for election while an investigation into vote rigging was ongoing. The justice who heard Mr Fortas’s arguments and overturned the bar…. Justice Hugo Black. He was the first person to fail to win Senate approval as Chief Justice since 1795. In 1969, Mr Fortas resigned from the Supreme Court entirely and returned to private practice after agreeing to provide advice to another friend in return for $20,000 per year for life. Mr Jacob would become a Professor at Ohio State University. Mr Gideon married again but died in 1972, The local chapter of the American Civil Liberties Union later added a granite headstone, inscribed with a quote from a letter Gideon wrote to Mr Fortas, “each era finds an improvement in law for the benefit of mankind.”

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