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Right to Legal Counsel


 The framers formed this country with one sole document, the 
Constitution, which they wrote with great wisdom and foresight. This 
bountiful wisdom arose from the unjust treatment of King George to 
which the colonists were subject. Among these violations of the 
colonists' rights were inequitable trials that made a mockery of 
justice. As a result, a fair trial of the accused was a right given to 
the citizens along with other equities that the framers instilled in 
every other facet of this country's government. These assurances of 
the citizens' rights stated in the bill of rights. 

 In the Sixth Amendment, it is stated that, "In all criminal 
prosecutions, the accused shall enjoy the right...to have the 
Assistance of Counsel for his defence." A first reading of this phrase 
one might be think that this right, that which gives a person accused 
of a crime to have lawyers for his defense, is common knowledge being 
that it is among the most basic rights given to the citizenry of the 
public. However, the simple manner in which this amendment is phrased 
creates a "gray area", and subject to interpretation under different 
circumstances. The legitimacy of the right to mount a legal defense is 
further obscured by the Fourteenth Amendment which states, "No State 
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States." As a result, many 
questions begin to arise which seek to determine the true right of the 
accused to the assistance of counsel. Should legal counsel be provided 
by the government if the accused lacks the funds to assemble a counsel 
for his defense? Or, on the other hand, does this amendment set the 
responsibility of assembling a defensive counsel on the accused even 
if he or she lacks the funds to do so?

 Also, do the states have the right to make their own 
legislation regarding the right of the indigent accused to have 
counsel appointed to them in the state trials, or does the Fourteenth 
Amendment prevent this? The Supreme Court was faced with answering 
these questions in the case of Gideon v. Wainwright. 

 In June of 1961, Clarence Earl Gideon, a fifty year old petty 
thief, drifter, and gambler who had spent much of his life in and out 
of jail was arrested in Panama City Florida. He was charged with 
breaking into a poolroom one night in an effort to steal beer, Coke, 
and coins from a cigarette machine (Goodman 62). 

 From the outset, Gideon insisted that he was innocent. His 
trial commenced in a Florida courtroom in August of that year. Gideon 
informed the Judge that he was not prepared for the trial to begin 
because he had not assembled a legal counsel in his defense. He then 
requested that the court appoint counsel to represent him (Goodman 
62). The Judge responded with the following statement: 

"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" 
(372 U.S. 335)

The trial continued, and Gideon directed his defense; but his efforts 
were futile as one could expect from a common man with no legal 
education or experience. The jury convicted him of the felonious 
charges and gave Gideon the maximum five year sentence (Goodman 62). 
At the time of Gideon's trial in the Florida court the right to legal
counsel ensured by the Sixth Amendment was only applicable to federal 
cases, and states had the right to handle the matter of the 
appointment of legal counsel to the defense in state cases at their 
discretion (Asch, 135). This practice was an effect of the outcome of 
the United States Supreme Court case of Betts v. Brady decided in 
1942. In this case, an unemployed farm worker in Maryland named Smith 
Betts was charged with robbery requested that the court appoint 
counsel to his defense. The judge denied this request on the grounds 
that in that county it was not practice in that county for the court
to appoint counsel to poor defendants only in capital cases. Like 
Gideon, Betts conducted his own defense and was convicted and 
sentenced to eight years in prison. Betts sent an appeal to the 
Supreme Court, but the Court ruled against Betts because, the court's 
opinion was "in the great majority of states, it has been the 
considered judgment of the people, their representatives, and their 
courts that the appointment of counsel is not a fundamental right, 
essential to a fair trial" (Goodman 64). 

 With the precedent set by the ruling of Brady v. Betts, the 
denial of the appointment of counsel by the trial court in the Gideon 
case was issued with just reason. Even though many states and the 
federal government allowed for the appointment of counsel for 
impoverished defendants, Florida as well as many other southern states 
did not (Goodman 62). The only instance in which Counsel could be 
appointed to defendants under Florida law was in capital cases, and 
thus the reason for the denial of Gideon's request for Counsel
(Asch 135).

 In pursuit of an appeal, Gideon studied law books while 
serving out his sentence in state prison. Gideon filed a petition for 
habeus corpus in the Florida Supreme Court. This petition sought to 
invalidate his conviction and sentence on the basis that the trial 
court's refusal to appoint counsel denied him of rights enumerated in 
the Constitution of the United States and the federal government. Upon 
consideration of the Florida Supreme Court, but without an opinion, 
Gideon's petition for habeus corpus was denied (372 U.S. 335). 

 After the Florida Supreme Court ruled against Gideon's 
petition for habeus corpus, Gideon appealed his case to the United 
States Supreme Court in forma pauperis, which means that if the case 
is approved to be considered the government would provide a lawyer and 
all other expenses for the consideration of his case in the Supreme 
Court (Wilson 431). The Supreme court selected the case to be 

 Gideon presented his case before the Supreme court in January 
1963. The basis of the argument was that it was unconstitutional for 
the states to create their own state legislation which decides the 
circumstances under which the court appoints counsel to the defense, 
and that his Sixth Amendment right to counsel was violated. Gideon 
argued that these pieces of state legislation are unlawful on the 
ground that they abridge the right to have the assistance of counsel 
for defense that is given by the Sixth Amendment. This argument was 
strongly supported by the Fourteenth Amendment which states "No State 
shall make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States..." These arguments were 
considered before the court in an attempt to earn an appeal, a new 
fair trial for Gideon (372 U.S. 335). 

 The Supreme Court's decision was made in March. All nine 
justices concluded to reverse Gideon's conviction on the basis that he 
was denied due process by reason of the denial of the appointment of 
legal counsel to his defense (372 U.S. 335). The unanimous decision 
was delivered by Justice Black, who wrote:

"...In our adversary system of criminal justice, any person hailed 
into court, who is too poor to hire a lawyer, cannot be assured a fair 
trial unless counsel is provided for him. This seems to us to be an 
obvious truth. Governments, both state and federal, quite properly 
spend vast sums of money to establish machinery to try defendants 
accused of crime. Lawyers to prosecute are everywhere deemed essential 
to protect the public's interest in an orderly society. Similarly 
there are few defendants charged with crime, few indeed, who fail to 
hire the best lawyers they can get to prepare and present their 
defense. That government hires lawyers to prosecute and defendants who 
have the money hire lawyers to defend are the strongest indications of 
the widespread belief that lawyers in criminal courts are necessities, 
not luxuries. The right of one charged with crime to counsel may not 
be deemed fundamental and essential to fair trials in some countries, 
but it is in ours. From the beginning, our state and national 
constitutions and laws have laid great emphasis on procedural and
substantive safeguards designed to assure fair trials before impartial
tribunals in which every defendant stands equal before the law. This 
noble ideal cannot be realized if the poor man charged with crime has 
to face his accusers without a lawyer to assist him" (372 U.S. 335).

This decision meant that Gideon received a new trial. A trial in which 
he had equitable representation by a competent lawyer. In Gideon's 
retrial, his court appointed attorney fulfilled his duties with such 
excellence that Gideon was acquitted. 

 This decision had many profound implications. For starters, 
all hundreds of other prisoners who had been convicted without benefit 
of defense counsel won their release Florida jails, as well as the 
jails of other states (Goodman 66). This may be disconcerting because 
some of these prisoners may have been guilty of their crimes or 
hardened by prison, and these prisoners are being casually released 
into society. The State of Florida should have retried these prisoners 
instead of releasing them. However, the retrial process brings up 
another question - If a prisoner had a trial but was denied legal
counsel, does it violate the section of the Fifth Amendment, which 
states that, "Nor shall any person be subject for the same offence to 
be twice put in jeopardy of life or limb." The Fifth Amendment 
guarantees the right of a person who is acquitted to not be tried 
again for the same crime. Since the prosecutor cannot appeal like a 
convict can, or try these prisoners again in a new equitable and 
legitimate trial, does it mean that these freed prisoners will not be 

 That is not all the decision accomplished, however. The most 
important implication set fort in this trial is the further proof of 
the legitimacy of the dominance of the federal government over the 
states. The power of the Federal government has grown since the Civil 
War, in which legitimacy of the federal government was firmly 
established. The southern states felt that the true power was invested 
in the state, and that their secession was justified. After the defeat 
of these secessionist states, the legitimacy of the Federal government 
was established, and has grown since that time. The marker of
this is the Fourteenth Amendment which prohibits the states from 
enacting and enforcing any law which abridges the rights of the 
citizens set forth by the Bill of Rights. This theme fits the Gideon 
case because the ruling meant that the states must give the Sixth 
Amendment guarantee to the defendant who is accused of violating a 
state law. This means that the state no longer has the power of 
discretion in the execution of its own laws. However, in this case, 
the dominance of the federal government is all necessary and proper in 
order to create unity in the ensure that the rights of the citizens 
set forth by the constitution are not infringed by the state.

Works Cited

Goodman, Elaine and Walter. The Rights of the People. Toronto: 
Doubleday, 1971.

Asch, Sindey H. Civil Rights and Responsibilites under the 
Constitution. New York: Arco Publishing Company, 1968. 

Gideon v. Wainwright, 372 U.S. 335 (1963).

Wilson, James, and John J. DiIulio, Jr. American Government, 
institutions and Policies. Lexington, Massachusetts: D.C. Heath and 
Company, 1995. 

Works used in the assesment of relative information:

Justice Under Law: the Gideon Case. Videocassette. Encyclopedia 
Britanica Educational Corporation, 1967.

Barker, Lucius, and Twiley Barker, Jr. Civil Liberties and the 
Constitution. New Jersey: Prentince Hall, 1990.



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