When overturning precedent expanded our rights

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Those chafing, rightfully, over the U.S. Supreme Court's decision last June reversing Roe v. Wade and eliminating a woman's constitutional right to abortion after nearly 50 years should recognize, nonetheless, that reversal of precedent by the high court is not necessarily bad.

The reminder is particularly timely as we near the 60th anniversary of another notable reversal of precedent. The case was Gideon v. Wainwright, and the celebrated ruling it produced required prosecuting authorities to provide an attorney without charge to any criminal defendant who couldn't afford one. While widely accepted today, the principle was controversial when pronounced on March 18, 1963.

Not least, the ruling was contentious because it directly reversed the Supreme Court's own prior World War II-era ruling in Betts v. Brady, in which the justices had rejected the idea that the "fair trial" provision of the Sixth Amendment of the Constitution requires providing free counsel to poor people accused of crimes. The court in that case had applied the kind of reasoning satirized by 19th century French author Anatole France, who noted that "(t)he law, in its majestic equality, forbids rich and poor alike … to steal their bread."

The Gideon court, with a different cast of justices, took a contrary view in a landmark case brought by an indigent Florida man, Clarence Gideon, who had been charged with stealing $55 and a few bottles of beer during a burglary of a pool hall.

Gideon, a drifter too poor to afford a lawyer, represented himself at trial and was convicted, based largely on flawed eyewitness testimony. He was sentenced to five years' imprisonment.

Armed with only an eighth-grade education, Gideon submitted a short, handwritten petition asking the Supreme Court for relief. Despite the sketchy presentation, or perhaps because of it, the high court took the case, making it one of about 1% of appeals it annually agrees to consider. In doing so, the court appointed a lawyer for Gideon — a high-powered Washington, D.C., attorney named Abe Fortas, a Beltway insider who had previously represented Lyndon Johnson, at the time vice president, who would ascend to the presidency later that year upon the assassination of President John F. Kennedy.

Fortas convinced the court, which voted unanimously to overturn its prior Betts decision. His arguments were aided no doubt by the presence on the tribunal of two of the leading liberal justices of the era, who had dissented from the majority ruling in the Betts case 21 years earlier, William O. Douglas and Hugo Black. Having issued a blistering dissent in the earlier case, Black took evident pleasure in authoring the opinion overturning it.

Declaring the right to counsel as a "fundamental" feature of the American justice system, Black declared it an "obvious truth" that "any person hauled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided."

The Gideon ruling, one of more than 200 reversals of prior cases by the high court, was objected to in some quarters, particularly government bodies hampered by shortages of personnel, money and other resources to furnish counsel for poor defendants, who comprise a large segment of people accused of crimes. Rising crime rates also led some contemporaries to question the propriety of expending large sums for publicly funded criminal defense lawyers.

Different formats arose and have evolved over time to carry out the mandate of Gideon. Some jurisdictions then created — and still maintain — protocols for appointment of private practice attorneys to represent indigent criminal defendants. Other jurisdictions, like Minnesota, have developed publicly-funded units staffed by public defenders to handle trial and appellate cases.

Gideon's ramifications have been extended in other ways. The high court expanded the right-to-counsel from felony cases like Gideon's to misdemeanors and to other types of noncriminal cases like paternity and parental termination proceedings that could lead to loss of liberty or other deprivations. But the courts have steadfastly refused to extend the right to counsel to civil proceedings, although organizations like the Legal Aid Society and others of similar ilk, with mixtures of public, private and charitable funding, do provide such services in select matters.

As for Gideon, he was retried in the Florida court where he had previously been convicted. Represented by a competent lawyer, he was acquitted.

His case became the subject of a superb book "Gideon's Trumpet," a 1964 publication that earned its author, famed New York Times legal affairs reporter Anthony Lewis, a Pulitzer Prize. The book became the basis for a highly acclaimed made-for-television movie in 1980 starring Henry Fonda as the title character.

Abe Fortas later joined the justices on the Supreme Court before whom he had successfully argued the Gideon case. Nominated by President Johnson, his former client, Fortas later was tapped by LBJ to become chief justice, but that nomination was withdrawn and Fortas left the court, when a questionable relationship with a mobster surfaced, along with other ethical concerns.

The Gideon ruling laid the groundwork for further enlargement of rights of criminal defendants, including a case three years later that established the well-known "Miranda warnings," including notice of the right to counsel, that must be conveyed to criminal suspects and are familiar to every American through generations of TV cop shows.

The Diamond Jubilee of the Gideon ruling also provides a reminder that reversals of prior rulings are not always as nefarious as some believe last year's abortion decision was. It depends upon who is benefited or disadvantaged by the turnabout.

Marshall H. Tanick is a Twin Cities constitutional law attorney.