Do Haeng Michael Kitchen

Writer. Attorney. Detroit City FC Til I Die.

You are driving in your vehicle when a police officer pulls you over.  You resign the fact that you were driving above the speed limit, but didn’t think it was a big deal.  You notice the officer looking in the windows of your car as he approaches.  The officer asks for your drivers license and proof of insurance and you give them to him.  He again looks in your back seat window as he returns to his vehicle.  When he returns, he instructs you to step out of the car and asks you if you have anything illegal on your possession that he should know about.  You tell him that you don’t, to which he asks if you mind if he searches the car.  You don’t have anything to hide and allow him.  He finds a small plastic bag of marijuana in the back seat.  You loaned the car to your son or daughter when they went out with friends the past weekend, and assume it belongs to one of their friends.  But that doesn’t matter because you’re sitting in the back of the squad car, on your way to the police station to be booked and fingerprinted.  You’re now facing a charge of possession of a controlled substance, which is punishable by four years in prison.  You’re given an arraignment date.  When you appear before the judge, you enter a not-guilty plea.  Being financially strapped as you are between jobs or lost one of your part-time jobs, you ask the judge for your Sixth Amendment right to counsel.  The judge declines and you’re forced to take your case to trial all on your own.

That’s what would have happened fifty years ago.

The landmark case of Gideon vs Wainwright was decided by the United States Supreme Court on March 18, 1963.  In 1961, Clarence Earl Gideon, father of six, was charged with breaking and entering with intent to commit a misdemeanor, which was a felony under Florida law.  He asked the court to appoint counsel, which the Florida judge denied.  The judge stated that “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.”  Gideon was forced to defend himself.  He conducted his own trial and the jury returned with a guilty verdict.  Sentenced to five years in prison, Gideon petitioned the Florida Supreme Court, appealing his conviction based on the lower court’s failure to provide him counsel arguing it was guaranteed under the United States Constitution and Bill of Rights.  The Supreme Court of Florida denied relief.

Gideon didn’t stop there.  He petitioned the United States Supreme Court, which granted him a hearing.  The Court also appointed counsel to represent him.  Oral arguments before the Court were held on January 15, 1963.

In 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Before 1938, courts would appoint counsel for indigent defendants, however it was sporadic in execution.  In Johnson v. Zerbst, the US Supreme Court held that the 6th Amendment right to counsel was valid in federal court unless the defendant waived the right.  The 6th Amendment Rights – minus the right to counsel – was made obligatory on the States by the Fourteenth Amendment in the 1942 US Supreme Court decision of  Betts v. Brady. In Betts, the court had concluded that because the defendant was a 43-year-old man of ordinary intelligence and ability to take care of his own interests, he was not at a serious disadvantage at trial.

It took only two months for the Court to render its unanimous decision in favor of Gideon.  The Court held that the Betts decision was wrong.  Justice Hugo Black, writing for the Court, stated:

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 very 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.

Gideon’s case was referred back to the Florida court, where a new trial was held.  The court appointed counsel and after only an hour of jury deliberation, Clarence Gideon was found not guilty.  After losing two years of his life in prison, Clarence Gideon was released as an innocent man.

Justice Black wrote in the Gideon opinion that, “government hires lawyers to prosecute and defendants who have money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries.”  That doesn’t mean that the states have a public defense budget equal to its prosecutorial budget.  When it comes to per capita spending, according to a 2008 study, Michigan ranks 44th in per capita spending on indigent defense ($7.35 per capita), and is dispensed on a county by county basis, meaning an unbalanced approach to delivery and payment of public defense.

Fifty years ago, it would have been you (or your son or daughter) versus a well-funded, government prosecutor in your case of marijuana possession.  Clarence Gideon’s two-year fight from his prison cell insures that if you cannot afford an attorney, one will be appointed for you.


American Criminal Procedure: Cases and Commentary, Stephen A. Saltzburg & Daniel J. Capra (West Group, 6th Edition 2000)

May It Please The Court…Transcripts of 23 Live Recordings of Landmark Cases as Argued Before the Supreme Court, Edited by Peter Irons and Stephanie Guitton (The New Press, 1993)

National Legal Aid and Defender Association, “Michigan Ranks 44th in the Nation for Public Defense Spending; So-called “McJustice” System Puts Communities at Risk.”

Gideon v. Wainwright, 372 U.S. 335 (1963)
Betts v. Brady, 316 U.S. 455 (1942)
Powell v. Alabama, 287 U.S. 45 (1932)
Johnson v. Zerbst, 304 U.S. 458 (1938)


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