Are ones that the court made very unpopular decisions. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stuck together because they believe in a rule of law. Good evening and welcome to landmark cases. Tonights case is gideon versus wayne. Wreck 55 years ago this month, the Supreme Court ruled that the right to counsel was so fundamental to our dove governmental system. That states must provide lawyers for defendants who cannot afford. One the hero of tonights story is a bit of an unlikely. One Clarence Gideon was adrift her from florida was accused of breaking a pool. As we begin tonight, were gonna go to some historic video. You see the real mr. Gideon and the florida judge who sentenced to jail. They reenacted the case for cbs news documentary in 1965. Lets watch the next case on the docket is the state of florida versus Clarence Earl gideon. What says the state are you ready for trial . The state is ready or honor im not ready your honor. You plead the guilt why arent you ready . I have no cancel i have no cancel. You know the years was set for trial today . Yes there are no set for trial today. Why did you not then secure counsel then we go to trial . Your honor i request this court to represent me in this trial. Mister, gideon i and cannot appoint counsel to represent in this case. Under the state of law in the state of florida, only the time the court can appoint counsel as when that person is charged with a capital offense. Im sorry but i will have to deny a request. The United States supreme cart says i am entitled to be represented by counsel. Let me introduce you to two guests who are at our table today. They return from season one of lamar cases. Former solicitor general under president george w. Bush 2004 2008. Now a lawyer in private practice. He has the distinction of arguing more cases before the supreme car 85 times. Thanks for being with us. Like akhil amar glad to have you back. Hes a law professor at yale and visiting law professor at the university pennsylvania. His latest book is called the constitution today timeless lessons for the issues of our era. Professor amar. Was mr. Gideon at that time he said that correct . Did the constitution agree he no right to council. He said the Supreme Court had said it and the Supreme Court had not said it. It would say about well talk about this evening. What the Supreme Court had said before was that federal defendants being prosecuted for federal crimes in federal court could have appointed counsel. This case is called johnson versuss herbs in 1938. The court and never said that was quite true for non capital cases non Death Penalty cases being tried in every state. Court mr. Gideon had that notion because of the sixth amendment to the constitution. The accused shell of. Shall have the assistance of trial for his defense. Paul climate he also turned the 14th amendment. He was really quite a student of the constitution. Says no state shall make or force 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 did i to any person within its evil protection of the law. The question that the Supreme Court would decide. Mr. Gideon was quite right to focus on the due process of the laws. In addition to the sixth amendment one problem that he had was at the sixth amendment by its terms applies only to the federal government. Not the State Government. But the 14th amendment and its due proof of process clause directly appears to the states. Thats why he was quite right to point to the due process clause. The florida had to give him a lawyer as opposed to the federal government. Theres criticism from somebody on facebook tonight. She making a liberal case tonight. Is there something about this case tonight . That liberals and conservatives can both find to like tonight . I dont think of gideon as being a left right case. As you say, i think there are things for everybody about this case. Particularly from a conservative, when somebody is facing the awesome power of the government and the awesome power of the government is about to take their life away or the liberty, to be able to have the assistance of counsel and make that guarantee real, i think its something that conservatives and liberals would values a cherished. Right akhil amar . So since the era of court. Its been in my entire lifetime the democratic and pointys have not been a majority in court since 1970, so its been a burger cone iraq was, corner roberts court. Chief chief justice is appointed by republican, Republican Party members of having done the appointees. The war in court but gideon is bedrock across the board. Other things arent the exclusionary rule for example which applied to the states conservatives do not like that. I might be with them on that. We all believe, left right and center, theres a bedrock right to have a lawyer. If you dont have a lawyer, you cant defend anything. Even from a conservative point of view, if youre going to put people in president prison because he believed in law in order, you want to put the people who actually did it in prison. That legitimize is the whole system that you actually do have lawyers who can put the government to its and prove that these folks are guilty something then to hire a lawyer. Think one of the lawyers justices clear this is not a left right issue. This is a case of some interesting and big characters. Were gonna tell you about them as we wade into our store. First is Clarence Earl getting himself. The tech New York Times reporter wrote a bestselling book about this case at the time called gideons trumpet, later made into a movie. Here is how he describes earl gideon. Getting was a 51 year old white man who had been in and out of prison similar most of his life. It served time for four previous felonies and he bore the physical marks of a destitute life. Wrinkles prima which surely age face, a frail body, quite. Pale he had never been a professional criminal, or a man of violence. He could just not seem to settle down to work so he had made his way by gambling and occasional fast. Even a man who knew, and even a man who arrested him considered gideon a perfectly harmless human being, somewhat likable but one tossed aside by life. Anthony lewis really can write and i think thats a very nice portrait. Were gonna talk a lot about the man and the case. Truth be told, from a certain point of view, if guinea hadnt been the vehicle or the instrument for the Supreme Court ruling, i do believe that some other litigant would have been because there are larger Structural Forces at play the development of the United States state Supreme Court case law. This the court was looking for a case like this one. Thats the other thing i would emphasize. Were going to hear about earl warren, chief justice of the United States. Tell me briefly who he was. Chief Justice Warren is an incredibly large figure in the Supreme Court history. Hes the embodiment of the war in court. Hes also the embodiment of one level of what the chief justice should look like. He looked like a judge should look, he had a very personal presence, he can from california so we had an experience career before a came to the Supreme Court. What is probably best known for and leaving the war in court and the warns revolution in criminal justice revolution. Hes a republican. He ran for the vice presidency of the United States on the Republican Party ticket in 1948. If dewy had defeated treene and earl warren would be in the republican vice president. Republican president dwight eisenhower. This is a liberal liberal case. The other justice that i would mention whos gonna play a very big role in our conversation is hugo black. The right majority opinion in the gideon case. Earl warren. Hugo black was somebody who had been a lawyer in private practice and had defended all sorts of people from indigenous, poor people to other people. Were gonna hear also. Abe for this aid force comes into this not as a Supreme Court justice he would later become one. After that a failed nominee for the chief justice shipped. Here its eight forest a lawyer. Time that hes appointed to represent gideon hes at the top of the legal brazil profession. Hes one of the Great Washington fixtures and great lawyers of the time. He ends up that clarence getting ends up having no lawyer to having one of the greatest lawyers in the United States. Across from him was the name of bruce jacob. Only what im read in his book. I think were gonna see more from in the course of the evening. He argued to courses before the Supreme Court and really history about both of them. Learn about that later. And then the other namesake. Louis wayne right. He really has a very small role to play in a split story. How are those names assigned to. Cases there are assigned to cases in the first instance based on which party is sued in the action. The reason that this wayne right as opposed to the state of florida is this gets to the state and gets two and a hideous decision as. When you file a petition for writ of heaviest corpus, you sue your jailer. Thats why the head of the florida prison system was the defendant. He really is a small player in this drama, because when the cases first file in the Supreme Court theres a different head of the agency and its just an official title. They just swapping out one after another. Wayne writes the one that stays in the caption in the case we are. No little bit of history there. We love to have your participation in this program. In about ten minutes will be going to your phone calls from across the country. You can also tweet us use the hashtag landmark twice is. Or you can go to cease barr spends Facebook Page and you see the page there. Were gonna go back to some video or gonna take a look at how Clarence Gideon ended up facing criminal charges in panama city, florida. And was on saturday i believe when i was arrested. I was arranged basically on monday morning. It gave me a preliminary trial the next day on tuesday. That was the first time that i found out actual direct evidence. This is the file folder for the gideon case. We keep that separate from all our case files now because of all the interest we have now in the case. And the historic value of it. The original case file. Some of that since it is getting so old its really hard to read. This is the charging document from the states attorneys office. From 1961 when he was charged with breaking and entering in the bar. Will brief summary. Theyre saying that mr. Gideon did in fact break into the poolroom and he stole money or property. This one is actually the verdict sheet miss. The gideon fining mr. Gilding guilty sits on september 7th 1961 for a term of five years. Even though panama city was on the losing side of this case, they really become part of history. Its really interesting and fun to see how that city in florida has preserved all of the papers for this case and has a bit of a museum that preserves their place in history. Explain why george judge robert mercury that we saw earlier you actually see he is trying to help Clarence Gideon along. But the law only allows him to go so far. What florida law allowed at that point, and was florida unique and not having a signed a defendant . Florida law at the time only allowed for the appointment principally capital cases or Death Penalty cases. They were not alone at that time and not providing council to defendants but they were in the minority at that point. The trend of history was clearly going against them. Im not sure about the precise number about but i think you are down to about a dozen jurisdictions that did not provide counsel and all cases to poor defendants. It was even more dramatic than that. One, the judges trying to help gideon out a little bit. It is very difficult to be a coach and the empire umpire. Some folks who say gee, the constitution is and say appointed counsel it is true, and at the founding actually of the framers only provided for council in Death Penalty cases, but in other cases the judge was actually supposed to help the defendant, but as time went on, it became clear that you cannot play these two roles. One argument for the rightness of the case is just, judges cannot be effectively coaches and umpires. Second argument is as pulse it, the trend of history had very strongly move in that direction at the time of the gideon case, only five states or not giving appointed counsel in a felony cases. Even among those 5 pm, and florida was one of those five, but even then, in some of the big cities, they appointed counsel was being offered. Always in capital cases. With the judge also said is, i cannot do it. No, he was not required to do but even judges who are not required to do it often what using to do it. From a right perspective, here is an amazing fact about the case. 25 states actually weigh in, on one side of the other. 22 of them, let by the attorney general of minnesota 22 side with gideon. Only two join with florida saying that we should not be forced to do this. They have any choice but to uphold the Commission Based on the laws of the state . Based on the laws of the state, statutory laws of the state, i dont think they really have much choice. I think they probably wouldve been open to them to decide right under the state constitution, but i dont think there was much of an appetite for that. Unlike the Supreme Court, the florida Supreme Court didnt pick Clarence Gideons case as a vehicle to make a change in the law, so from the perspective of the florida Supreme Court, it was just another case. Just another prisoner with really, not about a claim and their eyes. I think when you get to the way the Supreme Court of the United States treats this petition, it is night and day compared to the florida Supreme Court just sees this is another hopeless petition. Another Supreme Court at the time were recognizing even when the state constitution was not entirely clear, even when state statutes and provide for it, as a matter of administration of justice, courts in other states, state courts were saying, we are in charge of the Justice System in our state, and we are going to improvise and some ways because even of the United StatesSupreme Court has not yet required us to do so, nick about it this way, if the Supreme Court ever does require us to do this, are we going to have to go back and redo all these convictions, and for our own purposes, do we ever want to be convicting people who might be just because they dont have good lawyers . The state Supreme Courts were more forward leaning on the florida Supreme Court. You mention in an earlier case, would you also talk about betts v. Brady which was the last time before this case to the Supreme Court had ruled on the right to counsel. I mentioned youd or black who was an interesting character. A southerner, a former senator from alabama. He is he does not come from a fancy family background. Hes a hardworking alabama person. He does not go to three years of law school but he pulls himself by his own boot strap and gets himself elected to the senate. He is Franklin Roosevelts first appointee in the United StatesSupreme Court after roosevelts election in 1936. He writes in 1938, maybe his first big opinion, seeing the sixth amendment requires that the federal government give appointed counsel to a federal defendant and then in this next case in betts v. Brady four years later, the question is, what about the states and hugo black is in dissent in that case. He thinks that the bill of rights that was originally applied only against the federal government should also apply against the state. The famous degree is called the corporation of the bill of rights. In hugo blacks view it is incorporated against the states he thinks the 14th amendment applies all these rights. Speech, press, counsel, due process, double jeopardy all these rights apply against states. The first case where he says it is in the scent isnt betts v. Brady, and then later on, in 1963, he finally has the chance to take that dissent and turned it into a majority. Clarence gideon goes to jail. He is sentenced to five years for what seems to us like a pretty smalls crime. It took some wine. It took some beer. If he was in fact guilty, in which he says he was not. What was missing with some change from the jukebox and from the cigarette machine, and sentenced to five years. We said this was a man with an eight great education, but he had been studying the constitution and school, and what did he do when he got to jail . When he got to jail, he started the process of becoming a pretty good jailhouse lawyer. One of the things that he did not, and the professor made the point earlier, and in some respects, it is a little bit and accident of histo