Law and Disorder

Gideon v. Wainwright: Happy anniversary!

By A.J. Wagner

It was 50 years ago last week when the Supreme Court of the United States decided the landmark case of Gideon v. Wainwright. This was the case that decided that criminal defendants have a right to legal counsel.

So, I contacted Montgomery County’s Public Defender, Rudy Wehner, to see what he might have to say about this solemn occasion. I even offered to let him write this article. Turns out he was too busy. Attorneys in his office are handling far too many cases and he has been pitching in at the courthouse, despite his more-than-full-time administrative responsibilities.

This stretched-thin problem in the public defender’s office has placed the principal of Gideon in jeopardy. With more cases than any ordinary person can handle, the assistant public defenders constantly worry their representation may fall short of what is needed for their clients.

Yet, when someone calls me and to ask me to represent them, I ask for a fee. When they tell me they cannot afford to pay a fee, I tell them they will qualify for representation by a public defender. Invariably, I am told that the person doesn’t want a public defender, he or she wants a “real” lawyer. But not only are public defenders real lawyers, they are some of the best criminal lawyers in town. Criminal law is what they do every working day. They are familiar with the law and the courts they practice in. You may not see them as much as you’d like, but they do a very good job.

I once asked a physician friend of mine about what to look for in choosing a surgeon. She responded that I should seek the doctor who has done the most surgeries. That doctor will have the most experience and will likely have seen everything that can go wrong during surgery which has given them the experience to deal with those problems.

The same is true with a public defender. The daily experience of handling hundreds of cases every year makes them experts on the law.

Getting back to Gideon v. Wainwright, here’s what the Sixth Amendment to the United States Constitution says:

Amendment VI

“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; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

That language was approved with the Bill of Rights in 1789, which makes one wonder how it is that it wasn’t until 1963 before the Supreme Court decided to enforce this provision. Further, it makes one wonder when the court will further assure proper representation in all cases by making sure that the case load of appointed lawyers and public defenders is the appropriate size so that lawyers have sufficient time to meet with and prepare representation for their clients.

Gideon was charged in a Florida state court with breaking and entering into a poolroom with intent to commit a misdemeanor. This is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him. The court responded:

“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.”

In the opinion written by Justice Black, the Gideon decision noted:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Thus, we celebrate a golden anniversary with hope that it will continue to be honored.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 


A.J. Wagner is an attorney
with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.


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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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