Chair’s Report to Members

Albert J. Krieger

Albert J. Krieger is a criminal defense attorney in Miami, Florida, and chair of the Criminal Justice Section.

What prompted this musing is our celebration, March 18, of the fortieth anniversary of Gideon v. Wainright. Most lawyers practicing today find it difficult to conceive of a person unrepresented in a criminal court, and, yet, for roughly the first 175 years of the republic’s existence, the U.S. Supreme Court did not accept the right to counsel as one of the fundamental rights that the states were compelled to recognize under the 14th Amendment. In fact, the Court had held 21 years before Gideon that the right to counsel was not one of those fundamental rights. (See Betts v. Brady, 316 U.S. 455 (1942).) What happened to change the Court’s mind? Did someone find precedents that did not exist before? There is a definitional glitch in new precedents suddenly bursting into bloom as a desert after rain. The authorities, in the broadest sense of the word as referenced by Justice Black in the Court’s opinion in Gideon in 1963, were getting a bit long in the tooth. They had existed before Betts. The oldest was from 1884 and the youngest was found in a citation in a 1941 decision. Again, what changed? Was it World War II and the horrors revealed in the Holocaust? Was it the product of a generation increasingly more educated as more of our population was better schooled? Was it the effect of the G.I. Bill of Rights and the experiences of millions of young Americans in a brutal war? Was it television? The answers are probably yes and no.

Society and culture are dynamic. A government that holds that "all men are created equal" and that it is "of the people and for the people" must of necessity be able to adapt and adjust to the changing times and relationships that life brings to us. Kings have fallen from deities to mere vestiges of their once superhuman powers. Just yesterday, figuratively speaking, the House of Lords in England lost its hereditary powers, membership, and stature. Times change, and with the changes come differences in how we view each other and how we look upon our government. What should not change is our catalogue of individual rights, though their exercise may vary, obviously, as our society’s survival requires.

In a way, my argument is a variation on the half-full-or-half-empty glass. It may be only a matter of starting points, but perhaps it is something more basic. My preferred baseline is that we are all endowed with total individual liberty that we have chosen to contain by creation of a government given delineated powers that limit the exercise of those rights to ensure that we can live together rather than in armed camps. Our courts have been charged with the seemingly contradictory task of protecting our rights and liberties while enforcing the powers of the government to prevent the exercise of some of those rights and liberties to the detriment and injury of others. Precedent is invaluable in assisting them to perform this task. Precedent, in the first instance, serves as intellectual guidance. It preserves the thinking, the rationale, the syllogisms that led to the conclusions. Much more than an exercise in rhetoric, precedent serves to teach across the years and the generations how and why we relate as we do, one to the other. Precedent, however, regardless of the care with which it arrives at the conclusions for which it may stand, is not immortal, but it can be argued that individual rights are.

That, to me, is one of the teachings of Gideon. Betts, in contrast, represents a carefully drafted treatment of prevailing precedent as it developed over the centuries. The opinion rooted itself in a common law doctrine first pronounced in 1695 that permitted one accused of treason to be heard by counsel on the issue of not guilty. It was not until 1836 that the defendant was accorded the right "to defend by counsel against summary convictions and charges of felony." (Betts at 466.) "The practice of English judges, however, was to permit counsel to advise with a defendant as to the conduct of his case and to represent him in collateral matters as respects questions of law arising upon the trial." (Id.) Thus, even Betts reflects how the law’s evolution mirrors society’s requirements that change be made in steps less exaggerated than by biological mutation or political revolution. Thus precedent in the most conservative of venues may be writ large and indelibly, if so chosen by the court, but even in there is a structure of change. Though Gideon looks to precedent, it does so in order to validate the thinking of its author and not to find the sustenance for its decision.

As far back as Betts, Justice Black believed the right to counsel was fundamental. This right "is guarded from invasion by the Sixth Amendment, adopted to raise an effective barrier against arbitrary or unjust deprivation of liberty by the federal government." (Betts at 475.) In his dissent, Justice Black lists the 23 states that by that time required appointment of counsel for the indigent upon request. That social pressure, sadly, was insufficient to move the court from its precedential inertia. Practicing in one of those states during the period between Betts and Gideon, one did not feel the impact of the legal and societal changes as might one in the remaining majority. The abiding philosophy in that group was summed up in the last paragraph of Betts:

As we have said, the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.

To us in the minority, Gideon was not a revelation, but the right thing. And precedent or not, it was about time, we thought, that the Supreme Court acted. This to me, at least, is a lesson worth remembering. The evolving nature of our law is a constant challenge to us, the practitioners, as it well should be. We are not content to mire our relationships with our society in a matrix that is unyielding and unfeeling of the emotional sense and spirit that marks our interchanges. If precedent is needed to support such thinking, we can look back to the development of the lien theory of mortgages and the alteration in law despite precedent. Forfeiture was abhorrent to the fragility of ownership, and it was rejected in favor of redemption. In recognizing the national treasure of our protection of individual rights and liberties, we balance what may appear to be needed with the structure of our Constitution, which provides and permits expansive and responsive thinking. In 1963, the right to counsel had to be expressed in unequivocal terms if vitality were to be lent to the concept. Today, we recognize its impermanence. Cases arising out of the efforts of the government to protect us, to whom it owes ultimate obligations, have, in the opinion of some, sapped the strength from that right. The Supreme Court may address that question and create a new rule regulating our relationship with our government. That rule, facially, will appear to be based upon precedents that may be relevant by rationale or communal experience. Rest assured, there will be those who will disagree, their opinions predicated upon different precedents of equal philosophical merit.

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