A Florida Burglary
A Bay County, Fla., lawman was waiting when Ira Strickland Jr. arrived to open his pool hall/beer joint at 8 a.m. on June 3, 1961.
Deputy Deull Pitts Jr. informed the proprietor that his business had been violated overnight. A burglar broke a window to get inside, then jimmied the coin boxes to the cigarette machine and jukebox.
The burglary would not have come as a surprise to Strickland. His business was located in Bay Harbor, a gritty crossroads near a paper mill at the seedy outskirts of Panama City, in the Florida panhandle.
Bay Harbor attracted lowlifes like moths to an illuminated beer sign, and these lost souls made up Strickland’s shabby clientele of bums and boozers.
Strickland made a quick accounting and determined that roughly $65 in change, 12 beers, 12 Cokes and four fifths of cheap wine were missing. The booty amounted to maybe $100.
Deputy Pitts told Strickland that an eyewitness, Henry Cook, a 22-year-old greaser who lived nearby, had provided a detailed account.
A Panama City cop had cruised past the pool hall at 6 a.m. and noticed the front door open. The cop saw Cook standing nearby. Cook explained that he was outside the business at 5:30 a.m. after returning from a night of carousing in Apalachicola, 50 miles down the coast.
Cook said he noticed movement inside the building and stepped back to watch furtively through the window. He said he saw a man walk out carrying a bottle of wine. The man’s trouser pockets bulged with coins. Cook said the man went to a nearby pay phone, dialed and spoke, then got in a cab when it arrived a short time later.
The eyewitness told the cop he recognized the burglar: Clarence Earl Gideon, a gaunt, twitchy boozer who ran a poker game at the pool hall. Gideon lived nearby at the Bay Harbor Hotel, a $6-a-week flop.
Within a couple of hours police tracked Gideon to a tavern in downtown Panama City, where he was drinking on the barfly morning shift. His trousers were hanging low, weighted by exactly $25.28 in coins.
Cops figured they had their break-in culprit cold. They arrested him.
But from the moment he was accused, Gideon swore he was the wrong man. He said the coins in his pockets were from nickel-ante poker winnings, not from Strickland’s machines.
Gideon vowed to fight the charges. Destitute, he asked that a lawyer be appointed to represent him, at taxpayer expense. At age 51, he was no stranger to courtrooms, and he knew enough about criminal law to understand that he was outmatched against a professional prosecutor.
But Judge Robert McCrary Jr. told him, “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. I am sorry, but I will have to deny your request to appoint counsel to defend you in this case.”
Gideon countered, “The United States Supreme Court says I am entitled to be represented by counsel.”
The judge’s decision and Gideon’s insistence of his innocence would help the lowly break-in—one of 949,600 reported in the United States in 1961—make legal history.
On August 4, two months after the break-in, Gideon faced trial for breaking and entering with the intent to commit larceny. Gideon was forced to represent himself. His adversary was Assistant State Attorney William Harris.
Judge McCrary presided, and a jury of six men was seated to decide Gideon’s fate. Prosecutor Harris called just two witnesses: the owner and the eyewitness.
Ira Strickland testified that he had locked up his business at midnight on June 2 and returned eight hours later to find Deputy Pitts outside his burgled pool hall. He confirmed that coins, soda and booze were missing.
Henry Cook repeated the same account he had given detectives on the morning of the break-in: He saw Gideon inside the poolroom and watched him walk out with a bottle of wine, make a call at a pay phone, then leave in a cab.
Gideon did his best as a layman lawyer. He made opening statements and closing arguments, cross-examined Cook and called seven defense witnesses.
But his cross-examination of Cook was emblematic of his deficiencies. Most of the exchanges between the two men were dead ends like this one:
Gideon: “Do you know positively that I was carrying a pint of wine?”
Cook: “Yes, I know you was.”
Gideon: “How do you know that?”
Cook: “Because I seen it in your hand.”
Gideon’s witnesses included Deputy Pitts, the cab driver who took him to Panama City, and a woman who was a regular customer of the pool hall, who testified to Gideon’s character.
The trial transcript did not include a record of opening and closing statements. But the record noted that Gideon spoke for 11 minutes in his summation, two minutes longer than the prosecutor.
He likely argued that Cook and some pals had broken in. When the cop happened by just after the burglary, Cook chose Gideon as a convenient patsy because he had seen him call a taxi that morning from his customary corner pay phone for a ride to Panama City for an eye-opener.
His argument did not sway the jurors, who convicted Gideon. On August 27, three days before Gideon’s 52nd birthday, Judge McCrary handed down the maximum sentence: five years in prison.
Gideon certainly was accustomed to life behind bars. He’d served at least four different state prison sentences and had been a guest at more than a few city and county jails.
But Gideon did not go away quietly. He had an indignant streak and a deeply embedded sense of fairness. Gideon had always blamed his failings on something or someone — his stepfather, the Depression, his bouts with tuberculosis, corrupt authorities.
As he sat in prison in Raiford, Fla., Gideon focused his rage on Florida and Judge McCrary.
“A flame still burned in Clarence Earl Gideon,” Anthony Lewis wrote in his 1964 book, Gideon’s Trumpet. “He had not given up caring about life or freedom; he had not lost his sense of injustice. Right now he had a passionate — some thought almost irrational — feeling of having been wronged by the State of Florida, and he had the determination to try to do something about it.”
Gideon read a book on the history of the American legal system and decided that Judge McCrary had violated his constitutional right to due process of law under the 14th Amendment to the U.S. Constitution.
Using a lead pencil, Gideon wrote a series of letters on lined stationery provided by the prison, the top of each page featuring the rules for prisoner correspondence — English only, two letters per week, and so forth.
He wrote first to an FBI office in Florida and next to the state supreme court, but he was denied help.
In January 1962 he mailed a five-page petition to the United States Supreme Court asking the nine justices to consider his complaint. He followed a form he found in legal books, right down to Latin phrases such as “writ of habeas corpus” and “in forma pauperis.” He even began his letter with, “Comes now the petitioner …”
The document was rife with misspellings, but nestled in the petition was his fundamental gripe: He asked for a lawyer and didn’t get one.
Gideon’s appeal was a quixotic act by a man who probably did not know the odds he was up against.
Today, the U.S. Supreme Court rejects all but about 100 of the 7,000 appeals it receives each term. Forty years ago, the court received about a third as many appeals, but it was no more likely to accept a case.
Clarence Gideon had no way of knowing it, but his was the right case at the right time. For years, constitutional lawyers had been anticipating just such an appeal over the issue of free legal counsel for indigents accused of a crime.
The Sixth Amendment was interpreted by the high court to guarantee free counsel to anyone charged with a federal crime who was unable to afford a lawyer. But that right had not been applied to most crimes tried in state courts.
The Supreme Court had ruled in the infamous Scottsboro Boys case, in which seven young black men were accused in 1932 of raping two white women, that taxpayer-funded lawyers must be provided in cases in which the accused might face execution if convicted.
But in 1942, the court made the controversial ruling that a Maryland judge was right to deny free counsel to a farm worker, Smith Betts, charged with robbery. The justices said courts could deny free lawyers in non-capital cases unless defendants met “special circumstances,” such as illiteracy, feeblemindedness or youth.
Nevertheless, by 1961, 37 states and many cities had adopted policies to provide lawyers to indigent defendants charged with felonies. Florida was not among them.
Constitutional lawyers suspected that the Supreme Court under Chief Justice Earl Warren was waiting for the right appeal to come along to challenge Florida and the other states. The justices found it in Gideon’s humble petition.
The court directed Florida Attorney General Richard Ervin to respond to Gideon’s handwritten petition with an opposition brief. The 13-page document, prepared by Bruce Jacob, one of Ervin’s assistants, argued that Gideon was not entitled to a lawyer because he did not meet the “special circumstances” provision of the 1942 Betts ruling.
Jacob wrote, “Petitioner Gideon has made no affirmative showing of any exceptional circumstances which would entitle him to counsel under the Fourteenth Amendment.”
The court clerk sent Gideon a copy of the AG’s brief. A few weeks later, Gideon replied, with his customary misspellings:
“Petitioner can not make any pretense of being able to answer the learned Attorney General of the State of Florida because the petitioner is not an attorney or vessed [versed] in law nor does not have the law books to copy down the decisions of this Court … It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused. All countrys try to give there Citizens a fair trial and see to it that they have counsel.”
The Supreme Court apparently was convinced by Gideon’s reply. It agreed to hear his appeal. The case would become known as Gideon vs. Wainwright, after Louie L. Wainwright, director of the Florida Division of Corrections.
First things first: Gideon needed a lawyer. The high court accepted Gideon’s in forma pauperis — that he could not afford a lawyer for his appeal.
The court assigned Abe Fortas to represent him.
Feisty and diminutive, Fortas was a Memphis native, the son of Russian immigrants. He had attended college in his hometown, then was accepted at Yale Law School, where he edited the Law Journal.
A liberal Democrat, Fortas became a devotee of New Deal politics and soon found himself in Washington, working first at the Department of Agriculture and later the Department of Interior.
After World War II, Fortas left government work and established Arnold, Fortas and Porter, which would become one of Washington ‘s most influential law firms. In 1948, a rising-star Texas politician named Lyndon Johnson called on Fortas to represent him in a dispute over a contested primary election for the U.S. Senate.
Fortas and his client prevailed, and Fortas earned a lifelong role as Johnson’s advisor, friend and confidante.
In the summer of 1962, Supreme Court administrators sent a letter to Gideon informing him that the justices had agreed to hear his appeal and that Fortas had been appointed to represent him.
Having failed to hear from Fortas by the end of August, Gideon sent the lawyer a pointed letter: “I have not heard from you, and I would like to find out if you are going to represent me. Because I don’t know what to do.”
The men exchanged brief notes, including one in which Fortas asked Gideon for a brief biography to help him prepare the appeal.
He received a 22-page reply from Gideon that began, “You will understand that due to my limited education and also to the utter folly and hopelessness [of] parts of my life, it will be doubtful if I can put it down on paper with any reasonable comprehension. I will not be proud of this biography.”
The text of Gideon’s biography, published in Gideon’s Trumpet, documents a wasted life.
Gideon wrote that he was born in Hannibal, Mo., in 1910, the same year as Fortas. Gideon’s father died when the boy was 3, and he rebelled in his adolescence against a strict upbringing by his Baptist mother and stepfather, members of what Gideon would later call the “factory workers’ class.”
He wrote, “My life was miserable, I was never allow to do the things of a ordinory [sic] boy.”
Gideon quit school after eighth grade and ran away from home, living as a railroad vagabond. By age 16 he had begun compiling a petty crime dossier.
He spent a year in a juvenile reformatory for burglary. He found work at a shoe factory after his release but soon was lured back to quick-cash crimes.
At age 18 he was arrested in Missouri and charged with robbery, burglary and larceny. He was sentenced to 10 years but released after three, in 1932. In the meantime, the Great Depression had arrived. He said in his letter that he dreamed of legitimate work, but economics and his flawed character worked against him.
He spent most of the next three decades living on the margins and toiling at his four avocations: drinking, gambling, stealing and marrying. As he put it, “I done the same as always.”
He served additional prison stretches at Leavenworth, Kan., for stealing government property; in Missouri for burglary, larceny and escape, and in Texas for theft. (He was arrested for a Missouri jailbreak after his mug shot was featured in True Detective Magazine.)
Between turns at penitentiaries he managed four marriages. The first three ended quickly, but the fourth lasted — perhaps because his wife, Ruth, was also an avid tippler. The couple had three children before welfare authorities took them away.
Ruth and Clarence Gideon settled in Orange, Texas, in the mid-1950s, and he found intermittent work as a tugboat laborer and barkeep until he was bedridden with tuberculosis for most of three years.
Gideon’s children were born in 1956, ’57 and ’59—the first two in Orange, the third after he had moved to Panama City, Fla.
Gideon wrote in his biography that he worked as an electrician in Florida, but he was forced to supplement his income with gambling because the wages were so low. He said the couple turned to a local Baptist church for help in supporting and raising their children. He said alcoholism rendered his wife a useless mother.
He did not mention his own problem with the bottle. Only in his early 50s, he could have been mistaken for 75. He was thin and white-haired, and his hands and voice trembled.
He had served jail time for drunkenness in Florida. Yet he hadn’t had any serious run-ins with the law since his last release from prison in Texas in 1952.
He may not have been proud of his life’s record, but any shame he felt did not salve his indignation about the outcome of his trial.
He wrote Fortas, “I always believed that the primarily reason of a trial in a court of law was to reach the truth. My trial was far from the truth.”
On January 15, 1963, Fortas stood at a lectern at the Supreme Court Building in Washington. Before him sat nine robed men: Associate Justices Arthur Goldberg, Potter Stewart, John Harlan, William Douglas, Hugo Black, Tom Clark, William Brennan and Byron White, and Chief Justice Warren.
Fortas argued, quite simply, that no layman is a match in court against a trained lawyer.
Most observers agreed that Fortas made an exemplary presentation — impassioned but reserved, forceful but respectful.
“I believe that this case dramatically illustrates the point that you cannot have a fair trial without counsel,” Fortas said in his slow, southern-inflected baritone. “A criminal court is not properly constituted …under our adversary system of law unless there is a judge, and unless there is a counsel for the prosecution, and unless there is a counsel for the defense.”
He continued, “Without that, how can a civilized nation pretend that it is having a fair trial under our adversary system, which means that counsel for the state will do his best within the limits of fairness and honor and decency to present the case for the state, and counsel for the defense will do his best similarly to present the best case possible for the defendant?
“And from that clench will emerge the truth.”
Bruce Jacob, the assistant Florida attorney general, argued against Gideon. He said appointment of lawyers at taxpayer expense was a state issue, not federal.
He said the standard of “special circumstances” in non-capital cases should stand, and he warned that thousands of convictions would be thrown out if the standard were changed. He noted that states such as Florida had for 21 years followed “in good faith” the 1942 Supreme Court ruling in the Betts case.
An American Civil Liberties Union attorney joined Fortas in speaking in support of Gideon. An Alabama state prosecutor joined Jacob in opposition.
The session was more cordial than contentious, a recording of the historical session reveals, but there was far more intense questioning by the justices of Jacob than of Fortas.
The hearing ended three hours and five minutes after it began. Chief Justice Warren thanked the participants. Attorneys and witnesses in the gallery rose, and the justices filed out.
Florida’s Jacob later told author Anthony Lewis that he had little doubt of the outcome. He knew he had lost.
Gideon, Fortas, Jacob and scores of other interested legal observers waited two months for the ruling.
Following custom, the justices held a private vote on the appeal on Friday of the week they listened to the oral arguments. Chief Justice Warren, who was in the majority, had the option of writing the opinion himself or passing the assignment on to an associate justice, often a senior member in a case considered significant.
He selected Justice Hugo Black to author the Gideon vs. Wainwright decision — and with good reason.
Black, 77, was a native Alabaman appointed to the court in 1937 by President Roosevelt after he had spent 10 years as a U.S. senator. (He would become one of the longest-tenured justices ever, serving until a few days before his death in 1971.)
Black was sitting on the court in 1942 when it handed down its Betts ruling that denied free legal representation for all but special-circumstance defendants in non-capital cases. Black had dissented in that case, and it was now time for him to get even by writing the historic Gideon decision.
The ruling began, “The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment.”
The justices unanimously agreed: Gideon’s conviction should be set aside.
Justice Black wrote that “precedents, reason and reflection” obligated all American courts to make a lawyer available to any person charged with a felony, regardless of ability to pay. He wrote:
“In our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. 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.”
Black went on for most of 11 pages with an indictment of the Betts ruling from 1942. He said the ruling had “departed from the sound wisdom” used in earlier cases related to free legal representation, and he added that the Betts opinion “was an anachronism when handed down.”
The ruling had an immediate impact in states like Florida that had denied free counsel to convicted felons. In many cases, states simply released the prisoners rather than take on the time, trouble and expense of new trials. In Florida alone, about 2,000 convicts were freed as a result of the Gideon decision.
Oddly, Clarence Gideon was not among them.
His conviction had been set aside by the court ruling, but Florida stubbornly scheduled another trial, even though he had served nearly two years of the five-year sentence.
The prospect of a second trial made Gideon even more irascible. The Florida Civil Liberties Union volunteered two top-shelf Miami attorneys, but Gideon rejected them.
Instead, he chose a journeyman Panama City attorney, Fred Turner, 41.
Gideon also asked that his trial be moved from the courtroom of Judge McCrary, who presided at his first trial. That was denied.
Turner spent several days preparing for the retrial, which took place on August 5, 1963, five months after the Supreme Court ruling.
Turner picked apart the testimony of eyewitness Henry Cook, according to author Lewis. The attorney insinuated in his opening and closing statements that Cook likely had been a lookout for a group of thirsty young men who broke in to steal booze, then grabbed the coins while they were at it.
Turner elicited a crucial detail from the cab driver who took Gideon from Bay Harbor to a bar in Panama City: Gideon was carrying neither wine, beer nor Coke when he picked him up, even though Cook testified that he watched Gideon walk from the pool hall to the phone, then wait for a cab.
The jury acquitted Gideon after a mere one hour of deliberation.
He walked out of the courtroom that day and went to the Bay Harbor Poolroom to celebrate.
In Gideon’s Trumpet, Anthony Lewis portrayed Gideon as a heroic, albeit flawed, figure. He was cast even more heroically in the 1980 film version of the book, with Henry Fonda starring as Gideon.
But neither the book nor the movie gave the full story of Clarence Gideon’s life.
After his acquittal, he resumed his place in a well-worn rut. He married yet again and drifted from one Florida beer joint to the next. He died in Fort Lauderdale on January 18, 1972, at age 61. His kin back in Missouri reluctantly accepted Gideon’s body and laid him to rest in an unmarked grave.
Donors later added a simple granite headstone with this engraved script: “Each era finds an improvement in law for the benefit of mankind.”
The year Gideon died, the Supreme Court expanded its ruling in his case to include free counsel for anyone arrested who might spend even one day in jail if convicted, including those charged with misdemeanor crimes.
For his part, Abe Fortas saw his career flourish then flame out.
President Johnson appointed him to the U.S. Supreme Court in 1965. When Chief Justice Warren announced his retirement three years later, Johnson nominated Fortas to lead the court.
But his Senate appointment hearings became a fiasco when questions were raised about the propriety of Fortas accepting lecture fees while on the court. Republicans filibustered his confirmation vote, and Fortas asked that his nomination to chief justice be withdrawn.
A year later, Fortas resigned from the court in scandal amid new revelations that he had accepted a $20,000 payment from a convicted felon while a member of the court. He lived in disgrace, a legal pariah in Washington, until 1982.
Four decades after the Supreme Court’s Gideon v. Wainwright ruling, legal experts still parry over the policy, politics, personalities and implications of the case.
“Is Gideon a hero?” Prof. Melvin I. Urofsky of the Center for Public Policy at Virginia Commonwealth University wrote in an e-mail exchange with Crime Library. “It depends on perspective. I think the fact that he just kept gnawing at the system believing he had a right to counsel, and that he eventually won, makes him a hero of sorts. Was he a nice person? No.”
Kathryn Kase, a Texas attorney who co-chairs the Indigent Defense Committee of the National Association of Criminal Defense Lawyers, wrote via e-mail that Gideon had earned a place in the pantheon of important American legal figures.
“From my perspective, Gideon is a hero because: (1) he got [a Supreme Court hearing], which is incredibly difficult, even for lawyers to obtain, and (2) through his case, he enabled Abe Fortas to show what happened to non-capital defendants who did not have counsel.”
Urofsky said the ruling was inevitable because it was an open secret that the Warren Court wanted to overturn the 1942 Betts decision.
Kase disagreed.
“I don’t think the case outcome was inevitable,” she said. “While capital clients had a right to appointed counsel at that time, there was no consistent right to counsel in non-capital cases. Further, courts were loath then — just as they are now — to expand rights in such a way that required the expenditure of public funds.”
Kase noted that eight in 10 people charged across the spectrum of the criminal justice system qualify for court-appointed attorneys.
“The system has adjusted well,” Urofsky wrote. “Public defenders are way overworked, but that is not because of Gideon. It is because the states have under-funded their entire criminal justice systems, resulting in, among other things, very long delays between arrest and trial.
“Moreover,” he continued, “a goodly number of criminal cases, whether using private attorneys or public defenders, are pled out. The person is guilty, knows it, and the lawyer knows that there is no chance in hell of getting an acquittal. So the smart thing to do is to plead guilty to a lesser offense and get a shorter sentence. This saves everyone time and trouble. Not a pretty idea, but one that works.”
Attorney Kase said the essential issue of the Gideon case — the right to competent counsel — is more important today than ever.
“All criminal cases carry serious consequences these days, even if the crime charged is less than a felony,” she said. “For example, students who plead guilty to misdemeanor marijuana possession will lose their federal student loans. If you’re not a citizen, you can be deported for any misdemeanor conviction for a crime of ‘moral turpitude,’ which can be as innocuous as shoplifting. In some states, engaging in ‘streaking’ requires you to register as a sex offender — even if the offense is ‘only’ a misdemeanor and you didn’t serve any jail time. A charge doesn’t have to be a felony to carry life-changing consequences.”