Gideon’s Trumpet

            Gideon’s Trumpet tells the story of one of the most important cases in American law, Gideon v. Wainwright, 372 U.S. 335 (1963).  At the time of the case which makes his name famous, Clarence Earl Gideon had spent much of his adult life in prisons throughout the American south, mostly for stealing property of various sorts.   White, poorly educated, but doggedly determined to better his position, he challenged the Florida law under which he was tried without an attorney for allegedly breaking into a store one night and smashing open and robbing a vending machine.  When arrested, he had a great deal of change in his pockets, consistent with having robbed the vending machine, but also consistent with his having spent the night in a poker game in which he had been quite lucky, which was his claim at trial.

            At his trial, Gideon asked trial judge to appoint an attorney for him, stating that he was too poor to afford counsel of his own.  The trial judge denied his request, and the trial ended with Gideon convicted and sentenced to prison.  From prison, he petitioned to have his case heard by the Florida Supreme Court.  It denied review.  Gideon then hand-wrote on lined notebook paper a “petition for a writ of certiorari” to the United States Supreme Court, arguing that the denial of appointed counsel denied his constitutional rights.

            The Supreme Court took Gideon’s case because of ongoing controversy surrounding the right to appointed counsel.  Although the Court had ruled in 1942 in Betts v. Brady, 316 U.S. 455 (1942), that the Constitution did not guarantee appointed counsel for a criminal defendant except in cases presenting “unusual circumstances,” this issue had continued to simmer in the intervening years.  In a long series of cases, the Court had ruled many times that counsel were required, including any capital case (Hamilton v. Alabama, 368 U.S. 52 (1961), and many cases in which the Court strained to find some unusual circumstance requiring an exception to the rule denying appointed counsel.  (See cases cited by Harlan, J. In his concurring opinion, 372 U.S. at 350-51.)  Having repeatedly narrowed the rule of Betts v. Brady in these cases, the Court felt it was time to reconsider the decision in Betts v. Brady in its entirety to determine if the rule stated in that case remained constitutional sound.

            In its brief and argument, presented by Bruce Jacob, the state of Florida contended that question of appointment of counsel was a matter for each state to decide rather than being the proper subject of a constitutional mandate imposed by the federal courts.  He contended that Gideon had received as fundamentally fair trial, and that it would intrusive and unduly burdensome on the states if they were required to appoint counsel for every person charged with a serious crime.

            For Gideon, Abe Fortas, of Arnold Fortas and Porter, was appointed to appear pro bono publico.  Fortas contended that the right to counsel was so important that it was a denial of fundamental fairness to require any accused person to defend himself.  He noted that no state used non-lawyers as prosecutors, and asked how it could be deemed fair to ask a common man without a lawyer’s training to face a lawyer, with the risk of his liberty riding on the outcome.

            Both of these arguments focused on the scope of the due process clause of the fourteenth amendment.  The sixth amendment states that the accused has the right to counsel, but this is part of the Bill of Rights, and the Bill of Rights does not apply directly to the states.  These early amendments to the Constitution are read consistently with the opening of the first amendment, “Congress shall make no law . . .”  Congress had done nothing applicable to this case, so that the sixth amendment right to counsel was not directly implicated in Gideon’s trial.  The rule at issue in this case was exclusively a state rule, which did not directly violate the sixth amendment.    But beginning in Powell v. Alabama,  287 U.S. 45 (1932), the Supreme Court had established a doctrine which had come to be called “incorporation.”  In various cases, the Court had held that certain rights articulated in the Bill of Rights were so important, so basic to civilized society, that they must be deemed to be included in the concept of “ordered liberty” so that they were “incorporated” into the concept of due process.  Rights which the Court were so fundamental were ruled to be part of due process as guaranteed by the fourteenth amendment.  While the constitutional amendments in the Bill of Right applied directly only to the federal government, the fourteenth amendment provides, “No State shall . . . deprive any person of life, liberty, or property without due process of law.”  Because of this language, a right incorporated into the due process clause was binding on the states.

            For Florida, Jacob argued that Betts had established that the right to counsel was not such a right.  He contended that this rule should stand.  For Gideon, Fortas contended that the right was so fundamental that it must be incorporated into due process and thereby made binding on the states, so that Betts should be overruled.

            The Court, in an opinion by Justice Hugo Black, began by acknowledging that the facts of Betts and those of Gideon’s trial were essentially undistinguishable, so that to grant relief to Gideon, it would have to overrule Betts.  It did so. (372 U.S. at 339)   To do this, the Court built its opinion around a classical syllogism.  As the major premise, the Court stated the concept underlying incorporation: a right mentioned in the Bill of Rights which is “‘fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment.” (372 U.S. at 342) The Court reviewed the various rights which had been held incorporated.  (372 U.S. at 341-42)   The minor premise of the Court’s opinion was that the right to counsel was such a right, fundamental and essential to a fair trial.  In making this assertion, the Court looked to Powell v. Alabama 287, U.S. at 45, at 68, in which the Court had said of the right to counsel, “the right to the aid of  U.S. counsel is of this fundamental character”  (quoted in 372 U.S. at 342-43), and Johnson v. Zerbst, 304 U.S. 458, 462  (1938) (quoted in 372 U.S. at 343).   From this, the Court concluded that the right to counsel was incorporated into the due process clause of the fourteenth amendment, and was therefore binding on the states. (372 U.S. at 342)   This overruled Betts v. Brady.  It followed from the conclusion to the syllogism that Gideon had been denied due process in being tried without counsel.  Gideon’s conviction was ruled constitutionally defective and overturned.  The case was remanded to the Florida courts for a new trial. (372 U.S. at 345)

            In a concurring opinion, Justice William O. Douglas urged that the Court should incorporate the entire Bill of Right into the due process clause.  (372 U.S. at 346-47, Douglas, J. concurring).  Also concurring, Justice Tom Clark contended that time had shown that the “special circumstances” exception of Betts v. Brady had grown to where it was the rule rather than the exception.  (372 U.S.  at 347-49, Clark, J. concurring).  Justice John Harlan, rejecting the idea of incorporation, concluded simply that no trial was fair in which a defendant did not have counsel.  (372 U.S. at 349-52, Harlan, J. concurring)   Although these three members of the Court wrote separately, they each agreed in the result, so that the Court was unanimous in ordering a new trial for Gideon, with appointed counsel.

            On retrial in the Florida courts, Gideon was offered the assistance of a top-flight big-city attorney.  Recognizing the parochialism of Panama City in the western panhandle of Florida, Gideon opted for a local attorney, much less prestigious, but more attuned to local prejudices and foibles.  In the trial, despite a determined effort by the State of Florida to convict him. Gideon was acquitted.

            If this case affected only Gideon, it would be a little note.  The significance of the case is that it established the rule that for any felony trial, in which the liberty of an accused person is at stake, the standards of civilized conduct of a great nation require that the accused be protected by having an attorney at his disposal.  If the accused is to poor to afford an attorney, he is entitled to have an attorney appointed by the state for his defense.  It is because of this case that the standard Miranda rights include the statement: “You have the right to an attorney.  If you cannot afford an attorney one will be appointed for you at no cost to you.”  Today, any person who is hailed before an American court and threatened with the loss of liberty is entitled to a court appointed attorney.          Gideon v. Wainwright is a landmark in American law.  Anthony Lewis does a marvelous job of showing how this case came about, in language that makes the often arcane details of the workings of the U.S. Supreme Court accessible to ordinary readers.



Lewis, Anthony.  (1964).  Gideon’s Trumpet.  New York, New York:  Random House.

Supreme Court Cases:

Betts v. Brady, 316 U.S. 455 (1942).

Gideon v. Wainwright, 372 U.S. 335 (1963).

Hamilton v. Alabama, 368 U.S. 52 (1961).

Johnson v. Zerbst, 304 U.S. 458, 462  (1938).