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>> all persons having business before the honorable, the supreme court of the united states draw near and give their attention. announcer: landmark cases, c-span's special history series, produced in partnership with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice, and may it please the court. >> quite often, in many of our most famous decisions, are ones that the court took that were quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. susan: good evening, and welcome to landmark cases. tonight's case is gideon vs. wainright.

55 years ago this month, the supreme court ruled that the right to counsel was so fundamental to our governmental system, that states must provide lawyers for defendants who cannot afford one. the hero of tonight's story is a bit of an unlikely one. clarence earl gideon was a drifter in florida who was accused of breaking into a pool hall. and as we begin tonight, we are going to go to some historic video. you will see the real mr. gideon and the florida judge who sent him to jail. they reenacted the case for a cbs news documentary in 1965. let's watch. >> the next case on the docket is a case of the state of florida versus clarence earl gideon. what says the state? are you ready for trial? >> the state is ready, your honor. >> what says the defendant? are you ready for trial? >> i am not ready, your honor. >> did you plead not guilty to this charge by reason of insanity? >> no, sir. >> well, why aren't you ready? >> i have no counsel. >> why do you not have counsel? did you know that your case was set for trial today?

>> yes, sir, i knew my case was set for trial today. >> why then, did you not secure counsel and be prepared to go to trial? >> your honor, i request this court to appoint counsel to represent me in this trial. >> mr. gideon, i'm 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'm sorry, but i will have to deny your request to appoint counsel to defend you in this case. >> the united states supreme court says i am entitled to be represented by counsel. susan: and let me introduce you to two guests who are at our table tonight. they return to us from season one of landmark cases. paul clement, former u.s. solicitor general under president george w. bush, 2004 to 2008. he's now a lawyer in private practice in washington, d.c. at kirkland and ellis. he has the distinction of

arguing more cases before the supreme court, 85 times, than anyone in private practice. thanks for being with us. akhil reed amar also returns to the table tonight. glad to have you back, professor amar. he's a law professor at yale and a visiting law professor at the university of pennsylvania. he's the author of numerous books on constitutional law. his latest is called "the constitution today: timeless lessons for the issues of our era." so, professor amar, was mr. gideon at the time he said that, correct? did the constitution guarantee him a right to counsel? prof. amar: and he said the supreme court has said it. and the supreme court had not said it. it would in the case that he would eventually help get to the supreme court, which is what we will talk about this evening. what the supreme court had said before is that federal defendants being prosecuted for federal crimes in federal court could have appointed counsel, but in a case that people may not have heard of, it's called

johnson versus zerbst in 1938, that the court had never quite said that that was true for all non-capital cases, non-death penalty cases being tried in every state court. susan: mr. gideon had that notion because of the sixth amendment to the constitution, which says in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, and to have the assistance of counsel for his defense. paul clement, he also turned to the 14th amendment, because he was really quite a student of the constitution, which says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the unites states, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. so why did that entitle him to a lawyer? mr. clement: that, again, is the question that the supreme court would eventually decide, but i think that mr. gideon was actually quite right to focus on

the due process clause in addition to the sixth amendment. because one problem that he had is that the sixth amendment by its terms applies only to the federal government. it constrains the federal government, not the state governments. but the 14th amendment and its due process clause directly constrains the states. and so, that is why he was quite right to point to the due process clause as ultimately being the basis for why florida as opposed to the united states government, why florida had to give him a lawyer. susan: so, on facebook tonight i saw a criticism from someone who says, liberal case, c-span is picking a liberal case tonight. is there something about this case that both liberals and conservatives can find to like? let me start with conservative. mr. clement: i do not think of gideon as being a left/right case. and as you say, i think there are things for everybody about this case. but i think, particularly for a conservative, the idea that when somebody is facing the awesome power of the government and the awesome power of the government

is about to take away their life or their liberty, i mean, to be able to have the assistance of counsel and make that guarantee real i think is something that conservatives and i would think liberals would value as a cherished right. prof. amar: so, in the era since the warren court, what's very interesting is it's basically been a court, in my entire adult lifetime, where democrat appointees have not not been a majority on the court since 1970. and so, it's been a burger court, a rehnquist court, a roberts court, republican chief justices appointed by republican presidents with a majority of members being republican party members. and the modern court might not like everything the warren court did, but gideon is absolutely bedrock, across the board, 9-0. and other things aren't. for example, the exclusionary

rule which comes out, applied against the states at about the same time. conservatives don't like that, and i might be with them on that. but we all believe, left, right, and center, in this bedrock right to have a lawyer. it's the right to have rights. because if you do not have a lawyer, you really cannot defend any of your other rights. and even from a conservative point of view, if you're going to put people in prison because you actually believe in law and order, you want to put the people in prison who actually did it, who are guilty. and that legitimizes the whole system, is that you actually do have lawyers who can put the government to prove that these folks really are guilty of something, rather than guilty of simply being too poor to hire a lawyer. mr. clement: and i think one of the great champions of the sixth amendment in recent years has been justice scalia, so i think that just underscores this is not a left/right issue. susan: this is a case with some interesting and some big characters. so we are going to tell you about them as we wade into our story. first is clarence earl gideon

himself. anthony lewis, the pulitzer prize-winning "new york times" reporter, wrote a best-selling book about this case at the time called, "gideon's trumpet." later made into a movie. and here is how he describes clarence earl gideon. gideon was a 51-year-old white man who had been in and out of prisons much of his life. he has served time of four previous felonies and he bore the physical marks of a destitute life. a wrinkled, prematurely-aged face, a voice and hands that trembled, a frail body, white hair. he had never been a professional criminal or a man of violence. he just could not seem to settle down to work. and so he made his way by gambling and occasional theft. those who know him, even the men who arrested him and those who are now in jail with him, considered gideon a perfectly harmless human being. can you add any more to the story of clarence gideon.

prof. amar: anthony lewis can really write. that is a really nice portrait. we are going to talk a lot about the man in the case. truth be told, from a certain point of view, if gideon had not been the vehicle or instrument for this supreme court ruling, i do believe that some other litigant would have been. because there are larger structural forces at play that made this the right time for the court. the court was looking for a case like this one. and so, that is the other thing i would emphasize. susan: we going to hear about earl warren. mr. clement: chief justice warren in an incredibly large figure in supreme court history. and he is an embodiment of the warren court. he is the embodiment of what a chief justice should look like.

he looked like what a judge should look like. he had a very personal presence. he came from california, he had been the governor of california, so he had experienced a career before the supreme court, but what he is probably best known for his leading the warren court and the warren court's revolution in criminal justice procedure, in which gideon is an important component. prof. amar: and he is a republican. he ran for the vice president republican party ticket. do we had defeated truman. he is put on the court by republican president, dwight eisenhower. this is to the earlier point of whether this is a liberal case. the other justice i would mention who is going to play a very big role in our conversation is a very interesting character. he is going to write the majority opinion in the gideon

case. earl warren will sign to hugo black. hugo black is someone who had been a lawyer in private practice and had defended all sorts of people, from indigents, poor people, and wealthier clients. susan: we are also going to hear the name abe. who is he? mr. clement: he comes into this drama not as a supreme court justice, though he would later be a supreme court justice, and later a failed nominee for the justice ship. but here he is a lawyer. and at the time that he is appointed to represent gideon, he is at the top of the legal profession. he is one of these great washington fixtures -- fixers and great lawyers at the time. and clarence gideon goes from not having any lawyer to having one of the greatest lawyers in the country in front of the supreme court of the united states. >> across from him was bruce jacob. prof. amar: i think we are going

to see him maybe in the course of the evening. susan: he argued two cases before the supreme court and a really interesting history about both of them that we will learn about later. the other namesake, wainwright. louie wainright. he really has very little role to play in this case. he was the head of florida prisons. how are those names assigned to cases? prof. amar: that were based on which party is sued in the action. and the reason why this is wainwright as opposed to the state of florida is this sketch to the supreme court. as opposed to a direct appeal. so, when you file a petition, it's really you sue your jailer. and that is why the head of the florida risen system was the defendant. when the first -- when the case is first filed in the supreme court, there was a different

head of the agency and it just got an official title. they just swap them out one after the other. wainright is the one that stays in the caption of the case that we all know. susan: we are going to go back to some video and take a look at how clarence gideon ended up facing criminal charges in panama city, florida. >> it was on saturday i believe that i was arrested. and i was arraigned on monday morning. and they gave me a preliminary trial the next day. on tuesday. and that is the first time i found out that the actual direct evidence they had against me of breaking into this place here. >> we keep that separate from all of our case files now. because of all the interest we have in the case. and the historical value of it. the original case file. some of it, since it is getting so old, it is really hard to

read. this is the charging document from the state's attorney's office from 1961 when he was charged with breaking and entering. real brief summary. they are saying that mr. gideon did in fact break into the pool room and he stole money or property. this one is actually the verdict sheet finding mr. gideon guilty. so, the defendant was sent to state prison on september 7, 1961. and for a term of five years. susan: even though panama city was on the losing side of this case, they really become part of history. so it is really interesting and fun to see how that local city in florida has preserved all of the papers in this case and has a bit of a museum. so, explain why the judge we saw the video earlier, when you

watch more of this, you can actually see he is trying to help clarence gideon, but the laws only would allow him to go so far. what would florida law allow at that point, and was florida unique and not >> florida law only allowed for the appointment of counsel. principally capital cases are death penalty cases. they were not alone at that time in not providing counsel to indigent defendants but they were in the minority at that point. the trend of history was clearly going against them. i'm not sure about the precise number but they were down to about a dozen of jurisdictions that do not provide counsel to poor defendants. >> it was even more dramatic than that. the judge is trying to help gideon out a little bit.

it is very difficult to be a coach and the umpire. some folks say it is because intrusion does not say to appoint a counsel. framers only provided for 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 that judges cannot be coaches and umpires.

>> he wasn't required to do it under florida law but from a state rights perspective, here is an amazing fact about the case. 25 states actually weighed in, friend of the court briefs. 22 of them led by the then attorney general, walter mondale. 22 sided with gideon and only two join florida. >> did they have any choice but to a hold -- uphold this? >> i think it probably would

have open to them to decide under the state constitution, but i don't think there was much of an appetite for that. unlike the supreme court, the florida supreme court didn't pick clarence gideon's case as a vehicle to make a change in the law. from the perspective of the florida supreme court to suggest another case, just another prisoner with not a valid claim in their eyes. so i think when you get to the way the supreme court of the united states treats this petition, to see it as a hopeless petition. >> other supreme court at the time were recognizing counselees and when the -- even when the state constitution wasn't entirely clear as a matter of administration of justice, courts in other states are

saying we are kind of in charge of the justice system in our state and were going to improvise in some ways because even if the united states supreme court hasn't yet required us to do so, think about it this way. if the supreme court ever requires us to do this, you going to have to go back and redo these convictions? for our own purposes, do we ever want to be convicting people who might be innocent just because they don't have good lawyers? so other state supreme court's were more forward leaning than the florida supreme court. susan: you mentioned one earlier case in which you talk about beth versus for it in in 1942. the supreme court had ruled on the right to counsel. >> i mentioned hugo black who himself was a very interesting character. a southerner, former senator from alabama. like jeff sessions would be today.

he doesn't come from many fancy family background a hard-working , alabama family. he pulls himself up by his own bootstraps and gets himself elected in the senate and he is franklin roosevelt's first appointee to the united states supreme court. after roosevelt's reelection in 1936. he writes, maybe his first big opinion, that the six amendment requires of the federal government appoint defendant to the council. in the next case, four years later the question is, what , about the state? hugo black is in dissent in that case. he thinks of the bill of rights should also apply against the state.

he thinks no state all of these , rights apply against states. double jeopardy, speedy trial, all these rights apply against state, and the first case where he says this is in dissent is bets versus brady and later on and 1963, he later had time to take the defense and turn it into a majority opinion. and he does. susan: so he is sentenced to five years to what seems to us like a pretty small crime. he took some wine, beer. if you was in fact guilty, which he says he was not. what was also missing was some change from the jukebox and the cigarette machine and he was sentenced to five years. it was said earlier that this is a man with an eighth-grade education. but he had been studying the constitution, and what did he do

when he got to jail? >> when he got to jail, he started the process of becoming a pretty good job house lawyer. -- jailhouse lawyer. one of the things that he did, in some respects, it's a little bit of an accident of history that clarence gideon is the person who gave us this constitutional right. if the supreme court had been ready, we would have been talking about smith that brought us the constitutional right here he gets lucky in a sense. he was also smart. if he had not preserved his request to a right to counsel, then his case may have not been the vehicle. if he had not understood that he had a right to take his case all the way to the supreme court, we would not have gideon versus wainwright. we may still have the right to

counsel but it would not be gideon's case. susan: he wrote a letter to the supreme court. it was one of many that they received every year. you are seeing what it looks like, handwritten, with pencil. >> and the court receive the gideon letter. >> one of the letters written to us from a prisoner in the penitentiary. he claims mr. gideon violated a fundamental constitutional right. we regard that letter to be an appeal. we deem it to be an appeal. that letter is circulated to all of the justices. so, when the letter was received, it was put on a conference list. it was one of the first cases

that i had the opportunity to consider. when it came around we talked , about it at length. at as much length as any other case. we decided that perhaps we ought to consider again what the constitutional requirements of right of counsel really meant in a country that believes in equality. susan: the courts still handle the appeals in the same way? >> they handle them in a very similar way. the gideon's case standouts as the handwritten nature of the petition. when you are a law clerk and looking at petitions, the vast

majority of them are frivolous. i think the very fact that gideon's case was granted i think is the voice for a lot of law clerks that says i have to take this seriously. buried in here, there could be a very important claim. and it was buried, in the sense that gideon sometimes is very crisp and clear but other times, in what he wrote, it is meandering and not so clear. if they are looking for the possible needle in the haystack, this is the essence of what gideon wrote. the question is very simple. i request the court to appoint me an attorney and the court refused. it is very simple.

susan: let's take a look at the nine members of the supreme court who were destined to hear this case. these are the other appointees on the court. john marshall harlan ii, some of our earlier cases where john marshall i, potter stewart. hugo black, whom we have been talking about. william o. douglas. truman appointee don clark. and kennedy appointee byron white, his nickname wizard white. and he left to be u.s. ambassador to the united nations. is there anything else we should know about the makeup of this case? it was a unanimous decision, we will remember. akhil: there is a lot we could say about the make up of the court. one thing that struck me as compared to the current court it is a relatively young court. paul: the average age is a little under 60 years old.

you have new members coming on, justice goldberg indicated in his video earlier that this is one of the first cases he is considering coming onto the court, replacing justice frankfurter, who was a big believer in federalism and judicial restraint. and may or may not have been a vote for clarence gideon. the other justice i would highlight is the second justice harlan was one of the real proponents on this court of the federalism and giving more respect for the state as opposed to imposing a one-size-fits-all solution, just because we applied it in the federal context, we will apply in the state context. susan: the oral argument was heard by the court on january 15, 1963. one day of oral arguments. and mr. gideon was in his jail cell in florida. we will hear from abe fortas

about why he wanted to get the case. >> i felt the time had arrived when the court with a proper case before it would lay down the general rule for all felony cases in the state courts, that every man, the rich, the poor, and the poor as well as the rich, was entitled to the benefit of counsel when he was defending himself against prosecution by the mighty forces of the state. susan: we heard from you both that abe fortas was a powerhouse lawyer. it was a big deal that the court selected him to argue the case. why did they do it? akhil: because they wanted to make sure that they were hearing the best arguments on both sides.

my friend, paul, has argued more cases before the supreme court than any living person currently in private practice, and if the court doesn't have -- if one side is not have a lawyer, the court wants to make sure they get the best arguments, so they will pick somebody like john manning, the current dean of the harvard law school, to make sure they are getting the best argument, which is part of the answer -- and you understand how good lawyering is, so the judges can get it right. that is true at trial too. so the jury can get it right. we do not want people convicted just because they are poor, we wanted them convicted because they are guilty. we can only really be sure of that if we have good lawyers on both sides. so actually, in a way the appointment of fortas is proving the deep logic of basically gideon's claim.

susan: arguing on behalf of the state of florida was bruce jacob, a couple of years out of law school. we actually spoke with him. he is in his 80's. he sat down in front of our cameras and talked about the experience, so we will listen to him about what it would like to argue the case. >> the day before the case was argued, chief justice warren swore me and. -- wore me in. they were about three or four lawyers being sworn in. he was a huge man, he leaned over the bench, the bench is just a few feet away and you feel like you are almost right on top of him. and he said, welcome to the bar of the supreme court, mr. jacob. swore me in. i admired the chief justice so much, to have somebody like that talk to me. my name was something. something special. before and during the argument,

it was pretty nerve-racking appearing before the supreme court. they asked me at least 92 questions, most of them during the first half hour of my argument, so 92 interruptions. and quite often they were not really interested in the answer, instead they were trying to make points with each other after the arguments. and i saw abe in the hallway and i felt terrible, like i had done a really bad job because i was hammered by so many questions and abe said, you have a wonderful way before the court, which made me feel good because i thought i did really poorly, but he made that comment and it made me feel better. susan: i saw you smile. as bruce jacob talked about his experience. you have been there so many times, can you identify with a young lawyer a couple years out of law school assigned this case and being sworn in. tell me what you are thinking

about. paul: it is almost ironic, because by the time it gets to the supreme court, the trial court in florida, the deck is totally stacked against claims -- against gideon. now here is this lawyer from florida in the prosecutor's office, he is getting sworn in the day before his argument and i think i read in anthony lewi'' book that the day before was the first time he had ever seen a supreme court argument, and he is now against abe fortas, a leading member of the bar, who is essentially hand-picked by the court to argue this case with the court knowing even at this point where they were appointing fortas that they probably had five of votes to overrule, so it is really a stacked deck against this lawyer who is making his maiden supreme

court arguments, which is incredibly nerve-racking under the best of circumstances, and he is facing tough circumstances. i cannot help but think that was a really nice thing for abe fortas to say. susan: 91 questions he was peppered with. he knows the exact number. is that common? akhil: paul is the expert, but he would tell you that we might in recent memory distinguished between, like there is b, c, d, that before and after justice scalia. in general, before it was cooler and more quiet, but from the very first day on the supreme court, justice scalia actually began to change all of that and now most of the justices lean in in a big way. i was told the story that justice scalia, his first day, it is now a hot bench, and it

was not as much before. paul can clarify, but the story is told that at least on the very first day when justice scalia was on the bench and he is asking question after question, one of the justices, a very polite lewis powell leans over to thurgood marshall who sat next to him and says, do you think he knows we are here? that is the story i've heard. susan: you have made the story that the court wanted here the best arguments on both sides. one viewer tweets, "they needed something more than a twentysomething." akhil: that is the call of florida with all its resources , it could've picked anyone. so maybe it was a problem for florida. they could've sent a team of lawyers. susan: can you encapsulate the arguments made by each side? paul: i will try. i will try with the florida side

-- fortas side. he knows he is in a position of strength, so he needs to do a couple things. he needs to make clear to the court that this is the right case to overrule betts v. brady. he is in an odd position, because the supreme court doctrine says that if there are special circumstances, special disabilities for the defendant, then you are entitled to counsel, even under the betts rule. so he has to argue against his own interest a little bit, by saying that gideon is not that special. and actually did not do a terrible job. he did the best he could expect a layperson to do. so he has to establish there are no special circumstances, because otherwise the court does not have a need to overrule. then his main mission i think is to get the court, all of the

justices, comfortable with the idea that they can do this consistent with federalism and consistent with their jurisprudence about how the due process clause in the bill of rights applies to the states. and it is a trick. this is the case with the current court in other areas, but you are not arguing to a monolith, you are arguing to justice douglas and others, who have a distinct view of how incorporation works. and you are arguing to justice harlan, who is much more skeptical of applying the federal bill of rights to the states. and you are trying to pull it off at once. i think the key, and the professor alluded to this earlier, the key was fortas decided he would argue that the current doctrine, special circumstances, the court overruling state on a case by case basis was worse for federalism.

susan: florida's case? akhil: maybe in three words, federalism, precedence, and floodgates. so betts v. brady is out of the supreme court precedents, and why shouldn't we follow it the way that we ordinarily follow precedent? states' rights -- florida could have chosen, if it wanted to, just as a matter of kind of prophylactic to provide everybody a lawyer, but they decided not to, and are they the best to determine what is in the interest of the florida? floodgates, there are a lot of people who are already in prisons right now and they did

not have lawyers and are you not going to have to let them all out? or try, or attempt to retry them, but many years later witnesses have disappeared, the physical evidence has evaporated, is that what you want to do? of 8000 or 10,000 people in florida, i think half of them had been convicted without appointed counsel. that is a practical argument that the court has to consider. susan: in addition to the arguments made before the court, it was mentioned earlier that 22 states had filed a brief in support of gideon, and briefs -- two had submitted briefs supporting the arguments of florida. can you talk about the role of these briefs? paul: they are generally briefs filed sometimes by state governments, sometimes by the aclu or other private groups offering the court their own perspectives on the issue. they can be somewhat influential

in a lot of cases, but this particular dynamic where -- poor florida, they are trying to argue for states' rights and roughly half the state of the union are on the other side of the case, so that brief carried much more weight than an ordinary amicus brief, because is sort of a nixon go to china kind of amicus brief, a kind of bunch of states arguing that they actually want a federal right that forces them, even the ones that already provided it, under the current system, they could change their mind, but they want to be told that the federal constitution compels them to provide appointed counsel. i have to think that not just the fact that there are a couple of states on that brief, but the

fact that there were 22 or 23, i think new jersey wanted to join -- it was filed. so they are against florida. akhil: it is the final compelling paragraph of black's opinion for the court limiting the amicus briefs. susan: hugo black authored the unanimous decision, and here is an excerpt of what he wrote. even the intelligent and educated layman has small and sometimes no skill in the science of law. left without the aid of counsel he may be 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. he faces the danger of conviction because he does not know how to establish innocence. 22 states argued that it should not be overruled and we agree." three justices, even though it

was unanimous, wrote separately to express agreement. they were tom clark, john marshall harlan ii, and william o. douglas, these are concurrences. why did they do that? paul: they all had their reasons to write separately. and i think for justice clark it was, for him it was the real reason that the court had already extended the right to capital cases and he did not see a difference between capital cases and noncapital cases because due process protects your life and your liberty. for justice douglas, it was a very specific reason. as i alluded to earlier, he and justice black had a unique approach to the incorporation of the bill of rights and it is a little bit of an irony that just -- justice black who has a , distinctive view because he is assigned the majority opinion, he cannot really embrace it in the majority opinion, the douglas does it for him in a concurring opinion. justice harlan's opinion and

some respects is i think the most interesting and his vote in the majority is maybe the most surprising. and he has a line in his concurrence to the effect that the court is dealing, dealing with the betts case and he thinks that case, although it should be overruled, deserves a more proper burial. it is that last line you read where just as black concludes that basically betts was wrong the day it was decided, but justice harlan will not go that far. he says essentially the experience has shown that as a federalist matter this does not work. he also writes to distance himself from the douglas view of incorporation. so you get a sense of those opinions of the separate opinions, although they are all short, you get a sense of some of the underlying currents in

the warren court at that time. akhil: this is a case about gideon, but it is sweet vindication for hugo black, because he dissented in that, in betts, and now he cannot resist, it is a human tendency to say "i told you so." and justice harlan cannot go along with that. but hugo black, this is vindication for a view that he had been putting forth forever. susan: we will listen to clarence gideon and the attorney for florida talk about the reaction to the supreme court's decision. >> i felt great. because i was listening for a decision on the radio when it came on. and most of the prison population heard it. you could hear them holler for 10 miles as opposed from there.

-- i suppose from there. and i also received a telegram from -- that congratulated me on the decision. >> phone call from anthony lewis, he was the reporter for the new york times at the supreme court, he was allowed to sit within the bar, anyway he promised me that when the opinion came down, he would call me and tell me what the result was. i was disappointed that the decision was unanimous, i was hoping there was at least one justice, justice harlan, a couple other that we thought might vote on our side. susan: and in fact, the country was waiting for this decision. we have a new york times front-page article, "the supreme court extends ruling on free counsel." what was the reaction to this in media and other circles? akhil: i think the reaction was very positive to this decision. paul: the fact it was unanimous was an important component of

that. i think if the court had come out the same way 5-4, i am not sure the decision would've had quite the affected did. and it went beyond just the narrow circumstances of the case, because we alluded to the fact that there was counsel provided in the federal system, but it was not always provided well or systematically. and this case was really a watershed development in terms of not just extending the right to the states, but also really reforming the system more generally so that counsel was available, experienced counsel in many more places than it had been. susan: florida, the floodgate argument, that they had more than 1000 prisoners in florida prisons who had a trial without

counsel and they were worried about retrying this case is. -- all those cases. next up, we will hear wainwright, who was the head of the florida prisons, from 1962-1987, talk about the impact of the decision on his estate. -- his state. >> we have had a total of 5500 petitions for relief filed as a result of this decision. and of course, we have had over 1000 that have been totally released as a result of it. >> many people are afraid that all of these men have been released and they will go out and commit crimes again. >> yes, that has been a concern of those in law enforcement and the officials of our state. however, we have not found that that has been the case, because out of the over 1000 released we have only had about 4% who have returned with a new convictions of far as we know.

>> how does that compare to the national average? >> the national average is about 65%, 65% of our population and about 20% of those released on parole returned to prison. >> will you call it the gideon memorial hall? >> i do not think we will go that far but he will be , remembered here a long time, i am sure. susan: anything to make of it? -- make up for recidivism? akhil: i think it is stunning. and i mean, there is no reason to think that there is something about these 1000 people that -- paul: that, you know, that somehow they were uniquely unlikely to be receive it is if they were in fact guilty of the underlying crime. i do not think you can listen to those remarkable statistics, 4% versus 65% and not think that a

lot of those 1000 people that were released were probably innocent of the underlying crime. akhil: which is what hugo black said in that wonderful quote you offered, he said the problem is that people are being convicted because they are poor rather than guilty. susan: earlier, you told us that gideon had argued habeas corpus, and in this book we learned that he was frustrated by the decision of the spring court because he thought if they rolled in his favor he would be let out of jail. what happened to him? akhil: he was not a lawyer and it is not double jeopardy to retry somebody who is actually convicted the first time. he said if i get a conviction, it means you retry, you play the game again. and so he thought he was

absolutely done and he was not at all pleased when he was repeatedly informed by lawyers, no, there will have to be a new trial. and eventually there is a new trial and i hope we will talk about it. susan: we are. fred turner was the lawyer who represented him in his second trial and we are going to listen to gideon now talking about his legal fortunes and having a lawyer represent him. and here is what happened to him. >> we go to trial and exactly two years and one day from the first trial -- we go in the same witnesses, same judge, same room, same kind of a jury, and to mr. turner's efforts, it was so simple it would've been impossible for me to commit the

crime. >> on august 5, 1963 a new six man jury found clarence gideon not guilty. >> i think him winning the acquittal was the most important thing in this whole case. it showed the difference between not having an attorney and being with an attorney. susan: what are your reactions? paul: this story and this case would not be the same if he was convicted again on the retrial. it shows the difference a lawyer can make. and if you get into sort of the details of how the retrial took place, his lawyer was able to

pin down the government's key witness and point out to the jury has prior criminal history and criminal activities, and bring that star witness for the prosecution, shed him in a different light and suggest he was actually involved in the crime himself and was a serving as the lookout for the perpetrators of the crime, as opposed to this innocent eyewitness. he was able to point out that given the phone booth he was at and where he was looking he probably could not see into the pool hall. there were all these things in the government's case that looked so different when you had a lawyer who is able to very effectively cross-examine the star witness, and make a closing argument that brought it all together for the jury. akhil: so this is a perfect illustration of the points, the court room is governed by these technical rules of evidence, the star witness against him, and

gideon asked if he had ever been arrested, and that was objected to. and -- but the lawyer was able to bring out -- well, have you ever been convicted, and the fellow said "not quite." there was probation and blah blah blah. so the lawyer new how to navigate the evidence in a way that gideon didn't. susan: so the impact of the decision, how did it affect the system? "how did the case affect the criminal justice system with regard to the sixth amendment right to a speedy trial?" what happened systemically? paul: systemically it becomes a nationwide right. they gideon case is an impetus

for reforms in the federal system, providing appointed counsel and creating the structure to provide this service and if somebody can become an expert in providing criminal law. you have public defenders' offices put in place after this decision. there is an interesting way too that the decision is related to the rest of the warren's court revolution. it is giving criminals new rights, but they are complicated new rights that you need a lawyer to take advantage of. it is not clear to me that you could of had the rest of the war in court -- warren court from a procedure revolution if you did not have gideon in place. akhil: there are rights to have rights and in the real world basically, if you cannot vote and you are not able to protect

yourself, the right to vote is preservative of all other rights. the right to have rights. that is in the real world. in the special artificial world of the courtroom, which is governed by rules of evidence and procedure and all kinds of legal technicalities, the lawyer has a right to have rights and without that none of your other rights are meaningful, just like in the real world, must you can back something up with the right to vote, politicians will not pay attention to what you think. so we see a lot of people right now taking to the streets for this cause or that one and both people, both sides, you cannot just march, you have to vote because if you cannot vote, you will not be heard. in the courtroom, you must have a lawyer, otherwise you will not be heard. susan: we dealt with other decisions part of this framework in our first season of landmark cases, miranda v. arizona 1966

-- they on the c-span website. you can also order landmark cases companion volume written by tony morrow, a longtime supreme court reporter who can give you all the framework for these cases as we work our way through the 12 on the website. and we want to say thank you in giving background and a special thanks to the national constitution center, they have been our partners in this series for season 1 and 2, helping us with the cases and booking guests for the program. so as thanks to them. so this case has been detected -- depicted as we saw in the anthony lewis book, also in a movie. why do you think the popular media was intrigued by this case? akhil: if he does not get acquitted in the second trial, you just see the difference

between having a lawyer and not, and at the very least there is reasonable doubt, and he is an intelligent person, but he is a layperson and he was not able to tell his story the right way in court, in a way that jurors could understand. but with that outcome, the different outcome the second time around, it is made for hollywood. and to remind the audience, it could have been that the supreme court was looking for a vehicle to do this and it could have been another person who was guilty as all get out, and the retrial would not made a difference and it would not feel the same way. susan: in any of these cases, it is david versus goliath, isn't it? paul: the two components that made it great for television was the result of the retrial and the fact that the petition, the

letter to the court was handwritten. i think -- if he is convicted on retrial, it does not make it to the hallmark series and the types the petition, i am not sure has the same resonance with people, but everybody has some innate sense that you can take your case all the way to the supreme court. and if someone as humble as clarence gideon can take his case to the supreme court by writing out his petition in pencil on a piece of paper, it really shows anybody can take their case all the way to the supreme court. akhil: and he was no choirboy. he had four prior felony convictions. susan: 17 years in jail prior to this. akhil: in texas, in missouri, now this is florida and the federal system. it is true for other landmark cases, that some of the litigants are characters.

susan: let's you sarlacc piece of video. he is asked about his legacy and how he should be remembered. >> do you have any feelings about having made history in this case? have you ever felt like a historical figure? >> no. i was not nothing -- it was not nothing i have done, it was just i was fortunate enough to have a case to come along at a time that the united states supreme court wanted to. the majority, it was unanimous, and they wanted to redo this decision and make it possible that everybody in the united states should have a counsel. susan: clarence gideon reflecting on the role he played

in the landmark decision which changed american jurisprudence. we have a minute left. we will ask each of you, what should people take away from our discussion tonight about the importance of this case? paul: the right to counsel is fundamental. i cannot help but note that when you listen to clarence gideon it is remarkable how much self-knowledge and humility he has about the role he played, because he did play an important role by preserving this argument and bringing all the way to the supreme court. even he seems to recognize, quite remarkably, that the court was ready to do this and he was in some respects very fortunate to have the right case at the right time. akhil: and as much as progress as gideon embodies, it can be asked whether we really have done full justice to the deep ideas, whether we are providing enough resources in the criminal domain to make gideon a full reality.

there are folks that say we should have gone beyond felony cases to misdemeanor cases, traffic court cases. you heard cases about civil cases, for indigents and others, and you heard the body soldiery, civil -- about civil juries in general. both state and federal, a lot of things are pleaded out in the criminal system and they never get to trial. they do not get a jury trial. one entity that really is championing civil juries in an interesting way is a project at nyu law school, organized by a great lawyer named steve sexton. and you will be surprised to know he was a law clerk for the great jury trial lawyer hugo black. susan: thank you very much to akhil.

and paul from being back this season. so glad to have you. and thank you all of you for watching and for those who participated. ♪ [speaking foreign language] ♪ >> c-span's washington journal,

every day we are taking your calls, live on the air. coming up monday morning, a preview of the week ahead in congress with catherine tully mcmanus, and a discussion of covid vaccination rates and vaccine hesitancy. watch washington journal, live at 7:00 eastern monday morning. be sure to join the discussion with your phone calls, facebook comments, text messages, and tweets. welcome back chief correspondent and columnist for the washington post. thank you for being with us. guest: always a pleasure. host: let's talk about the news regarding infrastructure and that statement from the white house. where do things stand right now? guest: it is a little