Chasing Gideon (15 page)

McCrary excused Simon and Block (Simon later wrote an article about the experience, which was subtitled, “How the Florida Civil Liberties Union Wasted $300, and How Two Attorneys
Each Traveled over 120 Miles and Killed an Otherwise Perfectly Enjoyable July Fourth Weekend”
³⁷
), but the judge made it clear that on no account would he allow Gideon once again to conduct his own defense. He asked Gideon if there was
anyone
who he felt would be acceptable counsel. Gideon responded, yes, there was: W. Fred Turner, a local criminal lawyer.

Why Gideon chose Turner is unclear. It may have been because Turner had represented Gideon's wife at one point in an attempt to get child support, so Turner was on Gideon's radar. Also, Gideon would know that Turner was a local—Turner knew the lay of the land quite literally, where the pool hall was in relation to the phone booth and rooming house. He knew the local folks who would be in the jury pool—and they knew him.

In any case, Turner's work on Gideon's behalf essentially proved the point of right-to-counsel supporters—that having a lawyer can make all the difference in the world. He began by laying down the law. He sharply reprimanded Gideon for meddling in the case, telling him, “I'll only represent you if you will stop trying to be the lawyer.”
³⁸
On August 5, when the trial began, Turner paid particular attention to the jury selection process. In contrast to Gideon's approach (“They suit me alright, Your Honor”), Turner made sure he personally knew four out of the six of them. He quickly struck two prospective jurors, one because he was a “teetotaler” and the other because it was clear that he generally favored conviction. Three of the jurors were admitted gamblers, a point that Turner believed would work in Gideon's favor.

The key way that Turner was useful to Gideon, however, was in planting seeds of doubt in the minds of the jurors. For example, Turner was very familiar with the prosecution's key witness, Henry Cook—he had, in fact, represented him in a different case and knew about his previous run-ins with the law. Casting doubt on his credibility as a witness, Turner asked Cook, “Have you ever been convicted of a felony?”
³⁹

“I stoled a car one time and got put on probation for it,” Cook answered.

During the previous trial, Gideon had asked whether Cook had ever been convicted of a felony, and he responded, “No, sir, never
have.” Turner jumped on this. “The last time you testified in this case you denied that, didn't you?”

“Now, if the Court please, that is not proper cross-examination by Mr. Turner and the State objects to it,” the prosecutor quickly countered.

“Rephrase your question, Mr. Turner,” the judge said.

There was some back-and-forth as Turner rephrased and the prosecutor interrupted him with objections.

“I can point out his prior inconsistent testimony any time, Mr. Harris,” Turner said, deftly explaining to the jury just why this is not a credible witness.

“You can ask the question, Mr. Turner,” the judge said, “if you will do it properly, lay the proper predicate for the question, then ask the question, if you will do it properly, you may proceed.”

“Well, Your Honor, I'm trying to do it that way,” Turner said.

“If you are going to argue about it, let's not do [that] in the presence of the jury,” the judge said. “Mr. Sheriff, will you take the jury out, please.”

After about ten minutes of lawyerly wrangling at the bench, the judge called the jury back in. Despite more objections from the prosecution, Turner managed to continue his line of questioning. “Mr. Cook,” he said. “Have you ever denied, under oath, that you had been convicted of a felony? Prior to today, I'm speaking of.”

“Yes, I did—” Cook said.

“When and where did you deny your criminal record, Mr. Cook?”

“Right here, the last time [Gideon] was tried, two years ago.”

Later, the prosecutor tried to restore Cook's credibility. (“What did you mean when you said you had not been convicted of a felony and yet, you say you pled guilty to stealing an automobile?” “Well, I didn't quite understand what a felony was.”) However, the damage was done.

By the time he gave his closing argument, Turner had masterly planted an idea in the jury's collective head—via small, specific details about what was stolen and how much money was taken—to suggest that Cook should actually have been the one on trial. “The probationer has been out at a dance drinking beer,” he said. “He does a peculiar thing [when he sees Gideon in the poolroom]. He doesn't
call the police, he doesn't notify the owner, he just walks to the corner and walks back. . . . Why was Cook walking back and forth? I'll give you the explanation: He was the lookout.” Significantly, Turner had also pointed out that the owners of the pool hall ran a gambling ring—and that Gideon was often hired to run one of the games. This explained why Gideon was apprehended with so much change in his pockets. He took a cut from the winnings each night, that's how he was paid.

After final arguments were completed, Judge McCrary reminded jurors that they must believe Gideon was guilty “beyond a reasonable doubt.” After an hour and five minutes of deliberation, the jury returned with the verdict: not guilty.

After two years in prison, Gideon was a free man. Lewis mentions an anecdote at the end of
Gideon's Trumpet
in which, after the trial, a reporter sidled up to Gideon and asked him if he felt like he “accomplished something.”

“Well, I did,” Gideon replied.

Indeed, Gideon forever altered the criminal justice system for the poor in this country. There were seismic shifts in the way local governments provided indigent defense and in the various ways in which city, county, and state officials found funding for public defense programs or cobbled together alternatives. The progress was genuine and significant. But in the years since the court ruled in
Gideon
, the legal landscape has shifted dramatically. Between 1963 and 2013, massive changes have taken place in the culture and the courts: politicians have passed mandatory drug laws, cops have arrested folks in increasingly larger numbers, district attorneys have prosecuted more and more cases, the courts have jammed, incarceration rates have soared.

Ironically, one of the areas hardest hit by these changes—and the subsequent failure of the indigent defense system to keep pace with the demand for representation—is in Gideon's home state of Florida. There, the crisis in the overburdened courts reached epic proportions in the last decade. The chief public defender in Miami, struggling with massive caseloads, fell on his sword a few years back, sacrificing his job and reputation by refusing to accept more cases.

A visit to the Miami-Dade County public defender's office—or PD-11, as the program calls itself, referring to the county's status as the Eleventh Judicial Circuit—is instructive. Walking in the door to the office, the first thing visitors see is the program's “Commitment to Clients” printed on cream paper and showcased in a black frame in the waiting area. The sign mentions the usual commitments: the public defender's office will treat clients fairly, consult with clients on their cases, maintain attorney/client privilege, be loyal to clients, and handle cases competently and diligently. But three commitments stand out:

“Advocate for more access to mental health and substance abuse treatment services.”

“Work to make our legal system more accessible and responsive to our clients and their families.”

“Advocate for rehabilitation laws, including removing barriers to educational and employment opportunities.”

These commitments focus on reform and a necessarily more holistic approach to the legal problems clients are encountering—a trend that is increasingly evident in large-city public defender systems—and the advocacy on behalf of this population is not all that surprising given PD-11's history. Starting with Bennett Brummer, the county's chief public defender for thirty-two years until 2009, and now continuing with Carlos Martinez, chief public defender since then, PD-11 has fought to reduce its excessive caseloads, which since 2004 began steadily climbing and by 2008 crept as high as seven-hundred-plus cases a year for some assistant public defenders.

“We were always overloaded,” Brummer says, reflecting back on his long career as a public defender in Miami. “I've been overloaded for thirty years there. One more case doesn't make too much difference.” But something happened in 2004—and things did get dramatically worse for public defenders in his office. To explain why, Brummer has to go back to 1978, one year after he was elected to his first four-year term as chief public defender and the year he filed the first of many “motion[s] for relief from excessive caseloads.” Since then, he had been complaining to anyone who would listen that public defenders in Miami could not provide effective assistance
of counsel when they had the high number of clients they were commonly assigned to cover. He filed a formal complaint, and by 1980 the case had moved up to the Third District Court of Appeal, which denied the motion. So he appealed the decision to the Supreme Court of Florida, which ruled in favor of PD-11, saying that the public defenders there should not be responsible for taking every case assigned to them, and, furthermore, if the state was not providing enough funding for indigent defense, the Miami-Dade county government would need to make up the difference.

Obviously, the county didn't care for this shift in responsibility. The Florida Supreme Court's decision meant Dade County would have to dedicate millions of dollars to indigent defense. And this would hold true for counties across the state that would suddenly be responsible for making up funding shortfalls. Banding together, the counties fought this decision. With their combined power, they were able to get a motion on the ballot at the next state election, giving residents an opportunity to vote on whether state governments should be the legislative body responsible for the state court system. The motion passed and, in 2004, the state began fully funding indigent defense again.

However, in the meantime, there were tremendous casualties and, in the protracted battle, as the state and counties battled over who would assume the burden of paying for public defense, public defender's offices across the state suffered. The Miami-Dade County public defender's office lost thirty-two attorney positions in the process.

Without these lawyers, PD-11's caseload grew worse. The American Bar Association, the National Advisory Commission on Criminal Justice System Standards and Goals, and the National Legal Aid & Defender Association all publish recommended caseload limits; the organizations advise a maximum of 150 noncapital felony cases per public defender, per year. Meanwhile, a Florida governor's commission on public defense set a maximum standard of 100 felony cases per lawyer per year while the Florida Public Defenders' Association recommends 200 cases.

No one says seven hundred cases per attorney is okay. And that, Brummer says, is the insane level at which public defenders in his
office were expected to work. (In 2008, the
New York Times
reported that each lawyer handled five hundred cases a year; specific numbers from the era are hard to verify.) Attorneys who worked the misdemeanor circuit had twice as many cases: 2,225 in 2008 compared with 1,380 cases in 2005, the
Times
reports.

PD-11 also faced a slew of other challenges, including an 8.5 percent budget cut between 2007 and 2009 (losing a total of $2.4 million); high turnover among assistant public defenders due to low salaries ($42,000 starting salary); crippling time constraints caused by the also overburdened interpreters who were needed for so many cases in Miami—both for interviewing clients and witnesses in advance and for translating in court—and whose unavailability created delays; traffic in the Miami area, which had attorneys wasting endless hours traveling to and from the jail for interviews with their clients (significantly, this was a huge issue for them and recent technological upgrades have allowed some time-saving video conferences); and the Florida legislature's recent decision to give prosecutors several statutory resolution avenues to increase jail time, thereby increasing the time it takes for lawyers to complete these cases.

“You do your best to cope,” Brummer says today, reflecting back on his days at PD-11 and his decision to bring his fight for reasonable caseloads to the courts themselves. “You don't want to be complaining. You want to make sure that by the time you go to court the numbers are so clear that the court can't in legitimacy deny your motion.” With that in mind, and after four years of suffering the consequences that came with losing dozens of lawyers, Brummer filed a motion for relief in the Trial Court of Florida in 2008, asking that his office have the right to turn down future noncapital felony cases until the lawyers had caught up on their current workload. The Office of Criminal Conflict and Civil Regional Council, one of five offices in the state created in 2007 to represent the indigent in court when public defenders have a conflict, would be enlisted to pick up the slack and the remaining unassigned indigent clients.

PD-11 won, and on June 26, 2008, Chief Judge Joseph P. Farina of the Eleventh Judicial Circuit Court of Florida found that PD-11 could sometimes appoint other counsel to noncapital felony cases
that had yet to be assigned to attorneys. New cases, Judge Farina ruled, would affect the office's ability to respond diligently to its current caseload, thus creating a conflict of interest.

But relief did not come. In July 2008, the state attorney's office for the Eleventh District Circuit Court of Florida, who requested and was given permission to participate in this case as an “amicus curiae,” or friend of the court, filed a response to Judge Farina's decision, saying that the Office of Criminal Conflict and Civil Regional Council, which would handle PD-11's excessive noncapital felony cases, was not adequately staffed or funded to do so. The state attorney's office said that the trial court's decision to give PD-11 relief could set a precedent in which the Office of Criminal Conflict and Civil Regional Council could also file for relief if their caseloads become excessive. The state attorney's office also took issue with the fact that PD-11 was seeking relief from the 40,651 indigent defendants it represented in noncapital felony cases, which involve more violent and dangerous crimes, instead of the 46,888 misdemeanor cases. Furthermore, the office said that PD-11's motion for relief was not in the interest of the general public.