Transcripts For CSPAN3 Gideon V. Wainwright And The Right To

Your cell phones are totally off because it will interfere with the sound system in the courtroom. We are here tonight with a program we are cosponsoring with the Supreme Court Alumni Association. We are delighted to be a cosponsor with them. The program was brought to us by several people from that organization. Let me make sure i get them right. Stephanie, matthew, elizabeth. Who really came up with the idea for the program and we are very happy to be heard to present it to you. We are also particularly happy to have as our host Justice Breyer who will speak to you in a minute. I will tell you briefly what you dont know already about Justice Breyer. He is a californian. Study that stanford, oxford, then Harvard Law School. Became a law clerk europe the Supreme Court in 1964 which happens to be one year after gideon v. Wainwright, so he missed that activity. Then he was a counsel to the Senate Judiciary committee, also very active in the academic world. President carter appointed him to the First Circuit in 1980. He served therefore 14 years. President clinton appointed him to this court where he became one of now seven justices who also served as a law clerk in this court. He has been on the court obviously now since 1994 for 11 years. He was the most junior justice on the court, almost broke a record for that. Now he is moved up quite handsomely and seniority. It is my pleasure to have Justice Breyer speak to us tonight. [applause] Justice Breyer thank you for introducing the introducer. I love to be at these, always interesting. Usually just one person speaking about history and we have more. So what will be four times as interesting as usual. This is a joint program between the Supreme Court Historical Society and the fellows alumni program. Both of these organizations where the brainchild of chief Justice Burger. When he joined the court, he quickly noted that every other branch has ancillary organizations. I mean, think of how many deep president has. I mean, really. We have not even thought of having securities and Exchange Commission in 1930 well, these programs, these organizations help promote their work. In 1973, the Judicial Fellows Program was established. It is now known as the Supreme Court Fellows Program to bring midcareer scholars to the court. A very good idea. We have the federal judicial center, the Administrative Office of the courts and mount the Sentencing Commission and they go to all these different organizations and survey yearlong fellowship where they learned something about judicial management. I have often wondered, why do the law schools not have two or three people directly engaged in that. It is a very important field and everybody on the bench thinks that and acquaint few of lawyers do as well. But to complement the Fellows Program, the Supreme Court Fellows Alumni Association was established in the year 2000. It has a network so former fellows can remain connected and continue to exchange ideas. They have is their goal supporting and enhancing the fellowship efforts to improve understanding of the judiciary. I hope you are involved in that. It is so important, people dont know about it. The High School Students do not. College students do not. We all can help there. They provide a mental group to the current class of fellows. The Alumni Association currently has 130 fellows working in a wide range of disciplines across the country and the globe. After founding the Fellows Program, chief Justice Burger turned his attention to promoting the history of the Supreme Court and improving understanding of the history. In 1974, he founded the Supreme Court Historical Society and ask them to save documents and artifacts related to the court and engage in outreach by publications and lectures. Since that time, the society has grown to 4000 members. A very fine organization. It has collected portraits of every Supreme Court justice. I dont know about is the most important but it is a task. That publishes the journal of history three times a year, that i say is important. An annual reenactment of significant history and its website is a wonderful resource for anyone interested in Supreme Court history and i recommend it to you, it is great. I think chief Justice Burger would be wellpleased to see these organizations he created working together this evening. Tonights panel is going to discuss gideon v. Wainwright and its historical significance. Our first panelist is over on the left, he was with chief Justice Warren the year he was on gideon versus wainwright. Prior, he was a chair of jones j, and adjunct professional at the university of virginia law school, georgetown law center, he served as a law clerk to justice reed and Justice Burton from 1961 to 1962. He is coauthor of the chapter on patents, dad is a task and very important. Judge James Bos Berg joined some on the panel. He was appointed to the district of columbia and march 2011 and served as law clerk to judge Dorothy Nelson on the ninth circuit. Following is a clerk who was a litigation associate in San Francisco from 19911994. At Kellogg Huber from 19 951996, and in 1996 he went to the u. S. Attorneys office for the district of colombia as a United States attorney. He was there for five point ive years and specialized in homicide prosecutions, the most difficult part. In september 2002 he became an associate judge at the district of Columbia Superior Court where he served in the criminal army in Domestic Violence until his appointment to the bench in 2011. He also serves in the United States foreign Intelligence Surveillance court, position he took on in may 2014 after he was appointed by the current chief justice john roberts. Jon stewart is an assistant u. S. Attorney and is a director of training for the u. S. Attorneys office for the district of columbia. The largest u. S. Attorneys office in the United States. He joined the u. S. Attorneys office in 1999 and has prosecuted numerous violent and dangerous crimes including murder cases, cases involving human trafficking. She received a host of awards throughout her career with special achievement and merit awards. If you have someone who has been in a u. S. Attorneys office, what was your favorite job . The odds are they would say, that one. Elizabeth woodcock is an associate attorney in the criminal justice euro. She is a retired prosecutor, having served as a u. S. Attorney in the district of maine, the district of columbia, and the district of vermont. In 19961997 mrs. Woodcock was assigned to the u. S. Sentencing commission. I served on that for a while, it is not an easy job. Upon graduation from law school, she was with the main judicial court. She has the secretary she is the secretary of the u. S. Supreme Court Association and the treasurer for the New Hampshire and chapter of the federal bar association. Miss woodcock is also the moderator this morning. I could say great deal of enormously favorable things about each panelist which i would do if we had time but we dont have time, so i will not. I would rather they share their insights about Clarence Gideon and his famous case. Woodcock, the floor is yours. Earl warrens biographer wrote that the gideon decision that notate also affirmed that no tail so affirmed american democracy. No story broadcast around the world so clearly proclaimed that not just the rich received justice in the american courts. I would like to ask my panelist to start out and tell us your general thoughts on this historic decision. At the time i clerked here and saw it unfold. I think it was a bit like going to watch shakespeares hamlet in the sense that you knew what was going to happen but it was interesting to watch the performance anyway. I think there was not a large of doubt about how it would come out. It was inconsistent that it was decided how it was with powell against alabama which gave the right to appoint a council in capital cases and with johnsons case which interpreted the sixth amendment to get the right to counsel and federal terminal trials and the bad the subsequent decisions holding that there was a right to a free transcript if you were indigent and the exclusionary rule to the state. All of these cases, this jurisprudence really made this very much of an anomaly. I think the court was clearly intent on over rolling up. I recall as a law clerk we were instructed to find a case that raised the brady issue and to call it to the courts attention because it was the job of the chiefs law clerks at the time to summarize because chief justice did not leave and xerox machines so there was only one copy of the petition. It was not copied for the other justices. We wrote memos for the justices. There were eight carbons and the last carbon was illegible. That was what we were told to do at the time and i think the result was what it once. Interestingly, that a companion case of douglas had a much more controversial history. We can get into that a bit later. Yes. I would like to do that. You have prosecuted cases in the district of columbia and federal court. Can you comment on the impact this decision had on your daytodate lives . Ms. Stewart why do you into the question first . Gideon was decided before i was born. [laughter] not much more. So it is all i know. I cant imagine a case in which the defendant does not have a right to counsel. Most would say the case of gideon v. Wainwright, you would think the prosecutors would not be pleased with the decision that their job would be easier of gideon had been decided the other way. They would be able to obtain convictions more easily. However, that is not the case. The job of the prosecutor and is not just to obtain conviction but to seek justice. Seeking justice is far easier when you have competent, Ethical Council on the other side. It would be a travesty in my future of an individual that has been convicted of a car not of a crime not because the individual was guilty but because that individual did not have the skills or the education to present an adequate defense. So i think that the decision is quite important and has had a positive impact on criminal justice as a whole. Ms. Stewart is absolutely right. Those of us are been practicing over the last couple decades cannot imagine it any other way. It is unfathomable that this was not the law prior. Because it is so ingrained in everything we do, i have sat in the judge Arraignment Court where everybody was arrested the night before gets. There could be 100 people for anything from littering, urinating in public, prostitution, assault, battery, robbery, murder, and every Single Person before they appear in court is given a lawyer. Yet everything stops until that person is given a lawyer who gets a chance to his with him or her before they come in. What is amazing is only 12 years after gideon, which in 1963 decided was actually a constitutional right to counsel and every proceeding. The Court Required the that before somebody could proceed without a lawyer there must be a knowing, voluntary, intelligent waiver. Today the notion of someone appear without a lawyer, we would get reversed as judges unless we conduct a search inquiry and really make sure the person does not want a lawyer. An incredible change in such a short time. It is interesting because at the time of gideon, 45 of 50 states did appoint counsel to indigent. So many said betz versus brady should be overruled. So even at the time of gideon, it was an anomaly for a lawyer to not be appointed for indigence. Tell us something about the douglas case. Could you fill us in on . The douglas case was a companion case to gideon handed down the same day. But it had been hanging around for much longer they can gideon. The douglas case was granted early in the 1961 term and argued during the 1961 term. It involved not only the question of whether there should be counsel appointed on the appeal but whether at the trial which occurred in california, the public defender had competently represented the defendants in the case and whether he had a con conflict of interest. If you look at the papers and my law clerk was very helpful to me going down to the library of congress and looking at the justices papers many of which , are there. What you find is they are sitting there with this douglas case, this was before gideon was granted, and saying we cannot very well say there should be counsel appointed on appeal when we still have brady on the books. What are we supposed to do with this . They kept puzzling about that and puzzling about that and then eventually they were going to dismiss it as him probably granted. Improperly granted. In the Court Granted in gideon and they decided to have douglas reargued along with gideon. Interestingly, the theory of douglas about the right to counsel on appeal rests on the equal protection notions where if gideon rests on due process notions in hand, startlingly, the majority opinion in the douglas case does not fight gideon even though they came down on the same day, much less discuss it. I gather what you were saying before we met that the decision in douglas was not unanimous. It was sixthree. Justice harlan wrote a dissenting opinion explaining why he and his feeling was perfectly fine not to have appointed counsel on appeal even though he agreed but the result in gideon itself. His explanation is very puzzling because you would have thought it would be rather difficult for an indigent defendant to did not have a lawyer to argue his appellate case but according to him it was fine. I think they were concerned about their own cases. Are they going to have to appoint lawyers in the Supreme Court for petitions and that is one of the things that Justice Harlan said. That brings us to another area. The decision does provide for appointed counsel under certain circumstances and not under others. Is there a reason for that . Would anyone offer a view as to why someone who is facing a less serious sentence is not given a courtappointed counsel . I think the case was meant to give counsel more cases of imprisonment not to wear other penalties might be imposed. For example, Traffic Court or Something Like that. I think they all contemplated it would apply in situations not just prison cases. They had had enough of that kind of linedrying after powell versus alabama. Did either of the prosecutors ever have to face pleading or actual proceedings with a pro se litigant . I actually have. In the district of columbia, not constitutionally but statutorily, they have the right. Anytime there is a loss of liberty at stake, the defendants have a right to counsel. Misdemeanor cases. There is legislation proposed now for civil litigants to have counsel appointed. Housing cases and eventually the housing counsel have hopes to have it appointed for all indigent litigants in cases. The district of columbia is a totally different world. Your question, have i ever tried a case against a pro se litigant, i have. However, in the district of columbia, justices judges conduct extensive interviews with litigants who want to defend themselves and warn them against the risks. After that, they appoint standby counsel to sit at the table while the cases are going on. The one case i have tried was in federal court where they had fired multiple attorneys. Judge appointed standby counsel it does not very happen because there is competent counsel guiding the defendant every step of the way. I remember presiding over a number of cases where people went pro se. Most of the time the defendant has some Mental Health issue. In order to be competent for trial, which is different than not guilty by reason of insanity, your competence as your ability to go forward in trial. That is not a terribly high there are some terribly high people who can pass a competency and i remember presiding over the trial of the white house fence jumper. He came from new mexico, very urgent message for president obama. Jumped the fence. Came to court. Once released, undeterred. Jumped the fence again and was held. He represented himself. It was i remember things were going reasonably well until one point in the trial he kept saying how thirsty was but he refused the water because he was afraid it had been tempered with and because i was drinking a glass and offered him mine did not assuage his feelings. At one point, he rolled up his sleeves to display minor rash on his arm and proclaimed he was being poisoned at the washington, d. C. , jail. The jurors are looking at me as a judge, but are y