Be sure your cell phones, tablets, whatever you have are totally off. Because otherwise, it does interfere with the sound system in the courtroom. Thank you for that. And were here tonight with a program. Were cosponsoring with the Supreme Court fellows Alumni Association. Were delighted to be a cosponsor with them. The program was brought to us by several people from that organization and ill be sure to get them right. Stephanie newbold, matthew natchezny and Elizabeth Woodcock who came up with the idea for the program. Were happy to be here. Were particularly happy to be have as our host Justice Breyer who will be speaking to you in a minute. I will tell you briefly what you dont know already about Justice Breyer. Hes a californian. He studied at stanford, oxnard and Harvard Law School. He came here to 1964 which happens to be a year after gideon v wainwright. So he missed that activity. Then went on to become very active at the justice department, counsel to the Senate Judiciary committee. Also very active in the academic world. President carter then appointed him to the First Circuit in 1980. Served there for 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. Hes 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. But now hes moved up quite handsomely in seniority. My pleasure to have Justice Breyer speak to us tonight. Thank you for introducing the introducer of its nice to be here. I love to be at this. Its always interesting. Always interesting. Usually just one person is speaking about history. We have four. So its going to be four times as interesting as it usually is which is very nice. This is a joint program between the Supreme Court Historical Society and the fellows alumni program. And both of these organizations were the brain child of chief Justice Berger. When he joined the court, berger, he quickly noted that every other branch has ancillary organizations. I mean, think of how many the president has. I mean, really. We havent even thought of having you know, a securities and Exchange Commission attached to the court or congress. In 19 well, these programs, these organizations help promote their work and in 73 the Judicial Fellows Program was established. Its now known as the Supreme Court fellows program. To bring mid career scholars to the court. Very good idea. We have the federal judicial center. The Administrative Offices of the courts and then the sentencing commission. They go to all of these different organizations and they serve a year long fellowship. Where they learn something about judicial management. I have often wondered why did law schools not have two or three people who are directly engaged in that . Its a very important field and everyone thinks that on the bench. Also, quite a few lawyers do as well. So anyway thats a thought. But to complement the fellows program, the Supreme Court Alumnis Association was established in the year 2000. It has a network in which you can remain connected and continue to exchange ideas. They have as their goals supporting and enhancing the fellowship programs efforts to improve public understanding of the judiciary. And i hope youre involved in that. Thats so important. People dont know about it. High School Students dont. College students dont. We can all help there. They provide a mentoring group for the current class of fellows. The Alumni Association currently has about 130 members working in a wide range of professional disciplines across the country and the globe. Now after founding the fellows program, chief Justice Berger turned his attention to promoting the history of the Supreme Court and improving the public understanding of the history. In 1974 he founded the Supreme Court Historical Society and asked it to acquire portraits and other artifacts related to the court. And to engage in education outreach by via publications and lectures. Since that time the society has grown to 4,000 members. A very, very fine organization. Its collected portraits of every Supreme Court justice im not certain thats the most important public thing but it is a public task. It publishes the journal of the Supreme Court history three times a year. That i would say is important. Its hosts an annual election series, a reenactment of history and the website is a wonderful resource for anyone interested in Supreme Court history. I recommend it to you, its great. I think chief Justice Berger would be well pleased to see the programs he created working together this evening. Now, Tonights Panel is going to discuss gideon v wainwright. Its historic significance and we have four distinguished experts. The first panelist, tim dyk. Hes one over from the left there. He was a clerk to chief Justice Warren during the team that gideon was argued. President clinton appointed judge dyk to the federal court of appeals. He was a partner and chair at jones day. He was an adjunct professor at yale law school, the university of virginia law school, the georgetown law center. He served as a law clerk to reid and burton. And hes coauthor of the chapter on patents. Thats a task, an important chapter and very good. In the third edition of the treatise business in commercial litigation in federal courts. Judge James Boasberg joins me on the panel. He was appointed to the u. S. District court for the district of columbia in march of 2011. He served as law clerk to judge Dorothy Nelson on the ninth circuit. Following his clerkship he was a Litigation Association at kecker and vanness in san francisco, at Kellogg Huber in washington from 1995 to 96. And in 96 he went to the u. S. Attorneys office for the district of columbia as an assistant United States attorney. He was there for 5 1 2 years. He specialized in homicide prosecutions, the most difficult part. In september of 2002, he became an associate judge at the district of Columbia Superior Court where he served in the civil and criminal divisions and the Domestic Violence branch until his appointment to the federal bench in 2011. He also serves on the United States foreign intelligence surveyence court. A position he took on in may of 2014 after he was appointed by the current chief justice john roberts. John stewart is an assistant u. S. Attorney and the director of training for the u. S. Attorneys office for the district of columbia. The largest u. S. Attorneys office in the United States. She joined the office in 1999 and has prosecuted numerous and violent cases, including cases involving Human Trafficking and she received a host of awards throughout her career be the department of justice including special achievement awards and merit awards. If you ask someone whos been in the u. S. Attorneys office as an ausa what was your favorite job, the odds are theyll say that one. Elizabeth woodcock is from the criminal justice bureau. Shes a retired federal prosecutor, having served as an assistant u. S. Attorney. In the district of maine, the district of columbia, and the district of vermont. In 96, 97 she was a u. S. Supreme court fellow assigned to the United States sentencing commission. I laugh slightly because i served on that for a while. Its not an easy job. Upon graduation from law school, she clerked for the maine supreme judicial court. Shes a trusty of boden college. The secretary of the Supreme Court fellows Alumni Association and the treasurer of the New Hampshire chapter of the federal bar association. She will serve as the moderator this evening. Now i could say a great deal of enormously favorable things about each panelist which i would do if we had time. But they have limited time to film this and put it on television. So i wont. I want rather you to share their insights about Clarence Gideon and his famous case. Ms. Woodcock, the floor is yours. Thank you very much. Thank you, Justice Breyer. Earl warrens biographer ed cray wrote of the gideon decision that no one tale so affirmed the american democracy. No story broadcast around the world so clearly proclaimed that not just the rich received justice in the american courts. Id like to ask my panelists to start off a little bit and tell us your general thoughts briefly on this historic decision. Judge dyk, perhaps you can start us off. Well 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 when you went to the theater you knew what was going to happen. But it was interesting to watch the performance anyway. I think there wasnt a lot of doubt as to how gideon was going to come out. It was really inconsistent that it was decided the way it was with powell against alabama, which gave the right to appointed counsel in capital cases and with johnson versus which interpreted the sixth amendment to give the right to counsel in federal criminal trials. Then the subsequent decisions in Griffin Holding that there was a right to a free transcript if you were indigent, plying the Fourth Amendment exclusionary rule, all of the cases the jurisprudence really made it very much an anomaly and i think the court was clearly intent on overruling it. I recall as a law clerk that we were instructed to find a case that raised the betts versus brady issue and to call it to the courts attention because it was the job of the chiefs law clerks at that time to summarize the cases because chief Justice Warren didnt believe in xerox machines. So there was only one copy of the petition. It wasnt copied for the other justices. We wrote memos for the justices that there were able carbons. The last carbon was illegible. But that was what we were told to do with the at the time. I think the result was what it was. Interestingly, the companion case of douglas had a much more controversial history and we can get into that a bit later. Yes, id like to do that. Judge boasberg and ms. Stewart, you have prosecuted cases in the district of columbia and in the federal court. Can you comment on the impact of this decision in your day to day lives . Ms. Stewart, why dont you answer that question first. Sure. Gideon was actually decided before i was born and im proud to say. Not much more, but so its all. I cant imagine a society in which the defendant does not have a right to counsel. And most prosecutors would say that the case of gideon versus wainwright, most would think the prosecutors would not be happy and they would be able to obtain convictions more easily. However, thats just not the case. The job of the prosecutor is not just to obtain convictions but rather to seek justice. And seeking justice is far easier when you have competent, ethical counsel on the other side. It would be a travesty in my view to have an individual defendant convicted of a crime not because that 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 in practice over the last few decades cant imagine any other role. Unfathomable this was not the law prior. Because its so ingrained in everything we do. That i have sat as the judge in Arraignment Court over the Supreme Court court where everybody was arrested the night before gets brought, so that could be 100 people from anything from urinating in public, prostitution, assault, robbery, battery, murder. Every single before they appear in court is given a lawyer. And again, everything stops until that person is given a lawyer who gets a chance to speak with him or her before they come in. And whats sort of amazing is that only 12 years after gideon which in 1963 decides theres a constitutional right to counsel in every proceeding. By 1975, the Court Requires that before someone can proceed without a lawyer there must be an intelligent waiver. The idea of someone appearing without a lawyer well get reversed as judges unless we conduct a search and inquiry and really make sure the person doesnt want a lawyer. So its an incredible sea change in a short period of time. Its interesting because at the time of gideon 45 of the 50 states did provide appointed counsel to indy gents. The betts versus brady, it was said to be overturned. Judge dyk you were going to tell us more about the background and something about the douglas case. Can you fill us in on that . The douglas case was a companion case to gideon and it had been hanging around much longer than gideon. The douglas case was granted early in the 61 term and argued during the 61 term. And it involved not only the question of whether there should be appointed counsel on appeal but also whether at the trial there which occurred in california the public defender had confidently represented the defendants in the case and whether he had a conflict of interest. Well, if you look at the papers in my law clerk has been 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 that theyre sitting there with this douglas case. This is before gideon was granted. Saying we cant very well say there could be counsel what are we supposed to do about this . They kept puzzling about that and puzzling about it. And then eventually they were going to dismiss it as improve dentally granted. Then the Court Granted it in gideon. And they decided to have douglas reargued along with gideon. And interestingly the theory of douglas about the right to counsel on appeal rests on really equal protection notions where as gideon rests on due process notions. And startlingly the majority opinion in the douglas case does not cite gideon. Even though they came down on the same day. Much less discussed. I gather from what you were saying before we met that the decision in douglas was not unanimous. No, it was 63 and Justice Harlan wrote a dissenting opinion explaining why in his view it was perfectly fine not to have appointed counsel on appeal. Even though he agreed with the result in gideon itself and his explanation is very puzzling because you would have thought it would be rather difficult for an indiggant defendant to argue the appellate case, and i think they were concerned about their own pauper cases. Would they have to appoint lawyers in the Supreme Court for the petitions and thats one of the things that harlan said. Which brings us to another area of this decision. 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 Court Appointed counsel . I think the case was meant to give counsel in all cases of imprisonment, not where other penalties might be imposed for example like in Traffic Court or Something Like that but i think they all contemplated that it was going to apply in every situation where there was imprisonment, not just in felony cases. They had enough of that kind of line drawing after powell against alabama. Either of the two prosecutors ever had to face pleadings or actual proceedings with a pro se litigant . I actually have. But i did want to comment on your last question. In the district of columbia, not constitutionally but stat toirlly the defendants have the right to counsel in all aspects. Any time theres a loss of liberty at stake, the defendants have a right to counsel. Misdemeanor cases and theres actually legislation proposed now for civil litigants to have counsel appointed to have counsel appointed in housing cases and the counsel hopes to have it appointed for all indiggant and criminal and ill segue into your into my answer to your question. Which is have i ever tried a case against a pro se litigant, yes, i have. In the district of columbia, judges conduct extensive inquiries with defendants who want to represent themselves. And essentially warn them of all the risks inherent in selfrepresentation. Then after that, they appoint stand by counsel to sit at the table with the defendants while the cases are going on. The one case i have tried i have been a prosecutor for 18 years, the one case that i have tried was in federal court where the defendant had fired multiple attorneys and decided to represent himself but the judge appointed stand by counsel who happened to have been the federal public defender at the time and he actually still is. And stand by counsel basically examined all of the witnesses and asked all of the appropriate questions and so although the defendant was technically pro se it just doesnt really happen very often because there is competent counsel guiding the defendant every step of the way. Although i remember that presiding over a number of cases that people went pro se, most of the time the defendants have some Mental Health issues. Now again, in order to be competent for trial, in order to proceed at trial which is different than not guilty by reason of insanity, and your competence is your ability to go forward in trial now. And thats not its not a terribly high bar and there are very high functioning people with some Mental Illness who can pass the competency screening. I remember presiding over the white house jumper, he came from new mexico, very urgent message for president trump. He was arrested, he came to court, was released, jumped the fence again and he was held. So he represented himself and i remember things were going reasonably well until at one point in the trial he he kept saying how thirsty he was, but he refused the water because he was worried it had been tampered with and the fact that i offered mine didnt assuage his feelings. I remember he stood up and displayed a minor rash on his arm and declaimed how he was being poisoned at the d. C. Jail. Now the jurors of course are looking at me as in judge, what on earth are you doing . How on earth are you presiding oh ever this case with this person whos obviously struggling so it was quite an explanation that i had to give to them at the end of the trial. As to how this had gone forward. Well, on appeal, we have far more pro se lit gants than we have at the trial level. It is up many more difficult prosecuting appellate cases where appellants are not represented. The reason is because as a prosecutor, i have to ensure that im doing my job and protecting the conviction, but oftentimes im also required to do the defendants job and refine arguments that i think theyre trying to make and then respond to those arguments. But when you have counsel, counsel was able to articulate and press forward clear arguments that were able to respond to. One thing i will point out is that if even when we have pro se litigants or even counsel who miss arguments in cases where theres reversible error if i find it and the defendant has not raised it we bring that to the attention of the court to ensure that justice is served. This brings us to the question of how people are represented at different stages. Now, gideon established a right to representation at trial. And douglas established the right to representation on appeal. Whats the situation with post conviction representation . Well, there isnt any constitutional right to post conviction representation or in the second discretionary appeal as well. But counsel are appointed if theyre needed in the federal system and i dont know what the practice is in the states. In the district of columbia, of course theres no constitutional right but we have statutory rights, defendants do have statutory rights to counsel in post conviction matters. In all of the probation matter, parole matters, defendants are entitled to counsel. Now, in collateral attacks they are generally not afforded counsel unless there is an evidentiary hearing. If theres an evidentiary hearing then in that case they are afforded counsel. In the state of New Hampshire where i have hailed from most recently, there is no right to representation and post conviction cases. And i handle an awful lot of them in federal court. The variety of the ability of the defendants or the petitioners as theyre called to present their cases to the federal court is very broad. But theres no right to it. Generally in the first attempt in state court a lawyer will be appointed but not always. This brings us to another aspect of the gideon case. There was a case that was decided much earlier that provided the right to representation in federal court. The zerbes case. Judge dyk, you want to share some thoughts on that case . I think it as an amazing case. This was the case which of course first established in the federal system the right to appointed counsel. And its based entirely on the sixth amendment which states that you have the right to be represented at trial. But i would have thought most people would not have read the sixth amendment to confer a right to free counsel if you were an indiggant. And thats what the Supreme Court held. As to the original understanding of the sixth amendment in that respect. The reason the case ended up that way was that the government the solicitor general decided not to argue that there was no constitutional right to counsel in the federal courts at the trial level. Instead, the solicitor generals argument was if you wanted to have counsel appointed you had to ask for it and this defendant asked for it. So heres a major constitutional issue. That is the meaning of the sixth amendment which carries all the way through into gideon where theres no discussion of what the original meaning of the amendment was and just an assumption that it was meant to provide free counsel in federal cases. And yet, the criminal justice act which actually afforded money for Court Appointed counsel wasnt passed until 1964 by the United States congress. Did that create any special problems . You know, its interesting. That the First Congress enacted a statute allowing for appointed counsel. I think in cases of treason. So dealing with this in the statutory way has a long history. The each of you has had experience with people who have had mixed results with the kind of lawyer who has been appointed for them. Do you find that there are any shortcomings in the promise that was offered by gideon . Judge dyk, can you talk to us about the issues involved with ineffective assistance of counsel issues . Well, of course you have the strickland case which creates a high bar to winning on an on an ineffective assistance of counsel claim and the big barrier it presents to someone asserting such a claim is that theyre about to show its a reasonable probability that the case would have come out differently. Which is extremely difficult to show. I have sat on a few cases in the First Circuit which involved those strickland issues and under the Supreme Court standard its very, very difficult to find ineffective assistance of counsel. I think there have only been two cases since strickland if my memory is correct where the Supreme Court has held there was ineffective assistance. Those were Death Penalty cases where the mental state of the defendant hadnt been brought up. Ms. Stewart, you felt it was your obligation in certain cases that the person is pro se to draw the courts attention to error. Have you seen in the course of your work situations in which the lawyer is perhaps not up to speed and what special challenges does that pose to a prosecutor . Well, id like to first say i think the quality of lawyering that in in the district of columbia, the defense, both that the public defenders and the Public Defenders Service for the district of columbia is outstanding. The cja panelists are very, very good lawyers for the most part, but there have been occasions where lawyers have missed things and its my job to ensure that there is a fair theres a fair trial as i said, my job is to seek justice. And so on those occasions where a defense attorney have missed things, i have prompted the defense attorney, for example, in a trial where the defense attorney in fact, it was a murder case that i tried. The defense attorney was not from this jurisdiction and was not familiar with the jury Selection Process in the district of columbia and it can be quite confusing. He didnt know where the jurors were so i just took my pad and i showed him discreetly so i didnt embarrass him where all of the panelists were and so that i he could make an educated decision on who to strike, who to keep on the panel. There have been other instances where the defense attorney may not have been prepared to call an important impeachment witness and a suggestion will be made to the attorney, would you like me to make available this impeachment witness for you and the defense attorney will get the clue and they will say, well, yes, i would like that, that witness to be made available. So we do what we can to help all because we want to ensure that the defendant has a fair trial. It makes sense to understand a little bit about how representation for indigent defendants works in the district in columbia. In both the superior and the federal court theres a public defender organization, the service to the district of columbia and the public defender in the federal court but each is supplemented by cga lawyers and these are lawyers who apply to be on a panel which is monitored and selected by the judges of those courts. And they are then paid an hourly rate, which is certainly not as much as our friends at the private bar are making but theyre reasonable rates. And then theyre appointed by the judges so in the superior court the Public Defenders Service does most of the important cases the more significant cases like homicide and rape. And misdemeanors as well as lower level felony cases like minor drug distributions and robberies, for example. Now, if you can hire your own lawyer and you can retain your own lawyer, of course youre free to do so. There are many times i have shaken my head when i thought to myself, when the defendant says, im bringing in a paid lawyer as if the paid lawyer is going to be clearly better than the public defender. Most of the time she isnt. Because the pds and pfd have such good lawyers that the person is doing themselves a disservice and pay for it. Really rich to hire johnnie cochran. Well, that brings me to another question. Judge boasberg, what do you do if the lawyer who has been hired by a defendant because defendants do have the right to counsel of their own choice, what do you do if that lawyer does not seem to be up to speed . Again, its difficult particularly where the defendant has fired his public defender. And has brought in someone whos clearly not as good. Now, i have certain cases where subtly and not so subtly i have encouraged the defendant to revisit his decision where i have had a defendant say actually, i want to go back to the lawyer i had earlier and i typically permit. But just because the lawyer is not as good is not a basis for disqualifying a lawyer or kicking her off the case. And so that presents a difficult situation. Ms. Stewart, youve prosecuted a number of cases in a variety of different circumstances. Does the right to counsel pose any special problems for prosecutors as the case progresses . Well, there are a couple of instances that it becomes relevant. First when were working with cooperating witnesses in particular, if we have someone whos been charged with a crime, perhaps they have committed that crime with another person and they desecided to cooperate wit the government, if theyre on board with us, providing information and evidence to us, we have to caution that person not to go back to the jail and question their codefendant about the case. Because if they do so, theyll be questioning and obtaining a statement from that codefendant in violation of that defendants right to counsel. So you know, we caution them that they cannot act as an agent for us and go out and seek evidence on our behalf. So in that respect, the right to counsel becomes a it becomes aed by tricky, at least for us to explain it to the defendants so they cant violate the rights of the other defendants. Have you ever run into the situation in which the person whos cooperating is paying close attention to that but the person that theyre recording and theyre undercover in their undercover conversation doesnt realize and that defendant who you have charged and is headed to trial begins to talk not only about his case, but also about what his lawyer told him to do . Well, we have had instances where codefendants have discussed or have spoken freely not answering questions by our cooperator. But they have spoken freely in front of our cooperator and we have used that evidence. I have not encountered instances that defendants have talked about what they what their lawyer had advised them to do. Now, there are jail calls. We have there have been instances where defendants ha have where we have captured recordings of defendants talking with third parties about what their lawyers have advised them to do and we have heard those calls. That poses special problems because of course that implicates their right to counsel and now you have the prosecutor exposed to maybe what the defense attorney has said. What do you do under those circumstances . It doesnt come up often. But were not going to use now, there have been situations where we can where a conflict how has arisen and the we have to call in special conflicts counsel to create a wall between the person who was exposed to the information and the person who is and hand off to another prosecutor to handle the case. There are there are a number of fun facts about the gideon case that are lost to history. But when gideon is retried so he gets a new trial. Gets a new trial with a lawyer. And they appoint a lawyer which is actually interesting. He appoints someone, he doesnt want that person. It looks like hell demand to be Going Forward by himself after all of this. You know, he wants to represent himself in trial, because hes so unhappy he didnt want the aclu to represent him so he gets a local lawyer to represent him. And whos very good. And the lawyer as recounting Anthony Lewis great book explains the lawyer is particularly good because he had represented the key eyewitness against gideon on two prior occasions and knew all about him and could use that to crossexamine him. Well, of course thats a conflict that the lawyer would have been disqualified and could never have represented gideon today with any rudimentary conflicts checking. But i think thats a great conflict that goes on notice and hes a hero of the saga. Now judge dyk, you had experience with the court and the chief justice had an interesting background with respect to criminal cases. Is that not correct . He had been a prosecutor for years. That was central to his own identity. He thought of himself as primarily a prosecutor in his backgrou background. His view of his these cases was it was possible to convict people and send them to jail and do it right. He had done it so he had confidence that it could be done and done properly. And thats i think one of the reasons that he had trouble with the douglas case was that it came from california. And he didnt really want to see california as having been the bad guy. But he came around and joined the opinion. So protecting a little bit of his own of his own turf. And then in california we learned to do it right. How could it be that this case they did it wrong . Right. Now, judge boasberg just mentioned the wonderful book by Anthony Lewis. And it is a wonderful book. I encourage anyone who has not read it to take a few days and sit down and read through it because it is quite fascinating and it does fill in a lot of information that is not in the Supreme Court opinion. Of course its much longer. Judge dyk, what are your thoughts on the Anthony Lewis book . Well, i think i think its a wonderful book and its very accurate in its description of litigating a case in the Supreme Court. He did not have access at this time to the papers of the justices so he was hampered a little bit in that respect. But i think its a great read as i suggested earlier it makes the case a little bit more dramatic perhaps than it was, but thats what you have to do to write a great book about the Supreme Court. Is it accurate when it talks about the process of going through filing a petition for a cert and all of the considerations that go into granting it . As it existed it at that time, yeah, it was very accurate. I think it was very kargful to get it accurate. He talked to people in the Clerks Office here and he talked to the lawyers. I heard many interesting things about the book. One of the most interesting things to me is that of course who represented gideon, he didnt talk to gideon. He didnt want to meet him. I guess for him it was an intellectual exercise and he wasnt particularly interested in the human side of it. He did however write Clarence Gideon did write quite a long letter to mr. Fordus and when we were talking the other day, judge boasberg. You mentioned that letter. What struck you about what gideon had to relay to his lawyer . Its apparently a 22 page letter and its reprinted in full in the book. And its an incredible story to me of what it was like to be poor and living on the margins of society. Now as a white man, if you were black, it would have been a whole lot worse at that time. But as a poor white man, he tells his story without emotion, but about growing up and in and out of jail. With gambling problems, with a long time alcoholic problem. Married three or four times. Trying to hold down various jobs as a cook on a boat and running a poker game and having his kids taken away from him and his wife going to jail and his battles with all of these different state agencies. It was really a poignant portrait of being a poor man on the margins of society in america at that time. But the quote that sticks with me the most is he writes again, very simple, but at the end of his letter this isnt a Supreme Court brief, hes not expecting anybody to see this except his lawyer, but he writes at the end of his letter to fordus, i believe that each era finds an improvement in law. Each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward. So really incredible sentiment that he writes for someone who has been beaten down as much as he has. Do you think id like to ask each of the panelists do you think that part of the appeal of the gideon case is that Clarence Gideon was kind of a down on your luck, not terrifying mass murderer or something of that sort . Is there a certain appeal in the kind of character that was presented to the Supreme Court . Judge dyk, do you have any thoughts on that . I think one of the appeals of gideon is that he probably didnt commit the offense. And that i think that comes across in the Anthony Lewis book and i think that made it a great case for the right to counsel because as judge boasberg said he was acquitted when he was retried and if he had had a lawyer the first time he might have reached the same result. I think a lot of the resistance and we havent talked that much about it, the Brennan Center book, the bright book, cher minsky articles, about how gideon has been a failure at the state law. Not in the district of columbia, but elsewhere. And i think that one of the reasons that its been a failure in some respects and that the states have been unwilling to finance the Public Defenders Service the way they should be financed is the feeling that there are not a lot of people like gideon around. That most of the people who are charged are guilty so why should we worry about getting them counsel to prove their innocence . That poses another problem i think. If we look at what goes into proving innocence now as opposed to 1963 or not to shift the burden improperly to the defendant, but is the right to counsel more complicated now, ms. Stewart, with the variety of things that video cameras everywhere. All of this kind of thing. Do those pose special problems . I think yes, absolutely. They pose problems not only for the Defense Attorneys and defendants but for prosecutors and every participant in the criminal Justice System. These days we have, you know, Police Officers wearing body cameras. We have surveillance cameras ever place. Everyone has an iphone with a recording device. People are on social media, people email, they text. Theyre on facebook. So now theres a lot more information. Ill give you an example. We have a crime committed outside, well have five officers show up on the scene, each is wearing a body cam. Thats going to mean that were going to have to review body camera evidence for, you know, hours of videotape for each Office Officer that what are rives on the screen. It has to be turned over to defense and the defense has to use that information in resolving the case. The problem is the time clocks have not changed at all. I mean, i still have 30 days to indict a case or 90 days to indict a case in superior court. So all i have to do the same amount of work im sorry, lots more work in, you know, in the same amount of time. That definitely presents problems. I think of what the other the flip side of that is that is a is simply a lawyer enough for an accused defendant . Or does that lawyer need experts and investigators, other resources in order to consider the technology, to offer testimony, to combat it. To come up with their own evidence and the evidence is most likely yes. Now lawyers can make requests and judges have to sign off on experts or investigators. But i think its fairly routine that lawyers who seek authorization to employ an expert in most cases are getting that approved. At least in this jurisdiction. Again, when youre going to other jurisdictions, that are poorer and are barely paying a lawyer anything, you can bet theyre not terribly interest and also forking over money for ancillary people on the defense team. Again in the district of columbia theres a statute that allows for defendants to have access to investigators and experts and were very fortunate to have that in the district of columbia because as judge boasberg pointed out thats not the case in other parts of the country. That raises another question. Judge dyk made reference to this but theres some areas of the country that the work load for the public defenders is enormous. I read some place recently that some of the public defenders in new orleans have crushing caseloads. Stepping in to fund these particular situations. So are we looking at kind of two Different Levels of representation, one on the state and a different one in the federal courts or in the district of columbia. Do you have any thoughts on that, judge . I think there are clearly a different standard. There are many states i would guess are up to the federal standard. But i would guess there are many states that are nowhere near the federal standard. Theres not enough money for the public defenders. I dont think its a problem thats likely to be solved at the federal level. I dont know what the solution to it is, but i dont think the accused have much of a lobby in their favor. And its not likely to change as a result of the voters rising up and saying were not doing the right thing here. If you look at some of the new changes, one of the areas that has prompted a lot of interest in the last two and a half decades is the development of dna and the use of dna in criminal prosecutions and defenses. Those tests change, it seems to me, every few years. Have any of you had any experience with the dna testing and the special challenges that poses . Dna, i actually dont think poses such problems because the government typically pays for the testing and its required to give the results to the defense. If the results are favorable, thats great and if theres not, then they know. Theres no hiding the ball and theres no cost to the defense to do it. Occasionally the defense will say we want to test it ourselves, but its hard to make a compelling showing that the lab thats going to do these scientific tests is going to do the scientific tests is going to do the test in a biased way. Dna hasnt really been a big issue for the defendants in terms of getting access. I would suppose that it posed quite an issue for us recently in New Hampshire. A defendant had been convicted in 1973. In 2001 he sought his first dna test and he had four more after that. Each time none of them excluding him, but each time going to the New Hampshire courts and getting a retesting until finally the New Hampshire Supreme Court affirmed his conviction last year, some 40plus years after the original conviction. So it does pose some interesting problems in part because the tests keep changing. Perhaps we might talk about the whole notion of what constitutes fairness in criminal trials. I think people frequently look back on the warren court and see it as a court that was really breaking paths in criminal procedure. Is that a fair characterization . I think it is. Of course the term before there was mapp versus ohio. That applied the exclusionary rule to the state and miranda, fag beg fagan, there was a revolution in criminal law. I remember i went to Harvard Law School and graduated in 1961. In those days at harvard and it may have been different at other law schools, i hope it was different at other law schools criminal law was taught without reference to criminal procedure. My criminal law course was taught by an australian professor, who knew absolutely nothing about constitutional law. It was all first degree murder, Second Degree murder, assault, battery, all that. And the warren court changed that. Now criminal law to a significant extent has been constitutionalized. Thats a very important part of the prosecution. Most people would think the criminal Justice System is fairer as a result of that. Youve admitted that you were born after gideon was decided. Do you see looking back as someone who has taught law and has also obviously gone to law school and practiced law, do you see the warren court as being a path breaker . Absolutely. With the decisions that were just mentioned, of course, but i also know that it was certainly an expansion of rights for defendants during that era. Subsequent courts sort of narrowed that expansion and provided balance, because there are certain exceptions that need to apply for officer safety and other reasons. Yes, i definitely think that the warren court was a path breaker, but ultimately other courts narrowed some of those decisions. Do you have any thoughts on that proposition . I just think that anybody who has practiced really over the last 50 years just assumes that thats the framework that exists and should always exist. You dont hear people questioning the right to counsel anymore. With miranda, you dont question the idea the police should be advising people of their rights. Now, there are debates about how much should be excluded and under what circumstances evidence should be excluded in criminal trials. But really these cases establish the whole framework of how criminal prosecution exists, both arrests from the police standpoint and in the courts how things perceive that governs everything we do day to day. I would dare say most americans who watch any of the criminal tv programs can probably recite their miranda rights. Its such a part of this culture. And theyre wondering where the dna evidence is when it isnt introduced. They do. Im told were supposed to wrap this up at 7 00 exactly. So perhaps each one of my panelists has a parting shot . Judge dike, would you like to start us off . Well, its been a pleasure to do this. I really enjoyed it. I enjoyed learning more about what was going on in the warren court at the time than i knew about before. These were guys who cared deeply about criminal law, about doing the right thing. And the year of gideon was a watershed moment in another respect, because that was the year that chief Justice Warren timely got his liberal majority, black, douglas, brennan and goldberg. Any thoughts from the prosecutor in the middle . Sure. I think the gideon decision is incredibly important. I hope that other states can follow the lead of the district of columbia in affording indigent defendants rights at all stages of the prosecution and in other aspects as well. Because its needed to even the playing field. Its very difficult for individuals who dont have the skills or the knowledge to navigate their way through the system. So i hope that funding is made available for this very important cause. Final thought . Its quite a legacy for someone who lived on the margins of society and was convicted of breaking and entering to commit petty larceny in the bay harbor poolroom in panama city, florida. Thank you all for coming this evening. [ applause ]. Let me thank the panelists for an outstanding discussion of the case and all the issues that relate to it. I want to welcome everybody to our reception in the east west Conference Room outside. After you leave this courtroom, turn right and youll find your way to the reception. Downstairs, if you havent had a chance to look at the memorabilia relating to the gideon case, which i think you heard was collected by a prominent news person from cbs who got interested in gideons trumpet after it was written and helped produce something for cbs reports, which was then an important documentary program and decided he would just collect what he could about the case and about gideon. And its all down there for you to look at, as is our gift shop which will remain open for the balance of the evening. Youll find some books down there and lots of other interesting things as well. Please enjoy the evening and thanks for coming. [ applause ]. Next, from the cspan series landmark cases arc i look at baker versus carr. Then a discussion on the legacy of loving versus virginia, which challenged the ban on interracial marriage. After that, a look at the life and career of Supreme Court Justice Louis brandeis. Each night this week on cspan 3 we are focusing on a Supreme Court case with programming from our lapped mark cases series and American History tv. In 1962 baker versus carr established the right of federal courts to review redistricting issues which had been deemed political issues outside of the system. The courts willingness to address this paved the way for the one man, one vote standard of american representative democracy. All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw in and give their attention. Landmark cases, cspans special series exploring the human story and constitutional dramas behind 12 historic Supreme Court decisions. Number 759, ernest, roe against wade. Quite often in many of our
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