Anthony Lewis was a longtime reporter and columnist at the “New York Times.” I knew

him during my years in Washington when he made his reputation as our foremost interpreter

of the Supreme Court and the impact of its decisions on civil rights and liberties. As

one legal scholar noted, Lewis had “an incredible talent in making the law not only intelligible

but also in making it compelling.”

This was Tony Lewis’ masterpiece – “Gideon’s Trumpet” – an account of the Supreme Court’s

Gideon v. Wainwright ruling in 1963 that established the constitutional right of criminal defendants

to an attorney, even if they had no money to pay for one. The book has never been out

of print, its’ story the subject of this CBS reports documentary:

MARTIN AGRONSKY ON CBS REPORTS: His name is Clarence Earl Gideon. He argued

there could be no equal justice where the kind of trial a man gets depends on the amount

of money he has. He argued there should not be one kind of justice for the rich, another

for the poor. Gideon blew one note on his trumpet. He blew it over and over: a man cannot

get a fair trial without a lawyer. And because he would not retreat one wit from that position,

this man, Clarence Gideon, has wrought a profound change in the course of American Jurisprudence.

BILL MOYERS: Gideon was a drifter with a criminal record,

charged with breaking and entering and robbing a pool hall in Florida. Denied representation,

he defended himself and was sentenced to five years in state prison. From his cell, he exercised

his right to petition the Supreme Court for a fair hearing. When the justices ruled In

Gideon’s favor, hundreds of prisoners who also had been denied their legal rights were

freed or given new trials and our current system of public defenders was born.

But fifty years later that system is floundering. When Gideon v. Wainwright was decided, fewer

than half of all defendants were poor. Now, over 80 percent are. Of the 2.2 million inmates

in the United States, more than sixty percent are members of racial and ethnic minorities,

and the law puts a disproportionate number of them on death row.

Bryan Stevenson found his calling defending the poor and least powerful among us. Straight

from Harvard Law School he went south, eventually to create the Equal Justice Initiative in

Alabama, the state with the highest per capita rate of death sentences in the country. He

and his colleagues have battled excessive and unfair sentencing, helped free prisoners

on death row, challenged the abuse of the incarcerated and mentally ill, and stood up

on behalf of minors, children, prosecuted as adults.

Welcome back…

BRYAN STEVENSON: Thank you.

BILL MOYERS: That Supreme Court decision, Gideon, 50 years

ago said, you have the right to an attorney in a criminal case, even if you cannot afford

it. What was the impact?

BRYAN STEVENSON: Well, it was radical. It was revolutionary.

For decades the poor had really been very vulnerable in our criminal court system and

frequently faced very severe punishments alone. What Gideon did was basically say that our

constitution requires that we treat people equally when their life and when their liberty

is at risk. And it changed the way we thought about counsel for the poor in this country.

At least in theory, at least in doctrine.

BILL MOYERS: Well, I read that there are approximately

15,000 court-appointed defenders representing millions of criminal suspects, defendants,

and inmates all over the country and paid for by the taxpayers. But I also read that

a poor person has a much greater chance of being incarcerated now than when the Supreme

Court handed down that decision. Why is that?

BRYAN STEVENSON: Well, I think it's because we never really

took the right seriously. You look at some of the Court's major decisions in the '50s

and '60s, Brown v. Board of Education, would not have actually changed education for racial

minorities in this country, had not thousands of people marched and fought and made that

decision real.

Gideon was the kind of decision that didn't have advocates, didn't have people out there

insisting that enforcement take place right away. It was really left to the discretion

of states and some states took up the challenge and many states didn't. And so today we have

only 24 states that have statewide public defender systems.

We have lots of states that have done very little to make the right to counsel for poor

people effective. And so 50 years after Gideon, sadly, we still have a system that treats

you better if you're rich and guilty than if you're poor and innocent. Wealth is still

the determinative factor.

BILL MOYERS: And how have events since then affected our

inability or unwillingness to carry Gideon out?

BRYAN STEVENSON: Everything has been aggravated by mass incarceration.

As you point out in the 1960s, there were 200,000 people in jails, in prisons. The number

of people who were poor facing confinement was a very small percentage, or half. Today,

we have 2.2 million people in jails and prisons, nearly five million people on probation and

parole.

And so our appetite for punishment, for incarceration, for condemnation has made the demand, the

need for lawyers much greater than we've been able to comply with, we've been able to meet.

And so I think quite sadly, the situation for poor people in the criminal justice system

is much, much worse today than it was in 1963, largely as a function of numbers.

BILL MOYERS: What's been the impact of the war on drugs?

BRYAN STEVENSON: Well, the war on drugs has been probably the

biggest factor in driving the prison population up. You've now basically imprisoned, hundreds

of thousands of people for nonviolent, simple possession of crimes like marijuana, that

result in incarceration. So you've thrown hundreds of thousands of people into the system,

and of course this is these are the cases where you actually need a very smart, informed

attorney.

BILL MOYERS: How so?

BRYAN STEVENSON: Well, because you'll be told that if you plead

guilty, you can go home. You're not told that there will be these collateral consequences.

You might lose your right to vote, you'll be barred from public housing, you won't ever

be eligible for food stamps.

You'll be building toward this situation where if you get arrested again, you'll be facing

mandatory sentences like 20 years in prison, or life in prison. And all of that stuff has

to come from an advocate who explains the consequences. Yet what we've done with the

system is create a situation where the lawyers themselves have an incentive to plead everybody

out. About 94 percent of all cases in this country are resolved by a plea.

BILL MOYERS: Do judges have an incentive too?

BRYAN STEVENSON: Oh absolutely.

BILL MOYERS: To get a guilty plea instead of a ten-week

trial?

BRYAN STEVENSON: Absolutely. I mean, again, by throwing hundreds

of thousands of people into the system by, you know, allowing the politics of fear and

anger to throw hundreds of thousands of people into our courts, court judges, trial judges,

are overwhelmed.

They don't have the space, they don't have the resources, they don't have the facilities

to process in a fair and reasonable way all the cases that are coming in. So they absolutely

want cases settled. They don't want cases going to trial. And a lot of them find lawyers

that will cooperate in processing cases in just that way.

BILL MOYERS: Anthony Lewis later confessed that he had

been naïve, his word, to believe that our political system would vindicate the rights

established in that decision. And the political system, as you indicate, has failed to deliver.

What is the chief reason that the political system has turned its back on Gideon?

BRYAN STEVENSON: Well, I think it's largely a function of our

never valuing the plight of the poor, our indifference to the poor in so many areas.

And obviously, when you add to the poor the stigma of crime, of criminality, of criminal,

that further disadvantages them. And so I think, like what we've seen in so many areas,

the poor have always been marginalized.

But I think the real problem with Gideon is in part a function of what the courts themselves

have done. If the courts had insisted on compliance with Gideon, in the way that we did with some

of our anti-discrimination cases in other areas, the political system would have to

respond to that. But our courts didn't do that. We've actually tolerated unbelievably

poor lawyering.

Twenty years after Gideon, the court in case called Strickland v. Washington was asked

to decide what are the reasonable, minimal standards for effective lawyering. And they

created the standard very, very low. And so today, even in death penalty cases, we see

lawyers that are drunk in court, asleep during the trial, who are disbarred and suspended

at percentages way higher than what we see in other kinds of cases. And because the court

has tolerated this kind of lawyering, the political system has had no constitutional

compunction, no institutional imperative, to invest in the kind of system that we really

need.

BILL MOYERS: But isn't that, Bryan, like the country going

to war, and the Pentagon's charged to defend this, but the Pentagon won't commit its army?

Won't fight the war--

BRYAN STEVENSON: It very much is--

BILL MOYERS: The courts are not fighting for it--

BRYAN STEVENSON: That exactly right. And it's one of the reasons

why the court, I think, has to change its perspective on these issues. I mean, you can

look at death penalty cases, which really are the cases where you expect the greatest

investment in the right to counsel--

BILL MOYERS: Your life and death is at stake--

BRYAN STEVENSON: Life and death is at stake. And what the data

tell us is that we have tolerated extremely bad lawyering in these cases. The average

disbarment rate in most states is about one percent of lawyers. Washington State, one

percent of lawyers end up disbarred or suspended. But the “Seattle Post-Intelligencer” looked

at all the 84 cases that resulted in death sentences and found that 20 percent of those

cases involved lawyers who were later suspended or disbarred.

Dallas did, the paper, did the same thing in Texas, looked at 461 cases, 25 percent

of the lawyers suspended or got punishment. And you see these kinds of problems system-wide,

statewide. And yet, the court, in reviewing these cases has frequently said, "Yes, the

lawyer was drunk, yes, the lawyer was asleep, yes, the lawyer hated the client, yes, the

lawyer presented no evidence. But because you haven't proved to us that the defendant

was prejudiced by that, we're going to say that's not a constitutional problem."

BILL MOYERS: What do you mean, that they haven't proved

that the defendant is prejudice by this?

BRYAN STEVENSON: Instead of saying that the right to counsel

insists on a competitive, effective lawyer, in all cases, and particularly in death penalty

cases, we created a standard that said, "Yes, the lawyer should be there. But the lawyer,

and the lawyer should be reasonable. But we're also going to require before we grant any

relief to a person on death row, that they get a new lawyer who will prove to us that

the bad lawyer's conduct actually was consequential."

And so this prejudice standard has become a defining feature of how we regulate lawyering

and the right to counsel in this country. And of course, you have to get another lawyer

to kind of show that. And we don't create a right to counsel for that other lawyer.

I mean, for the 2.2 million people in jails and prisons, hundreds of thousands of whom

are claiming that they are wrongly convicted, there is no right to counsel. They can't actually

even get into court to expose the problems that we're talking about.

BILL MOYERS: Have you personally seen in the courtroom,

defendants affected adversely by incompetent counsel?

BRYAN STEVENSON: Oh my Lord, yes. I mean, too frequently. I've

seen Judy Haney's case, the lawyer was actually so intoxicated, the judge stopped the trial

in the middle of the trial and made the lawyer spend a day in jail, becoming sober, then

picked the trial back up. The client was sentenced to death. And on appeal, the state appellate

court said, "No constitutional problem with that." I've seen dozens of people go before

the judge after waiting for months to get a lawyer appointed. Say, "Your Honor, just,

I'll plead guilty. Just please let me go home." And so they never actually get the lawyer

they're entitled to because the no lawyer has been appointed. We see it too frequently.

It's in so many of these cases, no investigation, no mitigation, we've got death penalty cases

where the lawyer basically tells the jury that he hates his client. Calvin Burdine,

was openly gay, the lawyer basically told the jury, I don't care whether you sentence

him to death or not. He was a criminal defense attorney, representing

a man who was openly gay, about whom he expressed hostility and contempt.

BILL MOYERS: I don't know if you saw this remarkable article

recently in "The Atlantic" magazine by Andrew Cohen--

BRYAN STEVENSON: Uh-huh.

BILL MOYERS: --who wrote that 50 years after Gideon, the

situation for poor defendants is bad everywhere in America, but particularly in the South.

What is it about the South?

BRYAN STEVENSON: Well, I think we didn't, we were resistant

to a lot of the Supreme Court decisions that were coming out during that era. And I think

Gideon was no exception. And so there just wasn't a willingness to invest. It's a poor

region. And obviously providing effective assistance to incarcerated, accused people,

has a resource component.

And getting resources organized is difficult everywhere, but particularly difficult there.

And it's a leadership issue. You know, we have not been very good at embracing some

of these constitutional mandates, there's been resistance and a culture of resistance.

State of Alabama where I practice has no public defender system.