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Gideon Wasn’t A Dummy

“A person who represents himself has a fool for a client.” That timeless adage, in its various forms, remains generally true. Just recently my lovely wife had a chance to sit for jury duty for the first time in her life.  The defendant was representing himself against the imposing Solicitor General, Amy Smith. Amy’s first trial as a young assistant district attorney was against a pro se litigant, and while she prevailed and sent him off to prison, she learned a lot about judges bending over backwards to give a pro se litigant a fighting chance. So on this particular day, Amy was armed for the challenge. The pro se litigant asked the jury during questioning, “Has anyone here ever told a lie?” All the hands eventually went up. Then he asked “Does everyone here fear God?” Again, all hands went up. Whereupon he sat down. The point of jury questioning is to learn something about them so that you can make a decision about who to strike and who to keep. I don’t know how either of those questions helped. But represent himself he did, all the way to conviction.

gideonBut it doesn’t always work that way. Back in 1963, a drifter named Clarence Earl Gideon, armed with an 8th grade education, was charged with the Florida felony of breaking and entering to commit a misdemeanor. Yes, you read that right. In court, he asked the judge for a lawyer. The judge denied his request as Florida only granted appointed lawyers in death penalty cases. Gideon continued to represent himself and did an opening statement, cross examined witnesses, presented his own witnesses, declined to testify himself (really unusual) and made his own closing argument. Despite his valiant efforts, the jury convicted him and off to prison went Gideon.

He then, from prison, filed a writ of habeas corpus to the Florida Supreme Court. They denied his writ. Surely they worried about the cost of appointed lawyers for all those poor people. He then filed a handwritten writ to the United States Supreme Court. The odds were against him since the very same Supreme Court had ruled twenty years earlier that the Sixth Amendment did NOT guarantee the appointment of a lawyer. The 1963 Supreme Court, however, heard the case and overruled their prior decision. Justice Black stated that “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” On retrial for his offense, Gideon had a very capable attorney who picked apart the prosecution and won an acquittal for Gideon.

So who is the fool now? Poor ol’ Clarence Earl Gideon changed the way that poor people are appointed counsel, with all of an eighth grade education, and nary a typewriter to his name. His headstone has a quote from a Gideon letter to his attorney, “Each era finds an improvement in law for the benefit of mankind.”

What are you doing to change the world?

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at to comment on this article or suggest articles that you’d like to see and visit his website at to view prior columns.

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