Fred Sutherland Attorney and State Bar of Texas - DOC

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Transcript, Anthony Lewis Keynote



                     Transcription of remarks by Anthony Lewis, Keynote Speaker
                          Symposium on Indigent Criminal Defense in Texas
                                         December 7-8, 2000
                                            Austin, Texas

Michael Moore:
         I would like spend a few moments introducing our honored guest, our keynote speaker.
In 1963, as all of you are well aware, the Supreme Court handed down Gideon v. Wainwright,
and it would forever change the field of criminal law and is much the reason that we are here
today. However, it was a year later that the world really learned and is still learning from what
has become a truly important book, and that is Gideons Trumpet, which is authored by our
keynote speaker, Mr. Anthony Lewis. I can tell you, as a political science professor, this book is
still routinely assigned in thousands of university classrooms and American government classes
across the country. Not only as a way to learn about the Supreme Court, but also to learn about
the right to counsel.
         I had the opportunity over Thanksgiving break, to show you what I did for leisurely
reading, to reread Gideons Trumpet on the way to visit my brother in Detroit. If you havent
dusted off your copy in some time, I would recommend that you do so and reread chapter 13. It
is the chapter that deals with what needs to be done after the Gideon case had been decided and I
think that you will be struck with just how much of what was talked about back in 1964 in this
book is still very relevant to the discussions we are having today.
         Mr. Lewis is a native of New York City and a graduate of Harvard University. He went
to the New York Times in the late 1940s and has spent most of his career there. The only other
newspaper at which he worked has been the Washington Daily News, where in 1955, he won the
Pulitzer Prize for his articles on the federal governments loyalty security program. The citation
from the Pulitzer Board said Lewis reporting was directly responsible for clearing a US Navy
department employee against unjust charges of being a security risk. The employee who had
been fired by the Navy got his job back as a result of the articles.
         Lewis moved to the New York Times Washington bureau where he won a second
Pulitzer Prize in 1963 for his coverage of the United States Supreme Court and in particular, of
the Courts legislative reapportionment decisions. Lewis reported from Europe for eight years as
the New York Times bureau chief in London. While in London, he began writing a regular
column, which appears twice a week on the New York Times op-ed page. He frequently writes
for international pages, about international affairs but he also deals with US domestic issues
including politics, law, and a variety of social issues.
         In 1973, he returned to the United States and is now based in Boston. Although he is not
a lawyer, he is an authority on US constitutional law. He was a lecturer at Harvard law school
and has since been the James Madison visiting professor at Columbia University. He is the
author of three widely read and influential books, Gideons Trumpet in 1963, Portrait of a
Decade: The Second American Revolution in 1964, and more recently, Make No Law: The
Sullivan Case and the First Amendment in 1991. He told me to be brief. I probably wasnt brief
enough. Please help me welcome Mr. Anthony Lewis. [applause]
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Transcript, Anthony Lewis Keynote




Anthony Lewis:
        Thank you, Michael Moore. You were admirably brief. [laughter]
        Ladies and gentlemen, it is a great pleasure for me to be here. I like Austin. Ive seen
some friendly faces, Chrys Dougherty, a friend from long ago, and people generally are friendly,
so Im glad to be here. More than that, its an honor for me to take part in this Symposium. In
this room, are men and women who have shouldered a weighty responsibility in our society,
seeing to it that poor people charged with crime have competent counsel for their defense. I well
know the sacrifices that lawyers make and others of you make to carry out that responsibility. We
do so for our sake and the sake of society, as prosecutors carry out their weighty social
responsibility. I salute all of you who are here now to search for better ways of dealing with this
important problem. I come to you as an outsider, a journalist who happened to be covering the
Supreme Court of the United States when it received a letter from a Florida prisoner, Clarence
Earl Gideon. I saw that letter in the file room of the Court after the justices had agreed to hear
Gideons case. It was written in pencil on lined paper from the Florida State Penitentiary in
Rayford. But its simplicity had a power that aroused me as evidently it had moved the Court. I
became immersed in the Gideon case and I developed what has become a lifelong interest in the
struggle to establish in this country a meaningful right to counsel.
        Let me begin at the beginning, which I think came in these words, I quote, The right to
be heard would be, in many cases, of little avail, if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has small and sometimes no skill in the
science of law. He lacks both the skill and knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the guiding hand of counsel at every step in the
proceedings against him. Close quote. That is, of course, a passage from Justice George
Sutherlands opinion of the Court in Powell against Alabama, the case of the Scottsboro boys,
decided in 1932 by the Supreme Court.
        When Justice Hugo L. Black announced the Gideon decision in Court on March 18, 1963,
one of the most dramatic moments I ever witnessed there, far more, I may say than the arguments
a week ago tomorrow. [laughter] Justice Black quoted what he called the moving words of Mr.
Justice Sutherland. He went out of his way to praise Justice Sutherland, which was quite
remarkable, given the fact that Justice Sutherland was one of the conservatives who had stuck
down many New Deal statutes and the fact that Hugo Black, as a senator during those days,
deplored those very decisions. But I think there was a particular meaning in Justice Blacks
praise: the right of every criminal defendant to counsel is so fundamental that it goes beyond the
cliches of liberal and conservative.
        I am a romantic about the law. I believe that the law and the courts have held this vast,
disparate, disputatious country together and made it the envy of other societies. I agree with what
Clarence Earl Gideon wrote to the lawyer whom the Supreme Court appointed to argue his case,
Abe Fortes, in a sentence that Michael quoted this morning. I believe that each era finds an
improvement in law. Each year brings something new for the benefit of mankind. So I expected
the unanimous decision of the Supreme Court in the Gideon case to lead ineluctably, if gradually,
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Transcript, Anthony Lewis Keynote



to the provision of effective lawyers for poor defendants all around the country. I had no illusion
that it would be easy or instant. We have a federal system, and history has taught us the wisdom
of letting each state experiment in policy decisions within broad federal limits. But the
momentum generated by the Gideon decision seemed to me so great. It was applauded from all
points of the legal compass. Even in the states that had not previously assured counsel to
indigent defendants. The leader of the Mississippi bar said the decision was farsighted, adding
that the state penitentiary was loaded with inmates that are there because of no representation or
improper representation. The governor of Florida at the time, Farris Bryant, said it was
unthinkable that an innocent man may be condemned to penal servitude because he is unfamiliar
with the intricacies of criminal procedure and unable to provide counsel for his defense.
         How painful it is to look back now at my optimism of 1963 and the expression of
confidence that, in time, every poor defendant would indeed have the guiding hand of counsel at
every step of the proceedings against him. This very Symposium is a symbol of disappointed
hopes. We are here because of concern among this states lawyers and judges and citizens about
the quality of representation given to criminal defendants who cannot afford to retain a lawyer.
We are here because of what a committee of the State Bar called, and forgive me Michael, Ill
stick with the original name, the crisis in indigent criminal defense in Texas. It wouldnt be
appropriate for me to comment on the particulars of your situation here, but there is one aspect of
Texas indigent defense that has attracted attention around the country. That is, as I need hardly
say, the quality of representation in capital cases. The Texas Defender Service published its
report two months ago on justice and the death penalty. Among other things, it was highly
critical of the representation that some indigent capital defendants had had. The publicized
stories of lawyers who slept during trials or used drugs or alcohol were not mere aberrations, the
report said. They were frequent, pervasive inadequacies on the part of lawyers defending the
lives of their clients. I dont think I need to add that capital defendants have had less than
adequate representation in other states. As Dean Lefstein said this morning, the release of more
than a dozen men who were on death row in Illinois--men, now shown to be innocent--is a
terrible indictment of the quality of the defense they had in their trials.
         The Texas case that has lately had national attention, as you know, is that of Calvin
Gerald Burdine, whose lawyer, Joe Cannon, slept during parts of the trial in which Burdine was
convicted of murder and sentenced to death. Steve Bright mentioned the case this morning.
Skipping over the various procedural levels that occurred in that case, the challenge to the
sleeping lawyer, which I can say briefly, the challenge was sustained by a Texas trial judge, who
was reversed by the Court of Criminal Appeals, sustained on federal habeas corpus by a federal
district court judge. He was reversed by a 2 to 1 vote of a panel of the Fifth Circuit, a panel that
said he did not have a fair claim of inadequate representation because he had not shown that Mr.
Cannon had slept during critical stages of the trial. He couldnt specify during which stages
Cannon was asleep, although the courts all found, as a fact, that he had been asleep for
substantial portions of the trial. And now I was told by Steve Bright that the Fifth Circuit has
agreed to rehear that decision en banc. So we have one more round, at least, in this quite
interminable case.
         The Washington Post commented on the panel decision of the Fifth Circuit in an
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Transcript, Anthony Lewis Keynote



editorial. The decision encapsulates in a single case just how badly the supposed right to legal
counsel has been eroded. The Fifth Circuit had said that its opinion should not be understood
as condoning sleeping by defense counsel during a capital murder trial, but the Post suggested, as
a practical matter, there was little difference between failing to guarantee a right and condoning
its violation. To me, quite remarkably, a leading British Barrister, David Panec [sp?], devoted
his weekly column in the Times of London to the Burdine case, calling the decision bizarre. I
dont think any of us would want to be on trial for his or her life, or for anything, without a
lawyer who is awake and competent. We think its so obvious that you need a lawyer that we
may not focus on what a difference that actually makes.
         Forgive me if I give you a rather homely personal example. After Clarence Gideon won
his case in the Supreme Court and established that he was entitled to a lawyer, he was tried again
for the crime of breaking and entering the Bay Harbor Pool Room in Panama City, Florida. Ill
interrupt myself to say that when I went down there and saw Gideon, he took me to the site of the
crime. He looked at it, and he looked at me, and he said, Tobacco Road. Wasnt very nice.
Anyway, in this second trial, he was, of course, entitled to a lawyer. And after he turned down an
offer of counsel by the ACLU, making the ACLU very angry and the judge rather bristly, the
judge assigned him a local lawyer whom he knew, Fred Turner. I went to the second trial in
Panama City and saw the jury acquit Gideon. The result that was good for the authors of books
and for all of us, I think, a poetic ending to the story.
         I thought I knew the case by heart. Then, years later, I watched the filming of a movie on
the case starring Henry Fonda as Gideon. The trial scenes were filmed in a former courthouse,
south of Los Angeles. In Gideons first trial, where he had no lawyer, one of the witnesses
against him was a taxi driver who said Gideon had telephoned and asked to be picked up outside
that pool room at two in the morning. The prosecutor asked the driver, Did Mr. Gideon say
anything when he got in the cab? And the driver answered, Yes. He said dont tell anyone
you picked me up. Gideon, representing himself, did not cross-examine, leaving that damaging
testimony untouched. Now, here we were in that Los Angeles courthouse, watching Gideons
second trial. The prosecutor asked the same question, and the taxi driver gave the same answer.
But this time, Gideons lawyer, Fred Turner, played by a skillful character actor, Lane Smith,
cross-examined. He asked, Had he ever said that to you before? Oh yes, the taxi driver
answered, he said that to me every time I picked him up. Why? [asked Lane Smith] I
think it was some kind of woman trouble. And Lane Smith had a flower in his buttonhole, a
touch that he invented himself. Ad libing, walked over to the jury, winked, and said, Well, we
all know about that. The director said, Cut. I turned to the person next to me, a stranger, and
said, My god, it really makes a difference to have a lawyer, doesnt it? [laughter]
         What we have learned since the Gideon case is that it is not enough to have a lawyer in
the sense of a warm body with a law degree. It has to be a lawyer with the ability and the
commitment to provide the needed representation and the minimum resources to do the job. In
many places in this country, a poor person facing a criminal charge does not have that kind of
representation. He is given a lawyer who has little experience in the criminal law. Or who,
alternatively, is appointed because he has little, if any, other legal work to do. Even if he is lucky
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enough to be given a skilled and committed lawyer, there will be, or there may be, little money to
pay for expert witnesses or investigation. If he is in a jurisdiction with a public defender system,
the lawyer he gets will almost certainly be committed. But may be overwhelmed by his caseload.

         The judge who, this morning, asked the question about defendants who spend months in
jail without even being charged, made me think of a case in Marion County, Indiana, which
includes Indianapolis. A man named Bobby Houston was charged with child molesting. He was
given a public defender named, well, in fairness, I shall omit his name. For 15 months, Bobby
Houston was held in jail awaiting trial. Then the defender managed to get the case dismissed.
But he never told his client. So Bobby Houston stayed in jail four more months. He tried to
make collect calls to his lawyer, but the lawyer refused to accept them. Finally, with the help of a
jail chaplain and a newspaper reporter, he got out. I want to tell you that all happened before the
changes that Dean Lefstein described this morning, so I hope it isnt that bad now. [laughter]
The story of Bobby Houston sounds as though that public defender was cruelly unresponsive to
his client but there was another side. Public defenders in Marion County, at that time, were paid
$20,800 a year plus $60 a month for all office expenses. They were so underpaid and
overworked that they sometimes, simply could not take collect calls. The case of Bobby Houston
was described in a revealing collection of articles in the American Lawyer in 1993. Reporters for
the magazine went around the country, looking at the human realities of indigent defense. They
found Bobby Houston and they found Linda Lambert, who was tried for felony murder in the
Detroit Recorders Court with an appointed lawyer who spent five minutes or less cross-
examining each prosecution witness and called no witnesses for the defense. Miss Lambert was
sentenced to 7-15 years in prison.
         It is not all such ancient history, ladies and gentlemen. Just two years ago, The
Economist, a magazine that does a better job of covering this country than many of our own
papers, did a substantial article on the plight of indigent defendants in the United States. The
headline was Too Poor To Be Defended. The piece said many defendants are treated to a
meet em and plead em defense, a brief consultation in which a harried or incompetent lawyer
encourages them to plead guilty, or, if that fails, struggles through a short trial in which the
defense is massively out gunned by a more experienced, better paid and better prepared lawyer.
 The Economist piece ran down what lawyers in various states were paid to represent poor
defendants. Twenty dollars an hour in Alabama to prepare for a capital case with a ceiling for the
case of $1000. Appointed counsel in Virginia got a maximum of $265 for a felony charge with a
maximum sentence of up to 20 years or $575 if the maximum possible sentence was more than
20 years, and so on.
         Now I have never regarded Britain as a model of civil liberties in many respects. It has
not had a written constitution, and British law has taken turns that would truly violate our
constitution. For example, by limiting the right of defendants to remain silent and cutting away
drastically at the right to trial by jury. So I found it somewhat embarrassing that a British
publication should be pointing out the failure of Americans to live up to their professions of
justice, to live up to the promise of the Gideon case. The unhappy truth about the right to
counsel cannot be a surprise to anyone who cares even a little. I have clippings in a file with
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headlines like, Unclogging Gideons Trumpet. I guess my use of the word trumpet leads
inevitably to muting, unclogging, clogging and various other trumpet similes. [laughter]
         The question is, what can be done about it? The answer is that it is up to us, to lawyers
and judges, and the rest of us. When enough Americans in a city or a state or the nation care
enough about something, change will come. That is the premise of our democracy, and I believe
in it. Remember this, when the civil rights movement started in the 1950s and 1960s, Blacks
faced entrenched racism and its political power in the American South. In large parts of the
South, Black Americans were unable to vote, and if they tried, were subject to condign
punishment or murder. Change looked nearly impossible. But it happened. The reason, I
believe, is that when Americans learned about the brutality of the racial system, they did not like
it.
         In recent years, Ive learned about another powerless group facing cruel treatment--
immigrants. Thousands have been deported under harsh provisions of the 1996 Immigration Act
and mindless administration by the Immigration and Naturalization Service. But even though
immigrants cannot vote and though there is a degree of hostility toward immigration in this
country, the public has reacted, as the horror stories of families being torn apart for arbitrary
reasons have come to light. I think some of the worst excesses will end. And so, here, on our
issue, I think the task is to make legislators and the public understand the unfairness of what is
happening. If they understand, they will care. If they care, there will be change.
         At the beginning of this talk, I said that those who fight for Gideons cause do so for us,
for the society. It is vital to keep that in mind as you all work for what Clarence Gideon called,
something new for the benefit of mankind. You are not undertaking this effort for the benefit
only of poor men and women, charged with crime. You are doing it for us. I will close with a
quote from, you may think an unlikely source, Winston Churchill. He was Home Secretary in
1910 when he said the following in the House of Commons:
         The mood and temper of the public in regard to the treatment of crime and criminals is
         one of the most unfailing tests of the civilization of any country. A calm, dispassionate
         recognition of the rights of the accused and even of the convicted criminal against the
         state, a constant heart searching by all charged with the duty of punishment. These are
         the symbols which, in the treatment of crime and criminal, mark and measure the stored
         up strength of a nation and are sign and proof of the living virtue in it.
Thank you. [applause]

Michael Moore:
       Mr. Lewis indicated that he would be happy to take a few questions before we need to
adjourn and walk lunch off on the way back to the State Bar Building. Does anybody have a
question they would like to pose?

Anthony Lewis:
      Ive answered everything. Oh, here, go ahead Dean.

Dean Lefstein:
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Transcript, Anthony Lewis Keynote



       I feel badly that no one is asking you a question, so Ill ask. I wonder how, as you look
back on the Gideon decision and your role in writing it up, how surprised you are at where we are
today and what you attribute the lack of progress to in places where you dont think you had seen
the kind of progress you hoped for.

Anthony Lewis:
        I indicated just now that I was surprised. Because I thought the decision had such
unanimity, not only on the Court but in the reaction to it. I dont remember a single person or
any weighty source who said, thats a bad decision. Everybody seemed to think it was good.
So I was expecting a rather gradual but decisive movement toward a fair system of representation
for indigents. Now why not? Youve been canvassing the reasons this morning. Costs money.
People dont like to spend money, especially legislatures are loathe to appropriate money for
people who have no voice. And, you know, convicted criminals, or criminal defendants in this
case, dont have a lot of political power. Im reminded of the decisions of the late Frank
Johnson, a great federal district judge, and then court of appeals judge in Alabama, who required
of the prison system two things--but not the prison system--the case I am thinking about, the state
mental hospital system, in Alabama to provide a degree of medical care for those who had been
involuntarily committed to the system and who got no care whatever and were held there in the
most appalling conditions. Even reading the facts in his opinions is stomach turning, believe me.
Well, he made these decisions, requiring, in effect, the expenditure of money to improve
conditions. And there were a lot of noisy outbursts against the nerve of this judge. But a couple
of years later, a committee of the legislature said, well, were glad Judge Johnson made us do it.
 You know, there wasnt anyone to speak for those incarcerated people, as there is hardly any
powerful political voice representing indigent defendants.

Stephen Bright:
      Would you comment on some of the powerful voices that did speak up, Attorney General
Kennedy, people like that, who spoke up after the Gideon decision.

Anthony Lewis:
         Well, its an indication of the change. Maybe I can answer the question and stray a little
bit afield from this particular issue, counsel for the indigent. In those days, there was a sense of
commitment to civil liberties. When Robert Kennedy became attorney general, I knew him
slightly, thought it was an appalling choice for the job. He proved me wrong. Not only did he
welcome the Gideon decision and urge its implementation, [End of tape]

				
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