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"Gideon's Trumpet": A Blast from the Past Mar 19, 2013 A well-known biblical story in the book of Judges

has a wheat farmer by the name of Gideon appointed by an angel of the Lord to take ancient Israel into battle: "I (the Lord) will be with you, and you will strike down all the Midianites together" (Judges 6:16). The order came to equip every soldier with a trumpet. The results: "When the three hundred trumpets sounded, the Lord caused the (Midianites) throughout the camp to turn on each other with their swords" (Judges 8:22). Another Century; Another Gideon Fifty years ago March 18, 2013, another trumpet was sounded. Law enforcement, the arch enemy of constitutional rights for the accused, fell on each other with their swords but lived to fight another day. Author Anthony Lewis penned the story about another Gideon who, it turned out, may have been the most brilliant jailhouse lawyer in American history. It was 1963. I was an newbie electrical engineer building spy satellites for Eastman Kodak Co., a subcontractor to General Electric. I began itching to attend law school, whereupon Kodak offered to pay my way to George Washington University Law School while I worked in a patent law office in DC. I began in the fall of 1963 at the height of the civil rights crisis and the zenith of the Warren Court. A drifter by the name of Clarence Gideon became a focus in my first year of law school. His suit against the Florida Commissioner of Corrections was the case that established for the first time in US history that everyone accused of a crime has a 6th amendment right to a lawyer. What was astounding about Gideon v. Wainwright was that Clarence Gideon, after the trial judge refused his request for court-appointed counsel, went on to represent himself all the way to the US Supreme Court. He wrote his appeal brief in pencil on lined paper, was represented by court-appointed future Justice Abe Fortas as counsel, and won a unanimous opinion. Overturned was the 1942 case, Betts v. Brady, that essentially limited the right to counsel to capital cases. The End of Presumption of Guilt? At his retrial, it took the jury an hour to find Gideon not guilty of breaking and entering and burglary. That should have been the end to the presumption of guilt of indigents, comprising some 80% of all criminal defendants. Instead, it was its codification into a system of a deluge of appeals nearly impossible to prove.

The maximum public defender case load recommended by the American Bar Association is 150 per year. In some states, public defenders carry annual case loads of over 500.1 Horror stories abound of public defenders spending an average of one hour in defense of their court-appointed clients languishing in county jails. The right to counsel that Clarence Gideon was afforded was intended to preserve the noble American tradition of presumption of innocence regardless of economic, racial or other circumstances. Instead, it had the opposite effect. Sloppy investigative work by overworked court-appointed lawyers is proven in only 4% of all cases appealed on the grounds of ineffective assistance of counsel.2 Thus, the chances of Gideon prevailing in today's world would be far less than in 1963. A Maine Example I recently retold the story of State of Maine v. Brandon B. Drewry. Drewry was a homeless drifter convicted of sexual assault in 2006 and is now serving thirty years at Maine State Prison. There was virtually no physical evidence in the case. His attorneys failed adequately to press credible evidence of illegal search and seizure by the Portland Police Department. That Drewry's trial was a travesty of justice is evident from the record. He languished under a system of presumption of guilt and tried valiantly to fight his way out. His demands being too much for a series of four court-appointed attorneys who resigned or were fired, the Judicial Supreme Court of Maine rejected his 6th amendment right to a speedy trial on the grounds that the delay was caused by so many changes in counsel. Drewry's twenty-seven months awaiting trial in Cumberland County Jail was justified on the grounds that he had worked too hard to secure an adequate defense from overworked, inattentive counsel. Drewry became a victim of Gideon v. Wainwright through a neat and tidy termination of his constitutional rights. Gideon's Chances Today Clarence Gideon received back his life and made history. History, however, has not been as kind to those following behind. In today's world in which the legal profession from the courthouse to the Court is circling its wagons and defending the brotherhood, Gideon would never have prevailed. The sound of the trumpet of presumption of innocence can be heard faintly above the noise of clanging cell doors if we take the time to listen.

Lawrence A. Benner, "When Excessive Public Defender Work Loads Violate the 6th Amendment Right to Counsel without a Showing of Prejudice", American Constitution Society, Washington DC, Mar 2011, p. 1. < http://www.acslaw.org/files/BennerIB_ExcessivePD_Workloads.pdf> 2 Ibid., p. 2.