Landmark Cases: Gideon's Trumpet

One of the grounds upon which Lord Coke defended the rule was that in felonies the court itself was counsel for the prisoner. 1 Cooley's Const. Lim., supra. But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.

-- Powell v. Alabama (Scottsboro Boys Case)

The Supreme Court in that case ultimately spoke of the "whole power of the state arrayed against him, prosecuted by counsel for the state without assignment of counsel for his defense, tried, convicted and sentenced to death."  The rule was applied to federal non-capital cases but in the early 1940s, they drew the line at capital cases and non-capital cases with "special circumstances" when it came to state cases.

In time, this was not seen as enough for equal justice under the law by the necessary number of justices and a case was sought out to address the matter. The Supreme Court might have to wait for cases, but it does have some discretion in seeking out and crafting the ones they do get.  Charles Gideon was in a fashion out of central casting -- a poor ne'er-do-well who showed the importance of paid counsel for one's defense if fundamental fairness would be upheld without being found guilty of a particularly heinous crime. Plus, he was white though many Warren Court cases, including those that in some way involved rights to a lawyer, involved blacks and other minorities.  Later played by Henry Fonda in the movie.

Justice Black (joined by Douglas and Murphy, who if he didn't die fairly early might still be around now too) dissented back in Betts v. Brady. He wrote the majority opinion and ala Justice Kennedy in Lawrence v. Texas basically said the result should have been pretty obvious the first time. Justice Douglas concurred to promote incorporation since Black had to write the median opinion of the Court. Justice Clark argued that capital and non-capital cases deserved equal due process (which simply doesn't work at some point -- capital cases traditionally treated more strictly).

And, Justice Harlan -- unlike his grandfather not a fan of incorporation -- writing separately to give Betts v. Brady a more sympathetic burial.  Harlan was something of a great dissenter like his grandfather if not someone many (unless you are of a conservative bent) honor as much. His big cause was federalism and though he gave teeth to fundamental fairness, Harlan was more willing to go only part of the way.  Harlan didn't think each of the Bill of Rights had to fully be protected as applied to the states; this meant the Betts v. Brady approach might have worked for him. But, over time, it was really just a shell -- case after case had "special circumstances," and in the long run this did the states not much good. Sham federalism, let's say.

Over the years, particularly in capital cases, the indigent in various degrees, did get some representation.  A set rule that they should get paid counsel is a logical (if not compelled merely by the text) rule.  A right to counsel when you cannot afford can be a meaningless one, one that also in practice would deny due process of law. A lawyer is a central matter for people even if they are not (as is the current national rule) arrested for crimes where imprisonment is possible upon conviction.  We see this now with all the issues involved in the Trump legal business.

And, sometimes, this would require government support.  This is general principle also applies even in civil cases to some degree, particularly regarding fees.  More so as a matter of policy. The principle of equal justice of the law might not be quite as mythical as some aspects of this case might seem (some defendants are guilty with or without counsel; many disputes still arise on how adequate the counsel is etc.), but myths have some truth to them.  Including those with a reference to the Book of Judges.