Gideon's Trumpet (29 page)

Soon after the decision Abe Fortas wrote Gideon suggesting that in the future a local Florida lawyer should represent him. Fortas said he had written to a Florida Civil
Liberties Union attorney about the case. This lawyer was Tobias Simon of Miami, who had signed the
amicus
brief presented to the Supreme Court by the American Civil Liberties Union. Gideon, who before the decision had expressed the hope that the A.C.L.U. would give him a lawyer, wrote Simon on April 9, 1963.

“I humbly am asking you for any help that you can give me in the present situation,” Gideon said. “Because no one knows any better than me of what I am up against. I have no reason to believe now that I would receive a fair trial in the same court than I did before even with a court appointed attorney. I have my plea already to make but it probably will be denied me.”

Simon replied on April 15th that someone from the Civil Liberties Union would represent him at his new trial. Gideon acknowledged that letter with thanks on April 29th, adding that he wondered how long the Supreme Court of Florida could take to act on his case now “without becoming contemptible of the United States Supreme Court.”

A few days later Simon went to Raiford and interviewed Gideon for an hour and a half. He found Gideon to be “an irascible but spunky white male.” Gideon spoke even more forcefully than in his letters. He was under the illusion that a new trial would constitute double jeopardy and that the Florida Supreme Court should already have released him outright. (A new trial won by a prisoner as a result of his own appeal is not double jeopardy under American law.) He said he could never get a fair trial in Panama City, and when Simon tried to reassure him Gideon “became exceedingly bitter and refused to discuss his case any further.” But he “did agree that we would be able to represent him in the forthcoming new trial,” Simon reported to the A.C.L.U.

The Florida Supreme Court had received the official notice
of the United States Supreme Court decision—the mandate—in April; and on May 15th it issued an order entitling Gideon to a new trial. The circuit court of Bay County set July 5th as the trial date.

On July 4th Simon went to Panama City with Irwin J. Block, an experienced criminal lawyer, until recently the chief assistant prosecutor in Miami, who had agreed to help him. They interviewed some witnesses and former neighbors of Gideon who seemed to have “admiration for a man who fought so hard against odds so great.” Then they went to see Gideon, who had been brought from Raiford to the local jail. Mr. Simon described the meeting.

“Gideon refused to be represented by either of us; he refused to be tried; he stated that the court had no power to try him, and that his trial in Panama City would only mean his return to the penitentiary. All efforts to calm him and to have him place some trust in us failed.”

The next morning, the time set for trial, Simon and Block met with the prosecutors in the chambers of Robert L. McCrary, Jr., the judge who had presided over Gideon’s first trial and was to handle the second. Gideon was also present. Judge McCrary began by noting that Simon had signed some papers and was appearing as defense counsel.

“I didn’t authorize Mr. Simon to sign anything for me,” Gideon said. “I’ll do my own signing. I do not want him to represent me.”

Judge McCrary asked warily, “Do you want another lawyer to represent you?”

“No,” said Gideon. After a pause he added: “And I’m not ready for trial.”

There must have been a touch of bewilderment in the judge’s next question. “What do you want, then?”

“I want to file for an order to move my case from this
court,” Gideon replied. “I can’t get a fair trial in this court; it’s the same court, the same judge, everything, and everybody connected with the court is the same as it was before and I can’t get a fair trial here.… You’re not even going to let me plead my case.”

At this point Simon explained his position in the case, reading to the judge, among other documents, Gideon’s letter “humbly asking” for help. But Simon said that of course he and Block did not want to represent Gideon if he did not want them.

Gideon repeated his wish: “I want to plead my own case. I want to make my own plea. I do not want them to make any plea for me.”

“You don’t want Mr. Simon and Mr. Block to represent you?” Judge McCrary asked, making absolutely certain that all this was really happening.

“No,” said Gideon, “I don’t want them to represent me. I DO NOT WANT THEM.” (The court reporter used capitals.)

The judge excused Simon and Block, but he also made clear that under no circumstances did he want Gideon to try his own case again. After ascertaining that Gideon had no money to hire a lawyer of his own choice, Judge McCrary asked whether there was a local lawyer whom Gideon would like to represent him. There was: W. Fred Turner.

“For the record,” Judge McCrary said quickly, “I am going to appoint Mr. Fred Turner to represent this defendant, Clarence Earl Gideon.”

A member of the prosecuting staff suggested that the public defender just appointed for that judicial circuit under the new Florida public-defender law assist Fred Turner.

“I don’t want him in it,” Gideon said, evidently preferring a private attorney with no touch of welfare.

The judge said, “We will just let Mr. Turner handle this case.” Then he advised Gideon to get in touch with his new lawyer to file any motions he desired.

“I want to file my own motions,” Gideon said. “If this is to be a matter of just sending me back to the penitentiary I want to do it my own way. It has been more than two years now since this crime is alleged to have been committed, and if I’m going back to the penitentiary for the same crime I want to do it my way. I want to file my own motions.”

He pulled from his hip pocket two crumpled pages, typewritten single-spaced, that were the motions he had prepared. Judge McCrary asked Gideon to read them to the court reporter. The motions were full of legalistic language, and Gideon seemed to have some trouble reading them; finally the judge called a short recess to let Gideon look them over before reading them to the stenographer. These long documents made two main points: That a new trial was barred by the rule against double jeopardy and by Florida’s two-year statute of limitations on his alleged crime. (The statute of limitations does not, in fact, apply when an appeal results in a new trial.)

Judge McCrary listened attentively during the reading of the motions and said he would rule on them later. Then he set a new trial date, August 5th, exactly one month later. The judge offered to free the prisoner on $1,000 bail, but Gideon could not raise it and was returned to the penitentiary.

Simon later wrote a report on the episode for the Florida Civil Liberties Union, which he subtitled, “How the Florida Civil Liberties Union Wasted $300, and How Two Attorneys Each Traveled over 1200 Miles and Killed an Otherwise Perfectly Enjoyable July Fourth Weekend.” But by the
end of the report his anger seems to have softened. He wrote:

“It has become almost axiomatic that the great rights which are secured for all of us by the Bill of Rights are constantly tested and retested in the courts by the people who live in the bottom of society’s barrel. Thus, many of our freedom-of-religion cases developed out of efforts by members of small sects to force religious tracts upon people who did not want them; our freedom-of-speech cases have developed from the efforts of the police to jail persons who ranted and raved against others, including Catholics, Jews and Negroes.…

“In the future the name ‘Gideon’ will stand for the great principle that the poor are entitled to the same type of justice as are those who are able to afford counsel. It is probably a good thing that it is immaterial and unimportant that Gideon is something of a ‘nut,’ that his maniacal distrust and suspicion lead him to the very borders of insanity. Upon the shoulders of such persons are our great rights carried.”

Gideon’s new lawyer, Fred Turner, wrote to Judge McCrary on July 12th asking that the trial be postponed three weeks. He said there were “many, many legal problems” in this case—a case once considered so simple that the defendant could be required to try it himself on a few minutes’ notice. Judge McCrary refused the postponement.

On August 1st the judge denied a series of motions including Gideon’s own, presented by Turner, to dismiss the charges. Courtroom observers thought Gideon looked pleased at the denial and was looking forward to the new trial. Judge McCrary warned him not to interfere with Turner or try to take over his own defense.

———

The courthouse in Panama City is a large brick building, painted yellow, with peeling white columns. It stands on a rather seedy square set with palms. The courtroom is a simple, good-looking room with pale green walls and seats for about one hundred and fifty. It is air conditioned, a necessity in Panama City in August.

The trial began promptly at nine
A.M
. on August 5th. After the sheriffs traditional opening (“… God save the United States of America, the State of Florida and this honorable court”), Judge McCrary read a prayer ending “and help us to do impartial justice, for Christ’s sake. Amen.” Forty-eight years old, with black hair, informal and gracious in his dealings with the lawyers but decisive when necessary, McCrary was not an awesome figure in his robes. To his left and below him was the court reporter, Mrs. Nelle P. Heath, a motherly figure with firmly upswept hair and pearl earrings. (“I reported this case originally, and I thought it was just another run-of-the-mill case. I never thought that Gideon was different from anyone else—that he would just keep on goin’ and goin’ and goin’.”) The prosecution table was just in front of the bench. The original prosecutor, Assistant State Attorney William E. Harris, a tanned, bulky man, again sat there. But this time, indicating the importance the case had acquired, his boss was there, too—the state attorney for the circuit, J. Frank Adams, a foxy-looking figure in a bow tie—and also another assistant, J. Paul Griffith. The prosecutors seemed confident. Adams said, “If he’d had a lawyer in the first place, he’d have been advised to plead guilty.”

Judge McCrary announced “the case of State of Florida versus Clarence Earl Gideon. Is the state ready for trial?” Harris said it was. Turner, who was sitting with Gideon at
a table back near the rail that separated the spectators from the trial area, got up without waiting to be asked. “We’re ready, your Honor,” he said, enthusiastically rolling a pencil between his two flattened hands. Turner was thin and dapper, reminiscent of Fred Astaire, “forty-one summers” old, he said when asked.

Ordinarily a jury of six is used in Florida. There was a panel of twenty-eight white men in the courtroom. (Why no Negroes? “They just don’t call any,” a local newspaper man explained.) The first six men were called forward and questioned first by Harris for possible prejudice. Harris was satisfied with all of them. Then Turner questioned the same six; they said they had no prejudices in the case, and they agreed that they would give the defendant the benefit of any reasonable doubt. Without explanation. Turner excused two of the six. Later he said, privately, that he had gone over the whole jury list in advance—“you’ve got to know who they are, what they think”—and dropped the two men because he knew that one didn’t like alcohol and that the other was “a convicter.”

The jury was sworn just before ten
A.M
. Harris made a two-minute opening statement to the effect that the state expected to prove Gideon had broken into the Bay Harbor Poolroom through a rear window; a witness had seen him inside and in an alley after leaving. Turner waived his right to make an opening statement.

Henry Cook, the eyewitness, was the first to take the stand. He turned out to be a sallow-faced youth of twenty-two, with greasy black hair cut in a pompadour and long sideburns. Under Harris’s questioning he told the same story he had at the first trial. He had come back to Bay Harbor from a dance in Apalachicola, sixty miles away, at five-thirty that morning and had spotted Gideon inside the
poolroom; he had followed Gideon down the alley to a telephone booth, then back to the poolroom; Gideon’s pockets bulged.

Turner began his cross-examination by asking who had driven Cook back from Apalachicola that night. When Cook had trouble remembering, Turner suggested some names. (Turner had driven to Apalachicola a few days earlier to try, without success, to find the other young men who had been in the car.) Cook said the car was “an old model Chevrolet.”

“Why did they put you off two blocks from your home when they’d driven you sixty miles?” Turner asked.

Cook mumbled inaudibly, then said, “I was going to hang around there till the poolroom opened up—seven o’clock.”

Turner began addressing the witness with irritation familiarity, “Well now, Henry …,” and took him back over the events of that night. Cook said he had had a beer or two, but then the stores had closed in Apalachicola at midnight. This brought Turner back to the question of why Cook and his friends had stopped outside the Bay Harbor Poolroom. Turner had a suggestion—an accusation.

“Mr. Cook,” he said, “did you go into the Bay Harbor Poolroom?”

“No, sir.”

“Did you all get a six-pack of beer out of there?”

“No, sir.”

Turner led Cook over a detailed discussion of the geography of Bay Harbor and the poolroom, indicating an intimate acquaintance with it himself. (He had spent a day nosing around Bay Harbor and talking with people, to prepare for the trial.) Weren’t there some advertising boards in the front window? How could Cook have seen past them and spotted Gideon, as he claimed? Weren’t the windows on the alley too high to see through?

“You did not call the police then or later,” Turner asked. It was as much a comment as a question.

“That’s right.”

After more questions, Turner asked, “Ever been convicted of a felony?”

“No, sir, not convicted. I stole a car and was put on probation.”

That answer set off a long wrangle between the lawyers. At the first trial, when Gideon asked whether he had ever been convicted of a felony, Cook had answered: “No, sir, never have.” Turner said that was a false answer that reflected on Cook’s character and credibility as a witness. State Attorney Adams popped up and said it was not necessarily false because Cook had evidently pleaded guilty; that was not the same as being “convicted.” Turner said it was the same. There was a suggestion that the plea might have been in a juvenile court, where there are no formal convictions. Finally the judge allowed this exchange, which closed the cross-examination: