Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today we’re going to talk about a topic that was raised by the Supreme Court confirmation hearings of Ketanji Brown Jackson, for which there was a lot of uproar among some Republican senators, asking her a number of questions, some of which did not directly seem to have a lot to do with her role as a Supreme Court justice. But in particular, there was a strain of questions attacking her work as a public defense attorney, trying to paint her in some way or another as being soft on crime, and really essentially attacking people who do public defense of that sort as though there’s something inherently wrong with that. As though somehow or another, defending “criminals” is something that shouldn’t happen. For example, Mitch McConnell on the Senate floor before the start of the hearings said.

Mitch McConnell (archival):

Even a amid a national crime wave, a disproportionate share of the new judges President Biden has nominated share of this professional background that liberals say gives judges special empathy for criminal defendants.

Joanne Freeman:

Again, talking about public defense, public defendants. The president is deliberately working to make the whole federal judiciary soft on crime.

Heather Cox Richardson:

It’s not just that she’s a public defender. One of the things that they point to is the fact that she defended four of the people at Guantanamo Bay. And the Republicans have said that her advocacy for those terrorists was zealous. That is somehow she was supposed to defend them, but not very much. Even though according to the Washington DC Bar’s Rule of Professional Conduct, a lawyer is supposed to represent a client zealously and diligently. And what seems to me is going on is the idea of replacing the rule of law with dog whistles that will say, “These people are soft on crime.” And one of the things that they point to is the fact that President Biden has tried to nominate candidates to the federal bench who bring diversity, of course, but he also has nominated a whole lot of public defenders. 30% of his judicial nominees have had experience as public defenders. And for that matter, so has President Biden himself, who was briefly a public defender when he was in his twenties.

And this is part of our system, of course, and it’s part of our system that is somewhat at risk as really, since there have been new trial guidelines in the 1980’s, an extraordinary number of our legal cases don’t actually go to trial. They’re pled out. That is about 1% of all the civil cases that are filed in federal court go to trial, that’s 99% don’t and only about 2% of all criminal cases that are filed in federal court go to trials. So we are at risk of losing that whole concept that’s in the Sixth Amendment to the constitution of being protected in trials and replacing them with these plea deals. And now we seem to be on the slippery slope where the idea of having public defenders is somehow itself a signal that you’re soft on crime.

Joanne Freeman:

What we’re talking about today, what we’re going to be delving into is what is it that public defense means? What is it that people are due in a trial, generally speaking? What kind of rights are entailed? And really, what does the Constitution have to say about that? And how has that played out over time? Why is this kind of public defense important? And not surprisingly, given what we tend to talk about on this podcast, how is that really inherently bound up with the rule of law and democratic governance?

Heather Cox Richardson:

And I suspect that what we’re going to hear from you, Joanne, certainly when we talk about the early period of the American Republic is the idea that the concept of being equal before the law, everybody getting a fair trial is central to the whole concept of what becomes American democracy. This brings up the obvious point, Joanne, that everybody talks about the Sixth Amendment when they talk about the right to trial by jury, what on earth is the Sixth Amendment and where does it come from?

Joanne Freeman:

Right. Well, I would like to read the Sixth Amendment because indeed it has become a thing that people point to in one way or another. And many of us don’t automatically go either to look it up or resort to memory of what it is. This is what the Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where in the crime shall have been committed, which districts shall have been previously ascertained by law and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” And it’s obviously that last statement, that in criminal prosecutions, people who are being tried have a right to have the assistance of counsel for their defense.

Now, part of where this comes from stems from something that happened during the American Revolution, which is that as the colonists were beginning to protest some of the trade laws and restrictions that were being passed from the British government to the colonies, there were threats that people who violated these laws, people who were smuggling goods or doing a variety of other things to bypass these British restrictions, that they would be brought to trial, but not brought to trial nearby, that they might be brought to trial to a court somewhere far removed. They might even be removed to England to be put up for trial. So in other words, the British were using the threat of a trial far removed from where these people were in which they would know no one potentially and have even less say over the process of that trial, that was seen and understood to be a threat.

And so it’s not surprising at all that when the Bill of Rights was being discussed and considered for the Constitution, that this right to essentially a fair trial in the place where the crime was committed and that someone being tried for a crime should have assistance of counsel for their defense makes perfect sense that that would be one of the many things that Americans at the time would’ve understood could be threatened. And once it’s threatened, that truly is not an example of what we now consider to be the rule of law.

I want to be a very typical historian here by throwing this into the mix as well. It’s another phrase we use all the time, rule of law, and I wanted to at least get on the record before we begin our conversation, how the American Bar Association defines the rule of law. This is their understanding of it. “The rule of law is where no one is above the law. Everyone is treated equally under the law. Everyone is held accountable to the same laws. There are clear and fair processes for enforcing laws. There is an independent judiciary. And human rights are guaranteed for all.” So the basic idea there is that there is a stable, understandable legal system in play and that everyone is held to the same standard under the laws. And there’s a clear and fair process for enforcing those laws.

Heather Cox Richardson:

I want to push you on this a little bit because we talk, as you say, about these things all the time, and there’s sort of, I think an assumption that maybe somehow there’s somewhere out there and we’re just accustomed to it. Who cares? Literally, why does this matter so freaking much?

Joanne Freeman:

You could say that the rule of law, free and fair elections and voting are some of the core aspects of a democracy. As an American citizen, you have the right to assume that you are equal under the law to other American citizens. Now, I want to say here, by saying this, I am actually not suggesting that this system works perfectly all the time, because obviously we have a lot of questions and a lot of problems and a lot of inequities that need to be addressed. That said, the fact that we can point to them and show them as inequities and show them as unfair is dependent on our assumption that what is actually right is the rule of law. So the rule of law is a kind of standard that needs to be met. And when it isn’t being met, it’s a very clear indication that there is injustice of some kind being done. It’s a the way of measuring the availability of justice. And really a way of Americans, of all kinds, understanding what they are due, what they have a right to demand, what they have a right to ask for and what they can expect in defending themselves against crimes that they did, or didn’t commit. In a sense, it’s one of many forms of accountability built into our system, which is an inherent part of democracy. People who have power are accountable for how they deploy that power.

Heather Cox Richardson:

If we’re going to start from that, the case that comes to mind for anybody, even if they don’t really know colonial America, is John Adams saying, there’s no freaking way I’m going to defend those people at the Boston Massacre. So don’t even ask me, right?

Joanne Freeman:

Ha ha ha. No. John Adams is going to have a moment and somewhere up in founder heaven, wherever he is, he will be happy because he’s the Rodney Dangerfield of the founding. He never feels like he gets enough respect. But in this case, he really takes a stand for the purpose of principle. And it’s right along the lines of what we’re talking about here. Just for a little bit of background, what happens in March of 1770 is that in Boston, in Massachusetts, there had already been good deal of protest and anger about some of the acts that the British were passing, taxing things in a way that they hadn’t been taxed before. The colonists were upset and angry about this. They felt that they had no way to speak out against what they considered to be these unfair taxes and expenses. They weren’t represented. And because they were putting up such a fuss in Boston, the British sent troops to Boston to try and keep things under control and repress what appeared to be a rising storm of some kind.

So already in Boston, there was a lot of hostility towards what felt to the people who were living there, like some kind of military occupation. So the atmosphere in Boston is bad. What happens in March of 17, 70 is there’s a crowd of Bostonians who gather outside of the old state house. At one point, there was a custom house there as well, and confront a group of eight British soldiers led by captain Thomas Preston. There had already been things going on in the street that day. There had been a small boy who had been taunting, one of the soldiers and who had been knocked down. And when he complained about this, this brought some people out. They were upset into the street at a certain point, someone rang the bell of the Boston meeting house, which is normally the signal for a fire.

More and more people rushed into the street to see what going on. So now what you have is a crowd of colonists who are upset already. You’re upset at the idea that you have these soldiers who are stationed in Boston, sort of ruling over them in some way, or forcing them into some form of submission. You have the guard standing there confronting the crowd. You have the crowd yelling, re words at these guards. Some of the colonists begins throwing things at the guards, snowballs actually some snowballs, supposedly with rocks in them so that they were serious snowballs, not just snowballs so that you already begin to have the crowd interacting and reacting against these soldiers. At some 0.1 of the guard, one of these British soldiers fires into the crowd of colonists and is followed by a number of other soldiers who also fire into the crowd.

And in the end, you have five colonists who are killed, including Crispus Attucks, who was a man of Native American and African American descent, killed on the street. And I’m sure many people listening right now have seen the very famous Paul Revere cartoon that he made of it happening with the line of soldiers cruelly firing into the crowd and the colonists dropping and lying on the ground and blood. It was meant to really get people’s emotions fueled by what was going on, because this was seen as this intense, horrific occasion in which British soldiers killed British colonists.

And so the momentum, the emotion at the time was certainly not in favor of the soldiers who had done the shooting. And it’s in this is climate that John Adams steps forward and offers to defend the soldiers, Captain Preston, and the other soldiers who were involved in this shooting, because explicitly he felt that they deserved a fair trial. I should add at this point, those of you who have seen that cartoon and the way in which it’s meant to get people upset at what happened, describing this as the Boston Massacre was another way to really pump people’s emotions into what was happening. You could say it was a massacre, there were innocent colonists who were killed. But that framing of it dates back to this time and was meant to be a way of emphasizing the violence of it and the bloodshed of it and shows really the mindset of the public at the time when this happened.

Heather Cox Richardson:

And I love that you say that because that was my first introduction to the Boston massacre. And I really thought the British guys in their red uniforms lined up and just massacred people.

Joanne Freeman:

You and I, even now, are wrestling with massacre and what it means. But certainly at the time, it had a pretty deep meaning. And Adams immediately assumed that he should step forward and defend these soldiers, the guard and the captain, who already had public sentiment against them. As he himself put it, “I had no hesitation in answering that counsel ought to be the very last thing that an accused person should want in a free country. That the Bar ought, in my opinion, to be independent and impartial at all times and in every circumstance. And that persons whose lives were at stake ought to have the counsel they preferred. But he must be sensible, this would be as important a cause as ever was tried in any court or country of the world. And that every lawyer must hold himself responsible, not only to his country, but to the highest and most infallible of all tribunals for the part he should act.” Adam’s very much understands the stakes here, is using this, thinking about this as a matter of principle. And he stands up and defends the captain, Captain Preston, who has his own trial. And then there’s a second trial for the soldiers that engaged in the actual shooting.

Heather Cox Richardson:

And how did they come out?

Joanne Freeman:

Captain Preston’s trial comes first. John Adams had one of those zealous defenses that he had of Captain Preston. He called, in one day, 22 different witnesses. These witnesses claimed that they, among other things, didn’t hear Preston telling people the fire. He basically finds ways for the witnesses to testify to the fact that this does not appear to have been open and deliberate slaughter of colonists. And he is acquitted.

The second trial for the other soldiers begins in November of 1770. There were more than 80 witnesses that testified. Adams gave a really rousing two day closing argument in December of 1770, and which he basically characterized the protest by the colonists, even though he himself would’ve been sympathizing with what they were doing, he essentially depicted them as a mob of people who could have been dangerous. These are his words, “We have been entertained with a great variety of phrases to avoid calling this sort of people a mob. Some call them shavers, some call them geniuses. The plain English is, gentlemen, most probably a motley rabble of saucy boys, Negroes and mulattoes, Irish teagues and outlandish jack tars. And why we should scrupple to call such a set of people a mob, I can’t conceive, unless the name is too respectable for them.” So there is Adams making the argument that yes, of course, they’re acting like a mob. Despite the fact that he actually agrees with the colonists who are out there and their reason for protesting.

And in the end, the jury acquitted six soldiers on all charges. And the only two soldiers who were clearly proven to have fired were found guilty of manslaughter. So they get a fair trial. And Adams, for the rest of his life, really felt that he had done the right thing. That he understood why he had done what he had done. He felt it was vitally important in any kind of a fair government. And he said in his diary later in life, that his defense was one of his proudest achievements. And this is the way he put it, “The part I took in defense of Captain Preston and the soldiers procured me anxiety and obloquy enough. It was however, one of the most gallant, generous, manly and disinterested actions of my whole life. And one of the best pieces of service I ever rendered my country. Judgment of death against those soldiers would’ve been as foul a stain upon this country as the executions of the Quakers or witches anciently.” So he did what he thought was a service for his country by upholding the rule of law, really, and ensuring that these people received a fair trial.

Heather Cox Richardson:

This story always comes to mind when I hear people screaming, “Lock her up! Lock him up!” Or, “I want to take these people out and line them up against a wall and shoot them.” The idea of a trial doesn’t say we think they’re not guilty, necessarily. It says we believe in the idea of the law. And one of the people that comes to mind as well is Clarence Darrow for the defense. So he’s a really interesting character. When I think of Clarence Darrow, I always think of the Scopes trial, which we talked about, when he defends the idea of evolution. But in fact, that’s of less interest to us in this discussion than a couple of other trials he did. And he was an interesting character because he is from Ohio. He’s a small town boy. He actually doesn’t make it through college or law school because the family runs short of cash. He’s one of those people who ends up passing the bar thanks to an apprenticeship.

And he begins his career in Chicago as a railroad attorney and quickly drops that and begins to defend labor. And in the process of defending labor organizations, he ends up defending the American Railway Union and Eugene Debs, who’s going to run for president as a Socialist in 1912. But he defends him for his actions as being part of the Pullman strike of 1894. When he defends Debs, opponents of organized labor begin to call Darrow names. Among others, they call him an outspoken anarchist. And they suggest that anybody who would defend organized labor must be trying to destroy America. Well, he loses that original case for Debs. And as he continues to try and defend labor unions, he is accused at one point of bribery. He’s going to be acquitted of the charges of bribery, but it is going to mean that labor organizations won’t touch him with a 10 foot pole any longer.

And as a result, he begins to recognize that the system itself needs addressing. And then he takes on the case that he becomes quite famous for. And that’s the Leopold and Loeb case. And Leopold and Loeb is a really interesting case. And it’s a name that a lot of people have heard about. Because it’s a horrific case. In May of 1924, 2 young men, a 19 year old Nathan Leopold, and an 18 year old, a man named Richard Loeb, lure Loeb’s younger cousin, a 14 old boy named Bobby Franks, into a rental car. And they bludgeoned him to death with a chisel on the South Side of Chicago. Well, they hide his body in a culvert and they start to send ransom notes to the boy’s father. The day after they start this, though, a woman finds the body and also finds a pair of glasses that has fallen out of Leopold’s jacket onto the ground. And the police quickly find Leopold and Loeb.

10 days after the murder, both Leopold and Loeb confessed to the murder and they demonstrate how they had killed the boy. This becomes obviously a cause celebre, you have these two wealthy, well connected young men who have murdered this 14 year old boy. And they talk to the press quite openly about how their murder was an experiment. Leopold actually says, “A thirst for knowledge is highly commendable, no matter what extreme pain or injury it may inflict upon others.” So they were justified in killing this 14 year old boy, because they just wanted to experiment with what it was like to kill. He said, “A six year old boy is justified in pulling the wings from a fly, if by so doing, he learns that without wings, the fly is helpless.”

Well, I mean, yeah, it is truly horrific. It’s clear they have committed the crime. It’s also clear that they are not in any way repentant for having committed that crime. So their families hire Clarence Darrow to defend them. And Darrow does something really interesting. He begins to argue that Leopold and Loeb are, not sane, first of all, he is going to make an insanity plea. But then he is going to do something else. And when he does that, what he begins to argue is that our legal system should not have the death penalty. That this is barbaric. It’s a look back to an old world, an old kind of legal system that should no longer be operative in America in the 20th century. So everybody knows these men have killed this boy. They have not shown any repentance for it. It’s clear they think they’re justified and having killed this kid.

But he tries to argue that we should not have the death penalty. In this very long closing argument he gives, about 12 hours long, he says, “Tell me what public necessity there is for killing these two men?” He says, “I have heard in the last six weeks, nothing but the cry for blood. I’ve heard from the office of the State’s Attorney, only ugly hate. I have heard precedents quoted which would be a disgrace to a savage race. I have seen a court urged almost to the point of threats to hang two boys in the face of science, in the face of philosophy, in the face of humanity, in the face of experience, in the face of all the better and more humane thought of the age.” People are outraged, of course, that he would be trying to stop these men from being executed for this death.

Darrow says, “You can trace it all down through the history of man. You can trace the burnings, the boiling, the drawings and quarterings, the hangings of people in England at the crossroads, carving them up and hanging them is examples for all to see. We can come down to the last century when nearly 200 crimes were punishable by death. And by death in every form, not only hanging that was too humane, but burning, boiling, cutting into pieces, torturing in all conceivable forms. I know that every step in the progress of humanity has been met and opposed by prosecutors, and we any times by courts.”

Well, the opposition tries to argue that Leopold and Loeb are a danger to society and that to call them boys is simply in infantilizing men who knew perfectly well, what they were doing. And he said they deserved the death penalty. He tried to argue that the reason that Leopold and Loeb were getting the defense that they did is because they had a lot of money, and therefore that Clarence Darrow was willing to try and protect them because he was getting paid for it. In fact, at the end of the day, Clarence Darrow made an impression on the court. And in September the Cook County circuit judge, a man named John R. Caverly, agreed to avoid the death penalty. Instead, he sentenced both Leopold and Loeb to imprisonment for the murder, and then an additional 99 years for the kidnapping. So what Clarence Darrow did is he took a case of confessed murderers and turned it into an argument about what the law should look like.

Joanne Freeman:

In that sense, that connects some of the story about Adams in the Boston Massacre to this, because what both Darrow and Adams are doing is acting in a climate where there was a lot of public emotion. There was a lot of people wanting severe punishment. And both men, in one way or another, are saying, “Well, what about the process? What about the actual…” although they don’t use this phrase, “… the rule of law.” So they are both holding forth and saying you can’t just surrender to that kind of an outburst.

Heather Cox Richardson:

Well, and that’s exactly why that case has always interested me is because, on the one hand, it’s horrific, you know exactly what Leopold and Loeb did. And like I say, they boasted of it. This was part of their philosophy at the time. And yet, instead of saying hang em, lock em up., Or the more extreme things that people said. He said, “Now, wait a minute here. Is that what the rule of law should look like? And what does it mean for a state to declare that somebody should die for a crime? And say in the past you could die for stealing a loaf of bread, now is something we want to take forward?” And the courts decide no, that he’s got a real point. That then puts us forward to another case that I think is even more interesting than Leopold and Loeb. And that is the case of Gideon v. Wainwright.

Joanne Freeman:

The case of Gideon v. Wainwright, it actually is noteworthy enough and famous enough that it ends up even having a role in popular culture because of some of the things that it determines matter quite a lot. And because Clarence Gideon himself plays a fundamental role in what happens here. Essentially it starts on the morning of June 3rd, 1961, supposedly Clarence Gideon broke into the Bay Harbor pool room, in the small community of Bay Harbor, near Panama City, Florida. And supposedly he smashed a window in the back of the pool room, climbed in using a garbage can. And then once inside, drank a few beers, broke into the jukebox and the cigarette machine, and supposedly took some cash, most of it in coins. Police arrested Gideon. He lived right across the street from the pool room in a rooming house. And they arrested him later that morning at a bar in Panama City.

Now he was 60, and by this point he had an extensive rap sheet. So he had served four years beginning in 1928 for a different burglary. He was convicted to a 10 year term in 1939, briefly escaped from prison in 1943. So all in all, Gideon had spent the majority of his adult life behind bars. He had been married four times, supposedly he was also an alcoholic. And he could not afford a lawyer. So he asked the Florida court to appoint one for him. And the judge denied his request. At the time, Florida law required appointment of counsel for indigent defendants only in death penalty cases. And Gideon claimed otherwise to the court. So essentially the court said to him, “Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the state of Florida, the only time the court can appoint counsel to represent a defendant is when that person is charged with a capital offense.” And Gideon essentially responds by saying, “The United States Supreme Court says I’m entitled to be represented by counsel.”

Heather Cox Richardson:

The US Constitution, under the Sixth Amendment, says that you’re guaranteed the right to counsel. But at this point, when he is making that argument, that only applies to the federal government. It doesn’t necessarily apply to the state governments.

Joanne Freeman:

And he ends up defending himself at trial. And the jury finds him guilty of breaking and entering and petty larceny, which are felonies under Florida law. And he’s sentenced to five years in state prison.

Heather Cox Richardson:

And I love this. So while he’s in prison serving this sentence, he begins to study the law.

Joanne Freeman:

It makes you want to applaud when you read that part of the story, right? You’re like, okay, this man now, he’s going to figure out what just happened and figure out what he’s deserved and figure out what he can do.

Heather Cox Richardson:

Which is no small potatoes when he is making this argument. Because that idea that the first 10 amendments to the constitution should apply to the states was definitely in the water, but it had not yet become accepted practice the way it was going to by the 1970s. So he reads up on the law and he files habeas corpus petition, which says that he’s being improperly imprisoned because he should have had a lawyer during his trial, a free lawyer during his trial. So Gideon writes to the Supreme Court and the Supreme Court agrees to hear his case. On June 25th, 1962, two months after Joanne Freeman was born, the Supreme Court of pointed Abe Fortas to represent Gideon. And Fortas was a former under secretary of the interior under FDR. He’d become a very famous appellate attorney, he was a partner of a famous law firm.

And he starts to review the transcript from Gideon’s trial with his law associates to see if the fact he had represented himself in the case had materially affected case. And one of his assistants told the New Yorker, “A lawyer, not a great lawyer, just an ordinary competent lawyer could have made ashes of the case.” And so Fortas decides he’s going to take the case and he’s going to make an argument that representation would’ve come out with a different legal outcome. Fortas reaches out to Gideon, and they begin to write back and forth to each other.

And in November, 1962, Gideon sends Fortas a 22 page letter that explains his belief in why his case is important. He says, “I believe that each era finds an improvement in law. Each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward. In the past 35 years, I have seen great advancement in courts in penal servitude. Thank you for reading all of this. Please try to believe that all I want now from life is the chance for the love of my children. The only real love I have ever had.” So Fortas argues before the Supreme Court, on January 15th, 1963, and when he does so, he invokes Clarence Darrow. And he points to that case that I mentioned before when Clarence Darrow is accused of bribing jurors in a high profile case. He points out that even Clarence Darrow had decided he had to have outside counsel when he was in trouble with the law. He says…

Abe Fortas (archival):

I was reminded the other night, as I was pondering this case, about Clarence Darrow’s trial. Court will remember that Clarence Darrow was accused, and subsequently acquitted, of attempting to bribe jurors and subordination of perjury. And I looked at Irving Stone’s book. Irving Stone’s book says that first thing that Clarence Darrow realized was that he had to have a lawyer. There was a man who, by our folklore anyway, and I think perhaps really was our greatest criminal lawyer. He needed a lawyer, he got a lawyer. He was eventually acquitted.

Heather Cox Richardson:

The Supreme Court ruled that defendants in state courts were in fact entitled to counsel, even if it was a non-capital case. Just as Hugo Black delivers the opinion for the court in which he stresses the American tradition of seeking counsel.

Joanne Freeman:

And Black says, “Lawyers and criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal not be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

Heather Cox Richardson:

So quickly, governors of states that had not previously guaranteed representation in non-capital state court cases ordered the creation of public defender’s offices. Unfortunately they didn’t always put up enough money to staff those public defender offices. But in Florida alone, for example, 976 prisoners were freed by January, 1964 because they had not received counsel. And on November 1st, 1963, three weeks before his brother’s assassination, Attorney General Robert Kennedy spoke about the Gideon v. Wainwright case. He said, “If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court. And if the Supreme court had not taken the trouble to look at the merits in that one, crude petition, among all the bundles of mail, it must receive every day, the vast machinery of American law would’ve gone on functioning undisturbed. But Gideon did write that letter. The court did look into his case. He was retried with the help of competent defense counsel, found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed. I know a few better examples than that, of a democratic principle in action.”

Joanne Freeman:

And this brings us back to where we started. This brings us back to the idea that the rule of law and the idea that the Sixth Amendment encapsulates the, idea that we are all due a fair trial, and we are due to have the assistance of counsel, that those are fundamental aspects of a society that values the rights of its citizenry and believes that people should have equal rights. And again, we’re talking about things that should exist in a better state than they exist at present. It’s not as though our legal system is in its ideal form here and now. However, the standards that we’re talking about here, the ideals, the principle, the system, the process and progress of what we’re talking about here matter immensely, because without them, we wouldn’t even have the ability to point to inequity, to point to injustice and say that it’s not living up to what it can be.

What we’ve seen today is three cases in which three times, someone stands up and says, “What’s going on here is a matter of principle, is a matter of precedent, is a matter of law.” And matters enormously, as you said at the beginning, Heather, not just for anyone as an individual, but matters to all of us as a society. Brings us back to senators who are nay saying someone who acts as a public defender as though by doing that in some way or another, she is being soft on crime. You get a sense now, given what we’ve just said in this episode, the ways in which that fundamentally makes no sense. It’s part of our system. It’s part of what anyone accused of a crime is due.

Heather Cox Richardson:

And yet, in 2019, Supreme Court Justice Clarence Thomas, and he was joined by Justice Neil Gorsuch, filed a dissenting opinion in the case of Garza v. Idaho. In that dissenting opinion, they said that Gideon had been wrongly decided and should be overruled. The six to three majority in the Supreme Court right now has real problems with the idea of using the 14th Amendment to apply those 10 amendments in the Bill of Rights to the states. They say that doing so, as in the case of Gideon, offers expansive rights that the framers of the Constitution never intended to provide for indigent defendants or for anyone else to have. So this idea somehow, of our legal system, in which everybody is entitled to counsel, that has been such a part of who we are since the Boston Massacre, may not be who we are going forward.

Joanne Freeman:

It’s worth considering, at this particular moment in time, when there are so many aspects of our democratic system that are being debated in one way or another, are being questioned in one way or another, have been brought to the fore in a way, and potentially threatened in a way that they certainly haven’t been in the recent past. It’s very much worth thinking about the implications of that kind of statement on the part of Justices Clarence Thomas and Neil Gorsuch. What that means, what that’s chipping away at and what kind of a gaping hole that leaves in our rights as citizens of the United States to equality and defense under the law.