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  • BILL MOYERS: Welcome. We lost a great journalist this week.

  • Anthony Lewis was a longtime reporter and columnist at theNew York Times.” I knew

  • him during my years in Washington when he made his reputation as our foremost interpreter

  • of the Supreme Court and the impact of its decisions on civil rights and liberties. As

  • one legal scholar noted, Lewis hadan incredible talent in making the law not only intelligible

  • but also in making it compelling.”

  • This was Tony Lewismasterpiece – “Gideon’s Trumpet” – an account of the Supreme Court’s

  • Gideon v. Wainwright ruling in 1963 that established the constitutional right of criminal defendants

  • to an attorney, even if they had no money to pay for one. The book has never been out

  • of print, itsstory the subject of this CBS reports documentary:

  • MARTIN AGRONSKY ON CBS REPORTS: His name is Clarence Earl Gideon. He argued

  • there could be no equal justice where the kind of trial a man gets depends on the amount

  • of money he has. He argued there should not be one kind of justice for the rich, another

  • for the poor. Gideon blew one note on his trumpet. He blew it over and over: a man cannot

  • get a fair trial without a lawyer. And because he would not retreat one wit from that position,

  • this man, Clarence Gideon, has wrought a profound change in the course of American Jurisprudence.

  • BILL MOYERS: Gideon was a drifter with a criminal record,

  • charged with breaking and entering and robbing a pool hall in Florida. Denied representation,

  • he defended himself and was sentenced to five years in state prison. From his cell, he exercised

  • his right to petition the Supreme Court for a fair hearing. When the justices ruled In

  • Gideon’s favor, hundreds of prisoners who also had been denied their legal rights were

  • freed or given new trials and our current system of public defenders was born.

  • But fifty years later that system is floundering. When Gideon v. Wainwright was decided, fewer

  • than half of all defendants were poor. Now, over 80 percent are. Of the 2.2 million inmates

  • in the United States, more than sixty percent are members of racial and ethnic minorities,

  • and the law puts a disproportionate number of them on death row.

  • Bryan Stevenson found his calling defending the poor and least powerful among us. Straight

  • from Harvard Law School he went south, eventually to create the Equal Justice Initiative in

  • Alabama, the state with the highest per capita rate of death sentences in the country. He

  • and his colleagues have battled excessive and unfair sentencing, helped free prisoners

  • on death row, challenged the abuse of the incarcerated and mentally ill, and stood up

  • on behalf of minors, children, prosecuted as adults.

  • Welcome back

  • BRYAN STEVENSON: Thank you.

  • BILL MOYERS: That Supreme Court decision, Gideon, 50 years

  • ago said, you have the right to an attorney in a criminal case, even if you cannot afford

  • it. What was the impact?

  • BRYAN STEVENSON: Well, it was radical. It was revolutionary.

  • For decades the poor had really been very vulnerable in our criminal court system and

  • frequently faced very severe punishments alone. What Gideon did was basically say that our

  • constitution requires that we treat people equally when their life and when their liberty

  • is at risk. And it changed the way we thought about counsel for the poor in this country.

  • At least in theory, at least in doctrine.

  • BILL MOYERS: Well, I read that there are approximately

  • 15,000 court-appointed defenders representing millions of criminal suspects, defendants,

  • and inmates all over the country and paid for by the taxpayers. But I also read that

  • a poor person has a much greater chance of being incarcerated now than when the Supreme

  • Court handed down that decision. Why is that?

  • BRYAN STEVENSON: Well, I think it's because we never really

  • took the right seriously. You look at some of the Court's major decisions in the '50s

  • and '60s, Brown v. Board of Education, would not have actually changed education for racial

  • minorities in this country, had not thousands of people marched and fought and made that

  • decision real.

  • Gideon was the kind of decision that didn't have advocates, didn't have people out there

  • insisting that enforcement take place right away. It was really left to the discretion

  • of states and some states took up the challenge and many states didn't. And so today we have

  • only 24 states that have statewide public defender systems.

  • We have lots of states that have done very little to make the right to counsel for poor

  • people effective. And so 50 years after Gideon, sadly, we still have a system that treats

  • you better if you're rich and guilty than if you're poor and innocent. Wealth is still

  • the determinative factor.

  • BILL MOYERS: And how have events since then affected our

  • inability or unwillingness to carry Gideon out?

  • BRYAN STEVENSON: Everything has been aggravated by mass incarceration.

  • As you point out in the 1960s, there were 200,000 people in jails, in prisons. The number

  • of people who were poor facing confinement was a very small percentage, or half. Today,

  • we have 2.2 million people in jails and prisons, nearly five million people on probation and

  • parole.

  • And so our appetite for punishment, for incarceration, for condemnation has made the demand, the

  • need for lawyers much greater than we've been able to comply with, we've been able to meet.

  • And so I think quite sadly, the situation for poor people in the criminal justice system

  • is much, much worse today than it was in 1963, largely as a function of numbers.

  • BILL MOYERS: What's been the impact of the war on drugs?

  • BRYAN STEVENSON: Well, the war on drugs has been probably the

  • biggest factor in driving the prison population up. You've now basically imprisoned, hundreds

  • of thousands of people for nonviolent, simple possession of crimes like marijuana, that

  • result in incarceration. So you've thrown hundreds of thousands of people into the system,

  • and of course this is these are the cases where you actually need a very smart, informed

  • attorney.

  • BILL MOYERS: How so?

  • BRYAN STEVENSON: Well, because you'll be told that if you plead

  • guilty, you can go home. You're not told that there will be these collateral consequences.

  • You might lose your right to vote, you'll be barred from public housing, you won't ever

  • be eligible for food stamps.

  • You'll be building toward this situation where if you get arrested again, you'll be facing

  • mandatory sentences like 20 years in prison, or life in prison. And all of that stuff has

  • to come from an advocate who explains the consequences. Yet what we've done with the

  • system is create a situation where the lawyers themselves have an incentive to plead everybody

  • out. About 94 percent of all cases in this country are resolved by a plea.

  • BILL MOYERS: Do judges have an incentive too?

  • BRYAN STEVENSON: Oh absolutely.

  • BILL MOYERS: To get a guilty plea instead of a ten-week

  • trial?

  • BRYAN STEVENSON: Absolutely. I mean, again, by throwing hundreds

  • of thousands of people into the system by, you know, allowing the politics of fear and

  • anger to throw hundreds of thousands of people into our courts, court judges, trial judges,

  • are overwhelmed.

  • They don't have the space, they don't have the resources, they don't have the facilities

  • to process in a fair and reasonable way all the cases that are coming in. So they absolutely

  • want cases settled. They don't want cases going to trial. And a lot of them find lawyers

  • that will cooperate in processing cases in just that way.

  • BILL MOYERS: Anthony Lewis later confessed that he had

  • been naïve, his word, to believe that our political system would vindicate the rights

  • established in that decision. And the political system, as you indicate, has failed to deliver.

  • What is the chief reason that the political system has turned its back on Gideon?

  • BRYAN STEVENSON: Well, I think it's largely a function of our

  • never valuing the plight of the poor, our indifference to the poor in so many areas.

  • And obviously, when you add to the poor the stigma of crime, of criminality, of criminal,

  • that further disadvantages them. And so I think, like what we've seen in so many areas,

  • the poor have always been marginalized.

  • But I think the real problem with Gideon is in part a function of what the courts themselves

  • have done. If the courts had insisted on compliance with Gideon, in the way that we did with some

  • of our anti-discrimination cases in other areas, the political system would have to

  • respond to that. But our courts didn't do that. We've actually tolerated unbelievably

  • poor lawyering.

  • Twenty years after Gideon, the court in case called Strickland v. Washington was asked

  • to decide what are the reasonable, minimal standards for effective lawyering. And they

  • created the standard very, very low. And so today, even in death penalty cases, we see

  • lawyers that are drunk in court, asleep during the trial, who are disbarred and suspended

  • at percentages way higher than what we see in other kinds of cases. And because the court

  • has tolerated this kind of lawyering, the political system has had no constitutional

  • compunction, no institutional imperative, to invest in the kind of system that we really

  • need.

  • BILL MOYERS: But isn't that, Bryan, like the country going

  • to war, and the Pentagon's charged to defend this, but the Pentagon won't commit its army?

  • Won't fight the war--

  • BRYAN STEVENSON: It very much is--

  • BILL MOYERS: The courts are not fighting for it--

  • BRYAN STEVENSON: That exactly right. And it's one of the reasons

  • why the court, I think, has to change its perspective on these issues. I mean, you can

  • look at death penalty cases, which really are the cases where you expect the greatest

  • investment in the right to counsel--

  • BILL MOYERS: Your life and death is at stake--

  • BRYAN STEVENSON: Life and death is at stake. And what the data

  • tell us is that we have tolerated extremely bad lawyering in these cases. The average

  • disbarment rate in most states is about one percent of lawyers. Washington State, one

  • percent of lawyers end up disbarred or suspended. But theSeattle Post-Intelligencerlooked

  • at all the 84 cases that resulted in death sentences and found that 20 percent of those

  • cases involved lawyers who were later suspended or disbarred.

  • Dallas did, the paper, did the same thing in Texas, looked at 461 cases, 25 percent

  • of the lawyers suspended or got punishment. And you see these kinds of problems system-wide,

  • statewide. And yet, the court, in reviewing these cases has frequently said, "Yes, the

  • lawyer was drunk, yes, the lawyer was asleep, yes, the lawyer hated the client, yes, the

  • lawyer presented no evidence. But because you haven't proved to us that the defendant

  • was prejudiced by that, we're going to say that's not a constitutional problem."

  • BILL MOYERS: What do you mean, that they haven't proved

  • that the defendant is prejudice by this?

  • BRYAN STEVENSON: Instead of saying that the right to counsel

  • insists on a competitive, effective lawyer, in all cases, and particularly in death penalty

  • cases, we created a standard that said, "Yes, the lawyer should be there. But the lawyer,

  • and the lawyer should be reasonable. But we're also going to require before we grant any

  • relief to a person on death row, that they get a new lawyer who will prove to us that

  • the bad lawyer's conduct actually was consequential."

  • And so this prejudice standard has become a defining feature of how we regulate lawyering

  • and the right to counsel in this country. And of course, you have to get another lawyer

  • to kind of show that. And we don't create a right to counsel for that other lawyer.

  • I mean, for the 2.2 million people in jails and prisons, hundreds of thousands of whom

  • are claiming that they are wrongly convicted, there is no right to counsel. They can't actually

  • even get into court to expose the problems that we're talking about.

  • BILL MOYERS: Have you personally seen in the courtroom,

  • defendants affected adversely by incompetent counsel?

  • BRYAN STEVENSON: Oh my Lord, yes. I mean, too frequently. I've

  • seen Judy Haney's case, the lawyer was actually so intoxicated, the judge stopped the trial

  • in the middle of the trial and made the lawyer spend a day in jail, becoming sober, then

  • picked the trial back up. The client was sentenced to death. And on appeal, the state appellate

  • court said, "No constitutional problem with that." I've seen dozens of people go before

  • the judge after waiting for months to get a lawyer appointed. Say, "Your Honor, just,

  • I'll plead guilty. Just please let me go home." And so they never actually get the lawyer

  • they're entitled to because the no lawyer has been appointed. We see it too frequently.

  • It's in so many of these cases, no investigation, no mitigation, we've got death penalty cases

  • where the lawyer basically tells the jury that he hates his client. Calvin Burdine,

  • was openly gay, the lawyer basically told the jury, I don't care whether you sentence

  • him to death or not. He was a criminal defense attorney, representing

  • a man who was openly gay, about whom he expressed hostility and contempt.

  • BILL MOYERS: I don't know if you saw this remarkable article

  • recently in "The Atlantic" magazine by Andrew Cohen--

  • BRYAN STEVENSON: Uh-huh.

  • BILL MOYERS: --who wrote that 50 years after Gideon, the

  • situation for poor defendants is bad everywhere in America, but particularly in the South.

  • What is it about the South?

  • BRYAN STEVENSON: Well, I think we didn't, we were resistant

  • to a lot of the Supreme Court decisions that were coming out during that era. And I think

  • Gideon was no exception. And so there just wasn't a willingness to invest. It's a poor

  • region. And obviously providing effective assistance to incarcerated, accused people,

  • has a resource component.

  • And getting resources organized is difficult everywhere, but particularly difficult there.

  • And it's a leadership issue. You know, we have not been very good at embracing some

  • of these constitutional mandates, there's been resistance and a culture of resistance.

  • State of Alabama where I practice has no public defender system.

  • BILL MOYERS: None?

  • BRYAN STEVENSON: None.

  • BRYAN STEVENSON: The defendant gets an appointed lawyer by

  • the judge and in many places the lawyer is appointed based on prior conduct. And so if

  • you make the judge happy, don't take cases to trial, do the right thing, you get appointed.

  • If you make the judge mad, take a case to trial, you won't get that appointment.

  • We have statutory caps on compensation. Half the people on death row in Alabama were represented

  • by lawyers who by statute could not be paid more than $1,000 for their out of court time.

  • And that kind of system is necessarily going to produce some very, very bad outcomes. And

  • you see that all over the country. You know, 70 percent of the people in Florida, misdemeanants,

  • don't have lawyers when they go before the judge.

  • BILL MOYERS: How does the legacy of slavery, Jim Crow,

  • and lynching play out in justice in the South?

  • BRYAN STEVENSON: Well, I think we have really never confronted

  • this problem of disfavored people in our society. I don't think we've actually done a very good

  • job of embracing people who have been victims of our excess, our abuse, our bias, our discrimination.

  • We've allowed these narratives that emerge, where we feel like it's okay to abuse certain

  • kinds of people.

  • And I think that does have a lot to do with what we've seen over the last 200 years. I

  • mean, you know, slavery really wasn't well understood in this country. I don't believe

  • we actually did a very good job of appreciating that in America, we had a slave system that

  • was actually a caste system. Where we enslaved people because we didn't think they were as

  • good as the rest of us. And during that era, we redefined people who

  • were formerly enslaved as criminals. We used convict leasing and other systems and lynching

  • to basically create this narrative of criminality. And once you designate somebody as a criminal,

  • you can do anything you want to do with them. And the Jim Crow era, the civil rights era

  • was similarly, I think, compromised by a proper narrative.

  • We didn't finish the civil rights movement with the commitment to a process of truth

  • and reconciliation, which is what other countries have recognized you have to do. After decades

  • of human rights abuses, you can't just stop with the law and expect things will be okay.

  • We didn't do that. We didn't spend time talking about the trauma, all of that humiliation,

  • all of that degradation that African Americans experienced. All of that abuse that white

  • people in this country experienced by being told that they were actually better than other

  • people because of the color of their skin, we didn't deal with that.

  • And because we didn't deal with it, we then created, in my judgment, a new legacy, which

  • is evident in our<