The Gideon Myth

Anthony Lewis’s account of Gideon v. Wainwright in Gideon’s Trumpet leaves most readers with a sense of patriotism or faith in the American justice system.  Mr. Gideon, a lowly poor man, believed he was being denied his Constitutional rights, and he fought for them.  He made it all the way to the Supreme Court, and he won.  His case is portrayed as the end-all-be-all, the solution.  Because of Gideon, poor people everywhere will be appointed attorneys and escape the injustices of the courtroom. 


Those who sided with Florida and the Betts v. Brady decision foresaw the problems with this ruling.  They knew that mandating states to provide legal counsel for low income defendants would cause problems.  Aside from the issue of taking away rights from the State, the Gideon ruling poses a whole slew of problems that, to this day, remain unsolved.

The first issue: Define poor.  Does a defendant have to be below the poverty level to receive a court-appointed attorney?  With lawyer fees so expensive, even a middle class individual would struggle to pay for a defense attorney.  How about an individual who is recently unemployed?  By the standards of checking the previous year’s Tax Returns, this person may seem wealthy; however, are current circumstances taken into account?  The Maricopa County Public Defender’s office website offers no explanation as to who gets a public defender and who doesn’t.  Their website states, “Before a public defender can represent an individual, the court must determine that the person cannot afford to hire an attorney. Once that determination is made, the court must appoint a public defender to the case.” What does THAT mean?  Under the FAQ section of the website, it is explained further, “A Public Defender must be appointed by the Court to represent you. If a court determines you are not financially able to retain private counsel, the court will appoint the Public Defender’s office to represent you. In the case of a conflict of interest, or if the office has reached its maximum caseload, the court may appoint the Legal Defender’s Office, the Office of the Legal Advocate, or an attorney from the Office of Public Defense Services to represent you rather than the Public Defender’s Office. By statute, the Public Defender’s Office is only appointed in criminal matters and mental health commitments. Public Defenders are not appointed for any civil cases.”

If the office has reached its maximum caseload?  Can that actually happen?  Will needy people be turned away?  The truth is that a Public Defender’s office can and will meet AND exceed its maximum caseload.  Unfortunately, a court-appointed attorney for those who can not afford their own is often times overloaded with a plethora of cases.  The defense lawyers are unable to allot proper time to each case which can result disastrously for the defendant.  The Innocence Project, a non-profit organization that works to free wrongly convicted inmates, nods to poor lawyering as a leading cause of innocent people going to jail.  Their website explains, “The resources of the justice system are often stacked against poor defendants. Matters only become worse when a person is represented by an ineffective, incompetent or overburdened defense lawyer. The failure of overworked lawyers to investigate, call witnesses or prepare for trial has led to the conviction of innocent people. When a defense lawyer doesn’t do his or her job, the defendant suffers. Shrinking funding and access to resources for public defenders and court-appointed attorneys is only making the problem worse.”

A defendant, rich or poor, has the odds stacked against him or her.  While the victim has the state to prosecute, police testimony to support the case, and no financial burden, the defendant is left to either a) hire his or her own attorney or b) if he or she qualifies, an overloaded public defender can be the legal representation for the case.  The myth of Gideon’s Trumpet leaves readers with a sense of empowerment to the defendant…proof that we, as citizens of the United States, cannot be trampled by the system.  Proof that we are innocent until proven guilty.

But are we?

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15 Responses to The Gideon Myth

  1. rubit91 says:

    I am surprised that the court determines if a defendant is eligible or not for a public defender by income. Do you know if this is in every state?

    I completely agree with you in everything you stated. We have all these rights for example “to a fair trial” but do defendants really receive one? Not every defendant has the luxury to pay for a private attorney. Many have to settle for the public defender they’re assigned to. But with all the load of work they have, are they providing their defendant with effective counsel?

    About 10 years ago, my cousin was convicted for a crime he did not commit. For the entire trial, I sat there listening to every statement and paying attention to every detail. Until this day, I remember exactly everything that was said and the major points that made it clear that my cousin was innocent. Unfortunately, we did not have the means to provide him a private attorney. Because of the poor job of public defender, my cousin remains in prison for a crime he did not commit. When you hear or experience cases like this, it makes you question yourself “how many innocent people are paying for a crime they did not commit due to poor effective counsel?”

    What’s the point of providing defendants with public defenders, when majority of them cannot provide effective counsel?

    • I believe it is up to each state how they determine a defendant’s eligibility but I’m not positive.

      I have a close family member who went through a similar experience (I just posted this on the next comment’s reply) and it definitely does make you think. The website I used as a source here ( has exonerated over 300 innocent people from jail using DNA evidence. It is a super interesting organization–go check it out. And it is unknown how many thousands of people could be in prison serving time for crimes they did not commit that have yet to be set free or already served their time. Some innocent people may have even been executed! While it is true that most people who are convicted are guilty, it is still disturbing that so many people have been convicted who were innocent.

      • rubit91 says:

        Yes, I am actually familiar with the innocence project. A few years back I sent him the application. I am not sure if he has sent it back, but at this moment he is working on his case on his own. It’s inspiring, but at the same time disappointing because prisons do not offer many resources and he is not that familiar with the law.

        It is really disturbing to know that an innocent person might be serving a sentence for a crime he/she did not commit while the guilty person is out in the world maybe committing another crime. Courts and public defenders need a lot of improvement.

  2. austill1991 says:

    I do agree with your assessment of the right to counsel and that Lewis’s portrayal of Gideon’s triumph in his case is somewhat diminished by the fact that one may not be able to receive counsel if you are able to afford it on paper. Indeed I’m also somewhat disturbed by the fact that the site that you gave does talk about income assessment as the means to appoint one counsel, but it neither gives an income level, the amount of income that you should have, or even an estimate of the cost for private counsel.

    As far as maximum caseload is concerned, if they were to turn you away, does that automatically mean that you’ve lost the case and therefore must serve time? If that is or were true that would have serious ramifications. I would go not only against the fourteenth amendment by means of due process, and it would potentially go against two provisions of the sixth amendment. If the case were tried without appointing counsel it would violate the right to counsel clause, and if the case was put on hold indefinitely it would violate the speedy trial clause as well.

    • I am not sure what would happen IF the court turned you away due to maximum caseload and I’m not sure this would even be allowed; however, that seems to be what the site indicates.
      From personal experience, a family member of mine was denied counsel because he made too much money the year before; the court would not take into consideration that he had recently lost his job. He did not have to forfeit the case, but instead of hiring an attorney (because he just couldn’t), he chose to defend himself. He lost..but then eventually hired an attorney to appeal the case and won. Over $60,000 later. So I’m guessing that if you are denied counsel and really can not afford it, your only option would be to hire an attorney that will allow you to make payments or defend yourself.

  3. elason13 says:

    Excellent point. Lewis did romanticize Gideon’s case, which unfortunately falls short of the reality of the U.S. court system. I think the reason why the Maricopa website does not include any specific poverty guidelines, however, has to with the fact that it is a judge who determines if an individual meets the need for a public defender, hopefully taking into account if said individual is employeed, finances, and assets.

    Also, I believe that if a poor person qualifies for a public defender, than (depending on the crime) that person should have their bail waived as they would never be able to pay it, making it unconstitutionally excessive (which is a right that is not incorporated by the states, but should be). A person who is presumed innocent until found guilty shouldn’t have to face the consequence of probably losing their job, considering he or she already is walking the poverty line. If stuck in jail, especially for a crime he or she did not commit, the reprecussions could include loss of job as well as property if payments aren’t met.

    • Your proposition to waiving bail is very interesting. To me, the idea behind bail would be to make it a hefty amount…an amount that is substantial enough that the defendant would not want to flee. Bail acts like collateral of sorts. If bail is waived, what would stop a defendant from completely fleeing the country to escape the trial? This would be tricky. I do know that bail is usually set proportional to one’s income; for example, when a millionaire is on trial, bail would be higher than if an average income-level person were on trial, and I think that seems fair.

      • elason13 says:

        You asked at the end of your blog if we are innocent until proven guilty. If we are innocent (like we are made to believe) than how is setting a bail amound condusive to that concept? If you are innocent, why would you wish to flee the country all of a sudden? Also, one bail is paid, I don’t see how the necessity to pay back those bail bonds would deter anyone that was bent on escaping. Its seems like a better process could be in place – like confiscating passports and weekly check-ins.

  4. ryrooney says:

    I’m not in your class so I don’t know anything about Gideon but do you think the court looks at how much the court fees are going to be and based on your financial standing at the time, then it’s decided if you are going to be appointed an attorney? To me at least, that sounds like what the FAQ page is trying to say in a very round about way.

    The fact that whether you are or are not appointed an attorney is up to the courts discretion, is prof that, like you said, defendants have the odds stacked against them;especially, poor people. Most of the time court appointed attorney’s aren’t getting paid the greatest salary and aren’t the top notch attorney’s of their graduating class.

    • Re-reading the FAQ page, it does seem that the court could be saying that in a round about way. This proposes the question–would one be more likely to receive a state-appointed attorney if the case was higher-profile and would have higher court fees? I would be interested to find the answer.

  5. yesdelrinc says:

    This is scary. Your arguement is compelling and I see truth in it. This is the problem with public funded programs or resources. The government and the people expect that a certain amount of funding will be sufficient to run a resource, such as public attorneys. That limited amount of money will only allow for a certain number of clients to be served. The quality of their service should be in question. It is not fair that a person in need of legal representation be given an over-worked, under-appreciated lawyer who probably is too busy to give enough time and thought to each case.

    • Your word choice here is truly telling; I think it is important to acknowledge that it may not even be the public defense attorney’s fault. “Over-worked, under-appreciated” is great word choice. While sometimes a public defender may be less adequate, I think it is more likely that he or she just simply is flooded with cases. Similarly to how many classrooms in public schools are pushing 40 children per teacher, the government will likely continue to load cases upon public defenders who simply can not pay enough attention and put enough effort into each case, even if he or she would like to and is a capable attorney.

  6. haleyschryver says:

    This is a huge problem in our country. I recently read an article that said something like a family of four with a household income of $30,000 cannot get a public defender because they make too much money to qualify. That is absolutely ridiculous! What is someone supposed to do in a situation where they truly can’t afford an attorney, but they also don’t qualify for a public defender?

  7. This is in reply to elason13 again– it wouldn’t let me reply.
    I hadn’t thought of bail like that. In fact, if we truly were innocent until proven guilty, bail would not be needed AT ALL! If we assumed a person was innocent, why would we need bail? I’m sure a great amount of innocent people have served time in a jail cell waiting for their trial because they couldn’t afford to make bail. I would be interested to research further bail reform ideas.

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