Gideon's Muted Trumpet
17 Pages Posted: 8 May 2013
Date Written: 1999
Once the darling of the legal academy, criminal procedure has fallen into disrepute. Thirty-five years ago, when Gideon was decided, criminal procedure was the flagship of constitutional law, criminal defense attorneys were heroes, and courts and lawyers were perceived as themselves agents of social justice. Today, there are still heroes. But the conventional wisdom, within the academy and the country at large, no longer associates criminal law or procedure with heroism. Indeed, in some quarters, criminal procedure has become the enemy. Increasingly, scholars urge revisionism, popular pundits brand procedural innovations as a loss of "common sense," and philosophers warn that the "procedural republic" has helped us to lose our way.
Striking is this scholarly skepticism when compared to the disturbing fate of those who spawned this conference: they are vulnerable, poor, friendless; they have never seen a lawyer and they have talked to a judge speaking from a remote televised location. They sit in jail for ten or twenty or thirty days, losing their jobs and their families, only to have the charges ultimately dismissed. Douglas Colbert's cases raise important questions about a failed legal revolution. For when the charges have been dismissed, what will Colbert's defendants understand about "criminal procedure"? The majesty of Gideon? The wisdom of the Warren Court? No doubt, the jailed and abandoned defendant would agree with critics of criminal procedure. How else could he see the "process" except as his punishment?
Keywords: right to counsel, Sixth Amendment, due process
JEL Classification: K00, K30, K39
Suggested Citation: Suggested Citation