March 18 marked the fiftieth anniversary of Gideon v. Wainwright, the landmark case by the Supreme Court that required states under the 14th amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys, extending the identical requirement made on the federal government under the 6th Amendment.

But is justice now equal?

The Legacy of Gideon v. Wainwright

by John Light, Moyers & Company

Anthony Lewis, The New York Times journalist whose masterwork chronicled the Supreme Court’s landmark Gideon v. Wainwright decision, died earlier this week at the age of 85. The court’s ruling, handed down 50 years ago last week, established a criminal defendant’s right to an attorney, even if that defendant cannot afford one. [..]

Here are some resources on Anthony Lewis and the legacy of Gideon v. Wainwright.

1. Gideon’s Trumpet

In 1964, Lewis, a two-time Pulitzer Prize winner, published his book Gideon’s Trumpet. In it, he described Clarence Earl Gideon as a wrongly convicted Florida man convinced that he was entitled to legal representation even though the state of Florida said otherwise. [..]

2. Defending Gideon

A new documentary from The Constitution Project and the New Media Advocacy Project examines the impact of Gideon v. Wainwright and includes a recent interview with Anthony Lewis as well as an archival interview from the 1960s with Gideon, who explains that he was surprised to hear from the trial judge that he was not entitled to a lawyer. [..]

3. “The Silencing of Gideon’s Trumpet”

Ten years ago, on the 40th anniversary of Gideon v. Wainwright, Lewis described in The New York Times Magazine the “endless failures to bring the promise of Gideon to life.” He wrote, “Even more alarming is the assertion by the Bush administration that in a whole new class of cases it can deny the right to counsel altogether. [..]

4. Adam Liptak on Lewis’s Transformative Journalism

Adam Liptak, one of Lewis’s successors as Supreme Court correspondent for The New York Times, wrote the paper’s obituary of its former reporter and columnist. He noted that Gideon’s Trumpet has never been out of print from the day it was published, and that Lewis’s knowledgeable and thorough coverage of the court during the years Earl Warren served as its chief justice made him almost as essential to its history as the judges themselves. [..]

5. Andrew Cohen on Lewis and Gideon today

Writing in The Atlantic earlier this month, legal scholar Andrew Cohen described how, in the story of Gideon v. Wainwright, Lewis found material for one of the “best nonfiction works written about the Supreme Court and the American legal system.” [..]

But the thrust of Cohen’s essay is that Gideon’s legacy has not fared so well. A Brennan Center for Justice report found that many court appointed lawyers are overworked and spend less than six minutes per case at hearings where they counsel their clients to plead guilty. Lawmakers haven’t funded public defenders adequately, Cohen says, and the Supreme Court has not required them to do so.

On March 29th’s Moyers & Company, host Bill Moyers discussed the system’s failures, and ongoing struggles at the crossroads of race, class and justice with attorney and legal scholar Bryan Stevenson. Then Mr. Moyers is joined by journalists Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, to examine the fatal flaws of the death penalty.

The broadcast closes with a Bill Moyers Essay on the hypocrisy of “justice for all” in a society where billions are squandered for a war born in fraud while the poor are pushed aside.

Another right further diminished by the Supreme Court.

Supreme Court Denies 7 Detainee Cases, Leaving Crippling Limits On Detainee Rights In Place

One day before the fourth anniversary of Boumediene v. Bush, which held that detainees being held indefinitely at Guantanamo Bay have the right to challenge their confinement in federal court, the Supreme Court denied review (pdf) of seven detainee cases that were pending before the court. The decision not to review any of the cases essentially makes the U.S. Court of Appeals for the D.C. Circuit the last stop for detainees seeking habeas corpus. While many detainees won their habeas corpus cases at the trial court level, no detainees have been released from Guantanamo due to these decisions because the DC Circuit has a perfect record of reversing these decisions.

Although today’s action does not have any precedential force, it undercuts the extent to which detainees can seriously challenge their detention by leaving the D.C. Circuit’s pro-detention decisions in place [..]

Marcy Wheeler @ emptywheel explains what the Supreme Court has just blessed:

   

Holding a person indefinitely for being in the wrong place at the wrong time-including a school, a road, and a guest house-where suspect people are.

   

Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.

   

Holding a person indefinitely based on pattern analysis.

   

Completely upending the role of District Court judges in the fact-finding process.

The Justices have abdicated their responsibility  to an ever more powerful Executive branch:

Especially deserving of review was a petition by Adnan Latif, a Yemeni who was captured near the border between Afghanistan and Pakistan in December 2001. Latif said he had traveled to Pakistan to seek medical treatment; the U.S. government insisted that he was a fleeing Taliban fighter.

A federal district judge ruled in Latif’s favor, concluding that, because of possible transcription and other errors, a government report of an interview with him was “not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban.” Overturning that finding, the D.C. Circuit ruled that the government’s evidence was entitled to “a presumption of regularity” and that lower court judges should require that a detainee’s “self-serving account must be credible – not just plausible.” In her opinion, Circuit Judge Janice Rogers Brown (a former California Supreme Court justice) approvingly cited dissents in the Boumediene case and referred snidely to its impracticality and “airy suppositions.” [..]

Dissenting in the Latif case, Judge David Tatel described the decision as an “assault on Boumediene.” At the very least, the ruling called for a full-fledged review by the Supreme Court. Instead, the justices have abdicated their authority and devalued their own achievement.

“When the madness is directed towards the likes of you and me,

Then our blindness may be lifted and we might begin to see.

For when others are afflicted, with the scourge that has no end,

Then we practice our denial — and the purging, we defend.

So the powers and the peoples of the nations of this Earth

Could be fully in connivance — or denial of the hurt…

And even, in our hubris, in our information age,

We are blinded by our bias — and at petty issues rage.

So the workers were divided and they voted Nazis in,

And so many were the workers, who paid dearly for this sin!

And we see now in Wisconsin, there’s a Walker riding high,

And there’s cash enough from coffers to propagate the lie.”

(excerpted)

Arjun Jalah

Sometimes you would give anything not to be right!  When I started writing this diary three weeks ago, I predicted that Scott Walker would win the recall election for governor in Wisconsin. Walker, with unlimited corporate money, was challenged by a massive people’s movement when he outlawed most collective bargaining rights in what was usually considered a progressive state.  I knew, with the certainty of a cynic that that much money would out-weigh people power.   It was the fight between John Henry and the steel driving machine all over again. Yet, there I was, Tuesday night, praying that the people power would, in the end, win.  Not.  Walker beat Tom Barrett, the Democratic candidate 53%-46%, winning by a whopping 6% points. As Ed of the Ed Show so colorfully pointed out, there was no way to put lipstick on that pig. Or as Chris Hedges had said a couple of weeks earlier: “We lost. They won.”

Thanks to five out of nine Supreme Court justices at the urging of the Obama administration that’s what 14 million Americans a year can expect to hear when they get arrested and sent to jail.  That includes several hundred thousand people per year arrested for minor infractions, everything from having unpaid traffic tickets to, oh, what is it that protesters get charged with… disorderly conduct, public nuisance or irritating an idiot that has mistakenly been issued a badge, a gun and a can of mace.

Supreme court justices allow for routine strip-searches of inmates in US jails

By a 5-4 vote and splitting along conservative-liberal ideological lines, the high court ruled that privacy rights involving the searches were outweighed by security concerns by jails about a suspect hiding drugs, weapons or other contraband.

The decision could have broad impact as nearly 14 million Americans spend time in jail or prison every year, including an estimated 700,000 people in jail for less serious misdemeanor offenses.

The justices upheld a ruling by a US appeals court based in Philadelphia that it was reasonable to search everyone entering a jail, even without suspicion of any criminal activity.

The decision was a victory for the jails and for the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses.

In Justice Breyer’s dissent in Florence vs Board of Chosen Freeholders he makes clear just what sort of searches that the Supreme Court at the urging of the Obama administration has given a blanket imprimatur to:

‘a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.’

“Duck House”:

I sit on the floor of the Duck House with thirty others, brainstorming for the January action. Neither men nor women dominate the group. We are young, and surprisingly old. Counter-culture and conservatively clad. We question whether it is nobler to seek permits or just show up unannounced. We speak of banners, flyers and street theater-anything to educate the public about our goal.

Even when I still lived in Arizona, I had heard of this place. Democracy Unlimited Humboldt County (DUHC) or “Duck” was on the forefront of the war against corporate power. In 1998, they helped pass a ballot initiative establishing the Democracy and Corporations standing committee in Arcata’s city council here in California.

The Committee’s primary functions are: to research and present to the Council options for controlling the growth of “pattern restaurants” in the community; to cooperate with other communities working on socially responsible investing and procurement policies; to make recommendations to the Council, and/or with the Council’s approval, provide educational opportunities to promote “fair trade”; to inform citizens of corporations with negative social and environmental impact; and to provide advice on ways to foster sustained locally-owned businesses, publicly or locally owned services and worker-owned cooperatives and collectives.–City of Arcata

The committee was hailed by Howard Zinn, Noam Chomsky, and Jim Hightower. Ralph Nader commented, “I look forward to Arcata being a luminous star in the rising crescendo of democracy in our country.”

Embolden by this success, they passed Measure T in 2004. It forbid nonlocal corporations from contributing to local political campaigns. Two corporations immediately challenged the initiative as unconstitutional. Before the case could be decided by the courts, Humboldt’s Board of Supervisors succumbed to corporate pressure and declared this popularly elected law nullified.

DUHC learned from this experience. They won’t be going it alone, this time. They are but one small seed of democracy, but they are amassing with others to change the political landscape in America. They have joined Move to Amend in a miliary campaign, and this time their aim is not a city ordinance in some far off town on the edge of America, but changing the highest law in the land.

The Supreme Court let stand a ruling from the lower court that forces the Federal Reserve to disclose details about its emergency lending programs to banks during the financial crisis in 2008.

Fed’s Court-Ordered Disclosure Shows Americans’ ‘Right to Know’

A Supreme Court order that forces unprecedented disclosures from the Federal Reserve ended a two- year legal battle that helped shape the public’s perceptions of the U.S. central bank.

The high court yesterday let stand a lower-court ruling compelling the Fed to reveal the names of banks that borrowed money at the so-called discount window during the credit crisis. The records were requested by Bloomberg LP, the parent company of Bloomberg News. In July, Congress passed the Dodd-Frank law, which mandated the release of other Fed bailout details.

Fed Chairman Ben S. Bernanke “now must finally understand that this money doesn’t belong to the Federal Reserve, it belongs to the American people and the American people have a right to know how their taxpayer dollars are being put at risk,” said Senator Bernard Sanders, a Vermont Independent who wrote Fed transparency provisions in Dodd-Frank.

The financial crisis, which began in August 2007 and peaked after the bankruptcy of Lehman Brothers Holdings Inc. in September 2008, focused the public’s attention on the Fed and its $3.5 trillion effort to rescue the banking system, said U.S. Representative Ron Paul, who heads the House subcommittee that oversees the central bank.

“People wanted to know more about what the Fed was doing,” said Paul, a Texas Republican. “It’s been a significant change and the American people won’t ever be complacent about this.”

Fed Will Release Bank Loan Data as Top Court Rejects Appeal

The Clearing House Association contended that Bloomberg is seeking an unprecedented disclosure that might dissuade banks from accepting emergency loans in the future.

Obama Administration

“We are disappointed that the court has declined our petitions, which deal with the protection of highly confidential bank information provided to the Federal Reserve,” the group said in a statement after the high court acted.

A federal trial judge ruled in 2009 that the Fed had to disclose the records in the Bloomberg case, and a New York-based appeals court upheld that ruling.

The Clearing House Association’s chances at getting a Supreme Court hearing suffered a setback when the Obama administration urged the justices not to hear the appeal. The government said the underlying issues had limited practical significance because Congress last year laid out new rules for disclosing Fed loans in the Dodd-Frank law.

“Congress has resolved the question of whether and when the type of information at issue in this case must be disclosed” in the future, the administration said in a brief filed by acting Solicitor General Neal Katyal, President Barack Obama’s top Supreme Court lawyer.

While this is great news, unfortunately, it is a one time disclosure under the terms of the Dodd-Frank bill (pdf) and with the Republicans in control of the House it is unlikely that any amendment for future audits would pass. Obama should have worked harder for better oversight of our tax dollars.

The independence of the judiciary means that the Courts should be free from improper influence from outside interests.  What a great idea for having a transparent, fair judicial system.  It’s a concept that has so much promise.  But in practice the present Supreme Court and its members may be driving it off a cliff. Today’s news about Justice Thomas’s wife’s lobbying business may signal its ultimate demise.

The New York Times reports that Justice Thomas’s wife,

who has raised her political profile in the last year through her outspoken conservative activism, is rebranding herself as a lobbyist and self-appointed “ambassador to the Tea Party movement.”

Virginia Thomas, the justice’s wife, said on libertyinc.co, a Web site for her new political consulting business, that she saw herself as an advocate for “liberty-loving citizens” who favored limited government, free enterprise and other core conservative issues. She promised to use her “experience and connections” to help clients raise money and increase their political impact.