Lawyers: The Bar Behind Bars

Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.

—Gideon v. Wainwright

With that landmark opinion, the U.S. Supreme Court last year forced all state criminal courts to appoint lawyers for all indigent defendants charged with more than petty crimes. Since 60% of criminal defendants are indigent, hundreds of U.S. lawyers are in for heavy duty. And since the rule may apparently be applied retroactively, as a New York federal court recently ruled, hundreds of convicts are now appealing for new trials—getting their legal counsel from that grand old penal institution, the self-taught jailhouse lawyer.

Holding a Thin Line. Gideon has already freed (after a new trial with a lawyer) Clarence Earl Gideon, the Florida prisoner who started it all with his now famous in forma pauperis petition to the Supreme Court. More than 1,000 other Florida convicts have been released, 600 have won new trials, and hundreds of others are polishing up “Gideon Petitions.” Spurring them on is Prisoner 62601, Theodore N. Turner, , 39, Florida’s most accomplished jailhouse lawyer, who solemnly states that “Our thin line of civilized living and culture is based on due process of law. If due process is violated, we defeat none but ourselves.”

Forger Turner, who used to be Clarence Gideon’s neighbor at Florida’s Raiford state prison, has been the brains (IQ 140) behind more than 100 would-be Gideonites. A onetime insurance claims adjuster, Turner picks up clients through the prison grapevine, studies their court records, and has often drawn up petitions, hand-printed by a dozen other convicts. Turner’s legal skills have already forced public defenders to handle all Gideon Petitions, made court clerks abolish the usual $25 filing fee. At times he writes like a judge: “This breathes of the appellate court’s wrath at their lower court brethren.” At times he hectors uncooperative court clerks: “You are not the court. You are not God. You are just Charley Limpus.” Always he seems more hep on relevant new decisions than many judges. “He’s a brilliant man,” says Orange County Public Defender W. D. Frederick Jr. “His grasp of case law is phenomenal.”

Turner’s record is marred by one embarrassing failure: he has yet to spring himself—a problem that afflicts even the best jailhouse lawyers. San Quentin’s Caryl Chessman, for instance, studied 10,000 legal works, took 1,000,000 words of notes, ground out more than 100 assorted writs, appeals and petitions, for stays of his own execution—and still the state put him to death in the gas chamber.

However they may fail themselves, though, incarcerated counselors are busier than ever aiding other inmates. Texas’ Huntsville Prison now has a “writ room,” where prisoners can polish up petitions like collegians in the library. Kansas State Penitentiary offers a big law library, partly the gift of beneficent lawyers. At Washington’s State Penitentiary in Walla Walla, a special “law wing” provides typewriters as well as texts. Some prisoners are getting so legalistic, complains a Tennessee state prosecutor, that “it’s getting a damned sight harder to keep them in than to put them in.”

Sue the Judge. The great hazard in prison legal practice is the very goal it seeks: a new trial, since it may well result in a stiffer sentence than before. At Colorado State Penitentiary, for example, a convicted forger serving a two-to-six-year sentence recently won a new hearing, got slammed with a new rap of 40 months to eight years. Despite such danger, though, there is often a sense of beat-the-system accomplishment; one Colorado lifer has goaded a slow-moving judge by suing to enjoin his salary. Colorado petitions now move remarkably faster.

In New York, jailhouse lawyers can often be found among the four-time losers whose multiple offenses drew mandatory life sentences. Many such prisoners are Negroes who once served time in Southern jails. A petitioner in this situation may void an out-of-state conviction if a New York court finds that his constitutional rights were violated. And by thus wiping one offense from the books, a lifer may halve his sentence or even walk out free.

Bleary Blackstone. What flaws many top jailhouse lawyers is a chronic inability to handle the freedom they win. In a single year, one Carl Smith got his convictions for burglary and bank robbery reversed by the supreme courts of Maine and Massachusetts. Now he is back in a federal pen for another bank robbery. For years at Missouri State Penitentiary for Men, a brilliant prisoner named Clyde Meeks counseled other cons so ably that judges valued him as a friend of the court. Once free himself, Meeks wound up in jail in Iowa on a forgery charge.

All over California, awed lawyers still ponder the 150-arrest career of Emery T. Newbern, “the Blackstone of the drunk tank.” Bottle-worn but razorsharp, Newbern once saw a judge lock his courtroom doors to keep him and other drunks from staggering out, immediately argued successfully that he was being deprived of his constitutional right to a public trial. Newbern beat another drunk charge on the ground that police (unwittingly) deprived him of his right to a doctor’s examination. In 1960, he scored his greatest coup: overturning California’s 1872 “common drunk” law—a phrase so vague as well as pejorative, he said, that it violated his right to know the charge against him. The state supreme court agreed. Uncommon Drunk Newbern might have made a crack lawyer as many lawyers told him, but liberty was too much for Newbern. He lurched in front of a car in Florida and died at 41.