Tuesday, March 12, 2013

Right to counsel in Texas preceded Gideon by a century

Next Monday, March 18, at the Texas capitol there will be an event celebrating the 50th anniversary of Gideon v. Wainwright, which enshrined the right to legal counsel as a fundamental constitutional right, and on Sunday the New York Times had a story titled, "The Right to Counsel: Badly Battered at 50."

Notably, though, this may be the 50th anniversary of Gideon but not of the "right to counsel," at least in Texas. According to a newly published history (p. 65) Grits is presently reading, the Texas Supreme Court in Calvin v. State (1860) ruled that "the state had a duty to provide counsel for blacks who could not afford their own - a progressive notion that would not be enshrined in federal jurisprudence until more than a century later."

Who'da thought?


Jefe said...

There is a less charitable view of early Texas justice regarding Calvin v. State. Calvin was a slave. The appointment of counsel may have been in deference toward the potential loss of property to his owner, as this was a capital offense.

Anonymous said...

Thank you Jefe!

Gritsforbreakfast said...

Jefe, the 1876 constitution, which installed Jim Crow after the end of Reconstruction, similarly guaranteed the right to legal counsel regardless of the ability to pay. That wasn't to protect slave owners' rights. Is there some racist lens through which you would explain that provision? Or perhaps Texas pols in the 19th century - on some issues, at least - were just ahead of their time.

Jefe said...

Yes. I am cynical, but that is because there are still counties in Texas that ignore the right to counsel, despite clear dictates of statute and both the Texas and U.S. constitutions.