The State of Aloha

Bay Harbor, Fla., was a sleepy community not far from Panama City, near the warm waters of the Gulf of Mexico. In that little town there was a break-in at the aptly named the Bay Harbor Poolroom. Police determined that someone climbed on top of a garbage can, smashed a window and crawled inside. The culprit drank beer, broke the jukebox and cigarette machine, and left with a lot of change and some wine.

Police set their sights on a man living in a rented room across the street. Clarence Earl Gideon seemed like the type to do such a thing. With a string of prior convictions behind him, the drifter from Missouri was seen at a bar in Panama City paying for drinks with plenty of change. Prosecutors concurred with the police and charged him with breaking into the poolroom.

Gideon was close to 6 feet tall and rail thin (he weighed 140 pounds). He had gray hair and false teeth. He was an alcoholic who loved to talk. On the day of trial, after the prosecutor announced that the state was ready, he asked the court to appoint a lawyer to represent him. He could not afford one. The judge refused. He was convicted and sentenced to the maximum penalty — five years at the Florida State Prison.

From his prison cell, Gideon wrote by hand his petition to the Supreme Court of the United States. Remarkably, the highest court in the land agreed to hear his case. The result changed our criminal justice system forever.

Two years after Gideon’s fateful arrest, the Supreme Court of the United States held that every person has a constitutional right to a lawyer in a criminal case. Justice Hugo Black wrote for the court.

He wrote that “reason and reflection require us to recognize that in our adversary system of criminal justice, 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. . . . The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

The high court reversed Gideon’s conviction. It was 1963.

The impact of Gideon’s case was felt in every courthouse and courtroom in every state in the union — including the newest island state thousands of miles away.

The State of Hawaii was still in its infancy when the landmark decision was announced. While Oahu heralded unprecedented growth, the outer islands, as they were called then, were still considered rural and dominated by sugar and pineapple industries.

When it came to criminal justice, Maui was a very quiet place. There were less people, and less crime apparently. The resorts that would dominate west and south Maui were a few years off. Pineapple, ranching, and of course, sugar, dominated the Valley Isle’s landscape.

Wailuku was smaller too. The courthouse was on the corner of High and Wells Street. Next to it, where the towering county building stands now, was the jail. Then there were county offices which housed the County Attorney’s office. It was easy for the police to take a prisoner from the jail directly to the courthouse.

Back then there wasn’t even a department of the prosecuting attorney. A County Attorney’s office that handled all matters — civil suits and criminal prosecutions.

After Gideon, local courts appointed lawyers from Maui’s very small bar. These lawyers were not specialists in criminal defense. Many practiced in more lucrative areas involving quiet title, wills and family disputes.

Things changed on Feb. 2, 1970, when the state formally answered the Supreme Court’s mandate and established the Hawaii Office of the Public Defender — a statewide office centered in Honolulu with offices in every county.

Maui’s first public defender was Philip Lowenthal, my dad. He recalls that the state’s first generation of public defenders were imbued with a mission. They wanted to bring the Bill of Rights with its many protections for the accused to the new state.

This was the first time our county had a full-time criminal defense lawyer. Out of the parsonage house for Kaahumanu Church near Main Street, the public defender — there was only one — covered nearly every case on the criminal docket. Indigent defendants in traffic cases, murder cases and everything suddenly had representation.

Many of the early clients were young people who migrated from the U.S. Mainland. These were not wealthy tourists. They were branded as “hippies” who slept outside, smoked marijuana and stole papayas. Like Gideon in Florida, these folks were easy targets for the police.

The public defender’s office has grown with the state itself. It remains the largest criminal defense organization in the islands. Its mission hasn’t changed either. Deputy public defenders represent the most vulnerable men and women accused of crimes who cannot afford to hire a lawyer.

For five decades the people of the State of Hawaii have had the benefit of counsel and a voice to represent them in criminal courts. All thanks to the handwritten petition of a Florida convict.

Gideon got a new trial in the end. This time he got a lawyer too. After deliberating for about an hour, he was found not guilty and was a free man after two years of imprisonment. What a difference a lawyer makes.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”


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