A remarkable example of an appointed counsel’s conception of his duty, and his dedication in carrying it out, was provided by a Chicago lawyer, Walter T. Fisher. Mr. Fisher was appointed on January 14, 1957, to represent one Alfonse Bartkus, who had been acquitted by a federal jury of robbing a federally-insured bank in Illinois and then had been tried and convicted in the Illinois courts for the same robbery. The Supreme Court had agreed to hear his claim that the successive prosecutions amounted to a kind of double jeopardy barred by the due-process clause of the Fourteenth Amendment. Mr. Fisher wrote a brief, argued the case and lost by a tie vote of four to four, Justice Brennan not sitting. (An equal division results in what is called an affirmance by necessity of the lower-court’s decision.) Mr. Fisher petitioned for rehearing, asking Justice Brennan to sit, and the Court granted the petition. The next term Mr. Fisher wrote a new brief, argued the case again—and lost, five to four. He filed a further petition for rehearing, which was denied. But he did not consider his obligation to Bartkus or to the law ended. He asked the Illinois legislature to take action against what he still considered an injustice, and in 1959 the legislature enacted his proposal: a bill barring state prosecution of any person for a criminal act which had previously been the subject of a federal prosecution. That legislation, however, did not affect Bartkus, who remained in prison under a life sentence. Mr. Fisher filed a clemency petition, wrote letters, pleaded with the authorities. On January 3, 1961, just short of four years after Mr. Fisher’s appointment by the Supreme Court, Bartkus’s sentence was commuted to time served. Mr. Fisher found Alfonse Bartkus a job and made an arrangement for him to receive continuing guidance.
As a formality, the poor man whose case is to be heard by the Supreme Court must ask for a lawyer. The chief deputy clerk of the Court, Edmund P. Cullinan, sees to it that he does ask. A distinguished gray-haired gentleman who joined the Clerk’s Office while still a student at Georgetown Law School in 1930, and who has become an authority on how to proceed before the Court, Cullinan has the recurrent nightmare that some prisoner will want to argue his own case. (A statue allows anyone—rich or poor, lawyer or layman—to present his own case in any Federal court.) To forestall that possibility he writes promptly to every prisoner whose petition the Court grants. He wrote Gideon the day the Court granted certiorari in his case, June 4. (An assistant clerk, Eugene T. Lyddane, on the same day sent the text of the Court’s order to Gideon and the Attorney General of Florida.) Cullinan’s letter to Gideon said: “I assume that you desire the Court to appoint a competent attorney to represent you in this Court. It will therefore be necessary for you to forward immediately a handwritten motion requesting the Court to appoint counsel to represent you.”
Gideon was duly consistent in wanting a lawyer. On June 18th his answer arrived at the Court, again written in pencil on the lined prison form and stamped “censored.” Gideon said: “I do desire the Court to appoint a competent attorney to represent me in this Court. Because I do not know the procedure nor do I have the ability to do so. I make this formal request to the Supreme Court of the United States to appoint me a attorney.”
Like other matters decided by the Supreme Court, the choice of a lawyer for an indigent petitioner is entirely in the bosom of the justices. They have never laid out any rules for the selection process, doubtless desiring to retain a broad discretion. In the process, Justice Frankfurter once said, “intrinsic professional competence alone matters.” The Court naturally tends to pick men known to one or more of the justices personally or by reputation. Mr. Fisher, for example, was an old friend of Justice Frankfurter’s, and it is a fair guess that the justice suggested his name. (But friendship is no assurance of a vote; Justice Frankfurter wrote the opinion of the Court rejecting Mr. Fisher’s argument on behalf of Alfonse Bartkus.)
Former law clerks to the justices are often appointed. So are law professors and established practitioners; Dean Acheson was named a few years back to represent a Texas prisoner. The Court frequently names someone from the same area of the country as the prisoner, but that is no rule. In general it can be said that counsel appointed in the paupers’ cases are much superior to the average lawyer who appears in the Supreme Court. The average level, unfortunately, is mediocre at best—reflecting the bar generally, since there is no special group of lawyers who argue in the Supreme Court.
The question of counsel for Gideon was ready for discussion at the Court’s conference of Friday, June 22, 1962. That was the last conference of the term, as it happened; the following Monday the Court handed down all its remaining opinions, including the controversial decision on the New York Regents’ Prayer, and recessed for the summer. Shortly after the conference ended, Chief Justice Warren called in the Clerk of the Court, John F. Davis. The Clerk is the Court’s ranking employee, and the job is one of distinction. Davis’s predecessor, James R. Browning, is now a judge of the United States Court of Appeals for the Ninth Circuit; and before he was named Clerk in 1961 Davis had argued more than fifty Supreme Court cases for the Government, including the du Pont-General Motors antitrust case. One of the Clerk’s duties is to help with the mechanical arrangements for translating Friday’s conference decisions into the printed and mimeographed orders released the following Monday. When a lawyer is being appointed to represent an indigent, Davis also has the job of informally advising him over the weekend so that he may indicate if he has some personal difficulty that would make it impossible for him to accept the assignment. The Court does not want the mutual embarrassment of having a formal appointment turned down. But the Court’s appointment of counsel in these circumstances is a little like a Presidential invitation to dine: Few are turned down.
On this Friday evening Chief Justice Warren told Davis that the Court had selected Abe Fortas of Washington to represent Gideon. Davis put in a call for Fortas and found him, eventually, in Dallas. Fortas said he would be happy to serve as counsel for Clarence Earl Gideon. He asked what the issue was in Gideon’s case. Briefly, but quite clearly indicating the large stakes, Davis told him: The Court had agreed to reconsider the limits put on the right to counsel by Betts v. Brady.
The next Monday the Court entered this order in the case of Gideon v. Cochran:
“The motion for appointment of counsel is granted and it is ordered that Abe Fortas, Esquire, of Washington, D.C., a member of the Bar of this Court be, and he is hereby, appointed to serve as counsel for petitioner in this case.”
Abe Fortas is a high-powered example of that high-powered species, the Washington lawyer. He is the driving force in the firm of Arnold (Thurman Arnold, who was Franklin Roosevelt’s trust-buster and then a judge of the United States Court of Appeals for the District of Columbia, resigning because he found the bench stultifying), Fortas and Porter (Paul A. Porter, former chairman of the Federal Communications Commission). The firm has thirty lawyers; making it substantial in size though nothing like the colossi of Wall Street. It is not what could be called an Establishment law firm; it is too aggressive, or insufficiently stodgy, according to one’s point of view. Judge Arnold, as a Yale law professor in the 1930’s, was one of the great legal realists, writing books (e.g., The Folklore of Capitalism, a classic of law and politics) in which he sought to puncture the myths about judges and portrayed them as men, not priests, with ideas and even prejudices. The realists emphasized what judges did, as opposed to what they said, and recognized that law was not logic alone but that it reflected judges’ social, economic and psychological conceptions. Something of this irreverence pervades Arnold, Fortas and Porter. There is a heavy Yale influence, and Yale is popularly supposed to regard law more as a social tool and less as the intellectual exercise attributed to Harvard. Generalizations aside, it is probably true that Yale Law School puts less emphasis on the niceties of arriving at a legal result and more on the social significance of the result. Certainly this “realism” is in the air at Arnold, Fortas and Porter. Of the three names in the firm title, only Porter is not a Yale law gra
duate. He is a product of Kentucky and the University of Kentucky Law School and still has the fine political style of the Kentuckian. All three are graduates of the New Deal, and it is not surprising that the firm has a liberal and Democratic flavor. Fortas is an old friend and counselor of Lyndon Johnson and was one of the first men called in to help when Johnson assumed the Presidency. Lawyers from Arnold, Fortas and Porter do drafting and other behind-the-scenes work for liberal legislation in Congress. The firm played an important part in the legal fight against the use of anonymous informers in the Government’s loyalty and security programs; one victim whose case it took to the Supreme Court but lost was taken on as an A.F.P. employee and is still there. But the firm is anything but a do-good outfit. It is interested in making money, and it does so in a widely varied practice emphasizing litigation against the Government—antitrust law, tax law and practice before the federal regulatory agencies. The premier business-getter is Abe Fortas.
Fortas had just turned fifty-two when he got the assignment in the Gideon case. He was born to a modest Jewish family in Memphis on June 19, 1910, went to Southwestern College there and then moved into the great world through the Yale Law School. He was editor-in-chief of the Law Journal, the earliest sure sign of intellectual distinction and will power in a lawyer. After graduation, in 1933, he went to Washington and worked for such New Deal luminaries as William O. Douglas, who had been his professor at Yale, Jerome Frank and Harold Ickes. In 1942, at the age of thirty-two, he became Undersecretary of the Interior. Francis Biddle, who was Attorney General at the time, tells a wonderfully Rooseveltian story about Fortas—really about F.D.R. Ickes was out of town, and Fortas sat in for him at a Cabinet meeting. The President, who was asking each Cabinet member in turn to report, could not remember Fortas’s name and passed a note down the table asking for help. Mr. Biddie writes:
“Fortas,” I whispered, and his name was relayed to the President, who then wrote on a pad, “Not his last name, his first name.” And when, going around the table, he came to Abe, the President asked, “Well, Abe, what’s been going on in Interior?”
In 1946 Fortas left the Department of the Interior for private practice. He is known now as one of the country’s outstanding appellate advocates, skilled in the special technique of arguing cases to appellate judges that is so largely neglected in this country. In the Supreme Court he has represented, among others, Lever Brothers Company and George Parr (known as the Duke of Duval), the old-fashioned Democratic boss of Duval County, Texas, whose conviction for mail fraud Fortas managed to get reversed.
But Fortas’s most important activities as a lawyer take place not in courtrooms but in the offices of corporations. He advises business executives on how to enlarge their market power and their profits while staying within the myriad rules laid down by government. He flies around the country to attend meetings, to handle negotiations, to discuss finances and corporate structure as much as the law. One acquaintance says his business is “corporate wheeling and dealing,” adding respectfully: “He is one of our big social engineers.” He is unusual in doing so many things well as a lawyer: antitrust litigation, practice at administrative agencies, appellate argument, corporate counselling. His clients include Federated Department Stores, Unilever, Investors Diversified Services, Cyrus Eaton and the Commonwealth of Puerto Rico. (He knows Governor Luis Muñoz Marin intimately.) He also represents the Casals Festival; he is an old friend of Pablo Casals and arranged Casals’ performance at the White House.
Unlike most prominent lawyers Fortas has had an interest in criminal law, though more on the philosophical side than in practice. He argued and won the Durham case, in which the Court of Appeals for the District of Columbia laid down a new criminal insanity rule that has had repercussions throughout this country and abroad. (The Court abandoned the old doctrine that a man escaped the responsibility for a criminal act only if he could not tell right from wrong, substituting the broader rule that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”) He is a member of a committee appointed by Chief Justice Warren to recommend changes in the rules of procedure for Federal criminal cases, and it could have been his association with the Chief Justice in this work that led to his appointment in the Gideon case. But he is also a friend of Justices Black, Brennan and Douglas, and one of them might have suggested his name.
Fortas is a smallish man with a manner that can be grave or, especially with women, charming; there is a nice touch of Mephistopheles. His speech has a slow, deliberate quality, with tangible intellectual force—the word may be tension—behind it. It is hard to imagine him being entirely spontaneous. Not that he lacks humor, but he always seems controlled. A lawyer who has worked with him says: “Of all the men I have met he most knows why he is doing what he does. I don’t like the s.o.b., but if I were in trouble I’d want him on my side. He’s the most resourceful, the boldest, the most thorough lawyer I know.”
If Fortas has any one hero in the law, it is Justice Brandeis, and that says a good deal about Fortas. Brandeis was the supreme craftsman, probably the ablest lawyer ever to sit on the Court. He was a notably unsentimental man, one who had no qualms about voting against widows or orphans in furtherance of some longer-run interest in the law. But he also had deep social convictions and fought for liberal causes throughout his life. With the Brandeis model in mind, a colleague has said of Fortas: “He values craftsmanship most highly. He is no sentimentalist, and he works for reform of the criminal law because he thinks it is right for society, not because of any illusions about criminals. But under his sobriety and detachment there is passionate conviction. He is an angry man—angry at injustice.”
Evidently Fortas enjoys the grand style. He and his wife—Carolyn Agger, an expert tax lawyer—drive a Rolls-Royce; he explains that it is really an economical investment. They have many contemporary works of art in their Georgetown home, but also antique furniture and Chinese scrolls and paintings. The firm is in what was once a Victorian private home, and Fortas’s office is dominated by a huge desk made from a Victorian grand piano. There are wing chairs, a soft couch, paintings and mementoes of Casals and other great friends.
A lawyer preparing a case for the Supreme Court has more freedom than might generally be expected. His material has to a large extent been determined by the proceedings in the lower courts, but he can artistically shape that material because he has the choice of facts to emphasize and legal theories to advance for the desired result.
For example, a man may have been convicted of contempt of Congress for refusing to answer a subcommittee’s questions about his asserted Communist affiliations. That seems simple enough, but the intellectual ore that lawyers have mined from such contempt records is rich indeed. Was the committee authorized by the House or Senate to conduct this inquiry? Had it passed the authority on to this subcommittee? Did the subcommittee follow its own rules? Were the questions pertinent to the official subject of investigation? Was this pertinence explained to the witness? Was the subject of inquiry adequately stated in the indictment, and proved at the trial? These are some of the questions that appellate counsel have found in the cold records of Congressional contempt proceedings in the last decade, and argued—often successfully—to the Supreme Court. The Court’s discretion is as great as the advocate’s in selecting the issue for decision, so that it is often difficult to predict on what ground a case will be decided, much less which side will win. The shaping of the facts and the issues into a Supreme Court case is the job of the advocate. The brief and argument that finally appear are only the visible part of the iceberg—the end of a long process of selection and decision and imagination.
It was this process on which Fortas and others in his law firm embarked at the end of June. The first step was to look over the papers that had been filed so far in the Gideon case. A young associate in the firm went up to the Clerk’s Office at the Court to read them, and photostats were later made for the Arnold, Fo
rtas and Porter files. These papers were meager: Gideon’s petition for review, Florida’s response, the rebuttal by Gideon, a copy of his original application for habeas corpus in the Florida Supreme Court and that court’s cryptic denial of it. From these, Fortas, or any other interested person, could know only a skeleton of the case: The charge, the conviction, the sentence, Gideon’s demand for a lawyer, the rejection of that demand. There were no details about the prisoner or the crime or the trial—nothing, for example, to indicate what a lawyer might have done for Gideon by way of defense that Gideon did not do for himself.
The few facts before Fortas were enough to raise the legal question that the Supreme Court had directed him to argue: Should Betts v. Brady be reconsidered and an absolute requirement of counsel be imposed? As the bare record stood, Florida conceded that Gideon was a poor felony defendant whose request for appointed counsel had been denied. Those facts alone as an abstract proposition, Fortas could argue, constituted a denial of due process of law. Moreover, technically speaking, only this skeleton of the Gideon case could serve as the basis for the Supreme Court’s adjudication. The court ordinarily will consider only the record that was before the lower court; counsel may not, as an afterthought, try to introduce new evidence. And in Gideon’s case the only document that had been before the Florida Supreme Court was the habeas corpus petition that it rejected; it had no transcript of the trial or other information. The Florida court regarded Gideon’s constitutional claim as so weak—or so obviously foreclosed by Betts v. Brady, to put it another way—that factual detail was irrelevant.
But it is against the Anglo-American legal tradition to argue cases in so abstract a setting. A lawyer wants the smell of flesh and blood; he wants a human being for a client, not an abstract principle. And Fortas had been assigned to represent Clarence Earl Gideon, not an abstraction. There was always the chance that a closer examination of the facts in his case would show another reason for setting aside his conviction—a ground easier for the Supreme Court to accept than one that would require overruling of its own precedent. As one example, the trial record might disclose one of the “special circumstances” entitling a man to a free lawyer under the Betts v. Brady rule: Gideon might have been insane or hopelessly incompetent, or the judge might have shown prejudice, or the case against him might have been a particularly complicated or legally subtle one. If Gideon could win in the Supreme Court on any such ground, it was Fortas’s duty to Gideon to argue that point, even though the result was to eliminate the case as a broad test of the right to counsel. There are few things Supreme Court justices like less than a lawyer who puts his client’s interest aside in the zeal to make some great change in the law.
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