Smith Betts was a farm hand in rural Carroll County, Maryland. He was charged with robbery, and he asked the court to appoint a lawyer for him because he was too poor to hire one. The judge refused, explaining—just as a Florida judge was to explain to Clarence Earl Gideon twenty years later—that the practice in Carroll County was to appoint lawyers for the indigent only in prosecutions for murder and rape. Like Gideon, Betts acted as his own lawyer, cross-examining the prosecution witnesses and calling his own. The main issues were identification of Betts as the robber and the validity of an alibi he put forward. The judge who tried the case believed the prosecution, found Betts guilty and imposed an eight-year sentence. Eventually Betts filed a petition for habeas corpus with Chief Judge Carroll T. Bond of Maryland’s court of appeals, claiming that the refusal to give him a lawyer violated his constitutional rights—again the same procedure that Gideon was to follow in twenty years. Judge Bond reviewed the record of the trial and rejected Betts’s claim in a detailed opinion. The trial, he said, has been a routine, simple affair, so that “in this case it must be said there was little for counsel to do on either side.” Betts had been able “to take care of his own interests.”
In the Supreme Court, a six to three majority agreed with Judge Bond. Justice Roberts wrote the opinion for the majority, rejecting as unworthy of extended discussion any contention that the Sixth Amendment was applicable as such to the states. The question was “whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment.” To find the answer the Court must look to the constitutions, statutes and judicial decisions of the states originally and at present, “the most authoritative sources for ascertaining the considered judgment of the citizens of the states upon the question.” Justice Roberts first reviewed the counsel provisions of the thirteen original states at the time of the writing of the Constitution and concluded that they were designed not to assure lawyers for the poor but to reject the English common-law rule and let those who could afford it retain counsel. (In Johnson v. Zerbst the majority, including Justice Roberts, had evidently deemed the same history irrelevant to the meaning of the Sixth Amendment today.) In the constitutions and laws of the forty-eight states in 1942 Justice Roberts found a diversity of provisions on counsel, some requiring appointment in all cases, some in capital cases only, some merely permitting appointment in each court’s discretion.
“This material demonstrates,” he concluded, “that, in the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. On the contrary, the matter has generally been deemed one of legislative policy. In the light of this evidence we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the states, whatever may be their own views, to furnish counsel in every such case.” Justice Roberts added that the logic of the uniform rule sought by Betts would require appointment of counsel in traffic courts, and even in civil cases. “The states should not be straitjacketed” that way, he said. “Want of counsel in a particular case may result in a conviction lacking in … fundamental fairness,” but that would have to be found from the circumstances.
Turning to the facts of this case, Justice Roberts relied on the findings of Judge Bond. (Altogether, the opinion mentioned Judge Bond by name fifteen times, and Professor Freund has suggested that the esteem in which he was held may have influenced the result.) “The simple issue was the veracity of the testimony for the state and that for the defendant. As Judge Bond says, the accused was not helpless, but was a man forty-three years old, of ordinary intelligence and ability to take care of his interests on the trial of that narrow issue. He had once before been in a criminal court, pleaded guilty to larceny and served a sentence and was not wholly unfamiliar with criminal procedure.” Joining the opinion were Chief Justice Stone (as he had become at Hughes’s retirement) and Justices Stanley F. Reed, Frankfurter, James F. Byrnes and Jackson.
The dissenting opinion was by Justice Black, and it foretold the philosophy he was to develop as a judge over the next two decades. He said for the first time that he thought the Fourteenth Amendment had been intended to incorporate the Sixth, but he did not press the point. Even “the prevailing view of due process,” he said—“a view which gives the Court such vast supervisory powers that I am not prepared to accept it without grave doubts”—required provision of counsel for those too poor to retain their own. Briefly Justice Black, whose opinion was joined by Justices Douglas and Murphy, explained why he thought the right to counsel was “fundamental.” He cited the language of some early state cases and of Justice Sutherland in Powell v. Alabama. He concluded that no man should be “deprived of counsel merely because of his poverty. Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.”
Not long after Betts v. Brady was decided, it was severely criticized in a lengthy letter to The New York Times by Benjamin V. Cohen, the noted New Deal lawyer, and Erwin N. Griswold, then a professor, later Dean of the Harvard Law School. “The decision in Betts v. Brady comes at a singularly inopportune time,” they wrote. “Throughout the world men are fighting to be free from the fear of political trials and concentration camps. From this struggle men are hoping that a bill of rights will emerge which will guarantee to all men certain fundamental rights.… Most Americans—lawyers and laymen alike—before the decision in Betts v. Brady would have thought that the right of the accused to counsel in a serious criminal case was unquestionably a part of our own Bill of Rights.…”
That was just a hint of the criticism that began to rain on Betts v. Brady. Within a few years some students of the Court, perhaps indulging in wishful thinking, suggested that the doctrine was quietly being abandoned. The next two significant right-to-counsel cases, decided in 1945, resulted in seven-to-two reversals of convictions for lack of counsel (Justices Roberts and Frankfurter dissenting). But those were capital cases, and before long it became evident that the Court was drawing a line between trials involving a possible death sentence and all others. In capital cases the Court simply assumed that a fair trial could not be had without counsel; as it said when it finally put the distinction into words, in 1961: “When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.”
In 1947 the Court made it plain that in non-capital cases it was sticking to the flexible rule of Betts v. Brady. Explicitly relying on Betts, Justice Frankfurter said the “abrupt innovation” of a universal counsel requirement “would furnish opportunities hitherto uncontemplated for opening wide the prison doors of the land,” thus indicating the Court’s practical fears. For the next few years, every right-to-counsel case was weighed in terms of its “special circumstances.” The approach was best defined in a 1948 opinion by Justice Reed, Uveges v. Pennsylvania. “Where the gravity of the crime and other factors—such as the age and education of the defendant, the conduct of the court or prosecuting officials, and the complicated nature of the offense charged, and the possible defenses thereto—render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair …, the accused must have legal assistance.”
Sometimes the differing uses of this formula produced such fine distinctions that virtually no one could understand them. On the same day in 1948 the Court decided two right-to-counsel cases, Gryger v. Burke and Townsend v. Burke, affirming the conviction in the first and reversing in the second. Gryger claimed that he had been given a life sentence because the trial judge—misinterpreting state law—wrongly thought the statutes required that sentence; a five-to-four majority found no “fundamental unfairness” in the absence of counsel to correct such an error. Townsend said his judge had imposed sentence
in the mistaken belief that he had been convicted on two earlier charges which in fact resulted in acquittals; a six-to-three majority thought counsel was constitutionally required in those circumstances. The only conclusion one could state with certainty about the two cases was that Justices Jackson and Frankfurter—who made the difference by voting to affirm Gryger’s conviction and reverse Townsend’s—saw a distinction. But that the distinction rose to the level of defining “due process of law” was beyond most men’s belief.
The prevailing scholarly view of the succession of right-to-counsel decisions in the 1940’s was expressed by Professor Allen: “The cases decided by the Court under the Betts formula are distinguished neither by the consistency of their results nor by the cogency of their argument.… The rule, therefore, seems vulnerable to fundamental criticism, and so long as it persists, the law of the subject will remain in a state of unstable equilibrium.”
Sometimes when a constitutional decision comes under such severe scholarly attack, the Court begins to retreat from it almost invisibly, paying it lip service but never really allowing it to stand in the way of desired results. Something like that seemed to be happening in the 1950’s to Betts v. Brady. Opinions still frequently cited the case. But the last time the Court actually affirmed a state criminal conviction in the face of a claimed denial of counsel was in 1950. Between that decision and the grant of review in Gideon’s case the Court had held in favor of every state prisoner whose counsel claim it agreed to hear.
There was an especially significant series of decisions beginning in 1960. In Hudson v. North Carolina that year, Justice Potter Stewart found counsel constitutionally required because Hudson’s co-defendant had changed his plea to guilty midway in the trial and that might have prejudiced Hudson before the jury. Justice Clark, joined by Justice Whittaker, dissented, remarking acidly that the Court’s opinion, “without so much as mentioning Betts v. Brady, cuts serious inroads into that holding.” That was the last dissent in any right-to-counsel case before Gideon’s. The next year, 1961, Justice Whittaker wrote for the Court in McNeal v. Culver, reversing a conviction for assault because of the “complex and intricate legal questions” involved under the law of Florida. Justice Douglas, joined by Justice Brennan, wrote a separate concurring opinion of even greater interest. It called flatly for the overruling of Betts v. Brady, concluding: “Betts v. Brady requires the indigent, when convicted in a trial where he has no counsel, to show that there was fundamental unfairness.… This is a heavy burden to carry, especially for an accused who has no lawyer and cannot afford to hire one. It is a burden placed on an accused solely by reason of his poverty. Its only sanction is Betts v. Brady, which is so at war with our concept of equal justice under law that it should be overruled. Are we to wait to overrule it until a case arises where the indigent is unable to make a convincing demonstration that the absence of counsel prejudiced him?”
The language of that concurring opinion seemed to look to the equal-protection clause as much as the due-process clause of the Fourteenth Amendment. A few weeks later, in a lecture, Justice Brennan said that he was thinking in terms of equal protection. He cited Griffin v. Illinois, holding that a state could not distinguish between rich and poor in allowing appeals from criminal convictions. “The denial of counsel to an indigent accused,” Justice Brennan said, “seems almost to be an a fortiori case of the violation of the guarantee of equal protection of the laws.”
In 1962 the Court said unanimously that the legal issues at a proceeding under a multiple-offender law—committing a man to an extended prison term simply because he had a certain number of felony convictions—were so “complex” as to require counsel. Many authorities would have regarded such proceedings as about as simple and straightforward as any could be in the criminal law. The Betts requirement of “special circumstances” to justify counsel had seemingly been stretched to the limit.
Then, on April 30, 1962, the Court decided Carnley v. Cochran, the fourth counsel case from Florida in the last four years. Once again it held that in the particular circumstances the defendant should have had a lawyer. The Betts approach was still being followed. But in the Carnley case there was a difference. Two justice did not participate in the decision: Justice Whittaker had retired on April 1st, and on April 5th Justice Frankfurter had gone to the hospital; his illness was not then disclosed but was in fact a stroke. Of the seven justices sitting, three—Chief Justice Warren and Justices Black and Douglas—joined in a concurring opinion urging that Betts v. Brady be overruled. But everyone knew there was another member of the Court who felt that way, for Justice Brennan had said as much the year before and had certainly not changed his mind. Thus, the day of the Carnley decision, there was at least a four-to-three majority of the justices who favored a flat requirement of counsel in state criminal cases. Justice Brennan simply declined for the moment to invoke that broad ground, voting instead to find counsel required on the particular facts of this case. Why did he do so? Perhaps he felt it inappropriate to overrule a constitutional decision with less than a full bench present, when the result might be said to depend on the accident of vacant seats. Or perhaps he or others thought the grave step of overruling should be taken more deliberately, with counsel in some future case being explicitly directed to focus on the question of the Betts doctrine’s continuing validity.
It was a little more than two months later when the Supreme Court granted Gideon’s petition for review and directed counsel to brief and argue that question.
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When Abe Fortas started to work on the Gideon case, he recognized that the current of legal history was moving with him. The whole thrust of recent decisions on criminal procedure was at war with the Betts philosophy of letting the states manage their trial procedures as they thought best.
But these intimations of mortality for the twenty-year-old doctrine did not mean that Fortas had no significant role to play as counsel assigned to argue for its formal burial. The Court had chosen someone of more than ordinary experience and ability to represent Gideon, and the honor carried with it a special responsibility. If that most basic right, to be represented by counsel, was now to be extended to all those charged with serious crimes in any court, the justices would want all possible intellectual support for taking the step. And each justice would have his own viewpoint. Fortas saw his job as reaching each of the nine. “It’s hard for me to describe it without sounding stuffy,” he said later, discussing his feelings. “An advocate usually thinks about winning a case and doesn’t give a damn whether he wins by five-four or some other vote. But in this case—a constitutional case of fundamental importance, and with political overtones in terms of federal-state relations—it seemed to me the responsibility was not just to try to win the case but to get as many justices as possible to go along with what I considered the right result. If you assume Betts v. Brady was going to be overruled, it was right for the institution of the Supreme Court, and for the law, to have as much unanimity as possible.”
Fortas thought his chances of winning nine votes were slim. He started with an almost certain four: the Chief Justice and Justices Black, Douglas and Brennan. Justice Stewart, though he had not criticized Betts, seemed a hopeful prospect; in his four years on the Supreme Court he had never voted to affirm a criminal conviction where the defendant claimed that he should have had counsel at his trial. Justice Clark was generally regarded as “pro-government” in criminal cases, and he had written the Court’s last dissent in a right-to-counsel case, in 1960; on the other hand, he had written the opinion of the Court in the 1961 search-and-seizure case, Mapp v. Ohio, reinterpreting the Constitution to outlaw illegal evidence in state criminal trials. The two strongest voices on the Court for federalism and restraint in imposing new restrictions on state criminal procedure were those of Justice Frankfurter, who was ill but expected to return to the bench in the fall, and Justice Harlan; Fortas thought it unlikely that either would vote to overrule Betts v. Brady. Finally there was the new
est justice, former Deputy Attorney General Byron R. White, appointed by President Kennedy to replace Justice Whittaker; his views could hardly be known after two months on the bench, although a sharp dissent he had just written from a decision overthrowing a California narcotics law did seem to indicate a hard-boiled attitude in criminal cases.
Since Fortas had been appointed to represent Gideon, his personal belief about the rightness or wrongness of Betts v. Brady could not affect his duty, but in fact he strongly believed that representation by a lawyer was an absolute essential of fairness at any criminal trial. His own experience had so persuaded him, and he wished there were some way he could convey to the justices first-hand the atmosphere of the criminal courts. “What I’d like to have said,” he remarked later, “was, ‘Let’s not talk, let’s go down and watch one of these fellows try to defend himself.’ ” But the business of persuading Supreme Court justices is naturally less direct. In his brief Fortas would have to deal with all the themes traced over the last century in the Court’s interpretation of the words “due process of law” in the Fourteenth Amendment.
Fortas was not an expert on the Fourteenth Amendment in general or the right to counsel in particular, and so his first need was to educate himself. He began by calling in one of his partners, Abe Krash, a younger man who had worked with him on a number of important cases, and asking him to organize research for Gideon v. Cochran. Fortas said he wanted to know everything there was to know about the right to counsel. There immediately got under way the extraordinary process by which a large law firm digests a legal problem. Bright young men break it down into tiny components and write treatises on every conceivable issue—they probe, imagine, cover every exit. Then, from this jumble of material, a skilled lawyer creates a legal work of art, choosing a coherent form for his argument and ruthlessly eliminating all that is extraneous to that form. The end product is a particular understanding of the case, an understanding that informs the brief and the oral argument. A direct question—such as “Should Clarence Earl Gideon have had a lawyer at his trial?”—has become a much more sophisticated constitutional conception, not necessarily more remote from life but richer in its reflection of history and philosophy and judicial attitudes.
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