The remaining, and even more important, practical consequence to weigh was the effect of a victory for Gideon on other prisoners who had been tried without counsel. The forecast that an absolute counsel requirement would lead to wholesale emptying of prisons was perhaps the most powerful emotional argument against overruling Betts v. Brady—and it was a factor that had been mentioned in opinions since Betts. One way to avoid that consequence would be to apply a new, absolute counsel rule only prospectively. For example, the Court could affirm Gideon’s conviction, applying to him the established Betts doctrine, but warn that all convictions would be set aside in future unless the states provided counsel. Some state courts have done exactly that when they have overruled earlier doctrines, and the Supreme Court has said there is nothing unconstitutional about this procedure of prospective overruling. In Griffin v. Illinois, when the Court opened up a new avenue for appeals by saying the states could not deny prisoners the right because of their inability to buy a trial transcript, Justice Frankfurter had been concerned about the effect on cases long since concluded and had suggested applying the new doctrine only to the future. But that proposal was rejected in Griffin, and in fact the Supreme Court had never itself used the process of prospective overruling. The Griffin case was subsequently applied to make the states grant appeals to men who had been in prison twenty years. Krash pointed out that anyone whose conviction was voided as a result of a reinterpretation of the Constitution could be retried. He might even end up with a more severe sentence. One man serving a life sentence in a federal penitentiary had won a new trial when, in 1938, the Supreme Court first imposed an absolute counsel requirement for federal cases; at the new trial he was convicted again and sentenced to death. (The sentence was commuted.)
The consequences of overruling Betts v. Brady would also be mitigated by the fact that so many states now provided counsel for the poor in their criminal courts. Exactly what had happened in the states was not clear—no one had done a thorough job of research and compilation—until Professor Yale Kamisar of the University of Minnesota Law School published a definitive article in the Autumn 1962 issue of the University of Chicago Law Review. The article would have been too late for use in Fortas’s brief; but Professor Kamisar, knowing about the Gideon case, had telephoned Krash in September and offered to send him a copy of the manuscript. The offer was gladly accepted.
Professor Kamisar showed that at the time of Betts v. Brady, thirty states provided counsel as a matter of right in all felony cases. Now thirty-seven did so. That left thirteen with no statewide, formal requirement for provision of counsel except in death cases. But Kamisar had discovered, by corresponding with prosecutors, judges and other authorities in these states, that in eight of the thirteen the practice of appointing counsel had developed without benefit of any statute or rule of court. At least in the larger cities in those eight states, indigent defendants charged with felonies were likely to be given lawyers, although there was no guarantee and the chances were not so good for rural defendants. In Baltimore, for example, counsel was usually provided for any indigent requesting assistance in the criminal courts, although Maryland still held officially to the Betts rule that it had spawned, and defendants outside of Baltimore probably had to demonstrate special circumstances to get a lawyer. In Philadelphia, a private defender association made up for the deficiencies of the most populous state still not committed as a matter of policy to provide counsel for all indigent felony defendants. With those eight states added to the thirty-seven, there were left only five that did not assure counsel for the poor except in capital cases: Alabama, Florida, Mississippi, North Carolina and South Carolina. Even in Florida three cities—Miami, Tampa and Fort Lauderdale—had local public defenders. And Professor Kamisar showed that twenty-four states, nearly half, went beyond the line of felonies and provided counsel for misdemeanor defendants.
Ely had written a draft brief before returning to Yale. Krash and Fortas liked it, but they wanted something more finished and more pointed. Krash put the brief through another draft, reshaping it from a scholarly examination of the problems into more of a piece of advocacy, designed to persuade. Fortas soaked himself in the right-to-counsel issue by sitting in the firm library for a week reading cases and commentary—an unusual expenditure of time for a senior partner in a large, busy law firm. Then, one weekend, on his way to join his wife in Westport, Connecticut, Fortas stopped at the Hotel Biltmore in New York and sat in a room for two days blocking out the brief he wanted. From these notes on Biltmore stationery, and after a day’s discussion with Fortas, Krash did a fresh draft. Subject to smoothing and tinkering, it was the final product.
But this bare outline of how the brief was completed does not adequately convey the amount of work done. Krash’s office diary shows that in the month from the printing of the record to the filing of the brief he spent an average of six hours every working day on the case of Clarence Earl Gideon.
The brief was filed on November 21st. It was fifty-three pages long, packing into that limited space many of the arguments suggested in the memoranda circulated at Arnold, Fortas and Porter in the previous months—but putting them less discursively, more pointedly and as part of a literate whole. The brief did not mention the old controversy about “incorporation” of the Bill of Rights into the Fourteenth Amendment; it assumed the continuing vitality of the Cardozo doctrine that “fundamental” rights were absorbed into the due-process clause. Nor was there any attempt to bring Gideon within the special-circumstances rule by showing that he suffered from any particular disability or prejudice at his trial. The brief was a frontal assault on Betts v. Brady.
In an introductory section Fortas said the experience of administering the Betts rule over twenty years had “not been a happy one.… The quality of criminal justice and the relations between the federal and state courts have suffered.” On one side, the doctrine of limiting counsel to those cases where special need could be shown had “not assured and cannot be expected to assure that counsel will be provided where necessary in the interests of fundamental fairness.” On the other, the Betts rule had turned out not to be “an appropriate adaptation of the Fourteenth Amendment to the demands of federalism. To the contrary, it is a rule which compels continual, unseemly and improper intervention by the federal courts in state criminal proceedings—not on the basis of applying a concrete, fundamental principle but by the corrosive and irritating process of case-by-case review.… Betts v. Brady has not meant, and will not mean, less federal intervention in state criminal proceedings than would be the case if the Fourteenth Amendment were construed to require that counsel be furnished in all state criminal prosecutions. Because of the intensely factual, subjective and post-facto nature of its standards, Betts v. Brady means more federal intervention on a case-by-case basis, and in a much more exacerbating form.” In a separate appendix in the brief Gideon’s trial was analyzed to show how a lawyer would have protected Gideon. The analysis vividly demonstrates, Fortas said, “that he did not have a fair trial in the constitutional sense. But it is our opinion that these points [of analysis] are not peculiar to Gideon’s case. We believe … [they] are present in every criminal prosecution.”
That introduction conveyed the essence of what Fortas felt about the case. The brief proper was in five sections, with numerous subsections. These were the five headings and, in briefest summary, the points made under each:
I. The Fourteenth Amendment requires that counsel be appointed to represent an indigent defendant in every criminal case involving a serious offense.
First, “the aid of counsel is indispensable to a fair hearing.” Even a trained criminal lawyer will not undertake his own defense. Many constitutional rights, such as the new protection against use of illegally seized evidence, “are meaningless in the absence of counsel.” Second, the absolute requirement of counsel in federal prosecutions confirms the need. Third, reliance on the trial judge to assert the defendant’s rights is misplaced because a man cannot
be both judge and counsel. Fourth, the distinction between capital and non-capital cases is invalid as a basis for determining the constitutional right to counsel. The due-process clause protects one’s “liberty” and “property” as well as one’s “life.” Moreover, the need for counsel is greater in some non-capital crimes. The Court rejected the capital-non-capital distinction in the overseas court-martial cases; because of their importance (Fortas thus rejecting Ely’s advice to play them down) they are discussed in a separate appendix. Fifth, the equal-protection clause requires provision of counsel, citing Griffin v. Illinois.
II. The demands of federalism do not dictate continued adherence to Betts v. Brady.
The need for counsel is so obvious that the real argument for Betts v. Brady must be federalism. But it is a false argument. First, relying on Professor Kamisar’s article, the vast majority of the states now appoint counsel in all felony cases as a rule or a matter of practice. This removes the factual premise of Justice Roberts’ opinion in Betts, that the states’ “considered judgment” was not to regard counsel as “a fundamental right, essential to a fair trial.” In 1961, when the Court in Mapp v. Ohio imposed the exclusionary search-and-seizure rule on the states, only half of them had taken that step themselves. Second, “Betts v. Brady has created friction between the states and the federal courts” because “it does not prescribe a clear-cut standard which the state courts can follow.” The rule of special circumstances “involves federal supervision over the state courts in its most noxious form. In effect, the federal courts are given a roving commission to scrutinize the proceeding in the state court to see if it is ‘shocking to the universal sense of justice.’ ” A flood of habeas corpus petitions has been spawned, leading to agitation to curtail the great writ of habeas corpus. Third, an absolute counsel requirement would still leave ample room for state experimentation, a benefit of our federal system. States would try different systems for providing counsel—public defenders, private voluntary associations, assigning counsel.
III. The rule of Betts v. Brady has not proved to be a satisfactory standard for judicial administration.
First, the Supreme Court’s own decisions under the special-circumstances approach have been confusing and inconsistent, quoting Professor Allen. Second, the rule has “only infrequently led the state courts to appoint counsel. Some of the state decisions are startling.” The Pennsylvania Supreme Court, for example, denied relief to a prisoner convicted without counsel at the age of eighteen, although it recognized that he “was not wholly a normal person. A behavior clinic study of the defendant shortly before his arrest revealed him to be a high-grade moron with an intelligence quotient of fifty-nine,” equivalent to a “mental age of only nine.” Third, the special-circumstances rule is inherently unfair in operation because it usually requires an ignorant layman to prepare—without a lawyer’s help—the necessarily subtle argument on appeal that the circumstances at his trial required counsel. Fourth, the rule is also unfair because many years may elapse between conviction and the finding of special circumstances. Fifth, delay is undesirable for the states, too, since witnesses may have died and records been lost so that new trials cannot be held.
IV. The right to counsel minimally includes appointment of an attorney to assist an indigent person at the trial of a serious offense.
It is not necessary now “to delineate all of the metes and bounds of the right to counsel in state criminal proceedings.” An accused should have the right to consult a lawyer “at any time immediately after arrest,” but this case involves only “the trial stage of the prosecution. Whatever the perimeter of the right, it surely comprehends the assignment of counsel at the trial.” As for the kind of crimes reached, it may be noted that the Court has limited the right of trial by jury in federal cases to exclude petty offenses.
V. The practical implications with respect to persons already imprisoned do not militate against overruling Betts v. Brady.
A word should be said about the contention that the rule should not be changed because it “may result in releasing indeterminate numbers of prisoners in some states.” First, anyone whose conviction is reversed is always subject to retrial. Second, the Court rejected similar counsels of fear when it decided the Griffin and Mapp cases, changing constitutional doctrine on rights of appeal and excludable evidence. The constitutional claim here is even stronger. And the states have had ample notice of the importance of counsel to a defendant’s rights—thirty years since the Scottsboro case, Powell v. Alabama.
At the end Fortas quoted from the letter written to The New York Times by Erwin Griswold and Benjamin Cohen after the Betts decision: “At a critical period in world history Betts v. Brady tilts the scales against the safeguarding of one of the most precious rights of man. For in a free world no man should be condemned to penal servitude for years without having the right to counsel to defend him. The right of counsel, for the poor as well as the rich, is an indispensable safeguard of freedom and justice under law.” Then, in the customarily flat, unemotional finale, the brief concluded: “For the reasons stated, Betts v. Brady should be overruled, and the judgment of the court below should be reversed.” It was signed by Fortas, Krash and Temple, and a footnote acknowledged the “valuable assistance” of one who could not sign because he was not a member of the bar, “John Hart Ely, a third-year student at the Yale Law School, New Haven, Connecticut.”
Fortas mailed the brief, as required, to the opposing counsel—the Florida attorney general’s office. He also sent a copy to Gideon at the state prison in Raiford, Florida. Gideon replied on November 30th, as follows:
Dear Sir:
This is to thank you for sending me a copy of the brief you have prepared and presented to the Supreme Court for my cause. Everyone and myself thinks it is a very wonderful and brillant document.
I do not know how you have enticed the general public to take such a interest in this cause. But I must say it makes me feel very good.
Sincerely yours
Clarence Earl Gideon
10
In the ordinary criminal case the advantage is overwhelmingly with the state, which has abundant resources of men and money to bring against the friendless defendant. Certainly that had been true at the trial of Clarence Earl Gideon. But now, in the Supreme Court, the odds were reversed. A large and expert law firm had done many thousands of dollars’ worth of legal work on Gideon’s behalf, and he had in his favor also the momentum of legal history—the trend of decisions pointing toward the overruling of Betts v. Brady.
On the other side, defending that much-criticized decision and seeking to keep Gideon in prison, there was a single young and inexperienced lawyer who before this case had never set foot in the Supreme Court of the United States. He was Bruce Robert Jacob, an assistant attorney general of Florida, twenty-six years old when Gideon v. Cochran began its way through the Supreme Court. The attorney general of Florida, Richard W. Ervin, had formal charge of representing the state’s interest in the case; but in fact Jacob wrote most of the legal papers, made the argument and bore the responsibility for the case from beginning to end.
Bruce Jacob is a tall, blond, serious-looking young man whose life reached all sorts of turning points during the year of the Gideon case. In addition to the case itself—and not many lawyers make Supreme Court arguments at that age—Jacob went into private practice while he was writing the brief, won a commission as a second lieutenant in the National Guard and was married. It was a busy year.
Jacob was born March 26, 1935, in Chicago, and his family moved to Sarasota, Florida, when he was a junior in high school. They sent him back to Principia College, a Christian Science institution in Elsah, Illinois, but he quit after a year. He finished college at Florida State University in Tallahassee and got his law degree at Stetson Law School in St. Petersburg. After a few months in a law office in Sarasota and six months in the Army, Jacob joined the state attorney general’s office and went into the criminal division. When the Gide
on case came along, he had been there two years and had argued several criminal cases in the state courts. He was hoping that the assistant attorney general in charge of criminal appeals, Reeves Bowen, would let him argue a case in the Supreme Court of the United States.
The first Jacob heard of the Gideon case was when the Supreme Court, in March, 1962, asked the Florida attorney general’s office to respond to Gideon’s petition for review. Reeves Bowen gave Jacob the case. He worked alone on the response to Gideon’s petition, relying on Betts and some of its successor cases not because he was unaware of their shaky status but because he hoped the Court would not choose Gideon’s case as the vehicle for overruling. He was courting a girl who worked in the same building, and after hours she typed the response for him. He learned in June that the Court had granted the petition when he read a newspaper story about the case; the formal letter from the Clerk’s Office arrived a few days later.
Jacob was due to spend two weeks in June at a National Guard officers’ candidate school, but before leaving he talked with one of the more experienced men in the office, George Georgieff, about what might be done. Georgieff suggested writing to the other forty-nine states and asking them to file amicus curiae (friend of the court) briefs, with the aim of mustering a demonstration of sentiment in behalf of Florida and Betts v. Brady. Jacob thought writing the states was a good idea for another reason—“so that if Betts v. Brady was overruled, they couldn’t come back and say ‘What the heck, why didn’t you tell us about it?’ ” That thought was in his mind because of what he was told by a colleague in the office who had argued, and lost, another recent right-to-counsel case in the Supreme Court. Some time later, this man said, he was with a group of lawyers and was called “a son of a bitch” by some other state official for losing the case. (Jacob was never sure whether this really happened or was made up to tease him.) “Every day in the attorney general’s office,” Jacob said later, “we’d sit around drinking coffee and they’d kid me and say I’d better be anonymous after this case was decided, I’d better go somewhere and hide. If you get called that for losing a case on special circumstances, think what they’d do to me for losing Betts v. Brady. There were a lot of people who didn’t want that case overruled.”
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