The night before he left for National Guard camp, Jacob drafted a letter to the attorneys general of the other states. Attorney General Ervin approved it and had the forty-nine copies sent out over his, Ervin’s, signature. It read as follows:
Dear General:
Enclosed is a photostatic copy of a letter received by me from the United States Supreme Court stating that certiorari has been granted in the case of Gideon v. Cochran, and advising [that] the Court desires briefs on the question of whether the holding of Betts v. Brady, 316 U.S. 455, should be reconsidered. Four members of the present Court have expressed the view, at one time or another, that Betts should be overruled and that the concept of the right to counsel under the Sixth Amendment should be embraced within the due-process clause of the Fourteenth Amendment. If the minority can obtain one more vote, Betts will be overruled and the States will, in effect, be mandatorily required to appoint counsel in all felony cases. Such a decision would infringe on the right of the states to determine their own rules of criminal procedure.
Because of the importance of the question, I am hereby inviting the attorneys general of all states to submit amicus briefs in the Gideon case. Also, I would appreciate any advice or aid you can offer, including any statistics or information which you believe would be helpful to us in preparing the main brief.
The role of the amicus curiae is well established in the Supreme Court, curious as that might seem in a legal system generally devoted to the thesis that only those personally affected may take their complaint to a court. The amicus is, by definition, a person or institution not personally involved in the particular lawsuit. The amicus may be interested because the Court’s resolution of the legal issue in a case may some day have an effect on him or it; that was the case when other southern states came in as friends of the court in the School Segregation Cases, to help those states defending the particular lawsuits. Or an amicus may be an organization with a worthy social aim to push; that was the case of the twenty-one racial, religious and civil liberties groups that joined in asking the Court to outlaw restrictive real estate covenants in 1948. The Federal Government very often comes into Supreme Court cases as a friend of the Court; it has done so in virtually every major test of race-relations law in recent years.
There is disagreement about the exact function of the amicus curiae. In theory he is supposed to shed some light on a case that the actual parties are not able or willing to provide. One reason for the Supreme Court’s frequent invitation to the Federal Government to participate in non-Government cases is that the Solicitor General, the Justice Department lawyer who officially represents the Government before the Court, provides a degree of expertise and responsibility in advocacy that few private counsel can match. One of the deficiencies of the Supreme Court process is that it often depends on the presentations of inadequate counsel, and the amicus who (like the Solicitor General) has a continuing awareness of the Court’s needs can be helpful. Private groups can perform a service in that respect along with the Solicitor General. The decision in Mapp v. Ohio, outlawing the use of illegally seized evidence in state criminal trials, followed an argument in which counsel for Miss Mapp did not raise that constitutional question at all; but a lawyer for the Ohio Civil Liberties Union, appearing as a friend of the court, did make the point, and the Court seized on it.
More often, amicus curiae briefs do not really offer anything new or helpful to the Court. They are filed by interested groups or institutions to let the Court know where they stand—a kind of raw tally of public pressures. Most of the twenty-one amicus briefs in the Restrictive Covenant cases were in that category: documents designed to register each group’s view and make it feel important, not to provide distinct legal theories. The next year the Court, perhaps suffering from the volume of its friends, changed its rules to limit the filing of amicus briefs. The general rule now is that one may be filed only with the consent of all the parties to a case, or by order of the Court upon a showing of “facts or questions of law that have not been, or reasons for believing that they will not adequately be, presented by the parties.” But the rule does not apply to the Federal Government or to the states, which may enter any case as a friend of the court.
What Florida was setting out to do with the other states was not at all unusual. State attorneys general frequently file amicus briefs in the Supreme Court, and almost without exception the purpose of those briefs is to oppose federal restraints on state processes. When the Supreme Court was considering the New York Regents’ Prayer the term before the Gideon case, twenty-two states joined as friends of the court asking that New York be allowed to continue the prayer ceremony. Ervin’s letter made the traditional appeal to the states as states, asking them to help resist another infringement “on the right of the states to determine their own rules of criminal procedure.” Anyone would have expected a substantial show of support for Florida in amicus curiae briefs from the states. But the actual result of Jacob’s letter was astonishingly different.
Only about half of the attorneys general replied at all, and even those who were sympathetic were not too helpful. Charles J. Adams of Vermont wrote: “My personal views are that individual states should take a position which would be in opposition to the overruling of Betts v. Brady, although with cases along the lines of Mapp v. Ohio, there seems to be less and less room for a state to establish and maintain its own procedure in criminal matters.… As regards our preparing and filing a brief amicus curiae, I doubt very much that we would be able to do so due to the lack of sufficient staff for that purpose, but I might be interested in joining with some other state in its brief.” Edwin K. Steers of Indiana wrote that he was “sympathetic with your cause and agree that the steady trend of the recent decisions in the Supreme Court of the United States is infringing on state criminal procedure.” But he said Indiana had always provided counsel for the indigent right up through their appeals, so he would have to say no to filing a brief amicus. Similarly, William M. Ferguson of Kansas said a law on that state’s books since 1941 guaranteed counsel in every criminal case, so that Kansas could not help. “You have, however, on the basic philosophical issue of states rights my wholehearted moral support.” The deputy attorney general of Pennsylvania, Frank P. Lawley, Jr., said that state was “seriously considering the possibility of filing a brief amicus.… You indicate that in your judgment if Betts is overruled the states would be required to appoint counsel in all felony cases. What worries me most is the possibility that the Supreme Court, if it did overrule Betts, would not limit such requirement to felony cases.”
In mid-August, two months after Jacob’s letter went out, a reply of a quite different kind came in from the attorney general of Minnesota, Walter F. Mondale. “I believe in federalism and states’ rights too,” he wrote. “But I also believe in the Bill of Rights.… Nobody knows better than an attorney general or a prosecuting attorney that in this day and age furnishing an attorney to those felony defendants who can’t afford to hire one is ‘fair and feasible.’ Nobody knows better than we do that rules of criminal law and procedure which baffle trained professionals can only overwhelm the uninitiated.… As chief law enforcement officer of one of the thirty-five states which provide for the appointment of counsel for indigents in all felony cases, I am convinced that it is cheap—very cheap—at the price. I can assure you that such a requirement does not disrupt or otherwise adversely affect our work.… Since I firmly believe that any person charged with a felony should be accorded a right to be represented by counsel regardless of his financial condition, I would welcome the courts’ imposition of a requirement of appointment of counsel in all state felony prosecutions.”
The Mondale letter irritated Jacob. “I thought everyone should have a lawyer, we all thought that,” he said later. “But I thought the states should do it by themselves, not have it imposed on them by constitutional construction.” Jacob felt so strongly that he wrote a reply for Attorney General Ervin. “I am compelled to answer,” the
letter said, “because I feel that you do not fully understand my position.… I have been placed in the position of an advocate, and as I see it, my duty is to present to the Supreme Court the strongest possible argument on why the doctrine of Betts v. Brady should be adhered to. My personal feelings on whether Betts is a good rule or not are of no consequence.” There were two reasons for suggesting participation by the other states, the letter said: Some of them might prefer to make their own decision on providing counsel for all felony defendants; and, absorption of the Sixth Amendment’s counsel guarantee into the Fourteenth Amendment might well mean a requirement of lawyers in misdemeanor cases, where fewer than half the states now provided them. Mondale sent a conciliatory reply, saying “I truly understand and respect your position as an advocate,” but he reaffirmed his feeling about the issue.
So far as Jacob was concerned, that ended the episode. But unknown to him, Attorney General Mondale’s interest in the Gideon case was not over. He sent copies of his correspondence to several persons, among them the attorney general of Massachusetts, Edward J. McCormack, Jr. At the time McCormack was known to the public as the man making a race (futile, as it turned out) against Edward M. Kennedy for the Democratic senatorial nomination. Among law officers he was known particularly for the active Division of Civil Rights and Civil Liberties he had set up in his office. He passed the Mondale correspondence on to the chief of that division, Assistant Attorney General Gerald A. Berlin. Shortly before Labor Day, Berlin, who was vacationing on Martha’s Vineyard, mentioned the Ervin-Mondale exchange of letters to some friends over cocktails. As they discussed it, Berlin thought of the possibility of writing an amicus brief on the other side of the case—in behalf of Gideon. When he got back to the office, he readily got McCormack’s approval of the idea. He talked to Professor Clark Byse of the Harvard Law School, faculty adviser to a student organization called the Civil Liberties Research Service, and arranged for it to provide some material. The students were helpful, although the deadline was so close that Berlin had to do more brief-writing than he had expected. Three other members of the Harvard law faculty helped out: Professor Mark DeWolfe Howe, on one section of the brief, and Professors Howe and Roger Fisher and Dean Erwin N. Griswold in checking Berlin’s draft.
The Massachusetts brief-writing project was cleared with Mondale, who had wanted to do the same thing but had not got around to it. Mondale helped persuade other attorneys general to sign, and at the last minute McCormack and Berlin got on the telephone and signed up more states. The brief was filed on November 23rd—the Supreme Court Rules require amici curiae to file by the same date as the party they are supporting—with the endorsement of twenty-two states, in this listed order: Massachusetts, Minnesota, Colorado, Connecticut, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Michigan, Missouri, Nevada, Ohio, North Dakota, Oregon, Rhode Island, South Dakota, Washington, West Virginia, Alaska. It turned out later that New Jersey had agreed to sign but had inadvertently been omitted; the correction was made just in time to be reflected in the United States Reports, the permanent bound volumes of Supreme Court opinions.
Among the unusual aspects of this brief for twenty-three states was the fact that three of the signers—Hawaii, Maine and Rhode Island—had no general requirement for appointment of counsel in felony cases. The mere fact that twenty-three states would urge the Supreme Court to impose a new standard of fairness on state criminal procedure was the most startling of all. Indeed, when one member of the Supreme Court saw this amicus brief, he remarked that he would not have been surprised had the Court instead received one from forty-nine states endorsing Florida’s position.
The brief for the twenty-three states called forthrightly for the overruling of Betts v. Brady, making many of the same arguments as Fortas. (The two briefs were prepared without consultation or even knowledge of each other’s intentions; Fortas was as astounded as the justices when he got a copy of it.) Berlin called the special-circumstances rule a “curious doctrine” and said the Court had “persistently whittled away” at it in cases after Betts. Even when the rule had been applied, he said, it was “with reluctance and usually by a closely and sharply divided Court.… It is now most unrealistic to expect that the trial judges, looking ahead, can accomplish that which has obviously been so disturbing to this Court from the vantage point of looking back.”
The distinctive section of Berlin’s brief for the states dealt with the practical results of overruling Betts v. Brady. The brief was carefully confined to advocating provision of counsel in felony cases. But it admitted that misdemeanors “might be foreseen as the troublesome next step.” It said also that “the question of adequacy of representation will some day present a problem to this Court,” and that “representation alone does not solve the problems of the indigent accused, for there may be other vital expenses, such as the traveling expenses, daily fees and subsistence of witnesses.” Then the brief faced the problem posed by those already in prison, who might seek their release if Betts v. Brady were abandoned. One course, it said, would be to let all these prisoners come under the new decision. That was the practice followed after the Supreme Court in 1938 established an absolute right to counsel in federal criminal trials; however onerous the task of dealing with prisoners’ pleas, “the court managed to dispose of them, convinced, evidently, that it was wiser to make the new constitutional guaranty fully effective than to protect themselves from a flood of cases.” But there was an alternative, “which in many ways seems more desirable. That is for this Court to determine that, since the standards which it establishes are dependent, not upon the specific intention of the framers of the Constitution but upon the lessons of experience, it is appropriate not to give those standards retroactive effect.” Thus, on this point, the states’ brief was in direct conflict with Fortas’s view that prospective overruling—applying the new right to counsel only in future—was an inappropriate course for the Supreme Court. This section on practical problems ended with the statement that all branches of the legal profession would have to “bestir themselves” to meet the need for counsel if Betts were overruled—state and local bar associations, charitable organizations, law schools, individual members of the bar by appointment. Then the brief concluded:
“Betts v. Brady, already an anachronism when handed down, has spawned twenty years of bad law. That in the world of today a man may be condemned to penal servitude for lack of means to supply counsel for his defense is unthinkable. We respectfully urge that the conviction below be reversed, that Betts v. Brady be reconsidered and that this Court require that all persons tried for a felony in a state court shall have the right to counsel as a matter of due process of law and of equal protection of the laws.”
Jacob had no idea that any states were planning an amicus brief on the other side. The first he heard of it was just before the brief was filed, in late November. The attorney general of Missouri, Thomas F. Eagleton, mentioned the Massachusetts brief in a letter to Richard Ervin, adding that, “to be abundantly frank,” he intended to join it. Jacob was surprised, but he felt he had done the right thing in calling the attention of the other state law officers to the Gideon case. He thought, as he had originally, that they were entitled to know about an issue so important for the state criminal process, even though it had turned out that so many of them were on the other side of the issue.
One more state amicus brief came in without notice to Jacob or Fortas. It was from Oregon, and it dealt entirely with Oregon’s experience under a 1959 state law allowing prisoners to petition the courts for relief of claimed violations of their federal constitutional rights—including violations long ago at their trials. Since the passage of the act, the Oregon brief said, the courts had ruled in favor of twenty prisoners, finding “substantial defects” in their convictions or sentences. Of those, fifteen had had no lawyers when the defect occurred. Eight prisoners had won their final release from prison under the act; all had lacked counsel “at the crucial point in the origin
al proceeding.” The brief was only six pages long, but it made a single point tellingly. This was, as expressed in the conclusion: “The experience of the State of Oregon tends to indicate that it would provide greater protection of constitutional rights, and would be less expensive, to insist upon counsel in each original criminal proceeding than to attempt by a post-conviction proceeding to recover justice lost by defects at the trial.”
Florida had also given permission to the American Civil Liberties Union to come in as a friend of the court. Its concern with the case had begun with a telephone call from J. Lee Rankin, the last Solicitor General in the Eisenhower Administration, who had gone to New York to practice. Rankin had a deep interest in civil liberties and was a member of the advisory committee of the Civil Liberties Center at the New York University Law School. When he read about the Supreme Court’s grant of certiorari in the Gideon case, and its call for a reappraisal of Betts v. Brady, he telephoned the director of the center, Associate Professor Norman Dorsen, and asked whether any civil-liberties group planned to participate. Dorsen carried the idea to Melvin L. Wulf, legal director of the A.C.L.U., who thought an amicus brief was desirable. These three men took principal responsibility for the A.C.L.U. presentation, with Rankin as the senior attorney, Dorsen in charge of the brief drafting and Wulf doing particular research.
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