Gideon's Trumpet

by Anthony Lewis

  A distinctive contribution of the Civil Liberties Union brief was an exhaustive survey of the handling of right-to-counsel cases by the state courts under the special-circumstances doctrine of Betts v. Brady. The survey, which covered all the reported decisions by appellate courts in states without an automatic counsel rule, showed that those courts very rarely found special circumstances requiring a lawyer. Of forty-four cases in Pennsylvania, only one had been adjudged to present such circumstances; three were remanded for a lower-court hearing. In Maryland three of thirty-eight cases were deemed to show the need for a lawyer, in Florida one of seventeen and one remanded for a hearing. Altogether, of one hundred thirty-nine state appellate court decisions on the special-circumstances issue, only eleven found that the trial judge had erred in failing to appoint counsel.

  After losing in the state courts, the A.C.L.U. brief said, the prisoner probably asks the Supreme Court for review, “which is usually denied, often because there was no hearing granted in the state courts that would have revealed the possible validity of a constitutional claim.” Then the prisoner can go to a federal district court with a petition for habeas corpus and go through a whole new round—the district court, a court of appeals and then the Supreme Court. All this, said the A.C.L.U. brief, expended large and increasing amounts of judicial energy. The number of habeas corpus petitions filed in the federal district courts had gone up from one hundred twenty-seven in 1941 to eight hundred seventy-one in 1960, and prisoners’ petitions in the Supreme Court were increasing even more rapidly. The federal habeas corpus jurisdiction was especially irritating to federal-state relations because the states disliked having constitutional issues retried after a prisoner had gone all through the state appellate process. And many, perhaps most of these prisoners’ cases arose because there had been no counsel at trial. “Overruling Betts v. Brady would sharply decrease the volume of cases … and reduce the federal-state conflict inherent in the federal habeas corpus remedy.”

  As late as Thanksgiving, Jacob expected a substantial number of states, perhaps as many as seven, to join in an amicus brief on Florida’s side of the case. The hope was based on the somewhat vague letters sent by their attorneys general. As it turned out, only two states spoke up for Florida—Alabama and North Carolina. (“I never knew what happened to the others,” Jacob said later.) This amicus brief was written by George D. Mentz, assistant attorney general of Alabama, who had argued one right-to-counsel case in the Supreme Court. It made a strong appeal for federalism and states’ rights.

  “It is the essence of our federalism,” the brief said, “that states should have the widest latitude in the administration of their own systems of criminal justice.” Some day, “when finally the millennium is reached,” all criminal defendants will have lawyers and the poor will all be saved “the pangs of hunger or the discomforts occasioned by a lack of adequate clothing, suitable housing or other creature comforts.” Those are “humanitarian principles,” but they are not imposed on the states by the Fourteenth Amendment. “If and when, in the considered judgment of the people of the individual states, such gratiutous services or aid are warranted morally or are feasible financially, they will be provided. Though man’s social evolution is slow, history proves that he does advance in all fields. To be lasting, however, his progress must result from his own volition rather than come from judicial fiat.”

  On the counsel issue more specifically, Mentz’s brief went on, Alabama lawyers at a recent meeting agreed that an indigent without counsel “stands a better chance of obtaining from a jury either an outright acquittal or less severe punishment than one represented by an attorney.” Only a few lawyers would, in any case, be “equal matches for career prosecutors.” In this very trial, the record shows that Gideon “presented the available defense about as ably as an average lawyer could have done.” A universal counsel requirement might be “an unbearably onerous financial burden” for poorer counties if they had to pay assigned counsel. “Furthermore, it is not an uncommon situation in thinly populated rural counties for there to be more persons charged with crime than there are lawyers versed in criminal practice, and some judges may encounter real difficulty in appointing enough qualified lawyers to serve at their criminal terms of court.” (Mentz, had he known, might have told the Supreme Court that there were only seventy-seven practicing lawyers in the six counties of the Florida judicial circuit where Gideon was tried.)

  The brief concluded: “Even with its exposure to occasional abuses, the rule of Betts v. Brady remains the best one for our American way of life. Any decision to make mandatory the appointment of counsel for all indigents charged with crime in state courts should come not from this Court but from the people of the individual states acting through their elected legislatures or judges.”

  That left only Florida’s brief to be filed. Jacob had worked on it during the summer, but only sporadically, because too many other things were happening. Just after his return from National Guard camp in June, he had been interviewed by a law firm in Bartow, Florida: Holland, Bevis and Smith. (Holland is United States Senator Spessard L. Holland.) Jacob was offered a position in the firm and agreed to take it, beginning in October. He thought the briefs in the Gideon case would all be filed by then, and he got Attorney General Ervin’s permission to carry on with the oral argument of the case after leaving the office. But he had not anticipated the conflict with Fortas over what should go into the printed record. The time for filing of briefs does not begin to run until the record is printed, and the delay over that issue pushed everything back about three months. As a result, Jacob wrote Florida’s brief after leaving the attorney general’s staff.

  By the time he began to write it, in the late fall, Jacob had lost the few shreds of hope he had had of winning the case. The episode of the record had not been encouraging. Jacob had not even known that a transcript of Gideon’s trial had been prepared and supplied to the Supreme Court until he received Fortas’s designation of materials to go into the record. Then he asked around the attorney general’s office and was told by old-timers that the same thing had happened—use of a trial transcript in a habeas corpus case where it was not formally at issue—in a Florida case taken to the Supreme Court in 1940. That case was Chambers v. Florida, a landmark in the career of Hugo L. Black as a justice because he had been denounced, when appointed, as a racist. Four young Negroes had been convicted of murder on the basis of confessions they claimed had been coerced from them. Justice Black, after what one informed commentator has called “great internal struggles,” wrote an opinion for the Court reversing the convictions on the ground that the prisoners had been forced to confess. “Under our constitutional system,” he wrote, “courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.”

  More discouraging to Jacob than loss of the small struggle over getting the trial transcript into the record was the retirement, on August 29th, of Justice Felix Frankfurter. More than any member of the Supreme Court Justice Frankfurter stood for a belief in federalism, in the right of the states to be free from too limiting national restraints. In the early years after Betts v. Brady, Justice Frankfurter had been one of the strongest supporters of its flexible counsel doctrine. In more recent years he had gone along silently with decisions requiring counsel in particular cases, but not with any suggestion of abandoning Betts. Not only his vote but his leadership on the Court seemed to Jacob—and to others—essential to any hope of preserving that doctrine. President Kennedy replaced Justice Frankfurter on the bench with Arthur J. Goldberg, the Secretary of Labor, whose training and experience in a different era made it doubtful at best that he would share his predecessor’s emphasis on state independence.

  “I had been developing some hope that the Court would draw back from this ultimate ‘legislating,’ ” Jacob said later. “When Justice Frankfurter retired,
I realized that we had very little chance.”

  On September 8th Jacob married Ann Wear, the girl he had been courting in the State Capitol. They had a week’s honeymoon in Jamaica. Shortly afterward they set up their new household in Bartow, and Jacob began practice at Holland, Bevis and Smith. The firm told him to take all the time he needed on the Gideon case, but he “felt like I shouldn’t do that.” So he did the work, with clerical help from Ann, on nights and weekends. Research was a problem because there was so little material available in Bartow, which is a prosperous town but has a population of only thirteen thousand and a limited law library. Just about every weekend Jacob and his wife drove the two hundred and fifty miles to Tallahassee. He had a key to the library of the Florida Supreme Court, and there they would work—sometimes all night long. He read cases and other material, underlining things he thought important, and then Ann would copy them. Sometimes, instead of Tallahassee, they went to the Stetson Law School library in St. Petersburg, which was only sixty miles or so from Bartow. When Jacob finally got around to drafting the brief, in late November, he worked at home in the evening; the next day Ann would type up what he had written. The last few days, as the deadline approached, he was forced to take some office time to finish up. Just before Christmas he sent the brief off to the attorney general’s office in Tallahassee to be printed. There final printing arrangements were handled by A. G. Spicola, Jr. But no changes were made in the substance of the brief; it remained a one-man product, written under circumstances that could hardly have been in more striking contrast to the time and talent expended on Gideon’s side of the case.

  The brief, covering seventy-four pages, began with a section arguing that Gideon was not entitled to counsel under existing law—the rule of Betts v. Brady. Jacob reviewed the cases that had followed Betts in requiring a showing of special circumstances to obtain counsel. Gideon, he said, had “made no affirmative showing of any circumstances of unfairness which would have entitled him to counsel under the Fourteenth Amendment”; he had said nothing about “his age, experience, mental capacity, familiarity or unfamiliarity with court procedure, or the complexity of the legal issues presented by the charge.” Jacob held to the position that the transcript of Gideon’s trial was not properly before the Supreme Court; but if it were considered, he said, it proved that Gideon had had a fair trial. “He took an active role in his defense and showed that he possessed much skill and facility in questioning witnesses.” And beyond the trial transcript, Gideon’s prison record showed that he was fifty when arrested, had finished the eighth grade and had been convicted of four felonies—indicating, in the words of Justice Roberts about Betts, that he “was not wholly unfamiliar with criminal procedure.”

  Jacob had also obtained a letter from the judge who had tried the case, Robert L. McCrary, Jr., saying it was his “opinion that Gideon had both the mental capacity and the experience in the courtroom at previous trials to adequately conduct his defense. This was later borne out at the trial.… In my opinion he did as well as most lawyers could have done in handling his case.” Jacob did not mention this letter in his brief but sent a copy to the Supreme Court, where it went into the Gideon file.

  The second and more substantial section of the brief argued that Betts v. Brady “should not be overruled or modified.” It was under eight subheadings and can be summarized as follows:

  First, there is no historical basis “for requiring states to automatically appoint counsel in all cases.” Historically, the Sixth Amendment was designed to overcome the English common-law rule forbidding the retention of counsel in felony cases.

  Second, our federal system counsels against such a requirement. “The Fourteenth Amendment does not impose upon the states any uniform code of criminal procedure.” Holmes had warned against use of the Fourteenth Amendment to “prevent the making of social experiments … in the insulated chambers afforded by the several states.” If the Court now adopts “an inflexible rule requiring automatic appointment in every case,” it would “defeat the very desirable possibility of state experiment in the field of criminal procedure.” States would “be prevented from adopting novel forms of procedure, whether fair or unfair.”

  Third, the flexible test of requiring counsel only to assure a fair trial is consistent with the concept of “due process of law.” The due-process clause is “a broad, inexplicit provision, and it is not susceptible of being reduced to a mechanical or fixed formula.”

  Fourth, “the Betts v. Brady rule provides a clear and consistent standard for determination of the right to counsel.” The cases indicate ten factors that should be considered, such as the prisoner’s illiteracy or youth. The attempt in Fortas’s brief (which of course Jacob had studied) to show that there were inconsistencies in the cases decided under the Betts rule proves nothing, because the common law is full of inconsistency. “The Betts approach is the common-law approach, consisting of the development of a body of law on a case-by-case basis, and lawyers for centuries have thrived in distinguishing one case from another on the basis of factual situations and circumstances.”

  Fifth, many states require appointment of counsel, but the rules vary, and so the right cannot be called “fundamental.” (A separate appendix listed the counsel rules of the fifty states, less comprehensively than Professor Kamisar’s survey.)

  Sixth, absorption of the Sixth Amendment counsel guarantee into the Fourteenth would have grave consequences. It would be impossible to draw the line at felonies; misdemeanors would have to be included, too. The result would be “an enormous burden on members of the bar. Also, such an imposition would encourage those charged with misdemeanors to plead not guilty and, consequently, more time would be consumed in the trial of minor cases. The entire undertaking would result in unnecessary expense to taxpayers.” Moreover, counsel should logically be required in civil as well as criminal cases. It has been argued that overruling Betts would cut down “the flood of litigation concerning the right to counsel.” But that is unrealistic; the overruling would itself “create myriad and complex new legal questions.”

  Seventh, appointment of counsel for the poor in all cases should not be required by the equal protection clause of the Fourteenth Amendment. If the clause is read to forbid distinction between rich and poor in the courts, then the states would have to provide counsel for the poor not only at trial but on appeal, and “would logically be required to provide an indigent with bail, with the services of investigators, psychiatrists, etc., since those things are available to the rich man.”

  Eighth, the practical implications require “adherence to Betts v. Brady.” A survey of the Florida prisons shows that approximately 5,093 of the 7,836 prisoners in custody were not represented by counsel when tried. “If Betts should be overruled by this Court in the instant case, as many as 5,093 hardened criminals may be eligible to be released in one mass exodus in Florida alone, not to mention those in other states.”

  Jacob ended with a cautionary plea. “If this Court should decide to overrule Betts,” he said, “respondent respectfully requests that it be accomplished in such way as to prevent the new rule from operating retrospectively.” In other words, the newly defined right to counsel should not apply to persons already in prison—presumably including Clarence Earl Gideon.

  Even before he finished the brief, Jacob heard from the Supreme Court about the oral argument of the case. A letter received from Chief Deputy Clerk Cullinan on December 17th said Gideon v. Cochran would be “reached for argument on Monday, January 14, 1963.”

  11

  Only a small part of the process of decision in the Supreme Court is exposed to public view, and of that portion by far the most interesting and the most revealing is oral argument. Even the citizen wholly unfamiliar with the Court can gain some sense of the institution by sitting in the back of the chamber and listening to an argument. The exhaustive probing of a single set of facts shows, if it is done well, how our adversary system of justice can make truth emerge from conflict
. It shows also how close the questions are that the Supreme Court must answer; characteristically, the listener finds himself persuaded by the last voice he has heard. The comments from the bench—sometimes funny, sometimes quite blunt—bring out the personalities of the justices and remind us that the Court is a collection of strong-minded individuals, much less institutionalized than the typical agency of the Executive Branch.

  Oral argument is more important in the Court’s decisional process than many lawyers realize. Too often they seem to regard it as a ceremonial affair, serving only to put a gloss on the contentions so carefully made in their briefs. But the Court does not feel that way. The justices who have spoken on the subject—and many have—say that oral argument performs a distinct function, in some ways more influential than that of the briefs. A good argument, Justice Harlan said, “may in many cases make the difference between winning and losing, no matter how good the briefs are.”

  There are two reasons for this. One is that a brief cannot answer back when a justice reading it expresses doubt about some line of reasoning. Oral argument presents a great opportunity to answer the doubts and questions raised from the bench, to mollify one’s critics and arm one’s friends. This opportunity is the greater because of the Supreme Court tradition that oral argument is not an exhibition of high school oratory but an exchange between counsel and Court. The rules state that the Court “looks with disfavor on any oral argument that is read from a prepared text”; it is a time for argument, not declamation. Justice Frankfurter once said that the Court saw itself not as “a dozing audience for the reading of soliloquies, but as a questioning body, utilizing oral argument as a means for exposing the difficulties of a case with a view to meeting them.” And so there are likely to be a great many questions from the bench. Unfortunately, some lawyers—not excluding well-known names of the Wall Street firms—seem to resent them, seeing questions as an intrusion on their well-ordered schemes of argument rather than as invitations to persuade. Justice Jackson, who was one of the great oral advocates of his day before he went on the bench, said in his wonderfully astringent style that he felt “there should be some comfort derived from any question from the bench. It is clear proof that the inquiring justice is not asleep. If the question is relevant, it denotes he is grappling with your contention, even though he has not grasped it. It gives you opportunity to inflate his ego by letting him think he has discovered an idea for himself.”