Gideon's Trumpet (14 page)

Historically speaking, the amendment was almost certainly not envisaged by its framers as reaching the problem of the man too poor to hire a lawyer for his defense. But over the years that became the real problem of counsel in American criminal justice. No precise national figures are available, but various states have estimated that between thirty and sixty percent of all those they convict these days cannot afford to retain a lawyer. Certainly the numbers are large, and every justice who was to participate in the Gideon case knew from his experience on the Supreme Court—however brief—that many of the claimed flaws in the criminal convictions brought to that Court resulted from the inability of the prisoner to pay for counsel at his trial.

The treatment of the right-to-counsel issue in the Supreme Court is a fascinating example of how constitutional doctrine develops there, slowly, deliberately, case by case. Understanding does require discussion of a fair number of cases, for few issues have had a more thorough exploration in the Court.

The story begins in 1932, in the Scottsboro Case,
Powell v. Alabama
, one of the few incontestably great cases in the Supreme Court’s history. The case started in a freight train “moving slowly across the countryside of northern Alabama,” Professor Francis A. Allen of the University of Chicago says in a classic outline of the story. “It was a time of economic distress and social unrest. As if in response to some common impulse, thousands of young people—no one knows how many—left their homes and communities to drift across the land by train and on foot, presumably in search of work, but, in reality, often without any defined or definable objective. In a gondola car of the train rode
two groups of youths, one composed of Negroes, the other whites. Among the latter were two white girls. What occurred has ever since been the subject of sharp controversy. It is at least established that a dispute broke out between the Negroes and the whites. There was a fight and all but one of the white boys were thrown off the slow-moving train. Word was sent ahead, and when the freight approached the village of Scottsboro, the Negroes were met by the sheriff and a posse. The charge was rape of the white girls. Fearing the violence of the community, the sheriff moved the defendants to the neighboring town of Gadsden. The militia was called to Scottsboro to maintain order. A few days later the defendants were tried in three separate proceedings. Each of the three trials was completed in the space of a single day. All the defendants were convicted of rape, and the juries imposed the sentence of death on each.”

Those were the convictions and sentences before the Supreme Court in
Powell v. Alabama
. The opinion of the Court was written by Justice George Sutherland, one of the four “conservatives” so hateful to New Deal liberals. The question he considered was whether the seven Scottsboro boys, as they were called, had had the effective assistance of counsel. They were tried six days after their indictment. At the trial there was a long, confusing colloquy between the judge and some of the lawyers of Scottsboro in which the judge said he had “appointed all the members of the bar” for the purposes of arraigning the defendants and expected them to carry on at the trial if no one else turned up to represent the accused. “With this dubious understanding,” Justice Sutherland said, “the trials immediately proceeded. The defendants, young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers,
charged with an atrocious crime regarded with especial horror in the community where they were to be tried, were thus put in peril.…”

Justice Sutherland put aside the Sixth Amendment as a guide to decision; the precedents had rejected any claim that it applied to the states or had been incorporated in the Fourteenth Amendment automatically. But the due-process clause of the Fourteenth Amendment, he said, at least required a “hearing,” and for a meaningful hearing counsel was “fundamental.”

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”

On those premises, the opinion concluded that it would be a denial of due process of law—and a violation, therefore, of the Fourteenth Amendment—for a court “arbitrarily” to deny any party to a case, “civil or criminal,” the right to be heard by counsel of his choice. And the facts of this
case, Justice Sutherland said, amounted to a denial of “reasonable time and opportunity to secure counsel.” But he did not stop there. “Passing that,” Justice Sutherland wrote, “and assuming their inability, even if opportunity had been given, to employ counsel, … we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.”

For the first time, the Supreme Court had held that the Constitution could entitle the poor and friendless accused to the lawyer he could not retain himself. But Justice Sutherland carefully limited the holding of the case to its particular facts, “the circumstances just stated,” as he had said. “Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.”

Powell v. Alabama
was an historic advance for liberty. It was the first occasion on which the Supreme Court had actually reversed a state criminal conviction because of unfair procedures at trial. But by any fair reading, Justice Sutherland’s opinion meant less than the universal requirement of counsel in every criminal trial that Gideon was asking the Supreme Court to prescribe. Justice Sutherland had taken care to restrict the case to its compelling circumstances—a capital crime, an agitated community, obviously
helpless defendants. It was six years before the Court considered the issue of counsel in a less agitated setting.

The next landmark in the history of the right to counsel was
Johnson v. Zerbst
. It was a federal case—a conviction for passing counterfeit money. Justice Black, in his first term on the Court, wrote the majority opinion. He said nothing of any special difficulties under which the defendant labored, and for all that could be told there were none. The opinion quoted some of what Justice Sutherland had said in
Powell v. Alabama
about the importance of a lawyer, adding only the comment that “the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life and liberty, wherein the prosecution is represented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.” The opinion did not discuss the history of the Sixth Amendment, with its object of overcoming the English rule against counsel for felony defendants. Justice Black said simply that the language of the amendment now required the appointment of counsel for all who could not afford it in federal criminal cases. The amendment “withholds from federal courts in all criminal proceedings,” he said, “the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” He had a bare majority for that proposition—Chief Justice Hughes and Justices Brandeis, Harlan F. Stone and Owen J. Roberts in addition to himself.

There matters stood for four years. In the state courts, the Fourteenth Amendment required appointment of counsel in some cases—but just which ones was not certain. In federal courts, the Sixth Amendment required counsel in all criminal cases. Many informed observers thought it
was inevitable that the requirement would be extended to the states. But then, in 1942, came
Betts v. Brady
.

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.”