Gideon's Trumpet (17 page)

The Court opened its new term on October 1st, and two weeks later it handed down a brief and unanimous order settling the dispute about the record in
Gideon v. Cochran
: Florida’s motion was denied, the trial transcript was to be included. In about a week the record was printed. Under the rules, the petitioner’s—Gideon’s—brief was due thirty days later. The party trying to upset the lower court ruling always goes first in briefing and arguing the case; his opponent has the benefit of examining his arguments before making his own. By then Ely had gone back to school. In his place an Arnold, Fortas and Porter associate, Ralph Temple, with some help from another associate, Bruce Montgomery, looked into further questions posed by Krash and Fortas. October 25, Temple to Krash: five pages on the history and contemporary picture of right to counsel in England. October 26, Temple to Krash: a brief note on the large proportion of habeas corpus cases that stem from absence of counsel at trial; if counsel were required, this flood of prisoners’ petitions in the federal courts should be reduced. October 26, Temple to Krash: the growth of legal aid in the United States. Up to the year 1950 a total of
$3,500,000 had been spent by public and private organizations to defend indigents in the criminal courts. In the next ten years $10,500,000 was spent. October 29, Montgomery to Krash: a description of bills pending in Congress, to provide public defenders and other organized means of representation for the poor in federal courts. October 31, Montgomery to Krash: What is the right to counsel under Russian law? Answer: very little. November 1, Montgomery to Krash: the right to counsel under Florida law. Appointment is specifically required only in capital cases, but judges have discretion to appoint in other cases (contradicting the same erroneous statement by the trial judge that Gideon had mentioned), and some trial judges in populous counties do so in all cases. November 8, Krash to Fortas: “You have asked if it is clear that
Gideon v. Cochran
is properly before the Supreme Court.” It must be, because Gideon had followed exactly the same procedure as two other Florida prisoners who had recently won right-to-counsel cases in the Supreme Court.

All along, Krash recognized, Fortas was less interested in abstract conceptual doctrines such as the relation of the Bill of Rights and the Fourteenth Amendment than he was in practical considerations—which he thought might really worry the justices. In a November memorandum Krash addressed himself to these. Justice Roberts had been concerned in
Betts v. Brady
that an absolute requirement for provision of counsel might logically have to extend all the way down through traffic courts. Supporters of the
Betts
rule still made that argument, saying that the consequence would be an intolerable strain on the American legal system because there simply were not enough lawyers around to provide one for every traffic offender. Fortas did not shy away from that supposed horror. He did not think many
persons charged with traffic and other minor offenses would want lawyers, but he was quite prepared to say that a poor traffic offender should be given a lawyer if he asked for one. Krash suggested a more conservative way to argue the Gideon case, which after all did involve a felony and so did not require the more sweeping approach to win the case. The Supreme Court had held that the Sixth Amendment’s jury-trial guarantee for federal defendants “in all criminal prosecutions” did not apply to “petty offenses.” The same line might be drawn in state cases under the Fourteenth Amendment.

Another practical question was at what stage of the criminal case a lawyer should be supplied. Some authorities felt, and Fortas agreed, that a man needs a lawyer immediately after arrest more acutely than he does later. But the police were strongly against that idea, reasoning that early access to lawyers would discourage prisoners from confessing, and in 1958 the Supreme Court had rejected the claim of a man with adequate funds that he should have been allowed to call in his own lawyer before being questioned by the police. Gideon had sought a lawyer only at trial, and so Fortas need not go back beyond that point; it would be fool-hardy to claim any greater right for the poor man than one with funds had been able to establish.

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:

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
.

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.