Gideon's Trumpet (18 page)

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.

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.

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:

I
n 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 Gideon 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.”

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:

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.