Gideon's Trumpet (5 page)

Some of today’s right-wing critics of the Supreme Court have picked on the law clerks as a convenient target, attributing to them Svengali-like powers over the justices. The truth is less interesting. Law clerks assist in research and may write drafts of material for the justice. They also perform the function of keeping him in touch with current trends of legal scholarship, especially the often critical views of the law schools about the Supreme Court. That is an important role in a Court which could so easily get isolated in its ivory tower. But the law clerks do not judge. They can only suggest. As a practical matter, a young man who is there only briefly is unlikely to make any significant change in the actual votes cast on cases by a judge who has been considering these problems for years.

The procedure for handling certiorari petitions, as described
so far, is that used for the printed petitions on the regular appellate docket.
Gideon v. Cochran
was, of course, an
in forma pauperis
petition, and the Court has had to devise special methods of handling such cases because of the special difficulties they present.

The paupers’ petitions, Justice Frankfurter once wrote, are often “almost unintelligible and certainly do not present a clear statement of issues necessary for our understanding.” Their meager content can be contrasted with the information that the man of means is required to supply when he files a petition for certiorari. The rules require him to show the jurisdictional basis for Supreme Court review, including the time when he raised his federal questions. He must print the text of the lower court’s opinions in the case, and he must supply at least one typewritten copy of the transcript of the trial-court proceedings. Prisoners rarely supply any of this material in their
in forma pauperis
petitions. The result is that there is often great difficulty even figuring out what happened to the prisoner—what the case is all about. Lower-court opinions would be informative, but in the prisoners’ case the lower courts rarely bother to write any. That was true with Gideon. The Florida Supreme Court had turned him down in a stereotype order making no reference to the facts of his case. All it said was: “The above-named petitioner has filed a petition for writ of habeas corpus in the above cause, and upon consideration thereof, it is ordered that said petition be and the same is hereby denied.” Not very helpful to a justice in Washington trying to find out what was decided in Florida.

The burden of the paupers’ cases has been steadily growing heavier in the Supreme Court. In recent years their number has increased much more sharply than the volume
of business on the regular docket. Twenty-five years ago fewer than one hundred
in forma pauperis
cases were filed each term. The number passed one thousand in the 1949 term and for the first time exceeded the volume of prepaid appellate cases. Now there are about fifteen hundred each term. The Court itself has taken a broad view of the statute allowing poor persons to file without formalities. It said in 1948 that one need not be “absolutely destitute” to qualify. In that case Justice Hugo L. Black wrote: “We think an affidavit is sufficient which states that one cannot because of poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Otherwise an impoverished man would have to choose between his family and his cause—perhaps abandoning “what may be a meritorious claim in order to spare himself complete destitution.” As a practical matter the Court seldom second-guesses a man’s own declaration of poverty in an
in forma pauperis
affidavit.

Few of the paupers’ petitions turn out to be worth the Supreme Court’s time. Only about 3 percent are granted, as compared with approximately 13 percent of the petitions for certiorari on the regular docket. The prisoners’ claims, Justice William O. Douglas has said, “are often fantastic, surpassing credulity. They are for the most part frivolous.” (One recent petitioner said he was a descendant of the Spanish Grandee of Southern California and thus owned all the land.)

Given the difficulty of processing all these applications, it would be understandable if the Court did not try very hard to find the occasional needle in the haystack. But as Justice Walter V. Schaefer of the Illinois Supreme Court once said of a comparable problem, “It is not a needle we are looking for in these stacks of paper, but the rights of a human being.” And so the Supreme Court has devised a
careful procedure for sifting the frequently incomprehensible documents that pour in from the country’s prisons. Justice Douglas has said he is confident that this procedure “dispenses justice at a level long neglected in the nation.”

The Gideon case was handled in the usual way for
in forma pauperis
cases. Gideon’s handwritten papers were held for thirty days, in their red envelope, to allow time for a reply by the Florida authorities. They knew of his petition because he had been required by the rules to mail a copy to the named respondent, H. G. Cochran, Jr., head of the Florida prison system. But the states rarely answer prisoners’ petitions, and there was no response to Gideon’s during the thirty days. When that time was up, on February 8, 1962, the papers were sent to the office of Chief Justice Earl Warren.

The Chief Justice’s three law clerks have the special duty of scrutinizing the
in forma pauperis
applications. (He has three instead of the two clerks allotted to other justices so that this arduous job can be done.) One of the clerks prepares a typewritten memorandum on each case, stating what the claim appears to be and any relevant legal framework. The memorandum is then circulated among the nine justices. If the claim seems to be a serious one, and in all cases of prisoners under death sentence, the original red envelope containing the application is attached to the law clerk’s memorandum when it is circulated; in any case a justice can call for the file. If a case raises a question that the law clerk examining the file thinks may interest the Court, he may suggest to the Chief Justice even before the papers are circulated that the state authorities be asked to file a response. The hope is that a response may clarify the legal issues, fill in the factual background and bring out any obstacles to the Court’s taking jurisdiction of the case.

That is what was done in Gideon’s case. The Chief Justice’s
office instructed the Clerk’s Office, which sends all such communications, to call for a response. On March 8, 1962, Michael Rodak, Jr., the assistant clerk who had originally handled Gideon’s petition, sent this letter to the attorney general of Florida, Richard W. Ervin:

On April 9th the Court received a brief in opposition signed by Attorney General Ervin and one of his assistants, Bruce R. Jacob. It was thirteen typewritten pages, and it sounded one theme: Gideon had not been entitled to trial counsel under the rule of the 1942 decision in
Betts v. Brady
, that the Constitution guaranteed free counsel to indigent defendants in state criminal cases only when “special circumstances” showed that a fair trial would otherwise be impossible. The brief reviewed the cases since
Betts v. Brady
and then rested on the indisputable fact that Gideon had never even claimed to be the victim of any special disabilities which would bring him within the rule of that case.

“Petitioner Gideon,” the brief said, “has made no affirmative showing of any exceptional circumstances which would entitle him to counsel under the Fourteenth Amendment.… There has been presented no evidence of petitioner’s maturity or capacity of comprehension. Petitioner merely alleges that he was without funds, that he pleaded not guilty and that he requested court-appointed counsel, while being tried on a non-capital charge. The petition contains no allegations as to petitioner’s age, experience, mental capacity, familiarity or unfamiliarity with court procedure, or as to the complexity of the legal issues presented by the charge. [All these were factors that had been held to produce special circumstances under the
Betts
rule.] Petitioner has made no showing of unfairness or of a lack of fundamental justice in the trial proceedings. In fact, his petition is notable for its lack of material allegations such as would entitle him to counsel under the Fourteenth Amendment. Since there have been no allegations as to exceptional circumstances, the presumption must be indulged that the trial proceedings were fair and just.”

The one thing notable about the response, to an outside observer, was its assumption that the rule of
Betts v. Brady
was inviolate. The possibility that the Court might be prepared to overrule it was never considered.

The response ended with a certification by Assistant Attorney General Jacob that he had mailed a copy “to Mr. Clarence Earl Gideon, In Proper Person, Box 221, Raiford, Fla.” On April 21st the Court received a reply brief from Gideon. It was four pages long, again written in pencil, and it began with a modest disclaimer.

“Petitioner cannot make any pretense at being able to answer the learned Attorney General of Florida,” Gideon wrote, “because the petitioner is not attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the Petitioner knows there is many of them.”

The reply brief stuck resolutely to the simple proposition Gideon had argued from the beginning.

“The respondent claims,” it said, “that a citizen can get a equal and fair trial without Legal counsel.… Petitioner will attempt to show this Court that a citizen of the state of Florida cannot get a just and fair trial without the aid of counsel.… If the petitioner would of had attorney there would not of been allowed such things as hearsay, perjury or Bill of attainer against him.… It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused.…”

The reply was, in fact, telling in its simplicity. “It makes no difference how old I am or what color I am or what church I belong too if any.” Intended or not, that sentence was an effective parody of the sophisticated reasoning that in past years had determined—under the “special circumstances” approach—whether a man should have had a free lawyer at his trial.

By the time the Florida response and Gideon’s reply had come in, the Court was in its busiest period. Every spring the justices struggle to overcome procrastination, to compromise their differences, to finish up opinions on all the argued cases so that they can end the term in June, as scheduled, and go off to lie in the sun or make speeches at lawyers’ meetings, as the spirit moves them. In the office of the Chief Justice the
in forma pauperis
petitions may
not have top priority. But the Gideon papers were again examined and summarized by a law clerk, and now his memorandum—with the full file attached—was circulated to the other eight justices.

During the last week in May the Chief Deputy Clerk of the Court, Edmund P. Cullinan, was informed that the case of
Gideon v. Cochran
was ready for discussion at the formal conference of the Court. It was then Cullinan’s duty to include the case on the next conference list—a mimeograph, distributed to the justices, that shows all the items ready for the next conference. Cullinan put
Gideon v. Cochran
on the list for the conference of Friday, June 1st.

The nine justices meet in a formal conference every Friday during or preceding a week in which cases are argued or opinions announced—about three Fridays out of four during the October-to-June term. The conference room is an oak-paneled chamber adjoining the Chief Justice’s office in the rear of the Court building. Book shelves lining the walls are filled with law reports, and there is a long massive table in the center of the room. A single portrait, of Chief Justice John Marshall, looks down at the justices seated around the table.

The conference has a record for secrecy probably unrivaled in official Washington. So far as is known, no one not a justice of the Supreme Court has ever been allowed into the conference room during one of the sessions. No secretaries, no law clerks, no librarians, no messengers. If a message arrives, the junior justice—the one most recently appointed—goes to the door to get it. The purpose of this absolute secrecy is twofold. It ensures against premature disclosure of the Court’s decisions, and it protects the privacy of the justices’ discussion. The latter may be the more important reason. Genuine intellectual exchange among men of strong views is not always easy at best; it would be
the more difficult if each justice had to fear public recriminations about some argument he advanced in the heat of debate. The justices must be free to argue to the hilt, without fear of reading in some popular journal that “Justice X wanted another Munich.”

Members of the Court have disclosed, however, the general way the conference is conducted. It begins at ten
A.M
. and usually runs on until late in the afternoon. At the start each justice, when he enters the room, shakes hands with all the others there (thirty-six handshakes altogether). The custom, dating back generations, is evidently designed to begin the meeting at a friendly level, no matter how heated the intellectual differences may be. The conference takes up, first, the applications for review—a few appeals, many more petitions for certiorari. Those on the Appellate Docket, the regular paid cases, are considered first, then the paupers’ applications on the Miscellaneous Docket. (If any of these are granted, they are then transferred to the Appellate Docket.) After this the justices consider, and vote on, all the cases argued during the preceding Monday through Thursday. These are tentative votes, which may be and quite often are changed as the opinion is written and the problem thought through more deeply. There may be further discussion at later conferences before the opinion is finally handed down.