Gideon's Trumpet

by Anthony Lewis

  All of these considerations were in Fortas’s mind. They presented what he called “a moral problem”: Whether he should try to find out more about what had happened to Clarence Earl Gideon—in particular, whether he should get a transcript of his trial. “The real question,” Fortas said, “was whether I should urge upon the Court the special-circumstances doctrine. As the record then stood, there was nothing to show that he had suffered from any special circumstances. But if you went behind that bare record, there might be. There was the risk, if it did turn out that Gideon had some special difficulty, that this whole case would turn out to be an anticlimax—just another case of the Supreme Court freeing a single prisoner without laying down any new rule on the right to counsel. But my duty was to Gideon. If I hadn’t gotten the record up, I’d never know. If I lost the case, I’d always worry: ‘Is the poor guy in jail because I didn’t do my job?’ ”

  Fortas decided to get the trial transcript. He telephoned Chief Deputy Clerk Cullinan, who arranges such things for the Supreme Court. Cullinan wrote to the Circuit Court of Bay County, Florida, and before long a transcript of Gideon’s trial was typed by the local court reporter from her notes, certified by the clerk of the Circuit Court and mailed to Washington.

  5

  Gideon was tried on August 4, 1961, by Judge Robert L. McCrary, Jr., and a jury of six men. At the start, after Gideon’s unsuccessful attempt to obtain a lawyer, Judge McCrary asked the jurors whether they would “give him the same fair trial, and consideration, since he is not represented by counsel, that you would if he were represented.” The transcript shows a joint reply: “Yes, sir.”

  The Court: Now, Mr. Gideon, look these six gentlemen over and if you don’t want them to sit as a jury to try your case, just point out the one, or more, all six of them if you want to, and the court will excuse them and we will call another, or some others, to try your case. You don’t have to have a reason, just look them over and if you don’t like their looks that’s all it takes to get them excused.…

  The Defendant: They suit me all right, your Honor.

  The judge, as Fortas noted when he read the transcript, was obviously trying to protect Gideon but did not inform him of his right to question each juror for possible bias.

  Ordinarily, in a criminal case, the prosecutor and the defense counsel make opening statements to the jury, indicating what they expect to prove. The prosecutor, Assistant State Attorney William E. Harris, made his statement, and then Judge McCrary let Gideon address the jury. “Just walk right around there where you can see them,” the judge said, “and tell them what you expect the evidence to show in your favor. Talk loud enough for them to hear you, now.” Apparently under Florida practice the court reporter does not take down opening statements. The transcript noted only that Mr. Harris read to the jury the formal charge against Gideon, that on June 3, 1961, he “did unlawfully and feloniously break and enter a building of another, to-wit, the Bay Harbor Poolroom, property of Ira Strickland, Jr., lessee, with intent to commit a misdemeanor within said building, to-wit, petit larceny.”

  The prosecution’s principal witness was one Henry Cook of 108 East Avenue, Panama City, otherwise unidentified. He testified that he was outside the Bay Harbor Poolroom at five-thirty in the morning that June 3rd and saw Gideon inside. He knew Gideon. After a few minutes’ watching through the window, Cook testified, he saw Gideon come out with a pint of wine in his hand, make a telephone call at the street corner and get into a taxi that he had apparently called. After following Gideon to the telephone booth he went back to the poolroom and “saw it had been broken into.” The front was off the cigarette machine, and its money box was lying on a pool table.

  That was the direct testimony, and it was damaging. Then, briefly, Gideon attempted to cross-examine Cook. He asked what Cook was doing outside the poolroom at five-thirty in the morning. Cook said he had “just come from a dance, down in Apalachicola—stayed out all night”; and then this potentially interesting line of inquiry was dropped. Gideon asked whether Cook had ever been arrested, but the prosecutor’s objection to that question was sustained by Judge McCrary. Gideon was allowed to ask whether Cook had ever been convicted of a felony; Cook said no. The rest of the cross-examination was a meandering, argumentative affair that got nowhere. (Q: Do you know positively that I was carrying a pint of wine? A: Yes, I know you was. Q: How do you know that? A: Because I seen it in your hand.) Nothing further was brought out about Cook’s age, his occupation, his relationship with Gideon, his reputation—all areas that a lawyer would certainly have explored.

  There was only one other witness for the prosecution: Ira Strickland, Jr., operator of the Bay Harbor Poolroom. He testified that he had closed the place up at midnight on June 2, 1961, locking all doors and windows. When he returned the next morning at eight o’clock, he found the deputy sheriff; a window had been smashed, he said, and a cigarette machine and juke box broken into. Someone had taken coins from the two machines—Strickland said he did not know how much money was missing—and “a small amount of beer and some wine.” On cross-examination Gideon asked a number of questions about what the Bay Harbor Poolroom looked like, and the jury learned that it had a long bar down one side.

  Gideon had eight witnesses for the defense. Before they were called at his request, Judge McCrary warned him—without any real legal basis, so far as Fortas could tell—that “the witnesses you call are your witnesses, and it’s up to you to vouch for them. You understand that, do you?”

  Gideon answered, “Yes, sir, I understand it.”

  His first witness was the policeman who had discovered the break-in at the Bay Harbor Poolroom, Henry Berryhill, Jr. He said he had not been summoned by anyone—not, for example, by Cook—but had found the front door of the poolroom open on a routine patrol. He “checked with a fellow at the front of the building, a Mr. Cook, and … he said he saw you leave the building.” Gideon asked nothing further about what Berryhill thought Cook was doing “at the front of the building” at that hour. Berryhill testified that he had called the deputy sheriff, Duell Pitts, Jr., to investigate the break-in. After a few questions Berryhill was excused. Just why Gideon had called the policeman as a defense witness remained unclear.

  Deputy sheriff Pitts was next, and his status as a defense witness was just as obscure. He said Cook had seen Gideon in the building, and he was satisfied with that evidence of the crime. Then came the cab driver who had picked Gideon up on that morning of June 3rd, Preston Bray. Gideon had little to ask except whether he had seemed drunk that morning; he pressed Bray successfully to say no. (Actually, under Florida law intoxication would have been a defense to this crime; Gideon evidently did not know that, but a lawyer would have.) The prosecutor, on cross-examination, brought out that Bray had known Gideon for some time and asked whether Gideon was unemployed. Bray answered: “I know he was working at the poolroom—now, whether he was getting paid or not, I don’t know.” That was significant, because Gideon could conceivably have had an excuse for being in the poolroom after closing if he was an employee, but the subject was never explored further.

  A Mrs. Irene Rhodes testified that she had been on the front porch of her house, down the street from the poolroom, on the morning of the crime. Gideon asked next whether she had bought him a drink in the poolroom the night before. “I probably did, if you needed one,” Mrs. Rhodes said, and their relationship was left at that. Gideon brought out that she had seen him come out of the alley at the rear of the pool hall that morning—hardly a point for the defense—but Mrs. Rhodes agreed with him that that was not unusual because he lived nearby and he often used the public telephone booth on the street. On cross-examination Mrs. Rhodes said she had gone down to the telephone booth to ask Gideon whether the poolroom bar was open because she knew “he helps out in there occasionally.” (Again, nothing more was made of that.) She saw a partly full wine bottle outside the booth and brought it to her landlord “because he was sick.”

  The next three wi
tnesses were the owner of the building in which the Bay Harbor Poolroom was located and two poolroom employees. They added nothing. Gideon’s last witness was his landlady, Mrs. Velva Estelle Morris, the owner of the Bay Harbor Hotel, across the street from the poolroom. She testified that Gideon usually went out to the public telephone when he had to make a call during the night, to avoid disturbing others by using the hotel telephone. Then, again ignoring the possible legal benefit of intoxication, Gideon asked these questions:

  Q: Mrs. Morris, during the time I lived at the hotel did you ever know of me being out drunk?

  A: No.

  Q: Did you ever see me drunk?

  A: No.

  Q: Did you ever hear of me getting drunk?

  A: No.

  That was the case for the defense. Gideon then made a final argument to the jury, which was not transcribed. The court reporter noted only that he “talked to them for approximately eleven minutes, emphasizing his innocence.” The prosecutor took only nine minutes for his final argument, which was also not recorded. Then the judge charged the jury, saying in straightforward terms that it could find Gideon guilty if it determined that the crime was committed in Bay County, within the last two years, and by Gideon. (Fortas noted later that the judge had not explained any of the elements of the crime as defined by the Florida Supreme Court, such as the requisite intent to commit petit larceny after breaking and entering. Gideon had not requested such a charge by the judge, as a lawyer might have; but then he was never told that he had the right to make such a request.)

  The jury found Gideon guilty. Judge McCrary delayed the sentencing for three weeks, in order to get a report on Gideon’s past history. On August 25th, without any argument by Gideon (or, of course, by a lawyer on his behalf), the judge imposed the maximum sentence of five years.

  When that transcript was read at Arnold, Fortas and Porter, there was no longer any question about the appropriateness of this case as the vehicle to challenge Betts v. Brady. Plainly Gideon was not mentally defective. The charge against him, and the proof, were not particularly complicated. The judge had tried to be fair; at least there was no overt bias in the courtroom. In short, Gideon had not suffered from any of the special circumstances that would have entitled him to a lawyer under the limited rule of Betts v. Brady. And yet it was altogether clear that a lawyer would have helped. The trial had been a rudimentary one, with a prosecution case that was fragmentary at best. Gideon had not made a single objection or pressed any of the favorable lines of defense. An Arnold, Fortas and Porter associate said later: “We knew as soon as we read that transcript that here was a perfect case to challenge the assumption of Betts that a man could have a fair trial without a lawyer. He did very well for a layman, he acted like a lawyer. But it was a pitiful effort really. He may have committed this crime, but it was never proved by the prosecution. A lawyer—not a great lawyer, just an ordinary, competent lawyer—could have made ashes of the case.”

  But Abe Fortas’s curiosity was not satisfied. There was still mystery about Clarence Earl Gideon, his character, his history. The trial transcript had been singularly uninformative about the human beings involved, except for a general air of shabbiness. Fortas considered going to see his client in the state prison at Raiford, Florida.

  “I thought I should find out something about his background, in case a question should come up,” Fortas said later. “One question, for example, was whether I should refer to the severity of the sentence—five years for breaking and entering with intent to commit a misdemeanor. He came out of this bar with a bottle of red-eye in his hand; it was a petty crime. It occurred to me that I might make some indignant statement about the severity of that sentence, but then there could be a reason I didn’t know. Another thing I specifically wanted to find out was whether he was a Negro. All these things suggested that I see him. On the other hand, there was the chance of involvement, and of going improperly outside the record of this case. I decided against seeing Gideon, but as it turned out I was able to satisfy my doubts by correspondence.”

  The correspondence was started by Gideon. On August 1st he wrote Fortas that he had had a letter from the Clerk of the Supreme Court “informing me that you were appointed to represent me in my litigation. I have not heard from you,” Gideon continued, “and I would like to find out if you are going to represent me. Because I don’t know what to do.” Fortas replied that he was “indeed going to represent you in the proceedings before the Supreme Court and our office is currently working on the preparation of your brief. There is nothing further for you to do,” the letter said reassuringly, adding: “We will, of course, keep you posted as to the course of proceedings in the Supreme Court.”

  On September 11th Fortas sent Gideon a memorandum filed in the case. Gideon replied on September 16th, expressing his thanks and continuing: “Everything containing to my case is of the highest interest to me and everone in the prison. And we will certainly welcome all the information about it that is possible. I wish that it was possible to tell you the truth about my case, which I am sure that the record does not show. I did not have the ability to cross-examine the witness nor did I have anyone to investigate things before my trial, so my trial is far from the truth.”

  A letter from Gideon on October 29th said: “I guess I am impation but it seems to take a long time, but I understand that something like this does. If there is any information that I might be able to give you that will help the case I will give it.” Perhaps that suggested an opening to Fortas. On October 31st he replied:

  Dear Mr. Gideon:

  I acknowledge receipt of your letter of October 29. I can understand your impatience, but I am glad that you realize that a review by the Supreme Court of the United States takes a good deal of time.…

  As you probably know, the review must be based upon the record in your case. I see no difficulty with the transcript of record because your case will undoubtedly be decided on the very fundamental point as to whether the State of Florida was obliged to furnish you with counsel.

  However, as a matter of my own interest, I should be very glad to receive from you a careful and detailed biographical description: when and where you were born, education, employment, family, arrests, and any other information that may come to your mind. I want to emphasize that this is not at all necessary, and that it will serve only to give me a little background. I know that you will be extremely careful to be absolutely accurate in any information that you send along to me.…

  Sincerely,

  Abe Fortas

  On November 13th there arrived in Fortas’s office a twenty-two-page letter from Gideon, once again printed in pencil on the lined prison forms. It read, in its entirety, as follows.

  Mr. Abe Fortas, Esquire

  1229 Nineteenth St. N.W.

  Washington, D.C.

  Dear Sir:

  In answer to your letter of October 31. I will try to give you a detailed biographical description of my life. You will understand that due to my limited education and also to the utter folly and hopelessness [of] parts of my life, it will be doubtful if I can put it down on paper with any reasonable comprehension. I will not be proud of this biography, it will be no cause of pride; nor will it be the absolute truth. I can not remember or desire to remember that well. You have emphasize that this is not at all necessary, that you only want it for background. I believe that the state will attempt to use my personal record in their arguments to the Supreme Court and for that reason you can be prepared. Also being only a human being I will try though I know I can not, to justify myself through this outline.

  I was born August 30th, 1910 in Hannibal Missouri. My parents where Charles Roscoe Gideon and Virginia Gregory Gideon. My father died a few days after I was three years old. Mother remarried when I was five years old. My stepfather’s name was Marion Frances Anderson he died in 1955. Mother is still living. From this union I have a halve sister Mrs. Roy E. Ogden forty-five years old R.F.D. #1, Hannibal Mo. A halve brother Sgt. R
ussell Lee Anderson, U.S.A.F. Mother resides at 2121 Chestnut Street Hannibal Mo. My brother is thirty-two years of age.

  My early membery is of my mother’s marriage and my step-father. My step-father was a good man all though he was uneducated and worked the largest part of his life in shoe factory. also my mother. We where a family of factory workers class. But allways own their own home, which my mother had first bought with my father’s insurance. I went to the public school at Hannibal, Mo. I never had any trouble and made my grades up to the eight grade.

  My step-father never could accept me or I could not accept him. My mother was very strict and my life as a child was of the strict discipline. My parents lived by the best moral customs and where members of the Calavary Baptist church Hannibal Mo. which I join when I was about thirteen years of age. My mother still to this day has done nothing that could be class as wrong. Also my sister and brother are of the best kind of character.