Gideon's Trumpet

by Anthony Lewis

  The process began at Arnold, Fortas and Porter with a memorandum drafted by an associate, James F. Fitzpatrick, on July 6, 1962, just eleven days after Fortas’s appointment by the Supreme Court. It laid out the questions that Fitzpatrick thought the office ought to explore in preparing its brief in Gideon v. Cochran. The memorandum, much condensed, went as follows:

  Was the historical analysis in Betts which buttressed the conclusion that “appointment of counsel is not a fundamental right” correct?

  How has state law (on appointment of counsel) changed since 1942?

  Has there been a change in the concept of Fourteenth Amendment “absorption” of the Bill of Rights since 1942?

  What has been the experience with the Betts test?

  What is the present status of right to counsel in European countries, in newly emerging countries, in the United Nations Declaration of Human Rights?

  What has been the progress of the Griffin equal-protection doctrine [that barring a poor man’s appeal because he cannot afford a trial transcript denies him the equal protection of the laws]?

  In factual terms, can we get an estimate of how many felony defendants go to trial without counsel?

  If the Fourteenth Amendment is now held to require counsel in all cases, what would be the additional demands on lawyers?

  These issues and research topics raise fundamental policy questions:

  Should our brief attack the broad, existing rule that the Fourteenth Amendment did not incorporate the Bill of Rights? Should we (alternatively) accept the standard that the Fourteenth Amendment guarantees a fair trial and argue that a fair trial must include the right to counsel?

  Should we make the twin argument that counsel is required by the equal-protection clause?

  What should be the shape of a suggested rule? Does it apply to misdemeanors and traffic-court offenses? To pre-trial proceedings? To appeals?

  Arnold, Fortas and Porter had taken on for the summer John Hart Ely, a Yale law student who would enter his final year in the fall. Krash decided to have him do the basic Gideon research, and for the next two months Ely worked exclusively on this case. A steady stream of typewritten memoranda went from him to Krash and Fortas, some in response to requests from them, others his own idea. The first of these was a list of thirty-two relevant law-review articles on Betts v. Brady, most of them with titles indicating a critical approach. Another memorandum canvassed in detail the elaborate history of the Supreme Court’s interpretation of the Fourteenth Amendment.

  On July 25th Ely submitted his first paper reflecting real thought about the right-to-counsel problem. It was a twenty-five page memorandum headed, “Application, Ambiguities and Weaknesses of the Special Circumstances Rule.” Ely had examined how the rule of Betts v. Brady, calling for counsel only where special circumstances exist, was actually applied in the state courts, especially the Florida courts. He concluded that the state courts used the same language as the Supreme Court of the United States, and mentioned the same factors, but somehow came to different conclusions—almost always rejecting claims to counsel. “The fact that the United States Supreme Court has reversed the Florida Supreme Court in four right-to-counsel cases since 1959,” he wrote, “suggests that the two courts have different ideas as to how the factors should be balanced.” The real source of confusion, Ely suggested, was the number and variety of factors that the Supreme Court had said were relevant to deciding whether counsel was essential in a particular case. He listed more than twenty such factors that had been mentioned in majority and dissenting Supreme Court opinions, among them these: the complexity of the criminal statute, the defendant’s age and education and mental ability and color, inadequacy of the judge’s guidance at trial, misbehavior by the prosecutor—and, on the other side, imposition of a lighter than maximum sentence, a helpful attitude on the part of the trial judge, the defendant’s prior experience with the criminal law.

  “It is difficult to image a case,” Ely concluded, “in which at least five ‘relevant’ factors could not be compiled for either side.” Nor had the Court been consistent. In 1948 it had rejected a plea for counsel on the ground that the trial judge had misunderstood state law; a mere error of state law was not enough of a special circumstance, the majority said. But in 1961, reversing a conviction, the Court had emphasized the trial judge’s “patent violation” of state law in admitting certain testimony.

  Then, in the memorandum, Ely explored an idea that had been suggested by Fortas. This was that Betts v. Brady might be injurious to the very principles of federalism on which it supposedly rested. “The Court has said,” he wrote, “that if it were to discard the Betts test, it would be guilty of ‘an unwarranted federal intrusion into state control of its criminal procedure.’ Perhaps the vagueness of the rule can be used to turn this argument against its proponents.” In other words, an absolute requirement of counsel might be less of an intrusion on state criminal processes because it would be clear-cut, in contrast to what Ely called the confusion of the special-circumstances approach. The nature of that approach, Ely said, required state courts to guess in its application—and a wrong guess meant having to try the accused all over again later. Guessing was inevitable, he said, because the Betts test was “an amalgam of personal and retrospective factors.” The trial judge could weigh such personal elements as the defendant’s age, but elements such as the prosecutor’s and judge’s behavior could only be surveyed later. He said this amalgam “ensures lack of success in application at any level. So long as judges are men, a trial court cannot foresee the progress of the trial; nor can an appellate court cull from a record on appeal a reliable picture of a man’s abilities.”

  Another weakness of the special-circumstances rule, Ely continued in the July 25th memorandum, “is that errors in its application stand little chance of being corrected. For it is unlikely that there are many convicts who, like Gideon, have the knowledge, ability and ambition to institute an appeal.… Starting from the questionable assumption that there are on this earth laymen capable of adequately defending themselves against the accusations of the public prosecutor, the special-circumstances rule—if it can be called ‘a rule’—is designed to sort out these fortunate and talented individuals. Twenty years of confusion bear witness to its inadequacy.”

  The next day, July 26th, Ely circulated a note on the distinction made as to the right to counsel in capital and non-capital cases. He said it made no sense in terms of need to have an automatic counsel requirement only when a possible death sentence was involved, since many non-capital charges were more complicated to defend against than murder. Krash had suggested the relevance of some recent Supreme Court decisions rejecting the capital-non-capital distinction in another area of the law. These were the Court Martial cases, arising from a law providing for military trial of civilians accompanying the armed forces overseas. In 1957 the Supreme Court had held this law unconstitutional as applied to wives tried by courts-martial for killing their soldier husbands; a six-two majority, with Justice Clark writing a strong dissent, said the wives had been deprived of their right to trial by jury. Then, in 1960, the court-martial problem came up in non-capital cases. Justices Frankfurter and Harlan wanted to draw the line at the murdering wives and permit civilians to be tried by military courts for non-capital offenses. But Justice Clark, now writing for the majority, said he could see no ground for the distinction and so held unconstitutional all military trials of civilians overseas. Those cases, Ely said, “should be mentioned in our brief as an example of a realization of the inadequacy of a capital-non-capital distinction.” But Ely said that no strong reliance should be placed on them because a different provision of the Constitution—the clause on regulating the armed forces—was involved.

  In yet another memorandum Ely urged that no attempt be made to revive the contention that the Fourteenth Amendment was intended to incorporate the original Bill of Rights intact. The argument had been decisively rejected, he said, and so the brief should follow
the line that an assured right to counsel was “fundamental” and so implicit in the guarantee of due process of law. A ten-page memorandum on July 31st discussed the companion clause of the Fourteenth Amendment, that assuring “the equal protection of the laws.” The leading precedent here, as mentioned by Fitzpatrick, was Griffin v. Illinois, holding that a state denied equal protection when it required payment for trial records in order to appeal, thus excluding the poor. Ely noted this sentence from Justice Black’s opinion: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” He was attracted by the opening that sentence seemed to provide. “The argument from Griffin to Gideon is a simple one,” he wrote, “and in my opinion provides the Court with a convenient method of overruling Betts without expressly contradicting its lengthy and explicit declaration that due process does not always demand appointment of counsel.”

  A memorandum of August 3rd examined the transcript of Gideon’s trial to see whether he had been prejudiced by lack of counsel. “At first blush,” Ely wrote, “the transcript in State v. Gideon seems to present the very model of the myth of Betts: a case in which defense counsel is not needed. For the defendant exhibited remarkable skill in cross-examination, and the judge went to great lengths to inform him of his rights.” But a closer look convinced Ely that Gideon’s ability to defend himself was illusory. He pointed out numerous errors by the judge, examples of prejudice to Gideon, omissions. “An argument could be made along the following lines,” he concluded. “Here is a trial in which the defendant was skillful and the judge made every effort to protect his rights. Yet even here close examination of the law and of the facts reveals that defendant was repeatedly hurt by lack of counsel. If such prejudice occurred in this trial, it would seem that there is no trial in which counsel is unnecessary. Thus the rule of Betts is based upon a false factual assumption.”

  Here was a perception of Ely’s that caught the eye of Abe Fortas, if indeed it had not previously occurred to him. Fortas combined it in his mind with the thesis that the special-circumstances rule might actually result in more, not less, irritation to the states. “I am convinced,” Fortas explained later, “that this judge in Panama City, Florida, tried to help Gideon defend himself. He just did a bad job, as any judge would; it’s not a judge’s role to be a defense counsel. He made mistakes. But how corrosive it is for federal-state relations to have a federal court tell that judge later that he did not do an adequate job!”

  It was time now, in August, to see about printing the record of the case. When the Supreme Court agrees to hear a case, an abstract of the lower-court proceedings is printed for the justices’ convenience. The Court’s print shop does the actual printing, in brown-covered pamphlets that look rather like high-priced paperback books and sometimes run to many fat volumes. Ordinarily the side that eventually loses the decision pays the printing cost, but in a pauper’s case such as Gideon’s the Federal Government pays if the prisoner loses. The process of compiling the record begins when the lawyer for the petitioner (Fortas in this case) submits to the Clerk’s Office a designation of the material he thinks should be printed. The other side may then suggest additions or deletions.

  Printing the record in the Gideon case was not a routine matter, because there was a question what “the record” was. At that point the only documents that were officially before the Supreme Court were Gideon’s manuscript application for habeas corpus in the Florida Supreme Court and a few other fragmentary items. Since Gideon had begun an independent habeas corpus proceeding rather than appealing his conviction, the transcript of his trial was not technically before the Court. Nevertheless, Fortas wanted to include it in the printed record. “The transcript showed that this was the case in which to reconsider Betts v. Brady,” he said later. “If we didn’t put the transcript in the record, Justice Harlan or someone might say, ‘How can we pass on this grave constitutional question without even looking at the transcript?’ Hell, if I were on the Supreme Court I wouldn’t want to decide a question like this on a bare record.”

  Fortas submitted a formal designation of record for printing that included the trial transcript. A copy, as required, went to the other side, the Florida attorney general’s office. On August 29th Bruce R. Jacob of Florida filed a motion to strike from the printing designation the trial transcript. “Matters which took place at the trial which were not alleged in the petition for habeas corpus,” the motion said, “are not involved in the instant case and therefore have no place in the printed record. Inclusion of the trial papers in the printed record herein would be unnecessary and improper. Such inclusion would inject irrelevant matter into the instant case and would prejudice respondent in the presentation of his argument.” Fortas replied, on September 13th, that the Supreme Court had ample power to supplement the technical record. “Informed adjudication requires access to all relevant data,” he said. “Respondent would blind the Court to information which may be of consequence in resolving the question framed by the Court itself when granting certiorari.”

  At the Court, Chief Deputy Clerk Cullinan took the conflicting papers in hand and prepared them for submission to the Court when it returned from the summer recess. He personally did not see why Fortas wanted the trial transcript in, since it showed Gideon as a rather shrewd defendant, fully participating in the trial; but then he did not know the approach that was taking shape in Fortas’s mind.

  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 woul
d 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.