Gideon's Trumpet

by Anthony Lewis

  But this whole process of discussion, voting and opinion-writing is entirely concealed from public view. No one but the justices and their law clerks, and some printers equally dedicated to secrecy, have any idea how a case is going to come out until, on some Monday, the opinions are announced. There are almost no news leaks at the Supreme Court—one of its many distinctions from all other Washington institutions. Not even the date of decision can be accurately estimated; it may come just a few weeks after argument, or many months.

  For the parties to a case, and their lawyers, the period between argument and decision is a time of frustrating puzzlement, of might-have-beens, of daydreams and nightmares. Two months after the Gideon argument, at the beginning of March, 1963, Bruce Jacob was still thinking about the strangeness of that day.

  “It was so different from the Florida Supreme Court,” he told a visitor. “They weren’t concerned with precedents. They didn’t ask you about existing law. Instead of asking about cases the way judges usually do—what did this case stand for, what did that case—they had all those hypothetical questions, trying to carry everything to its farthest point. I wanted to be honest. When they asked me whether there were some prisoners in Raiford [the state penitentiary] who should have had counsel, I had to say yes, because I had read some records and I knew there were. But the more honest I was, the more they kept putting me on the spot. Some of the questions were just designed to embarrass our position. I never had judges make your side look as bad as it could.

  “I had been working on this thing for months, but some of the questions were completely surprising. You could tell that they knew what they were doing, that they were awfully smart men, that they had the benefit of the best thinking of the country.”

  Jacob had no doubt, now, that the Court would overrule Betts v. Brady. He wondered who was writing the Court’s opinion. It might have been assigned to some relatively neutral figure, like Justice Stewart, but Jacob thought not. He was sure Chief Justice Warren would give Justice Black the satisfaction of writing into law his dissent of twenty-one years ago. Jacob was still worried about the consequences of establishing an absolute right to counsel. He hoped especially that the Court would limit its decision to future application, so as not to affect all those thousands of current prisoners. “It’s easy to think of them as heroes,” he said, “but after you’ve worked in the attorney general’s office you know they’re not. They’re liars, they’re terrible.” He paused for a moment, thinking, and then added, “It’s funny—at law school I was the chairman of legal aid.”

  Jacob noted that the case would probably have a different name when the Supreme Court decided it. The party against whom Gideon had originally brought his habeas corpus action, H. G. Cochran, Jr., had resigned as director of the Florida Division of Corrections and been replaced by Louie L. Wainwright. The Court had been informed of the change, and Wainwright would, therefore, have the doubtful distinction of sharing Gideon’s place in the title of an important legal decision.

  It was only a few days later, as it happened, that Gideon v. Wainwright was decided. There was no prior notice; there never is. The Court gives out no advance press releases and tells no one what cases will be decided on a particular Monday, much less how they will be decided. Opinion days have a special quality. The Supreme Court is one of the last American appellate courts where decisions are announced orally. The justices, who divide on so many issues, disagree about this practice, too. Some regard it as a waste of time; others value it as an occasion for descending from the ivory tower, however briefly, and communicating with the live audience in the courtroom. Techniques of opinion-reading vary, too. Justice Frankfurter never looked at his text but would expound from memory; once Chief Justice Warren irritatedly accused him of saying things that were not in the opinion. Others stick closely to the text, and some read brief summaries. Justice Black’s technique seems to vary with the opinion; he gives fuller—and more emotional—treatment to those he regards as of particular importance.

  The reading always begins with the most junior justice who has an opinion that day. On Monday, March 18th, that was the newest member of the Court, Justice Goldberg. For a five-four majority he held that Washington State had not made an adequate trial record available to two indigent prisoners for purposes of their appeal. The next case was unanimous; an opinion by Justice Stewart struck down an Indiana rule allowing the public defender to block a prisoner’s appeal as worthless. Then Justice Brennan, for a six-three majority, broke important new ground in federal-state relations by holding that federal courts have the power to release on habeas corpus state prisoners who failed to follow regular state procedures; the result was to free Charles Noia of New York, whose two co-defendants in a murder trial had eventually been freed on a finding that confessions had been coerced from all three, but who had not himself appealed originally and had been turned down by the New York courts when he tried to appeal later.

  A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals. To any informed listener it was obvious that the same rule must apply at trials and that Betts v. Brady was about to be overruled. Those who had before them the printed opinions in the California case—page boys bring them around to a few newspaper reporters and the Solicitor General as they read—knew from the text that they were about to hear the Gideon case decided, because there was a reference to “Gideon v. Wainwright, decided today.”

  The string of criminal cases was interrupted by a Douglas opinion on the Georgia “county unit” system of tabulating primary election votes to give extra weight to voters in rural areas; an eight-one majority (Justice Harlan dissenting) held this discrimination unconstitutional.

  Then, in the ascending order of seniority, it was Justice Black’s turn. He looked at his wife, who was sitting in the box reserved for the justices’ friends and families, and said: “I have for announcement the opinion and judgment of the Court in Number One fifty-five, Gideon against Wainwright.”

  Justice Black leaned forward and gave his words the emphasis and the drama of a great occasion. Speaking very directly to the audience in the courtroom, in an almost folksy way, he told about Clarence Earl Gideon’s case and how it had reached the Supreme Court of the United States.

  “It raised a fundamental question,” Justice Black said, “the rightness of a case we decided twenty-one years ago, Betts against Brady. When we granted certiorari in this case, we asked the lawyers on both sides to argue to us whether we should reconsider that case. We do reconsider Betts and Brady, and we reach an opposite conclusion.”

  By now the page boys were passing out the opinions. There were four—by Justices Douglas, Clark and Harlan, in addition to the opinion of the Court. But none of the other three was a dissent. A quick look at the end of each showed that it concurred in the overruling of Betts v. Brady. On that central result, then, the Court was unanimous.

  Justice Black began reading sections of his opinion. Since 1942, it said, the problem of the constitutional right to counsel in state criminal trials had been “a continuing source of controversy in both state and federal courts.” A footnote cited articles by Professors Allen of Chicago and Kamisar of Minnesota. Justice Black, quoting briefly from the transcript of Gideon’s trial, said Gideon had “conducted his defense about as well as could be expected from a layman.” The way the whole case had developed, he said, was “strikingly like” what had happened in the Betts case. “Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding, if left standing, would require us to reject Gideon’s claim that the Constitution guarantees him the assistance of counsel.”

  The rest of Justice Black’s ten-page opinion was an assault on Betts. There was no attempt to show that overruling was required by developments in the two decades since the case was decided. It had been wrong to start with. Justice Black did not press his own theory
that the Fourteenth Amendment incorporated the Bill of Rights verbatim. He accepted as the law, for purposes of this case, the Cardozo formulation that particular guarantees of the Bill of Rights “implicit in the concept of ordered liberty” had been “brought within the Fourteenth Amendment by a process of absorption” and thus had been made applicable to state proceedings.

  “We accept,” he wrote, “Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is made obligatory upon the states by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that ‘the right to the aid of counsel is of this fundamental character.’ Powell v. Alabama, 287 U.S. 45, 68 (1932). While the Court at the close of its Powell opinion did by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable.”

  Justice Black mentioned other early cases that had emphasized the importance of counsel, including his own 1938 opinion in Johnson v. Zerbst, construing the Sixth Amendment to require counsel in federal criminal trials, and concluded that Betts had made “an abrupt break” from these precedents.

  “Not only these precedents but also reason and reflection,” he wrote, “require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

  The opinion came to an end without any mention of the difficult problems of the scope of the decision: what kinds of criminal cases it covered, if any apart from felonies; at what stage of the proceeding counsel was required; whether the decision applied to persons already in prison, so that those who had not had counsel must now be given new trials. All those questions were presumably left to be answered when raised specifically by later cases.

  “The Court in Betts v. Brady,” Justice Black concluded, “departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other states, has asked that Betts v. Brady be left intact. Twenty-three states, as friends of the Court, argue that Betts was ‘an anachronism when handed down’ and that it should now be overruled. We agree.

  “The judgment is reversed and the cause is remanded to the Supreme Court of Florida for action not inconsistent with this opinion.”

  Justice Douglas, while joining Justice Black’s opinion, was not content to let the occasion pass without rearguing the old proposition that the Fourteenth Amendment incorporated all the Bill of Rights. “Unfortunately,” he wrote in his concurring opinion, “it has never commanded a Court. Yet, happily, all constitutional questions are always open. And what we do today does not foreclose the matter.”

  Justice Clark did not accept the reasoning of Justice Black and the majority. In his concurring opinion he rested on the fact that the Court had already established an absolute right to counsel in cases involving the death penalty, even under Betts v. Brady. He drew the parallel with the overseas court-martial cases. In his own 1960 opinion on that subject, he said, the Court “specifically rejected any constitutional distinction between capital and non-capital offenses as regards Congressional power to provide for court-martial trials of civilian dependents.…” He “must conclude” likewise here. “The Fourteenth Amendment requires due process of law for the deprival of ‘liberty’ just as for deprival of ‘life,’ and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved.”

  Justice Harlan also followed a legal path of his own. “I agree that Betts v. Brady should be overruled,” he said, “but consider it entitled to a more respectful burial than has been accorded, at least”—he added in a respectful gesture to Justice Black’s consistency of position for twenty-one years—“on the part of those of us who were not on the Court when that case was decided.” Justice Harlan could not agree that Betts had broken with precedents looking toward an absolute right to counsel. Powell v. Alabama had rested on the special circumstances of the Scottsboro trial, and Betts had actually enlarged the right to counsel by indicating that it could exist even in a non-capital case where there were special circumstances. But the special-circumstance doctrine, Justice Harlan continued, had had “a troubled journey.” It had been abandoned altogether in death cases. In non-capital cases it had “continued to exist in form while its substance has been substantially and steadily eroded.” The Court had not found a lack of special circumstances in any case heard and decided since Quicksall v. Michigan, in 1950. “The Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial. In truth the Betts v. Brady rule is no longer a reality.

  “This evolution, however, appears not to have been fully recognized by many state courts, in this instance charged with the front-line responsibility for the enforcement of constitutional rights.” Here Justice Harlan cited in a footnote the recent Pennsylvania decision mentioned by both Fortas and the Civil Liberties Union, upholding the trial without counsel of a “high-grade moron.” The opinion went on:

  “To continue a rule which is honored by this Court only with lip service is not a healthy thing and in the long run will do disservice to the federal system. The special-circumstances rule has been formally abandoned in capital cases, and the time has now come when it should be similarly abandoned in non-capital cases, at least as to offenses which, as the one involved here, carry the possibility of a substantial prison sentence. (Whether the rule should extend to all criminal cases need not now be decided.) This indeed does no more than to make explicit something that has long since been foreshadowed in our decisions.”

  That was the end of Clarence Earl Gideon’s case in the Supreme Court of the United States. The opinions delivered that Monday were quickly circulated around the country by special legal services, then issued in pamphlets by the Government Printing Office. Eventually they appeared in the bound volumes of Supreme Court decisions, the United States Reports, to be cited as Gideon v. Wainwright, 372 U.S. 335—meaning that the case could be found beginning on page 335 of the 372nd volume of the reports.

  Justice Black, talking to a friend a few weeks after the decision, said quietly: “When Betts v. Brady was decided, I never thought I’d live to see it overruled.”

  13

  When a friend telephoned from Washington to give him the news of the decision, Bruce Jacob said: “It’s only the beginning.” And it was.

  “Even if Betts v. Brady should be overruled tomorrow,” Justice Stewart said in 1960, “… there is no way that the Supreme Court could, or indeed that it properly should, see to it that in the day-to-day administration of criminal trials throughout the country truly adequate representation of indigent defendants were provided.” That job was up to the bar and the courts and the legislatures of the country. The Supreme Court had sounde
d a trumpet. The response had to come from society.

  Twenty-five years before, in Johnson v. Zerbst, the Supreme Court had laid down the rule that federal criminal defendants had an absolute right to counsel, but society had been slow in responding. Despite the urging of every Attorney General in that period, Congress had done nothing whatsoever to provide funds or establish any system of assuring counsel for the poor, except for a District of Columbia legal-aid measure passed in 1960. And so, in 1963, federal judges still used their own random methods to appoint counsel—who had to serve without pay, without even compensation for out-of-pocket expenses.

  The result of this non-system, as might be expected, was inadequate representation for many defendants and a wholly unfair burden on a few lawyers.

  James V. Bennett, for many years the director of the federal prison system, told Congress on May 20, 1963, that his observations over twenty-five years had convinced him that the use of unpaid assigned counsel for indigents too often resulted in “inept, hasty and perfunctory” representation.

  One of the many horrible examples cited by Mr. Bennett from his own experience was that of an eighteen-year-old girl who “waived” the right to counsel, pleaded guilty to stealing a letter from the mails and was committed to the penitentiary for five years. “We found that she had an I.Q. of forty-five and that her behavior was that of an impulsive child,” Mr. Bennett said. “There was no question but that she was mentally incompetent both at the time of the offense and at the time of trial.… In my opinion an experienced public defender or conscientious assigned counsel would have known immediately upon talking to her that she could not intelligently waive her right to counsel. He would have had her examined, and he would have presented to the court the information that she belonged in a state institution for the mentally defective rather than in a court of the United States charged with crime.”