For the state, Assistant Prosecutor Griffith had made a straightforward closing argument, summarizing the testimony without dramatics. Now, in rebuttal to Turner, Harris got a little more folksy.
“Twenty-five dollars’ worth of change,” he said, “that’s a lot to carry in your pocket. But Mr. Gideon carried one hundred dollars’ worth of change in his pocket.” He paused and raised his eyebrows. “Do you believe that? … There’s been no evidence here of any animosity by Cook toward Gideon. There’s no evidence here that Cook and his friends took this beer and wine.”
The jury went out at four-twenty P.M., after a colorless charge by the judge including the instruction—requested by Turner—that the jury must believe Gideon guilty “beyond a reasonable doubt” in order to convict him. When a halfhour had passed with no verdict, the prosecutors were less confident. At five twenty-five there was a knock on the door between the courtroom and the jury room. The jurors filed in, and the court clerk read their verdict, written on a form. It was Not Guilty.
“So say you all?” asked Judge McCrary, without a flicker of emotion. The jurors nodded.
Judge McCrary had written of Gideon’s first trial: “In my opinion he did as well as most lawyers could have done in handling his case.” But Gideon had not done as well as Fred Turner. He had none of Fred Turner’s training, or his talent, or his knowledge of the community. Nor could he prepare the case as Turner had, because he had been in prison before his trial.
Turner had spent three full days before trial interviewing witnesses and exploring the case. He went out in the backyard and picked pears with Cook’s mother to see what he could find out about the prosecution’s star witness. Actually, Turner already knew a good deal about Cook because he had twice been Cook’s lawyer—a coincidence that was not a great surprise in a small town like Panama City, where part of a lawyer’s job is to know everyone. He had represented Cook in a divorce action and defended him successfully against a charge of leading a drunk out of the Bay Harbor Poolroom, beating him up and robbing him of $1.98. Gideon’s insistence on having a local lawyer—Fred Turner—may well have won the case for him. It is doubtful that the Civil Liberties Union lawyers from Miami could have been so effective with a Panama City jury.
After nearly two years in the state penitentiary Gideon was a free man. There were tears in his eyes, and he trembled even more than usual as he stood in a circle of well-wishers and discussed his plans. His half-brother, the Air Force sergeant, was coming home from Japan and would adopt Gideon’s children. Gideon would see the children the next day, then go off to stay with a friend in Tallahassee. That night he would pay a last, triumphant visit to the Bay Harbor Poolroom. Could someone let him have a few dollars? Someone did.
“Do you feel like you accomplished something?” a newspaper reporter asked.
“Well I did.”
Notes
The following are mainly source notes. They generally follow legal methods of citation, which may need a word of explanation. Betts v. Brady, 316 U.S. 455, 462 (1942), means that the Supreme Court decided the case in 1942 and that the opinions begin at page 455 of volume 316 of the United States Reports, the official volumes of the Court’s decisions; the particular passage quoted or mentioned is at page 462. In the early years the reports bore the name of the editor, such as Cranch or Wheaton or Howard: Martin v. Hunter’s Lessee, 1 Wheaton 304 (1816). Federal statutes are cited by title and section in the United States Code, the compendium of federal laws; 28 U.S.C. 1915 (a) means Title 28 of the code, section 1915(a). Articles in law reviews are cited by author, title, the volume and name of the review, page and date: Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 25 (1956). Books are cited by author, title, page and year of publication: Freund, The Supreme Court of the United States 47 (1961). The author’s full name and further details of publication are given in the list of suggested readings.
Chapter 1
1 The in forma pauperis statute is 28 U.S.C. 1915(a).
2 Betts v. Brady, 316 U.S. 455 (1942).
3 The quoted passage from Betts is on p. 462.
Chapter 2
1 Jackson, The Supreme Court in the American System of Government 12 (1955).
2 The 1938 decision requiring federal judges to follow state-court decisions in diversity cases was Erie RR. v. Tompkins, 304 U.S. 64.
3 Martin v. Hunter’s Lessee, 1 Wheaton 304 (1816).
4 Supreme Court review of state-court decisions is controlled by 28 U.S.C. 1257.
5 Thompson v. Louisville, 362 U.S. 199 (1960).
6 N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958). Holmes spoke of “springes” in Davis v. Wechsler, 263 U.S. 22 (1924).
7 The Dred Scott case is Scott v. Sandford, 19 Howard 393 (1857).
8 Justice Brandeis’s great statement of the barriers to constitutional decisions is in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936). Quotations from Brandeis later in this chapter are from the same opinion.
9 “The most important thing we do is not doing” was often said by Brandeis to his law clerks and has been recalled especially by one of them, Professor Paul A. Freund.
10 The birth-control cases: Tileston v. Ullman, 318 U.S. 44 (1943), and Poe v. Ullman, 367 U.S. 497 (1961).
11 The security case: Peters v. Hobby, 349 U.S. 331 (1955).
12 The Hughes letter can be found at 81 Congressional Record 2814 (1937).
13 Story’s remark about the size of the Court is quoted in Hughes, The Supreme Court of the United States 238 (1928).
14 In the early years of the Court, Congress fixed the number of justices at varying levels, from six to ten. Since 1869 there have been nine.
15 Taft’s testimony is in House Judiciary Committee Hearings on H.R. 10479, 67th Congress, 2d Session, p. 2. It is quoted injustice Frankfurter’s dissenting opinion in Dick v. N.Y. Life, 359 U.S. 437, 447, 452 (1959).
16 The Vinson address is printed at 69 Sup. Ct. Reporter VI (1949). (The citation is to a privately published set of reports of Supreme Court decisions.)
17 Justice Brennan’s statement is in Brennan, Supreme Court Review of State Court Decisions, 38 Michigan State Bar Journal, No. 11, pp. 14, 18 (November, 1959).
18 The School Segregation case: Brown v. Board of Education, 347 U.S. 483 (1954).
19 The Frankfurter warning: Foster v. Illinois, 332 U.S. 134, 139 (1947).
Chapter 3
1 The Brandeis phrase was recalled by a former law clerk, James M. Landis.
2 Jackson, The Supreme Court in the American System of Government 16 (1955).
3 Hughes’ remarks are in 11 Proceedings of the American Law Institute 313, 314 (1934).
4 Jackson on law clerks: op. cit. at p. 20. Clark, The Supreme Court Conference, 19 Federal Rules Decisions 303, 304 (1956). (The last citation is to a reporter that covers decisions of all courts interpreting the federal rules of legal procedure.)
5 Justice Frankfurter in Brown v. Allen, 344 U.S. 443, 493 (1953).
6 The decision construing the paupers’ statute was Adkins v. du Pont Co., 335 U.S. 331, 339 (1948).
7 Douglas, The Supreme Court and Its Case Load, 45 Cornell Law Quarterly 401, 407 (1960).
8 Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 25 (1956). The Douglas quotation is from his Cornell article, op. cit., p. 408.
9 Justice Douglas uses only one law clerk. With three for the Chief Justice and two for each of the others, the total for the Court is eighteen.
10 Frankfurter, Chief Justices I Have Known, in Of Law and Men (Elman, editor) 111, 133 (1956). The Jackson quotation, op. cit., p. 15.
11 Justice Frankfurter’s view on dismissing writs of certiorari was in his dissenting opinion in Rogers v. Missouri Pacific RR., 352 U.S. 500, 524 (1957).
Chapter 4
1 Rule 53(7) of the Supreme Court Rules provides for the appointment of counsel and the payment of transportation expenses.
2 Bartkus v. Illinois, 359 U.S. 12
1 (1959).
3 The new Illinois statute barring double prosecutions can be found in the compendium of Illinois laws at 38 Ill. Smith-Hurd Ann. Stat. 3–4.
4 The right to present one’s own case is granted by 28 U.S.C. 1654.
5 Justice Frankfurter in Dennis v. United States, 340 U.S. 887 (1950).
6 The New York prayer case: Engel v. Vitale, 370 U.S. 421 (1962).
7 Biddle, In Brief Authority 176 (1962).
8 Durham v. United States, 214 F.2d 862, 874 (1954). (The citation is to the Federal Reporter, 2d series, reporting decisions of the United States Courts of Appeals.)
9 For a comment on the unsentimental Brandeis and widows and orphans, see Freund, Mr. Justice Brandeis: A Centennial Memoir, 70 Harv. L. Rev. 769, 787 (1957).
Chapter 6
1 Jackson in Brown v. Allen, 344 U.S. 443, 540 (1953).
2 Marbury v. Madison, 1 Cranch 137 (1803).
3 Jackson, op. cit., p. 26.
4 A notable expression of Justice Frankfurter’s belief in judicial restraint was his dissent in the second Flag Salute case, West Virginia Board of Education v. Barnette, 319 U.S. 624, 646 (1943).
5 Justice Harlan’s address at the American Bar Center, August 13, 1963.
6 The outstanding statement of Justice Black’s view on constitutional absolutes is in his lecture, The Bill of Rights, reprinted in The Great Rights (Cahn, editor) 43 (1963) and also reprinted in a collection of Black’s writings, One Man’s Stand for Freedom (Dilliard, editor) 33 (1963).
7 The wiretapping case: Goldman v. United States, 316 U.S. 129 (1942). The school-bus case: Everson v. Board of Education, 330 U.S. 1 (1947).
8 Brandeis on precedent: Burnett v. Coronado Oil and Gas Co., 285 U.S. 393, 405, 406 (1932).
9 Holmes on Henry IV: The Path of the Law, an 1897 address reprinted in Collected Legal Papers 167, 187 (1920).
10 The separate-but-equal doctrine was laid down in Plessy v. Ferguson, 163 U.S. 537 (1876).
11 The law-review study of overruling is Blaustein and Field, “Overruling” Opinions in the Supreme Court, 57 Michigan L. Rev. 151, 162 (1958).
12 Justice Black’s criminal contempt dissent was in Green v. United States, 356 U.S. 165, 193 (1958).
13 McCulloch v. Maryland, 4 Wheaton 316 (1819).
14 The Supreme Court invalidated major New Deal measures for coal mines in Carter v. Carter Coal Co., 298 U.S. 238 (1936), and for farms in United States v. Butler, 297 U.S. 1 (1936). The Court’s symbolic turning point was N.L.R.B. v. Jones & Laughlin Co., 301 U.S. 1 (1937), sustaining the Wagner Act.
15 The report of the Chief Justices is printed at 104 Congressional Record A7782 (1958).
16 Frankfurter on federalism: Knapp v. Schweitzer, 357 U.S. 371, 380 (1958), and Bartkus v. Illinois, 359 U.S. 121, 138 (1959).
17 The quotation from Justice Black in Bartkus is at p. 155.
18 The Madison material can be found in Brennan, The Bill of Rights and the States, reprinted in The Great Rights (Cahn, editor) 69–70 (1963).
19 Barron v. Baltimore, 7 Peters 243 (1833).
20 Adamson v. California, 332 U.S. 46 (1947).
21 The Cardozo formulation was in Palko v. Connecticut, 302 U.S. 319 (1937).
22 The Court held First Amendment restraints inapplicable to the states in Prudential Insurance Co. v. Cheek, 259 U.S. 530 (1922).
23 Professor Freund’s wry observation is in Freund, The Supreme Court of the United States 47 (1961).
24 The free-speech guarantee was read into the Fourteenth Amendment in Gitlow v. New York, 268 U.S. 652 (1925).
25 The Arkansas case: Moore v. Dempsey, 261 U.S. 86 (1923).
26 The search- and seizure case: Wolf v. Colorado, 338 U.S. 25 (1949).
27 The first coerced-confession case was Brown v. Mississippi, 297 U.S. 278 (1936). An example of a later case depending on psychological rather than physical coercion is Watts v. Indiana, 338 U.S. 49, 52 (1949), where Justice Frankfurter wrote: “There is torture of mind as well as body; the will is as much affected by fear as by force.” In Spano v. New York, 360 U.S. 315, 320 (1959), Chief Justice Warren said: “The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”
28 Griffin v. Illinois, 351 U.S. 12 (1956).
29 Mapp v. Ohio, 367 U.S. 643 (1961).
30 Brennan, The Bill of Rights and the States, in The Great Rights (Cahn, editor) 67, 82, 85–6 (1963).
Chapter 8
1 Rawle, A View of the Constitution 127–8 (1825).
2 Botein and Gordon, The Trial of the Future 51–52 (1963).
3 Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956).
4 Powell v. Alabama, 287 U.S. 45 (1932).
5 Professor Allen’s account: Allen, The Supreme Court and State Criminal Justice, 4 Wayne L. Rev. 191 (1958).
6 There were originally nine of the Scottsboro boys, but the Northern liberal groups that interested themselves in their fate did not take to the Supreme Court the cases of two juveniles who fared better in the Alabama courts. After the Supreme Court reversed the convictions of the seven, the alleged ringleader, Haywood Patterson, was retried alone, convicted and again sentenced to death. The trial judge set the verdict aside. At a third trial Patterson and Clarence Norris were convicted and sentenced to death. In 1935 the Supreme Court reversed these convictions on the ground that Negroes had been systematically excluded from the jury. Norris v. Alabama, 294 U.S. 587; Patterson v. Alabama, 294 U.S. 600. In the next two years Alabama authorities quashed the indictments against five of the nine; the other four were again convicted, but only Norris drew a death sentence. That sentence was commuted, and by 1946 all had been released on parole save Patterson. He escaped in 1948 and reached Michigan, whose authorities rejected an Alabama request for extradition. The whole Scottsboro Case was a national cause celebre during the 1930’s, including among other elements conflict between Communist and non-Communist forces involved in the defense of the boys. There is an account by Patterson, Scottsboro Boy, Doubleday & Co., Garden City, N.Y. (1950).
7 Johnson v. Zerbst, 304 U.S. 458 (1938).
8 The Cohen-Griswold letter is in the New York Times of August 2, 1942, section 4, p. 6.
9 The 1945 decisions were Williams v. Kaiser, 323 U.S. 471, and Tomkins v. Missouri, 323 U.S. 485.
10 The 1961 capital case: Hamilton v. Alabama, 368 U.S. 52, 55.
11 The 1947 case: Foster v. Illinois, 332 U.S. 134, 139.
12 Uveges v. Pennsylvania, 335 U.S. 437, 441.
13 Gryger v. Burke, 334 U.S. 728 (1948). Townsend v. Burke, 334 U.S. 736 (1948).
14 Allen, The Supreme Court, Federalism and State Systems of Criminal Justice, 8 De Paul L. Rev. 213, 230–31 (1959).
15 The last decision rejecting a claim for counsel was Quicksall v. Michigan, 339 U.S. 660 (1950).
16 Hudson v. North Carolina, 363 U.S. 697, 704 (1960).
17 McNeal v. Culver, 365 U.S. 109, 119 (1961).
18 The Brennan lecture was The Bill of Rights and the States, in The Great Rights (Cahn, editor) 67, 81 (1963).
19 The 1962 case involving the multiple-offender law was Chewning v. Cunningham, 368 U.S. 443 (1962).
20 Carnley v. Cochran, 369 U.S. 506 (1962).
Chapter 9
1 The 1948 decision rejecting a judge’s error of state law as a special circumstance requiring counsel was Gryger v.
2 Burke, 334 U.S. 728. The 1961 case looking the other way:
3 McNeal v. Culver, 365 U.S. 109.
4 The court-martial cases: Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Singleton, 361 U.S. 234 (1960).
5 The 1958 decision: Crooker v. California, 357 U.S. 433.
6 The case of the death sentence after
a new trial with counsel: Robinson v. United States, 324 U.S. 282 (1945).
7 Kamisar, The Right to Counsel and the Fourteenth Amendment, 30 U. Chicago L. Rev. 1 (1962).
8 The Pennsylvania case was Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 565–7, 176 A.2d. 94, 96–7 (1961). (Citations are to the Pennsylvania reports and to the Atlantic Reporter, covering decisions in Pennsylvania and nearby states.)
Chapter 10
1 The restrictive covenant cases: Shelley v. Kraemer, 334 U.S. 1 (1948).
2 Supreme Court Rule 42 covers amicus briefs.
3 Omission of New York from the list of states on the amicus brief may seem surprising. New York law has long required representation of the indigent in criminal cases. Nevertheless, Attorney General Louis J. Lefkowitz decided not to join the amicus brief attacking Betts v. Brady. He explained that in New York criminal cases defendants frequently challenged the validity of prior convictions without counsel in other states—convictions that could be relevant, for example, to the severity of the New York sentence to be imposed—and prosecutors relied on Betts to uphold the prior convictions. Mr. Lefkowitz and his staff thought it inappropriate to challenge a rule on which they had so often relied. The same problem did not trouble other states.
4 Chambers v. Florida, 309 U.S. 227, 241 (1940). The comment on Justice Black’s “great internal struggles” is in Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673, 679 (1963). Before going on the bench Justice Black had criticized the old Court for upsetting state action on economic matters. The question for him was whether it had any greater warrant to invoke the Constitution on matters of personal liberty. This case marked an early stage in the development of his answer: Yes.
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