Chasing Gideon (14 page)

“Do I understand that you lay aside the federal guarantee of the right to counsel?” Black asked.

“No sir, I certainly do not lay it aside,” Fortas said. “And you'll see in our brief that we argue it[, but] not, Mr. Justice Black, in terms of the argument that the Fourteenth Amendment incorporates with respect to the States the provision of the Bill of Rights.”

“Well, with reference to . . . what, then?” Justice Black inquired.

“Sir?”

“How does the Fourteenth Amendment do it?”

“Fourteenth Amendment? Mr. Justice Black, I like that argument that you have so eloquently made time and time again—” There is laughter on the bench and in the audience at this. “I can't make it to this Court as an advocate because this Court's turned it down so many times.” More laughter. “I hope and pray that you will never cease contending for it.”

As Fortas's time wound down, J. Lee Rankin, one-time solicitor general in the Eisenhower administration, then came up as a
friend of the court on behalf of the American Civil Liberties Union. The ACLU's argument focused less on Gideon and his particular case, and more on the general state of indigent representation in the country. Rankin was brief but pointed and ended his remarks by saying that he believed that the reconsideration of
Betts
could not simply be prospective—that is, only apply to cases from that point forward. “I do think that there is a problem if you determine something is unconstitutional, in my own thinking, to not apply it back to where the error occurred. I know,” he continued, “there are those who have advocated to the contrary, but for myself, I do not accept that and I would ask that you go back to the point where the error occurred and correct it.”

Then, Jacob stood up to argue his side. Later, he'd describe feeling like he was “in a pit” as he stood before the justices who he recognized were predisposed to argue against him. The questioning was absolutely brutal, and even when I speak to Jacob forty-nine years later on the phone, he vividly recalls the “nerve-racking” moment in tremendous detail. “The court bombarded me with questions,” he tells me. “There were ninety-two interruptions and almost all came during the first thirty minutes. That's three times a minute.” (The court had allowed for hour-long—as opposed to the usual half-hour long—arguments in the case.) Because he had never argued before the Supreme Court before, he neglected to even bring a pencil or paper to the lectern with him so that he might jot down the justice's overlapping questions and make sure he addressed each. “Questions came so fast, I would be trying to answer one and another justice would interrupt with another question. And before I could get to that second one, a third justice would butt in—and I'd try to remember who had asked what.”
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Jacob began by giving some general background on Gideon. He brought up Fortas's demand, made several months earlier, that the original trial transcript be included in the official record. It was a bad tactic.

An irritated Justice Harlan immediately attacked him. “Why do you have to waste time on that?”

“Okay, Your Honor, I was—I wanted to be sure that the Court did not rule upon the transcript as it appears in this—” Jacob said.

“His position is that we are faced in this case really with either affirming, adhering to Betts against Brady, or overruling it,” Justice Harlan corrected. “And that's the only premise he's argued his case on.”

“Okay, Your Honor, I'll proceed with our argument—”

“Well, I take it you're not raising any questions at all about this being, the judgment that's here for review, being a final judgment—” Justice Byron R. White interrupted.

“No, Your Honor.”

“—of the highest court in the State of Florida, on the merits. . . . And there's no question of our appellate jurisdiction here?” Justice White continued.

“No, Your Honor.”

This examination set the tone for Bruce Jacob's entire appearance. Six years after the appearance, in a letter to the
Harvard Law Review
, Jacob described his dawning realization of what he was up against. “It became obvious, during the argument, how deeply the Court was committed to the overthrow of
Betts v. Brady
and its progeny,” he wrote. “Never in the eighteen cases which I had previously argued in the Florida Supreme Court and other appellate courts had I encountered anything like the zeal and emotion that emerged in the questioning. Anger seemed to characterize my most relentless questioner. [Jacob was referring specifically to Justice Hugo Black.] A constant rain of hostile questions came from most of the justices. Concessions made in a spirit of candor that I thought to be the State's duty seemed only to excite fresh attack. Florida's position was obviously hopeless; my ten months of work devoted to the case were of little avail.”
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Jacob admits the barrage of questions flustered him. And there was a certain condescending attitude exhibited at moments, such as when Jacob suggested that states should have the freedom to experiment with various low-level criminal proceedings, even possibly doing away with counsel on either side and letting a judge handle the case by himself. This evoked a response from Justice John M. Harlan: “Careful now. Don't go too far.”

Jacob's nadir came when he suggested a non-lawyer could defend another person. “And of course, I think [a defendant] can have adequate
representation even though he represents himself in some instances,” he said. “It would be absurd—”

“But I suppose I am right in my assumption that I made earlier that Florida wouldn't permit Gideon or any other layman to defend anyone else in the State on trial, would it?” Justice Potter Stewart asked.

“No, it wouldn't, Your Honor,” Jacob said. “Gideon could—if a man came into court and said, I want to be defended by Gideon, then certainly the court would not object.”

“It wouldn't?” Justice Black demanded.

“Wouldn't Gideon maybe get in trouble for practicing law without a license?” Justice Stewart said.

“With the local bar association?” Justice Black pursed.

“I'm sorry, Your Honor,” Jacob conceded. “That was a stupid answer.”

After Jacob concluded, George Mentz, assistant attorney general of Alabama, one of only two states (North Carolina was the other one) that had offered an amicus brief on Florida's behalf, came forward. Mentz basically reiterated the states' rights position, and then at one point tried to suggest that some indigents might be
better off
without a lawyer. “[A]t the last meeting of the bar association, when I talked to a group of the state solicitors and they were of the widespread agreement that an indigent appearing without aid of counsel really stood a better chance of getting a lighter sentence or even an outright acquittal than one who does have an attorney,” Mentz said. “And I think one reason for that is that the prosecuting attorney feels free to pull out all the stops if he's got an opponent and the average opponent, at least in Alabama, the average lawyer there is just not sufficiently versed in criminal practice to cope with most of your career prosecutors.” He continued: “Another thing, I think that since
Betts v. Brady
there's been a progression in the education of most groups and I believe that if the average man who has got a real valid defense is sufficiently articulate enough to get it across to the jury—he may not do it in the nice legal niceties, but he gets the story across.”

“That's not very complimentary to our profession, is it?” Justice Black observed dryly.

“Well, not completely, no, sir.”

At the end of Mentz's argument, Justice Harlan asked a pointed question about the efficacy of
Betts
in contemporary legal terms. “Supposing you had the choice . . . of maintaining Betts and Brady on the books, and then having a succession of cases in this Court where in every instance where a state did not appoint counsel, the case is brought up here and you have it automatically reversed, finding special circumstances, so that while Betts and Brady is being obeyed in form—paid lip service to—any discerning person would know that unless the State does that, the case is coming up here and getting reversed?” he asked. “Do you think that between maintaining that kind of a situation and just getting Betts and Brady off the books, which would you think was the better?”

“I'd rather see each case decided individually,” Mentz said.

“Even though you know they're all going to be decided the one way?”

“Well,” Mentz quipped, “hope springs eternal.”

As onlookers chuckled, Fortas returned to the lectern for a short, five-minute rebuttal. It was at the end of his five minutes that Justice Harlan—the last positivist holdout after Justice Felix Frankfurter's departure and a firm advocate of
stare decisis
—expressed his concern about what the ramifications of this case really were: “[W] hat one is left with is to get his hands on something that has happened between 1942 and 1963 that has made what the Court then regarded as constitutional suddenly become unconstitutional.”

His comment was a fairly overt signal as to which way the justices were leaning. And indeed, the court announced its unanimous decision in favor of Gideon on March 18, 1963.
Gideon
overruled
Betts
, making the Sixth Amendment's right-to-counsel provision applicable to all felony cases. Not surprisingly, Justice Hugo Black penned the decision. Interestingly, despite the concerns of Justice Harlan, Black made no attempt to suggest that the overruling was necessary due to legal and social shifts in the two decades since
Betts
. Instead, he claimed that the court had “made an abrupt break with its own well-considered precedents.”

“We think
Betts
was wrong . . . in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental
rights,” he wrote. And referring to
Powell v. Alabama
, he said, “Ten years before
Betts v. Brady
, this Court . . . had unequivocally declared that ‘the right to the aid of counsel is of this fundamental character. . . .' [I] ts conclusions about the fundamental nature of the right to counsel are unmistakable.” And he continued:

Though the decision was unanimous, three other opinions were also entered into the record—a separate opinion from Justice Douglas, and two concurrences, one each by Justices Clark and Harlan. For his part, Harlan agreed that
Betts
should be overturned, but he considered it “entitled to a more respectful burial than has been accorded.” Harlan's main point was that
Betts
had actually not broken precedent as Black suggested. According to Harlan,
Powell
rested on its own set of “special circumstances” and
Betts
had actually expanded indigent defense by suggesting that it could be
applied in noncapital cases. “At the same time, there have been not a few cases in which special circumstances were found in little or nothing more than the ‘complexity' of the legal questions presented, although those questions were often of only routine difficulty,” he wrote. “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.”
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And while some states have made strides in acknowledging this reality, others have failed to do so. “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,” he added. “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.”
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As a result of the Supreme Court's decision, Clarence Earl Gideon was now eligible for a new trial—this time with counsel. The Florida ACLU stepped forward with an attorney, but Gideon was oddly uncooperative about the appointment of his new lawyer. After Gideon wrote a letter to the Florida ACLU asking for support, an attorney from the organization, Tobias Simon, went to meet with him at Raiford in April of 1963. Gideon was highly agitated; he believed that he could not get a fair trial—it was scheduled to take place in the same district, before the same judge—and that the new trial would constitute “double jeopardy.” (It wouldn't.) The new court date was July 5. Simon went to Panama City with Irwin J. Block, a criminal lawyer who had offered to assist him on the case. Gideon refused to meet with them, and the next day, when Gideon, Simon, Block, and the prosecutors met in Judge McCrary's chambers, a distressed Gideon told the judge that he did not want the two lawyers to represent him, that he wanted a change of venue, and that
he wanted to plead his own case
. “I don't want them to represent me. I DO NOT WANT THEM,” he said.
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