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VOLUME 249—NO. 51
MONDAY, MARCH 18, 2013
Outside Counsel
Expert Analysis
Fifty Years Ago Today, ‘Gideon’
Affirmed a Right to Counsel
F
ifty years ago today, on March 18, 1963,
the U.S. Supreme Court decided Gideon
v. Wainwright, perhaps the most famous
decision in the history of American criminal procedure.1
‘Betts v. Brady’
Any discussion of Gideon should start with the
Supreme Court’s 1942 decision in Betts v. Brady.2
An unemployed farm hand, Smith Betts was
indicted for robbery in Carroll County, Maryland.
At his arraignment, Betts requested that counsel
be appointed to represent him. The judge denied
the request, telling Betts that the practice in the
county was to appoint counsel for indigent defendants only in murder and rape cases. Without the
aid of counsel, Betts proceeded to trial and was
convicted and sentenced to eight years’ imprisonment. After failing to obtain relief in the Maryland
courts, he successfully petitioned the Supreme
Court to hear his case.
Four years earlier, the court had held (in an
opinion written by Justice Black, who was then in
his first term) that the Sixth Amendment required
the appointment of counsel for indigent defendants in federal prosecutions. In 1942, when Betts
reached the Court, a debate was simmering among
the justices as to whether the requirements of the
Sixth Amendment—and, more broadly, those of
the first eight amendments—applied to the states
through the due process clause of the Fourteenth
Amendment. Justice Owen Roberts began his opinion for the court in Betts by rejecting the incorporationist position: “the due process clause of the
Fourteenth Amendment does not incorporate, as
such, the specific guarantees found in the Sixth
Amendment.” As Justice Roberts saw it, states
could adopt procedures for safeguarding the
interests of the accused that were different from
those employed in federal courts.
Justice Roberts framed the question in Betts
as whether appointment of counsel was a “fun-
PAUL SHECHTMAN is a partner at Zuckerman Spaeder LLP
and an adjunct professor at Columbia Law School.
By
Paul
Shechtman
damental right, essential to a fair trial.” He concluded that it was not—at least not in Smith Betts’
case, where the “simple issue was the veracity
of the testimony for the State and that for the
defendant.” Betts, Justice Roberts found, “was a
man forty-three years old, of ordinary intelligence
and ability to take care of his own interests on
the trial of that narrow issue.”
Justice Black, joined by Justices Douglas
and Murphy, dissented. After first stating his
view that the Fourteenth Amendment made
the Sixth applicable to the states, Justice Black
addressed the majority on its own terms: “A
practice cannot be reconciled with common
and fundamental ideas of fairness and right,
which subjects innocent men to increased dangers of conviction merely because of their poverty.” Black’s dissent had been foreshadowed
at the court’s conference in Betts, when he
told his colleagues that it made him “vomit to
think men go to prison for a long time” without
having counsel to defend them.3
From ‘Betts’ to ‘Gideon’
Between Betts and Gideon, the Supreme Court
considered some 22 cases in which the question
was whether there were “special circumstances” requiring the appointment of counsel for an
indigent defendant charged in state court with
a serious crime. It found special circumstances
in all but three. Special circumstances came to
include “the complicated nature of the offense
charged and the possible defenses thereto”; the
“ignorance, youth, or other incapacity of the
defendant [that] made a trial without counsel
unfair”; and the presence of a legal issue that
was “too intricate for the layman to master.”4
As Justice John Harlan would later write, the
doctrine was stretched so thin that “the mere
existence of a serious criminal charge [came to]
constitute in itself special circumstances requiring the services of counsel at trial.”5 The state
courts, however, took a different approach. In
the same period, state appellate courts considered the issue in 139 cases and found special
circumstances in only 11.6
By 1961, Chief Justice Warren had his law
clerks on the lookout for a case to overrule Betts.
When Carnley v. Cohran reached the court in
1962, there was thought that it might be the one.7
Carnley, however, was charged with molesting
his 13-year-old daughter, and Justice Frankfurter
cautioned his colleagues that there could not be
“a worse case, a more unsavory case to overrule
a longstanding opinion.”8 And so the court found
special circumstances in Carnley and waited for a
better case to come along. Gideon was that case.
Florida Proceedings
Our image of Clarence Earl Gideon is shaped
by Anthony Lewis’ book “Gideon’s Trumpet”
and by Henry Fonda’s portrayal of Gideon in
the 1980 made-for-television movie. Lewis
describes Gideon as a “fifty-one-year-old white
man who had been in and out of prison much
of his life”—“never a professional criminal or
a man of violence” but rather a drifter “tossed
aside by life,” who had “made his way by gambling and occasional thefts.” That portrait may
be too flattering. In 1928, Gideon had received
a 10-year sentence on three separate charges:
robbery, burglary and larceny. He was released
after three years but arrested again in 1932, this
time on a federal charge, when he and others
broke into a federal armory and stole a machine
gun to use in a bank robbery. After serving three
years in federal prison, Gideon was arrested for
another burglary and convicted and sentenced
to 10 years. In 1944, he escaped from prison but
was rearrested a year later. Released in 1950, he
was arrested in 1951 in Texas for burglary and
served two more years.9 Thereafter, he supported
MONDAY, MARCH 18, 2013
himself by working tugboats and gambling, moving from Texas to Panama City, Florida in 1957
with his third wife.
The crime that led Gideon to the Supreme
Court occurred on June 3, 1961. Early that morning, a man broke into a poolroom in Panama City
and took coins from the cigarette machine and
juke box, as well as a small amount of beer and
wine. One witness identified Gideon as the culprit,
and he was charged with the crime. Famously,
the trial transcript begins as follows:
The Court: What says the Defendant? Are
you ready to go to trial?
The Defendant: I am not ready, your Honor.
The Court: Why aren’t you ready?
The Defendant: I have no counsel….
The Court: Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this
case. Under the laws of the State of Florida,
the only time the court can appoint counsel
to represent a Defendant is when that person
is charged with a capital offense….
The Defendant: The United States Supreme
Court says I am entitled to be represented
by counsel.
Unaided by counsel, Gideon was tried and
convicted and sentenced to the maximum term
of five years.
It remains a mystery why Gideon believed the
Supreme Court had held that he was entitled to
appointed counsel. Why he wanted a lawyer is
clear. As he later told Anthony Lewis: “In this
state…they just run over people who have nothing…. Without a lawyer, with the criminal record
I had, what I’d have said they’d never have paid
any attention to.”
Seeking Certiorari
Gideon did not appeal his conviction, but
he did file a habeas petition with the Florida
Supreme Court, a procedure permitted at the
time. When that court denied the application,
Gideon sent a handwritten in forma pauperis
petition to the Supreme Court. After the state
submitted its response, Gideon forwarded a fourpage reply, which included this:
It makes no difference how old I am or
what color I am or what church I belong
to if any. The question is I did not get a
fair trial. The question is very simple. I
requested the court to appoint me [an]
attorney and the court refused.
On June 4, 1962, the court granted the petition and directed the parties to discuss this
question: “Should this Court’s holding in Betts
v. Brady, 316 U.S. 455, be reconsidered.” Three
weeks later, the court appointed Abe Fortas,
then one of Washington’s most prominent lawyers, to brief and argue the case for Gideon.
(Fortas, of course, was later appointed to the
Court by President Lyndon Johnson and served
there from 1965 to 1969.)
Gideon’s handwritten submissions have taken
on the quality of historical relics, but there is
some question as to authorship. According to
one source, Gideon received the assistance of a
former municipal judge, Joseph A. Peel, who was
serving time in the same prison for a double murder.10 (Peel had hired killers to drown a couple
who were about to expose his corrupt dealings.)
If Peel did help Gideon, he was wise enough to
make Gideon’s petition seem homespun.
The history confirms what
should be obvious: the outcome
of ‘Gideon’ was never in doubt.
Briefs and Argument
When Fortas was assigned to argue Gideon’s
case, he asked a summer intern at his law firm,
then Arnold, Fortas & Porter, to research the
central issues. The intern was John Hart Ely,
later a constitutional law scholar and the dean
of the Stanford Law School. Ely produced a
stream of memoranda and a draft brief, which
Fortas’ partner Abe Krash reshaped into the
final product. (Ely later referred to the experience as “the best summer job ever.”11) On
reading the brief, Gideon wrote Fortas that “[e]
veryone and myself thinks it is a very wonderful and brilliant document.”12
Fortas’ oral argument was just as good. In his
memoir, Justice Douglas pronounced it perhaps
the finest that he had heard in all his years on the
bench.13 Fortas spoke slowly and comfortably,
acknowledging at the outset that there were no
special circumstances in Clarence Gideon’s case.
Rather, the point was that “you cannot have a
fair trial without counsel.” Because of the pull
of federalism, Fortas lamented, there was a tendency “to forget the realities of what happens
downstairs…to these poor, miserable, indigent
people…arrested and brought to court” without
a trained advocate by their side.
Fortas argued that the special circumstance
rule was “unadministerable.” How could a judge
decide at the outset of a case whether special
circumstances existed requiring the appointment
of counsel? Inevitably, Betts resulted in “ad hoc
and post facto” evaluations by federal judges of
state court decisions, which impaired state-federal
relations. As Professor Corinna Lain has noted,
Fortas’ insight was that “more federal intrusion [a
flat ruling requiring the appointment of counsel
in all felony cases] would actually mean less.”14
Fortas was careful not to endorse Justice
Black’s incorporationist approach. There was
this interchange:
Fortas: [Justice Black,] I like that argument
that you have made so eloquently. But I
cannot as an advocate make that argument
because the Court has rejected it so many
times. I hope you never cease making it
[Laughter].
Justice Brennan: You are saying that the
right to counsel is assured by the Fourteenth
Amendment whether by absorption, incorporation or whatever.
Fortas: Mr. Justice, you seem to know me well.
The lawyer for Florida was Bruce Jacob, then
a 27-year-old assistant attorney general. As Jacob
tells the story, he got the assignment because the
four other lawyers in the state’s appellate section
had already argued in the Supreme Court, and
Gideon was his turn.15 Jacob was peppered with
questions and struggled for answers. The low
point came when Justice Potter Stewart asked
him whether Florida would allow Gideon to represent anyone other than himself. Jacob responded
that if another man wanted to be defended by
Gideon, “then certainly the Florida court would
not object.” That answer prompted Justice Black
to question whether Gideon might not “get in
trouble for practicing law without a license.”
“I’m sorry Your Honor,” Jacob said, “that was
a stupid answer.”
The States’ Amicus Brief
Remarkably, 23 states submitted an amicus
brief on Gideon’s behalf. Never before or since
have states lined up on the side of expanding defendants’ rights. (By comparison, three
years later, 27 states filed an amicus brief in
Miranda v. Arizona on Arizona’s side.) The
states’ amicus brief was organized by Walter
Mondale, then the 35-year-old attorney general of Minnesota. Mondale became involved in
Gideon when Jacob wrote him asking whether
Minnesota would join an amicus brief supporting Florida. “I believe in federalism,” Mondale
wrote back, “[b]ut I also believe in the Bill
of Rights.” And he added this observation:
“Nobody knows better than [a state Attorney
General] that rules of criminal law and procedure which baffle trained professionals can…
overwhelm the uninitiated.”16
The ‘Gideon’ Opinion
Gideon was decided two months after oral
argument. Chief Justice Warren assigned the
opinion to Justice Black in what has rightly
been called a poetic gesture. Although the
leading proponent of the total incorporation
approach, Justice Black eschewed it to garner as many votes as he could. In a letter to
Justice Brennan accompanying the first draft,
he wrote: “[t]here is no intimation in what I
have written of an en masse application of
the Bill of Rights to the States.”17 The court
in Betts, Justice Black opined, had failed to
appreciate that “any person who is haled into
court, who is too poor to have a lawyer cannot be assured a fair trial unless counsel is
MONDAY, MARCH 18, 2013
provided to him.”
Justice Black ended his opinion in Gideon by
quoting from the states’ amicus brief that Betts
was “an anachronism when handed down and
should now be overruled.” To those words, he
added two of his own: “We agree.” The vote was
9-0 for Gideon. Justice John Harlan wrote separately to protest the terseness of Justice Black’s
opinion. Betts, he observed, deserved “a more
respectful burial.”
Justice Black read his Gideon opinion from the
bench. His biographer has described the scene:
“When [Chief Justice] Warren called on him…
[Black] leaned forward and spoke in an almost
folksy way. Happiness, contention, gratification
filled his voice.”18 Black’s own view of the matter
was more coy. In a letter to legal philosopher
Edmund Cahn, he noted that he “did not find
it wholly unpleasant to write the Gideon case
overruling Betts v. Brady.”19
Gideon was a towering victory for Justice
Black. In Professor Akhil Amar’s words, Black
“did not so much come to the Warren Court; the
Warren Court came to him.”20
Assessing Significance
After Gideon was decided, Attorney General Robert Kennedy waxed eloquent about it:
“Gideon wrote that letter [to the Court] and
the whole course of American legal history
has changed.”21 But Gideon’s impact is easy to
overstate. By 1963, all but five states —Florida,
Alabama, Mississippi, North Carolina and South
Carolina—provided counsel for indigent defendants in felony cases. Even in Florida, counsel
was regularly appointed in some counties. The
real significance of Gideon was bringing what
Fortas called “the stragglers” into line, especially
when the stragglers were five Southern states.
Among the Warren Court’s highest priorities was
protecting African Americans in the South from
Jim Crow justice. That mission required Gideon.
Without a lawyer to make pretrial motions and
trial objections, the panoply of rights that the
court was to extend to criminal defendants
would have been of little value in those states.
‘Douglas v. California’
The same day that the court announced Gideon, it also decided Douglas v. California, holding
on equal protection grounds that an indigent
defendant has a right to appointed counsel on
first appeal.22 At the time, only a handful of states
appointed counsel for indigents on appeal, so
that, viewed from a national perspective, Douglas
was more consequential than Gideon. Douglas
was argued in April 1962 but not decided in the
1962 term as had been anticipated. Had it been
decided in 1962, the question posed in Gideon
would already have been answered. For if equal
protection requires the appointment of counsel on first appeal, then surely it demands the
appointment at trial.
Thanks to the research of Professor Lucas
Powe, we now know the inside story.23 By June
1962, five justices—Chief Justice Warren and Justices Douglas, Black, Brennan and Byron White,
who had only recently joined the court—had
signed on to an opinion in Douglas requiring
appointed counsel on first appeal. When Fortas
agreed to accept the appointment as counsel for
Gideon, Justice White suggested that Douglas be
put over until the next term so that Fortas could
argue the case that overruled Betts, rather than a
case that would be a fortiori after Douglas. And
so reargument was ordered in Douglas on June
25, 1962, the same day that Fortas was formally
appointed to represent Gideon.
That history confirms what should be obvious:
The outcome in Gideon was never in doubt. It
explains Justice Potter Stewart’s barb that “probably no lawyer could have lost Gideon.”24 Put
differently, Fortas was superb, but Gideon could
have won Gideon.
Fortas spoke slowly and comfortably, acknowledging at the
outset that there were no special
circumstances in Clarence Gideon’s case. Rather, the point was
that “you cannot have a fair trial
without counsel.”
Aftermath
For Clarence Gideon, the Supreme Court’s
decision meant release from prison and a new
trial. Gideon refused the services of two Miami
attorneys provided by the ACLU, which had submitted an amicus brief and argued on his behalf
in the Supreme Court, and asked the judge to
appoint a local lawyer of some repute. The lawyer
had previously defended the key prosecution
witness, but Gideon waived the conflict. (The
lawyer had also represented Gideon’s wife in
a child support case against him.) Before the
start of the trial, an overconfident prosecutor
announced that “[i]f [Gideon] had a lawyer in
the first place, he’d have been advised to plead
guilty.” But the outcome proved different. After
deliberating for 65 minutes, the jury acquitted
Gideon of the burglary. On hearing the verdict,
www.zuckerman.com
a tearful Gideon told a local reporter that it was
“the happiest moment in [his] life.”25
Gideon had one more brush with the law—an
arrest in Ohio for vagrancy. On learning who the
defendant was, the judge offered Gideon a chance
to make more history. As Anthony Lewis tells
it, the judge told Gideon: “I was just going to let
you go…[b]ut if you would like to see whether
the Supreme Court would extend [Gideon] to
petty crimes like this one…I will sentence you
to six months in jail and you can take it on up.”
Gideon declined the offer and pleaded guilty.26
A few years later, in Argersinger v. Hamlin, the
Supreme Court extended Gideon to petty offenses
that result in imprisonment.27
Gideon died in 1972 at age 61 and was buried in Hannibal, Missouri, his birthplace, in an
unmarked grave. In 1984, the local ACLU chapter placed a headstone on his grave inscribed
with a sentence from a letter that he had sent to
Fortas. It reads: “I believe that each era finds an
improvement in law for the benefit of mankind.”
••••••••••••••••
•••••••••••••
1. 372 U.S. 335 (1963).
2. 316 U.S. 455 (1942).
3. D. Dickson, The Supreme Court in Conference 499
(2001).
4. See, e.g., Uveges v. Com. of Pa., 335 U.S. 437 (1948);
Gibbs v. Burke, 337 U.S. 773 (1949); Chewning v. Cunningham,
368 U.S. 443 (1962).
5. Gideon, 372 U.S. at 351.
6. Amicus brief for the ACLU in Gideon, Appendix II.
7. 369 U.S. 506 (1962).
8. For Frankfurter’s quote, see B. Schwartz, Super Chief
408 (1983).
9. Gideon’s criminal record is detailed in B. Jacob, “Memories of and Reflection about Gideon v. Wainwright,” 33 Stetson L. Rev. 181, 212 (2003).
10. Peel’s possible role is discussed in Jacob’s article, 33
Stetson L. Rev. at 214-17.
11. Ely’s summer job is discussed in A. Alfieri, “Gideon in
White/Gideon in Black,” 114 Yale L.J. 1459, 1464-66 (2005).
12. A. Lewis, “Gideon’s Trumpet” 145 (1964).
13. W. Douglas, “The Court Years” 187 (1980).
14. C. Lain, “Rethinking the Warren Court’s Role in the
Criminal Procedure Revolution,” 152 U. Pa. L. Rev. 1361, 1394
(2004).
15. See Jacob, 33 Stetson L. Rev. at 217.
16. W. Mondale, “The Good Life” 6 (2010).
17. Quoted in R. Newman, “Hugo Black” 527 (1997).
18. Id. at 528.
19. Super Chief at 460.
20. A. Amar, “Hugo Black and the Hall of Fame,” 53 Ala. L.
Rev. 1221, 1240 (2002).
21. Super Chief at 459.
22. 372 U.S. 353 (1963).
23. L. Powe, “The Warren Court in American Politics” 38185 (2000).
24. L. Kalman, “Abe Fortas” 183 (1990).
25. “Gideon Happy After Acquittal In Famed Case,” St. Petersburg Times, Aug. 6, 1963.
26. “Conference on the 30th Anniversary of the United
States Supreme Court’s Decision in Gideon v. Wainright,” 43
Am. U. L. Rev. 1, 20 (1994).
27. 407 U.S. 25 (1972).
Reprinted with permission from the March 18, 2013 edition of the NEW YORK LAW
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