Chasing Gideon (12 page)

Though the Supreme Court of Alabama upheld the convictions, the U.S. Supreme Court reversed and remanded the decisions, holding that due process had been violated. Writing for the court in 1932, Justice George Sutherland described the defendants as “young, ignorant, illiterate, surrounded by hostile sentiment . . . charged with an atrocious crime regarded with especial horror in the community where they were to be tried, [and they] were thus put in peril.” And although Justice Sutherland concentrated on the Fourteenth Amendment, he made a specific reference to the Sixth Amendment when he wrote:

The significance of the
Powell
ruling was its suggestion—though technically speaking it offered no hard-and-fast rule to this effect—that in state capital cases there was an obligation to provide a lawyer for defendants, and that a person had a right to counsel, which together set the stage for the rights of indigents.

The next major U.S. Supreme Court decision that took on the right to counsel was
Johnson v. Zerbst
, a 1938 federal case involving a conviction for passing counterfeit money. In a five-to-four decision, the court made it clear that the Sixth Amendment—at least, by the contemporary interpretation—required the appointment of counsel in federal criminal cases. “[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty,” Justice Hugo Black wrote. “That which is simple, orderly and necessary to the lawyer,” he added, “to the untrained layman may appear intricate, complex and mysterious.”
¹⁵

These cases led to a kind of two-layered system for indigent defense: In the state courts, the Fourteenth Amendment required the right to counsel in some cases—though it wasn't entirely specific about which kinds of cases. And in federal cases, the Sixth Amendment required counsel in all criminal trials. This set the stage for the 1942 case
Betts v. Brady
.

Smith Betts was a forty-three-year-old unemployed farm worker from Carroll County, Maryland, who was charged with robbery. During his trial, he asked for a court-appointed lawyer, since he was too poor to afford one on his own. The judge in the case refused, saying that the county was responsible for appointing lawyers only in capital cases. Betts conducted his own defense after electing to be tried without a jury, lost the case, and was sentenced to eight years. Betts then filed a petition for habeas corpus with the Maryland Court of Appeals, which issued a ruling denying his claim, stating, “in this case it must be said there was little for counsel to do on either side.”

On June 1, 1942, the U.S. Supreme Court issued a six-to-three ruling upholding the Maryland court's verdict. Justice Owen Roberts delivered the Court's majority decision, stating that the Sixth Amendment did not apply to state cases, and noted that “[t]he due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment.” Essentially, Roberts and the five other justices took a conservative view of the incorporation of the Bill of Rights through the Fourteenth Amendment. And in very basic terms, Roberts took issue with the idea that a layman could not conduct his own defense in a case such as Betts's. “[T]he accused was not helpless,” Roberts wrote, “but a man forty-three years old, of ordinary intelligence and ability to take care of his interest on the trial of that narrow issue. He had once before been in a criminal court, pleaded guilty to larceny and served a sentence and was not wholly unfamiliar with criminal procedure.” Roberts did not claim that the right to counsel should never be considered in state cases, but insisted that “[i]ts application is less a matter of rule” than a matter of individual circumstances. Sometimes it's patently clear the defendant needs an attorney, sometimes it's obvious he can handle things just
fine on his own, Roberts suggested. “Asserted denial is to be tested by an appraisal of the totality of facts in a given case,” he wrote. “That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.”

Not surprisingly, considering his passionate opinion in
Powell
, Justice Black composed the dissenting opinion in
Betts
. He first took on the majority's idea that the Bill of Rights did not apply to the states: “I believe,” he wrote, “that the Fourteenth Amendment made the Sixth [Amendment] applicable to the states. But this view, although often urged in dissents, has never been accepted by a majority of this Court.” After quoting at length other relevant opinions (including his own in
Powell
), and stating that the right to counsel was “fundamental,” Justice Black concluded, “no defendant should be deprived of counsel merely because of his poverty. Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.”
¹⁶

The case paved the way for what eventually became known as the Betts Rule, in which state courts could decide to appoint counsel when there were “special circumstances” present. These included the aforementioned overly complex charges, illiteracy, extreme youth, inability to understand English, and feeblemindedness or insanity. Despite its ambiguity and arbitrary nature, the Betts Rule became the litmus test for indigent defense for the next twenty years—until Gideon's petition landed in the U.S. Supreme Court's mailbox.

The players in a major case like
Gideon v. Wainwright
are not incidental, or insignificant. In fact, history and circumstance here clearly favored one side over the other. The savvy and experienced Abe Fortas represented Gideon. On the other side was Bruce Jacob, a twenty-six-year-old graduate of Stetson University College of Law in Gulfport, Florida, who was chosen to represent the state's case. At the time that Gideon's writ was received by the Supreme Court, Jacob was working in the attorney general's office in Tallahassee in the criminal appeals section. The U.S. Supreme Court, in selecting Fortas, purposely stacked the deck.

At the time of the case, Abraham Fortas was a fifty-two-year-old high-powered Washington lawyer, a partner in the D.C. firm Arnold, Fortas and Porter. After graduating from Yale Law School, Fortas worked with a number of New Deal legal luminaries, and in 1942 he became undersecretary of the interior. He served in that position for four years before going into private practice. At the time of
Gideon
, Fortas was one of the top corporate lawyers in the country. As Anthony Lewis put it:

It would have been difficult to find a representative who was more different than his client. Fortas was erudite and intellectual (as Lewis puts it, “with a touch of Mephistopheles”
¹⁸
); he was an art connoisseur, a violin virtuoso, and very wealthy. His wife, Carolyn Agger, was a highly successful corporate tax lawyer. In 1960, she was at the center of an insurgence that rocked the legal world when she led a revolt of partners from the firm Paul, Weiss, Rifkind, Wharton and Garrison. She defected to Fortas's firm, and took the other firm's entire Washington office with her.
¹⁹
The couple drove a Rolls-Royce and had a large collection of antique furniture and contemporary art in their Georgetown home.
²⁰

Fortas had a tremendous amount of resources from his law firm at his disposal with which to work on his
Gideon
brief. He hand-picked a selection of young and shrewd legal minds to help, including a young partner in the firm, Abe Krash; an associate, James F. Fitzpatrick; and a twenty-four-year-old Yale law student who was clerking at the firm for the summer, John Hart Ely. Ely's contribution to the main thrust of Fortas's argument before the court was incredibly important—during his summer post at Fortas's law firm, he wrote a set of memoranda discussing everything from the weakness of the
Betts
special circumstances rule to the question of whether the Fourteenth Amendment was intended to incorporate
the Bill of Rights intact. Ely's research and analysis became the centerpiece of Fortas's argument before the court. (Ely went on to become the youngest member of the Warren Commission, and eventually became one of the most widely cited legal scholars in U.S. history before his death from cancer in 2003.)
²¹

Meanwhile, back in Florida, in early March 1962, assistant Florida attorney general Reeves Bowen called Bruce Jacob into his office. He informed him that they had received a request from the Supreme Court, and asked Jacob to prepare a response. Over the next few months, the twenty-six-year-old lawyer worked with Bowen and other members of the attorney general's staff on the case.
²²

However, in between the time that he prepared the response to Gideon's writ and his actual appearance before the Supreme Court, a lot of changes had taken place in Jacob's life. After returning from a stint in the National Guard in June, Jacob had been interviewed for a position at the firm of Holland, Bevis and Smith in Bartow, Florida. Jacob was offered the position and took it. He was slated to work on the case in October. However, because of a delay in the filing of the Florida brief—mostly because of a disagreement between Fortas and Jacob as to whether the transcripts of Gideon's original trial could be included in the printed record—Jacob had switched jobs and was no longer on the attorney general's staff when he wrote the brief or argued the
Gideon
case.

In September, Jacob married Ann Wear, who ended up being a key partner in Jacob's work on the case. (Wear had been the personal secretary of the secretary of state of Florida.) Because Jacob had just started a new job, he decided that work on the
Gideon
case had to be done on his off hours. As a result, most weekends during the fall of 1962, Jacob and Wear drove two hundred and fifty miles to Tallahassee to the Florida Supreme Court Library or to the Stetson Law Library in Gulfport to do research. Jacob and his wife would also use the weekends to visit Judge Bowen regularly for consultation on the case. Jacob wrote the brief in longhand in the evenings in November and December; in the morning, his wife would type up what he had written. Though Jacob has argued otherwise—he claims that he “consulted with some members” of the Holland firm on the case—it is clear that the preparation of Florida's side of the
case was considerably different from what was happening simultaneously in Washington, D.C., on Gideon's side of the case.

Regardless of the resources involved, there is no doubt that pitting Jacob against Fortas was an unequal pairing. There has been a tremendous amount of speculation about why a lawyer as inexperienced as Jacob was tapped for the case. Jacob claims that other members of the attorney general's office had already argued cases before the Supreme Court, and that it was essentially his turn. Despite this, even Jacob acknowledges, “Bowen could have kept the case for himself, on the ground that it required an older, more experienced lawyer.”
²³

It's also quite possible that the state attorney general's office already saw the writing on the wall—that
Betts
was in trouble, since it had been roundly criticized by legal scholars for the past two decades. “The cases decided by the Court under the
Betts
formula are distinguished neither by the consistency of their results or the cogency of their argument,” complained University of Michigan law professor Francis Allen in 1959 in the
DePaul Law Review
.
²⁴
It was a criticism typical of the times. Perhaps because of these critiques, clear shifts were occurring in the Supreme Court itself; it had decided in favor of every state prisoner whose right-to-counsel claim it heard since 1950.

Jacob also inadvertently found out that few states backed Florida's position of refusing to provide legal counsel to the indigent. In the summer of 1962, he composed a letter that was sent out to all of the other state attorneys general in the country, asking them to submit amicus briefs on behalf of the state of Florida. The letter had the opposite effect. It alerted state attorney generals everywhere that Florida's fight was going all the way to the U.S. Supreme Court, and that this may well be an opportunity to secure Supreme Court backing for the indigent defense they understood as desperately needed. (Even today, the fact that the U.S. Supreme Court mandates free legal counsel for the indigent is a helpful tool to hold over state and local governments who routinely underfund public defender programs.) Meanwhile, back in 1962, only half the states responded to Jacob's call for amicus briefs—and most of them responded only by disagreeing, asserting instead that they thought providing free
criminal defense for those who couldn't afford it was a good idea. In fact, many states were already doing just that. Walter F. Mondale, then attorney general of Minnesota (and eventual vice president of the United States), went even further. He wrote Jacob back, telling him that the courts were wrong on
Betts
anyway. “I believe in federalism and states rights,” he said. “But I also believe in the Bill of Rights.”
²⁵
Then, he got up on his soapbox and sent a copy of his letter (and Jacob's) to a slew of folks, including the attorney general of Massachusetts, Edward McCormack Jr., and his assistant attorney general, Gerald Berlin. They took things a step further. Not only did they decline to file an amicus brief on Florida's behalf, McCormack and Berlin decided to file an amicus brief on Gideon's behalf. They distributed the brief to all the other attorneys general around the country—and twenty-two states signed on, urging the court to reconsider
Betts
.