Chasing Gideon (13 page)

On August 28 of that year, U.S. Supreme Court Justice Felix Frankfurter retired, another development tipping the scales in Gideon's favor as the case crept forward. Throughout his career, Frankfurter was a huge proponent of judicial restraint and the importance of precedent, and he was also a firm believer in the importance of states' rights. Frankfurter's conservative, positivist views seemed antiquated during a time of a more liberal, activist-leaning court. “There is now almost a universal consensus that Frankfurter, the justice, was a failure, a judge who . . . became ‘uncoupled from the locomotive of history' during the Second World War, and who thereafter left little in the way of an enduring jurisprudential legacy,” legal scholar Michael E. Parrish once said of the judge.
²⁶
And indeed, this made his retirement particularly fortuitous as Frankfurter had been a proponent of
Betts
. This stance had put him squarely at odds with Justice Hugo Black, which was not the only source of tension between the men but was indicative of how ideologically opposed they were and how fractious their relationship had become. If Frankfurter represented the idea of conservative restraint, Black was the epitome of liberal activism. The stories of their disputes are the stuff of Supreme Court lore: Frankfurter once wrote to Justice John M. Harlan that a Black opinion “makes me puke!” and after a heated conversation in closed chambers, Black told his son, “I
thought Felix was going to hit me today, he got so mad.”
²⁷
If anyone was going to rally the conservative block to uphold
Betts
, it was Frankfurter. With him gone,
Betts
was clearly in jeopardy. Gideon stood a good chance of winning.

Finally, on January 15, 1963, the Supreme Court heard oral arguments in
Gideon v. Wainwright.
Everyone in the legal community understood the huge ramifications of this decision—and all eyes were on the court.

The morning before, Bruce Jacob had to arrange for his admission to the Supreme Court Bar—a prerequisite to arguing before the court. A lawyer is eligible only after three years practicing in a state's highest court. Jacob barely made the requirement.

Meanwhile Fortas, who had argued before the U.S. Supreme Court on numerous occasions, used his casual Tennessee twang to soften his sharp arguments. He began by assuring the judges that they were deciding an easy, “narrow” issue.

“The question, of course, is the right of accused in State criminal proceedings to the appointment of counsel. . . . In the present case which you have before you, the question is an exceedingly narrow one,” he began. “The question in the present case is whether . . . the accused being concededly indigent, it is the duty of the State to accede to that request and to appoint counsel.”
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He went on to build his case by explaining why the Betts Rule did not apply, and yet had, in any case, become completely obsolete. “This record . . . does not indicate that Clarence Earl Gideon is a man of inferior natural talents,” he said. “This record does not indicate that Clarence Earl Gideon is a moron or a person of low intelligence. This record does not indicate that the judge of the trial court in the state of Florida, or that the prosecuting attorney in the state of Florida, was derelict in his duty. On the contrary, it indicates that they tried to help Gideon. But to me, if the Court please, this record indicates the basic difficulty with Betts against Brady. And the basic difficulty with Betts against Brady is that no man, certainly no layman, can conduct a trial in his own defense so that the trial is a fair trial.”

“Betts and Brady did not proceed on that basis,” corrected Justice Harlan. “It did not deny the obvious. Obviously, a man . . . who is not represented . . . hasn't had as good a shake in Court as
the man who is represented. Betts and Brady didn't go on any such basis as that.”

Fortas didn't miss a beat. “[A]re you suggesting, Mr. Justice Harlan . . . that the real basis for Betts against Brady is the following: That a man does not get a fair trial if he . . . is not represented by a lawyer, but that the demands of federalism overweigh the absence of a fair trial?”

“That's what I understood the basis of Betts and Brady to be, yes,” said Justice Harlan.

Fortas circled around to state the obvious, but got his simple argument on the record. “I believe that the right way to look at this, if I may put it that way, is that a court, a criminal court is not properly constituted, and this has been said in some of your own opinions under our adversary system of law, unless there is a judge, and unless there is a counsel for the prosecution, and unless there is a counsel for the defense,” he says. “Without that, how can a civilized nation pretend that it is having a fair trial under our adversary system, which means that counsel for the State will do his best within the limits of fairness and honor and decency to present the case for the State and counsel for the defense will do his best similarly to present the best case possible for the defendant and from that clash there will emerge the truth? That is our concept.”

Very quickly, the topic moved into the general concept of federalism and states' rights, that oldest of arguments among American thinkers and politicians since the country's founding: What is the right balance of power between the federal government and the state governments? “Well, that isn't quite so simple as that,” said Justice Harlan, “because under our concepts in the federal system, apart from the Sixth Amendment, we would consider that a man in a felony case hadn't had a fair shake if he wasn't tried before a jury. I suppose the State could do away with the jury trial and yet you wouldn't say this trial was inherently unfair, would you?”

“That's right,” Fortas agreed.

“I think you've got to argue this on the basis of federalism,” Justice Harlan said.

“I appreciate that and I am happy if we can clear the debris, if I may say so,” Fortas went on. “And I just want to say
and to nail this, if I may, that we are not, and we cannot, as I think this colloquy has disclosed, Mr. Justice Harlan, proceed on the assumption that there is any such thing as a fair criminal trial where the defendant is not represented by counsel.” “Well, this federalism that Justice Harlan mentions is implicit,” said Justice William O. Douglas. “I don't know if . . . any member of this Court has come out and said in so many terms, it's the constitutional right of the State to provide a system whereby people get a fair trial.”

“Well, Mr. Justice Douglas—” Fortas began.

“I don't believe I suggested that, I don't suppose—” Justice Harlan interrupted.

“I thought that's what we were talking about, isn't it?” Justice Douglas asked. “You mean, if a person can't have a fair trial without a lawyer and this is the problem of federalism, you come down to . . . how a State has a constitutional right to provide a system that perpetuates unfair trials?”

“I do believe that it is a proposition that proves itself,” Fortas said. “We start with the proposition that the Fourteenth Amendment requires a fair trial and we say that the defendant in a criminal proceeding cannot get a fair trial unless he has counsel. . . . I think I may be wrong about this, but I do believe that in some of this Court's decisions, there has been a tendency from time to time because of the pull of federalism to forget . . . the realities of what happens downstairs, of what happens . . . to these poor, miserable, indigent people when they are arrested and they are brought into the jail, and they are questioned. And later on, they are brought in these strange and awesome circumstances before a magistrate, and then later on they are brought before a court. And there, Clarence Earl Gideon, defend yourself. . . . Construe the Statute of the State of Florida which says that breaking and entering with intent to commit a misdemeanor is a felony. You should know, Clarence Earl Gideon, that the State of Florida, the Supreme Court of the State of Florida, has construed this statute and it has made available to you various defenses. Well, then, how can Clarence Earl Gideon do it?

“I was reminded the other day as I was pondering this case about Clarence Darrow's trial,” Fortas continued. “Irving Stone's
book says that the first thing that Clarence Darrow realized was that he had to have a lawyer. He was a man who, by our folklore anyway . . . was our greatest criminal lawyer.
He
needed a lawyer. He
got
a lawyer. He was eventually acquitted. But I think that in some of the Court's opinions, if I may say so, Mr. Justice Harlan, this element, this failure to remember what happens downstairs, has crept in not because of an insensitivity of the judges, but because of the understandable pull of the sensitivity about the State's own jurisdiction . . .”

Justice Harlan interrupted to correct him. “
Understandable sensitivity
to describe a basic principle of our Government doesn't seem to me to be a very happy expression.”

“Well, I'm—uh—I'm sorry, sir,” Fortas apologized.

According to Anthony Lewis, who was present in the courtroom, this last exchange angered Justice Harlan. “This usually gentle man visibly reddened,” he noted.

Approximately fifty minutes into the argument, the justices acknowledged the elephant in the room. What about the financial costs and problem of caseloads? If federal law mandated a right to counsel for
all
indigent defendants, wouldn't that put an unfair burden upon the states? Justice Potter Stewart questioned Fortas on one hypothetical. “How about the traffic violation?” he demanded. “A person who can afford a lawyer is entitled, as far as I know in every state, to hire a lawyer for [a] traffic violation.”

“I see no real difficulty,” Fortas replied, “in saying to . . . people . . . when they're arrested for [a] traffic violation, ‘If you want to see the public defender, he's in Room 102,' and to assign [one].” Fortas was insistent that the logistical and financial problems here were surmountable. “It really works,” he said. “It will work. It sounds crazy, perhaps, but it [will] work. It will work. I'm sure it will.”

“Suppose you don't have [a public defender]?” Justice Tom C. Clark asked.

“More and more states, Mr. Justice Clark, are building orderly systems and, of course, one of the great functions that this Court performs by announcing the law and clarifying the principles of law is to provide an impetus to the States to erect such systems,” Fortas said. “But there are many systems that are now available—”

“I just wonder if the legal aid would want to take on a traffic [violation]?” Clark continued. “They have so many felons already. . . .”

“Again, Mr. Justice Clark, I think that . . . if I may use a vulgarism, the ‘oddball' who's involved in a minor traffic offense who will say that he wants a lawyer,” Fortas said. “But . . . if a person involved in [a] traffic offense has a real problem and a real defense and . . . thinks he should have a lawyer, why not?”

With this problem of scope hanging in the air, the justices called a lunch break. Fortas ate at a table across from Jacob in a room set aside for lawyers, and the two, according to their respective accounts, chatted amicably, Fortas apologizing because he had mailed a letter to Jacob inviting him to a dinner party at his house the night before, but he had sent it to Jacob's old address—and so Jacob had not received it in time. After lunch, the two men filed back into the formal chambers and Fortas continued his argument. Toward the last five minutes of Fortas's time, Justice Stewart brought up the Fourteenth Amendment clause (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws”).
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Fortas had avoided that clause, and instead focused on the Due Process Clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law”
³⁰
). Justice Stewart wondered about this.

“Could you—in telling us your thoughts as to the scope of this right, are you—just as a matter of technique, are you relying now on [the] Equal Protection Clause?” Justice Stewart followed up.

“I think that the Equal Protection Clause teaches us something here,” Fortas explained. “That is to say, you can say that equal protection means that the indigents in a situation where the State is an adversary, a criminal procedure, that [the] Equal Protection Clause requires that the poor shall not be subject to a disability to which the rich are not subject.”

“You are arguing equal protection rather than the Due Process Clause?” Justice Stewart asked.

“That is equal protection. So far as I'm concerned, Your Honor, I reached the result—”

“Either one?” Steward interjected.

“—through the Due Process Clause standing alone and I can—and I also get comfort from the Equal Protection Clause,” Fortas said. “But I believe the Equal Protection Clause reaches only a phase of this problem, and the Due Process Clause reaches it in its entirety and is self-sufficient.”

Fortas had tried to concentrate on the Due Process Clause rather than the Equal Protection Clause because bringing up the latter opened the Pandora's box of whether or not the Fourteenth Amendment mandated states to incorporate the Bill of Rights or not. He had skirted the delicate issue a bit by not concentrating on the thorny and complicated question of what constituted “equal protection.”

But Justice Black, who had argued continuously throughout his career that the Fourteenth Amendment incorporated the Bill of Rights, grew irritated. “Am I to understand that you think the Fifth Amendment's guarantee or the Constitution's guarantee of the right to counsel has nothing to do with this?” he demanded. “It solely deals with due process?”

“I didn't say that,” Fortas corrected.