Gideon's Trumpet (22 page)

Chief Justice Warren, as is the custom, called the next case by reading aloud its full title: Number 155, Clarence Earl Gideon, petitioner, versus H. G. Cochran, Jr., director, Division of Corrections, State of Florida. From his desk at the left of the bench the Clerk of the Court, John F. Davis,
said “Counsel are present,” and the lawyers in the Gideon case moved forward to two long tables just below the bench.

The justices are seated in an order fixed by tradition. At the far right (as seen by the spectators) was the newest member of the Court, Arthur J. Goldberg of Illinois, fifty-four years old, the gray-haired labor lawyer who had made such a dynamic Secretary of Labor before President Kennedy appointed him to the bench. At the far left was the other Kennedy appointee, Byron R. White of Colorado, forty-five, physically powerful but scholarly in appearance, as befits an All-American football hero who was also a Rhodes Scholar. Next to Justice Goldberg was Potter Stewart of Ohio, forty-seven but still collegiate in his good looks, whom President Eisenhower made a Court of Appeals judge and then raised to the Supreme Court in 1958. Second from the left was the smallish, brisk figure of William J. Brennan, Jr., fifty-six, a New Jersey Supreme Court justice who was a surprise Eisenhower appointee (because he was a Democrat) in 1956; he is the only Roman Catholic on the Court. On the right, again was John Marshall Harlan, sixty-three, a Wall Street lawyer picked by Eisenhower for the Court of Appeals and advanced to the Supreme Court in 1955, looking perhaps more like a judge than anyone else, appropriately enough for the grandson and namesake of an earlier Supreme Court justice. Third from the left was Tom C. Clark, also sixty-three, a friendly Texan, former Attorney General, the only Truman appointee (1949) still on the Court. To the right of the Chief Justice was William O. Douglas, sixty-four, a ruddy-faced outdoorsman from the state of Washington, a law-school professor and New Deal official appointed by Franklin Roosevelt in 1939. On the other side of the Chief was Hugo L. Black, seventy-six years old but still a tough competitor at tennis, hawk-nosed, with
the soft sound of rural Alabama in his voice, a Senator when Roosevelt put him on the Court in 1937. Finally, at the center sat Earl Warren, seventy-one, a county law officer for twenty years, attorney general of California for four, an immensely popular governor for ten, Republican candidate for Vice-President in 1948; a huge, white-haired figure, named Chief Justice by Eisenhower in 1953.

The lawyer arguing a case stands at a small rostrum between the two counsel tables, facing the Chief Justice. The party that lost in the lower court goes first, and so the argument in
Gideon v. Cochran
was begun by Abe Fortas. As he stood, the Chief Justice gave him the customary greeting, “Mr. Fortas,” and he made the customary opening: “Mr. Chief Justice, may it please the Court.…”

This case presents “a narrow question,” Fortas said—the right to counsel—unencumbered by extraneous issues. The charge was a felony, not any lesser offense; Gideon’s indigence was conceded; he had unquestionably made a timely request for counsel, and the demand was for a lawyer at his trial, not at any earlier and hence more doubtful point in the criminal proceeding.

Fortas began reciting the facts. In his deep, deliberate, somewhat mournful voice, occasionally removing his horn-rimmed glasses and gesturing with them for emphasis, he told the justices about the morning Clarence Earl Gideon was supposed to have broken into the Bay Harbor Poolroom and stolen “some wine, perhaps some cigarettes and an unstated amount of money.” Fortas described Gideon’s active participation in his own trial, his attempts to cross-examine and address the jury. Then, on this brief foundation of the facts, he began to build his legal argument.

“This record does not indicate that Clarence Earl Gideon was a person of low intelligence,” Fortas said, “or that the
judge was unfair to him. But to me this case shows the basic difficulty with Betts versus Brady. It shows that no man, however intelligent, can conduct his own defense adequately.”

At this point Justice Harlan intervened. He was the Court’s most convinced believer in the value of state independence, and Fortas had anticipated the greatest difficulty in persuading him to overrule
Betts
.

“That’s not the point, is it, Mr. Fortas?” Justice Harlan asked.
“Betts
didn’t go on the assumption that a man can do as well without an attorney as he can with one, did it? Everyone knows that isn’t so.”

In fact, it could be fairly argued that Justice Roberts, in
Betts
, had gone on exactly that assumption. He certainly had said that that particular trial was so simple that there would have been little for a lawyer to do. But Fortas, instead of challenging Justice Harlan’s proposition, accepted it for the implicit concession it was and used it to drive on to his point about federalism.

“I entirely agree, Mr. Justice Harlan, with the point you are making: Namely, that of course a man cannot have a fair trial without a lawyer, but
Betts
held that this consideration was outweighed by the demands of federalism.…

“My purpose was to show that this case is not Tweedledum and Tweedledee with one tried by counsel. I believe this case dramatically illustrates that you cannot have a fair trial without counsel. Under our adversary system of justice, how can our civilized nation pretend that there is a fair trial without the counsel for the prosecution doing all he can within the limits of decency, and the counsel for the defense doing his best within the same limits, and from that clash will emerge the truth?… I think there is a tendency to forget what happens to these poor, miserable, indigent
people—in these strange and awesome circumstances. Sometimes in this Court there is a tendency to forget what happens downstairs.… I was reminded the other night, as I was pondering this case, of Clarence Darrow when he was prosecuted for trying to fix a jury. The first thing he realized was that he needed a lawyer—he, one of the country’s great criminal lawyers.…

“And so the real basis of Betts against Brady must be the understanding sensitivity of this Court to the pull of federalism.”

This last statement of Fortas’s seemed, for some not readily understandable reason, to anger Justice Harlan. This usually gentle man visibly reddened, leaned forward and said very sharply, “Really, Mr. Fortas, ‘understanding sensitivity’ seems to me a most unfortunate term to describe one of the fundamental principles of our constitutional system.”

“Mr. Justice Harlan,” Fortas replied without a flicker of emotion, “I believe in federalism. It is a fundamental principle for which I personally have the highest regard and concern, and which I feel must be reconciled with the result I advocate. But I believe that Betts against Brady does not incorporate a proper regard for federalism. It requires a case-by-case supervision by this Court of state criminal proceedings, and that cannot be wholesome.… Intervention should be in the least abrasive, the least corrosive way possible.”

That was the argument that Fortas considered central to his case. He had expected to make it later in his presentation, after more of a build-up, but Justice Harlan’s question had given him the opportunity to make the point dramatically; as a skillful advocate he had abandoned his earlier outline and made the thrust at once. Whether the answer
satisfied Justice Harlan was a question only the justice could answer, but he did lean back and appear somewhat happier.

Fortas traced the history of the right to counsel in the Supreme Court, beginning with the Scottsboro case,
Powell v. Alabama
, in 1932. He described the
Betts
doctrine and the subsequent cases in which the Court had or had not found the special circumstances requiring counsel.

“I have read all the cases now,” he said, “state and federal, and it is a fascinating inquiry. As I read the opinions of this Court, I hope I may be forgiven for saying that my heart was full of compassion for the judges having to review those records and look for ‘special circumstances.’ ”

Justice Stewart: “When was the last time we did not find special circumstances? I think there have been none in my four and one-half terms on the Court.”

Fortas: “I think it was Quicksall and Michigan, in 1950.… Of course this [the special-circumstances approach] is wrong. How can a judge, when a man is arraigned, look at him and say there are special circumstances? Does the judge say, ‘You look stupid,’ or ‘Your case involves complicated facts’? It is administratively unworkable.”

Justice Harlan: “The states are recognizing that.”

Fortas took up that point and outlined the situation in the states. He used Professor Kamisar’s figures: thirty-seven states now provided counsel for the poor in all felony trials, eight others frequently did so as a matter of practice, five made no regular provision for counsel except in capital cases. But he did not agree with any implication in Justice Harlan’s question that the movement by the states to act themselves argued against a step forward now by the Supreme Court. He noted the brief
amicus curiae
for twenty-three states in favor of overruling
Betts
and said he was
“proud of this document as an American.” Then he argued that the growing acceptance of the right to counsel made a reinterpretation of the Constitution easier.

“I believe we can confidently say that overruling Betts versus Brady at this time would be in accord with the opinion of those entitled to an opinion. That is not always true of great constitutional questions.… We may be comforted in this constitutional moment by the fact that what we are doing is a deliberate change after twenty years of experience—a change that has the overwhelming support of the bench, the bar and even of the states.”

Justice Goldberg raised the problem of the limits on what Fortas was asking. At what stage of a criminal case must a lawyer be supplied? In what kinds of cases?

“Do we have to pass on that?” Justice Clark interjected.

“No, sir, not at this time,” Fortas said. But he went on to give his own opinion anyway: A lawyer should be provided at least from the first arraignment of the prisoner before a magistrate, through his trial and appeal; and the right should apply in all save “petty offenses.”

Justice Stewart thought the definition of “petty offenses” might produce difficulties, might be “more of this
ad hoc
judging you’re trying to get away from.… What about traffic violations?” Fortas said he personally saw no difficulty in providing lawyers even for traffic offenders who wanted them. He knew that sounded strange, but it would work. Only an occasional odd-ball would ask, and it would be easy to say to him: “Yes, sir, go right down the hall to that door, that’s the public defender’s office, they’ll see you.”

It was noon by this time, and the Court rose for lunch. Afterwards Fortas hoped to say just a few words more, then reserve about ten minutes of his time for a rebuttal, as the opening counsel is allowed to do. But he was still being
questioned when the marshal of the Court, sitting to the right of the bench, threw the switch for the small white light on the lectern that indicates counsel has only five minutes left. And the questions continued.

Justice Stewart asked whether he was right in his impression that Fortas was not arguing the old proposition that the Fourteenth Amendment had incorporated the Sixth Amendment as such. Fortas agreed—he was not. But the answer that pleases one justice may arouse another, and this one aroused the member of the Court who had been arguing for a generation that the Fourteenth Amendment incorporated the entire original Bill of Rights—Justice Black. He asked in a puzzled way why Fortas was laying aside that argument.

“Mr. Justice Black,” Fortas replied, “I like that argument that you have made so eloquently. But I cannot as an advocate make that argument because this Court has rejected it so many times. I hope you never cease making it.”

Justice Black joined in the general laughter.

“You are saying,” Justice Brennan said helpfully to Fortas, “that the right to counsel is assured by the Fourteenth Amendment whether by absorption, incorporation or whatever.”

“Mr. Justice,” said Fortas, “you seem to know me well.”

At that the red light on the lectern went on, meaning that Fortas’s hour was up. But as he sat down, the Chief Justice gave him an additional five minutes for rebuttal, adding the same to Jacob’s time on the other side.

Next came Rankin’s appearance as a friend of the court. As he had when he was Solicitor General, he spoke softly, in homely phrases, and with an air of deep sincerity.

“Judges have a special responsibility here,” Rankin began, “and so do lawyers. It just isn’t true that laymen know
these rules of law (the sophisticated concepts of criminal law). That’s what’s wrong with
Betts
. It is time—long past time—that our profession stood up and said: ‘We know a man cannot get a fair trial when he represents himself.’ It is enough of a fiction to claim that an ordinary lawyer can present a case as well as the prosecutor with all his experience in court. But when you take a layman and put him at odds, you can’t have a fair trial except by accident.”

Thus Rankin, appropriately for his role, was focusing less on Gideon the individual and more on the broad problem from the viewpoint of the legal profession. Justice Harlan accused him of making too “sweeping generalizations” about the impossibility of fair trial without counsel. Rankin agreed that it was not absolutely impossible to be tried fairly without a lawyer’s help, but he said
Betts
had the generalization backward—it assumed that only in the special case did a man need a lawyer, while the truth was that it was the rare case where one did not need counsel.

Justice Goldberg: “If it’s a generalization (the need for counsel), isn’t there substantial support for it in the Constitution? The framers of the Sixth Amendment thought there should always be counsel.” [That was, historically, a doubtful proposition.]

Rankin: “That’s what I think.”

Justice Stewart: “Isn’t that generalization the assumption behind the legal profession? Florida wouldn’t let Gideon, a non-lawyer, go into court and represent anyone else.”