Gideon's Trumpet (23 page)

Rankin ended by dismissing as unproved prediction the charge that overruling
Betts
would empty the jails. He said the Court should apply the new doctrine assuring counsel retrospectively, to past as well as future cases. Justice Harlan asked whether the Court could constitutionally limit a decision to future operation. Rankin said he was doubtful.

At 1:10 in the afternoon Bruce Jacob’s turn came. Looking
extremely young and earnest, he began by giving a little more description of Gideon—his age (fifty-two), color (white) and previous felony convictions (four). Then he complained about the inclusion of the trial transcript in the printed record.

Justice Harlan: “Why do you bother about that?”

Jacob: “Okay, I won’t press it.”

Justice White: “You are not questioning our jurisdiction in this case?”

Jacob: “No, your Honor.”

From then on, Jacob was deluged by questions. There was scarcely a consecutive five-minute period when he could talk without interruption. Considering his unfamiliarity with the process and the unpopularity of his cause, he showed commendable stamina.

Justice Black: “Why isn’t it (
Betts
) as much interference with the states as an absolute rule? One of my reactions to
Betts
was the uncertainty in which it leaves the states.”

Jacob: “I don’t think
Betts
is that unclear.”

Justice Black: “How do you know what the ‘special circumstances’ are?”

Jacob: “Each time this Court decides a case, we know another special circumstance.”

Justice Brennan: “In recent years—in four cases I think—we have reversed cases from your state every time.”

Jacob: “We prefer case-by-case adjudication.… It may not be precise, but we prefer it that way because it gives the state some freedom in devising its own rules of criminal procedure.”

———

Jacob: “History argues against the drawing of inflexible lines, and this Court has never laid down any fixed rules on the right to counsel.”

Justice Brennan: “What about Powell against Alabama? Doesn’t that lay down a rule for capital cases?”

Jacob: “That was decided on the circumstances.…”

Justice Harlan: “Perhaps so, but subsequent cases have made clear that there is a fixed rule for capital cases. There is no point in your arguing that.”

Justice Black: “What historical support have you found for the distinction between capital and non-capital cases?”

Jacob: “Your honor, I can’t think of any.”

Justice Black: “I can’t either. That’s why I asked.”

Justice Stewart: “There is nothing in the language of the Fourteenth Amendment, certainly, to make the distinction. It speaks of life, liberty or property.”

Jacob: “There is a practical distinction between capital and non-capital cases if you want to draw the line somewhere. Everyone is fearful of being put to death.…”

Justice Black: “Maybe they’re fearful of spending years in the penitentiary, too.”

Jacob: “By imposing an inflexible rule, we feel this Court would be intruding into an area historically reserved to the states. It would stifle state experimentation. For example, a state might eliminate prosecutors as well as defense counsel and leave the whole trial to the judge.”

Justice Harlan: “Don’t go too far now.”

Justice Stewart (repeating a point he had made to Rankin): “Gideon would not be allowed to represent others in court.”

Jacob: “If a defendant asked for him, I’m sure the judge wouldn’t object.”

Justice Black: “The local bar association might!”

Jacob: “I’m sorry, your honor, that was a stupid answer.”

———

Jacob next talked about the consequences of overruling
Betts v. Brady
—grave consequences, as he saw them. The new doctrine would necessarily extend to trivial cases, and the cost of providing counsel would be “a tremendous burden on the taxpayers.” The next thing one knew, indigents would also be demanding other free services—psychiatrists, expert witnesses and so forth. “In effect, this court would be requiring the states to adopt socialism, or a welfare program.” Finally, Jacob emphasized the 5,093 convicts now in Florida prisons who were tried without counsel and might now be eligible for release if
Betts
were overruled. “If the Court does reverse, we implore it to find some way not to make it retroactive. We have followed
Betts
in good faith.…”

Chief Justice Warren wanted to know whether some of those 5,093 Florida convicts were illiterate. His point was plain—and deadly. An illiterate defendant was entitled to counsel even under
Betts v. Brady
, since illiteracy qualified as a special circumstance, so the chances were that any illiterates among those 5,093 tried without counsel had been deprived of their constitutional rights. Because they lacked Clarence Earl Gideon’s determination, or luck, they had not won redress in the courts.

“I have no way of knowing,” Jacob said to the Chief Justice.

“No, but what do you think?” the Chief Justice pressed. “Do you think most of them are literate or illiterate?”

“I don’t know, but I am sure some of them are illiterate.”

Jacob concluded without using his extra five minutes, and then George Mentz of Alabama took over. He was an older man, gray-haired, more experienced than Jacob and much
more at ease. He was questioned just as frequently, but the questions seemed to give him less pain. He answered in a charming Southern voice, making graceful concessions.

“I candidly admit,” he began, “that it would be desirable for the states to furnish counsel in all criminal cases. But we say the states should have the right to make that decision themselves.”

Justice Harlan: “Supposing
Betts
is not overruled. How many years is it going to take Alabama to pass a law like New York and the other states?”

Mentz: “I don’t know, but there is a growing feeling in the trial courts that something should be done.”

———

Mentz: “Our judges are conscientious in protecting indigent defendants.”

Justice Stewart: “We can assume all of that with you, but a judge’s job is to be a judge. This was he would be an advocate for one of the litigants.”

Justice Goldberg: “What about the vital matter of the final address to the jury? Surely a judge can’t take over that job of advocacy.”

Mentz: “That is true.… But prosecutors are more lenient with unrepresented defendants.…”

Justice Stewart: “Isn’t that a matter of trial strategy? It might backfire if the prosecutor were tough and the jury saw the defendant there helpless.”

Mentz: “Well, yes, sir.”

Justice Stewart: “All you’re saying is that the absence of counsel impedes the adversary system of justice.”

Mentz: “I didn’t mean to go that far.”

Justice Stewart: “I’m sure you didn’t.”

———

Mentz: “In actuality, indigents without lawyers probably get off easier. The average Alabama lawyer is not equipped to deal with the career prosecutor. An articulate defendant may get his story across to the jury better.”

Justice Black: “That’s not very complimentary to our profession.”

Mentz (good-humoredly): “No, sir.”

Justice Douglas: “Maybe if laymen are as effective as you say, we should get the Sixth Amendment repealed.”

Mentz: “Mr. Justice, I didn’t mean to go that far. I meant only that laymen are not at so great a disadvantage—”

Justice Douglas: “—as some appellate judges think.”

Justice Harlan: “Supposing you had a choice—as you see it, representing the state—of maintaining
Betts
on the books and then having a succession of cases come to this Court every one of which was reversed by finding special circumstances, so that everyone would know we were only paying lip service to
Betts
, or of overruling it.”

Mentz: “We’d rather see them decided case by case.”

Justice Harlan: “Even though you know how all of them will come out.”

Mentz: “ ‘Hope springs eternal.’ ” [Laughter in the courtroom.]

Then Fortas got up for his rebuttal. He said a word about
Mapp v. Ohio
, the case in which—two years before—the Supreme Court had reinterpreted the Constitution to bar the use of illegally seized evidence in state trials. “To paraphrase Mr. Justice Clark’s opinion there, time has set its face against Betts and Brady.” He noted also Justice Clark’s opinion in the second overseas court-martial cases, saying they removed any basis for a constitutional distinction between crimes subject to the death penalty and others.

“I think Betts and Brady was wrong when it was decided,” Fortas said in his peroration. “I think time has made that
clear. And I think time has now made it possible for the correct rule, the civilized rule, the rule of American constitutionalism, the rule of due process to be stated by this Court with limited disturbance to the states.”

Justice Harlan had one more question. Had Mr. Fortas, in his research, found any errors in Justice Roberts’ exposition of the history of the right to counsel in his opinion in
Betts v. Brady?
Clearly Justice Harlan would find it much easier to overrule
Betts
if that decision could be shown to have been based on erroneous historical premises. But Fortas had no comfort to offer there. He replied: “We would have some differences, perhaps, but I don’t say that the historical technique of constitutional interpretation will reach my result.”

In order to overrule
Betts
, then, Justice Harlan would have to look at the same problem that had faced Justice Roberts in 1942 and say that a different answer was required in 1963. As a believer in
stare decisis
he would not find that easy to do, and yet he seemed to want to turn away from
Betts v. Brady
. The last word in the argument was Justice Harlan’s, and it showed the struggle going on inside him. “What one is left with,” he said, “is getting one’s hands on something that has happened in the last twenty years.…”

T
he justices ordinarily take their first formal vote on the merits of a case at the Friday conference immediately following the oral argument. Within the next few days the Chief Justice, if he is in the majority, sends a formal note assigning the opinion to one member of the Court (or keeps it for himself); if the Chief is in the minority, the senior justice on the side that prevailed at conference assigns the opinion. The minority usually agrees about who will write the dissent. Notwithstanding such assignments, any member of the Court is free to write his own concurring or dissenting opinion if he wishes, and they often do. Jefferson, who feared Chief Justice Marshall’s persuasive power over his brethren, thought every member of the Court should have to write his own opinion in every
case. A few years ago Justice Harlan, as he began a dissent that was the fourth opinion in the same case, said drily: “We have almost reached Jefferson’s ideal.”

When draft opinions are completed, they are sent to the print shop in the basement, set in type and proofs run. The proofs are carefully numbered so that no set can stray and opinions thereby leak to the outside world. These drafts are circulated among the Court, and comments come back to the author of the opinion from the other justices.

Occasionally, at this stage, minds change. The justice assigned the opinion may find after research that he cannot support the reasoning he suggested at conference; a new majority may then form behind his revised views, or the opinion may be reassigned. Dissenting drafts may change votes, sometimes enough votes to convert the minority to the majority. Exchanges of view by memoranda, new drafts and personal discussion continue until everyone is as nearly satisfied as is possible in the limited time available. The working papers of Justice Brandeis that were preserved include the thirty-fourth printed draft of one of his opinions. Inevitably, in trying to please eight editors, the author of the majority opinion finds himself removing much of the personal flavor from his product. The dissenter, on the other hand, as Chief Justice Hughes said, can “express his individuality. He is not under the compulsion of speaking for the Court and thus of securing … a majority. In dissenting, he is a free lance.” Hughes went on—and he might have been speaking of Justice Black’s opinion in
Betts v. Brady
—“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

But this whole process of discussion, voting and opinion-writing is entirely concealed from public view. No one but the justices and their law clerks, and some printers equally dedicated to secrecy, have any idea how a case is going to come out until, on some Monday, the opinions are announced. There are almost no news leaks at the Supreme Court—one of its many distinctions from all other Washington institutions. Not even the date of decision can be accurately estimated; it may come just a few weeks after argument, or many months.

For the parties to a case, and their lawyers, the period between argument and decision is a time of frustrating puzzlement, of might-have-beens, of daydreams and nightmares. Two months after the
Gideon
argument, at the beginning of March, 1963, Bruce Jacob was still thinking about the strangeness of that day.