Gideon's Trumpet (32 page)

²⁷
The first coerced-confession case was
Brown v. Mississippi
, 297 U.S. 278 (1936). An example of a later case depending on psychological rather than physical coercion is
Watts v. Indiana
, 338 U.S. 49, 52 (1949), where Justice Frankfurter wrote: “There is torture of mind as well as body; the will is as much affected by fear as by force.” In
Spano v. New York
, 360 U.S. 315, 320 (1959), Chief Justice Warren said: “The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”

²⁸
Griffin v. Illinois
, 351 U.S. 12 (1956).

²⁹
Mapp v. Ohio
, 367 U.S. 643 (1961).

³⁰
Brennan,
The Bill of Rights and the States
, in
The Great Rights
(Cahn, editor) 67, 82, 85–6 (1963).

¹
Rawle,
A View of the Constitution
127–8 (1825).

²
Botein and Gordon,
The Trial of the Future
51–52 (1963).

³
Schaefer,
Federalism and State Criminal Procedure
, 70 Harv. L. Rev. 1, 8 (1956).

⁴
Powell v. Alabama
, 287 U.S. 45 (1932).

⁵
Professor Allen’s account: Allen,
The Supreme Court and State Criminal Justice
, 4 Wayne L. Rev. 191 (1958).

⁶
There were originally nine of the Scottsboro boys, but the Northern liberal groups that interested themselves in their fate did not take to the Supreme Court the cases of
two juveniles who fared better in the Alabama courts. After the Supreme Court reversed the convictions of the seven, the alleged ringleader, Haywood Patterson, was retried alone, convicted and again sentenced to death. The trial judge set the verdict aside. At a third trial Patterson and Clarence Norris were convicted and sentenced to death. In 1935 the Supreme Court reversed these convictions on the ground that Negroes had been systematically excluded from the jury.
Norris v. Alabama
, 294 U.S. 587;
Patterson v. Alabama
, 294 U.S. 600. In the next two years Alabama authorities quashed the indictments against five of the nine; the other four were again convicted, but only Norris drew a death sentence. That sentence was commuted, and by 1946 all had been released on parole save Patterson. He escaped in 1948 and reached Michigan, whose authorities rejected an Alabama request for extradition. The whole Scottsboro Case was a national cause celebre during the 1930’s, including among other elements conflict between Communist and non-Communist forces involved in the defense of the boys. There is an account by Patterson,
Scottsboro Boy
, Doubleday & Co., Garden City, N.Y. (1950).

⁷
Johnson v. Zerbst
, 304 U.S. 458 (1938).

⁸
The Cohen-Griswold letter is in the
New York Times
of August 2, 1942, section 4, p. 6.

⁹
The 1945 decisions were
Williams v. Kaiser
, 323 U.S. 471, and
Tomkins v. Missouri
, 323 U.S. 485.

¹⁰
The 1961 capital case:
Hamilton v. Alabama
, 368 U.S. 52, 55.

¹¹
The 1947 case:
Foster v. Illinois
, 332 U.S. 134, 139.

¹²
Uveges v. Pennsylvania
, 335 U.S. 437, 441.

¹³
Gryger v. Burke
, 334 U.S. 728 (1948).
Townsend v. Burke
, 334 U.S. 736 (1948).

¹⁴
Allen,
The Supreme Court, Federalism and State Systems of Criminal Justice
, 8 De Paul L. Rev. 213, 230–31 (1959).

¹⁵
The last decision rejecting a claim for counsel was
Quicksall v. Michigan
, 339 U.S. 660 (1950).

¹⁶
Hudson v. North Carolina
, 363 U.S. 697, 704 (1960).

¹⁷
McNeal v. Culver
, 365 U.S. 109, 119 (1961).

¹⁸
The Brennan lecture was
The Bill of Rights and the States
, in
The Great Rights
(Cahn, editor) 67, 81 (1963).

¹⁹
The 1962 case involving the multiple-offender law was
Chewning v. Cunningham
, 368 U.S. 443 (1962).

²⁰
Carnley v. Cochran
, 369 U.S. 506 (1962).

¹
The 1948 decision rejecting a judge’s error of state law as a special circumstance requiring counsel was
Gryger v
.

²
Burke
, 334 U.S. 728. The 1961 case looking the other way:

³
McNeal v. Culver
, 365 U.S. 109.

⁴
The court-martial cases:
Reid v. Covert
, 354 U.S. 1 (1957);
Kinsella v. Singleton
, 361 U.S. 234 (1960).

⁵
The 1958 decision:
Crooker v. California
, 357 U.S. 433.

⁶
The case of the death sentence after a new trial with counsel:
Robinson v. United States
, 324 U.S. 282 (1945).

⁷
Kamisar,
The Right to Counsel and the Fourteenth Amendment
, 30 U. Chicago L. Rev. 1 (1962).

⁸
The Pennsylvania case was
Commonwealth ex rel. Simon v. Maroney
, 405 Pa. 562, 565–7, 176 A.2d. 94, 96–7 (1961). (Citations are to the Pennsylvania reports and to the Atlantic Reporter, covering decisions in Pennsylvania and nearby states.)

¹
The restrictive covenant cases:
Shelley v. Kraemer
, 334 U.S. 1 (1948).

²
Supreme Court Rule 42 covers
amicus
briefs.

³
Omission of New York from the list of states on the
amicus
brief may seem surprising. New York law has long
required representation of the indigent in criminal cases. Nevertheless, Attorney General Louis J. Lefkowitz decided not to join the
amicus
brief attacking
Betts v. Brady
. He explained that in New York criminal cases defendants frequently challenged the validity of prior convictions without counsel in other states—convictions that could be relevant, for example, to the severity of the New York sentence to be imposed—and prosecutors relied on
Betts
to uphold the prior convictions. Mr. Lefkowitz and his staff thought it inappropriate to challenge a rule on which they had so often relied. The same problem did not trouble other states.

⁴
Chambers v. Florida
, 309 U.S. 227, 241 (1940). The comment on Justice Black’s “great internal struggles” is in Reich,
Mr. Justice Black and the Living Constitution
, 76 Harv. L. Rev. 673, 679 (1963). Before going on the bench Justice Black had criticized the old Court for upsetting state action on economic matters. The question for him was whether it had any greater warrant to invoke the Constitution on matters of personal liberty. This case marked an early stage in the development of his answer: Yes.

⁵
The Holmes phrase is from
Truax v. Corrigan
, 257 U.S. 312, 344 (1921) (dissenting opinion).

¹
Supreme Court Rule 44(1) deals with oral argument. Frankfurter on oral argument:
Memorial for Stanley M. Silverberg
, in
Of Law and Men
(Elman, editor) 320, 321 (1956).

²
Jackson,
Advocacy Before the Supreme Court
, 37 Amer. Bar Assn. Journal 801, 862 (1951).

³
The Holmes remark is quoted in Freund,
The Supreme Court of the United States
169 (1961).

⁴
Jackson on advocacy, op. cit., p. 803.

⁵
The Hughes story is in McElwain,
The Business of the Supreme Court as Conducted by Chief Justice Hughes
, 63 Harv. L. Rev. 5, 17 (1949).

⁶
The Stone letter about the Court building is in Mason,
Harlan Fiske Stone, Pillar of the Law
405–6 note (1956).

⁷
The Supreme Court had decided twelve right-to-counsel cases since
Quicksall v. Michigan
.

¹
Hughes,
The Supreme Court of the United States
68 (1928).

²
The cases decided March 18, in order, before
Gideon v. Wainwright: Draper v. Washington
, 372 U.S. 487;
Lane v. Brown
, 372 U.S. 477;
Fay v. Noia
, 372 U.S. 391;
Douglas v. California
, 372 U.S. 353;
Gray v. Sanders
, 372 U.S. 368.