Gideon’s Trumpet

The public image of the Supreme Court is often one of “an extraordinarily powerful demigod sitting on a remote throne and letting loose constitutional thunderbolts whenever it sees a wrong crying for correction” (12). The court, however, is not all powerful and must operate within its limitations; it cannot set forth and act as it pleases but must wait until cases are brought before the court. Its jurisdiction is limited by the Constitution and precedent. As such, Gideon’s claim must be evaluated in this respect. There are differences between state and federal laws, for example, and the Supreme Court can only rule on the latter. It cannot overturn state court rulings on state laws, so has little to do with the many millions of cases ruled upon by American courts each year.

The Supreme Court can, however, rule on matters of federal law. This includes questions arising under the Constitution, as in Gideon’s case. Historically, states have resented the Supreme Court’s “intrusion on their independence” (14); while federal law is superior to state law, many states have argued against this. They favor a state’s right to interpret and apply federal law and not be superseded by a federal authority. Such cases have been argued since the signing of the Constitution and the First Congress. Since then, it has been the role of the Supreme Court to harmonize the often discordant and jarring ways in which the state courts have interpreted federal law. Thankfully for Gideon, his case fell within this realm of jurisdiction.

However, there were other barriers to overcome: cases can only be heard by the Supreme Court when all state-level processing of a case is completed; a person who seeks to make a federal claim to the Supreme Court must do so at the earliest possible moment after their case has concluded, but cannot inject federal/state disputes into an ongoing case; the claim must also follow proper procedures generally applicable in the state courts, allowing federal court rules to be broken when state courts have caused an issue (for example, with filing deadlines). Likewise, any cases that pertain to the Constitution are not taken lightly. The Supreme Court avoids hastily involving itself in constitutional matters to avoid making unnecessary changes with far-reaching implications. The Court will often do whatever it can to avoid constitutional issues. Gideon’s case “appeared to meet all these requirements” (17).

Though Gideon’s claim could be heard in the Supreme Court, this did not necessarily mean that it would be heard. To avoid overburdening the Court, not all cases are accepted. The judges have discretion over which cases they hear, and many are dismissed “for want of a substantial federal question” (19). That is to say, the Court does not consider the matter important enough or relevant enough to issue a ruling. Of the 2,500-odd cases that are provisionally accepted each year by the Court at the time of Gideon’s case, only approximately 150 are given a full hearing. Gideon’s case navigated the difficult matters of timing and strategy: his case was important and the legal matter was familiar to all the justices. It afforded them the opportunity to discuss a legal matter that caused much concern in the nation’s courts, one that had not been ruled upon too recently, and one that would not be too politically controversial. That is not to say the Court was unified in its thoughts on the subject; rather, they saw it as an opportunity to set a legal precedent.

On a fundamental level, the work done by the Supreme Court remains largely in the hands of the nine justices and the clerks who work alongside them. Nothing is delegated to committees or task forces, unlike other branches of government. There is no hierarchy; even the Chief Justice is considered the first among equals. He must rely on his power to persuade and interpret the law, just like the other justices, all of whom have only one vote. The process by which each justice considers each case is established by precedent; each justice’s clerks (typically recent law school graduates who serve in intern-like roles) prepare a short summary for the consideration of the justice, who then makes a decision. The power of the clerks in this capacity has been overemphasized in the past; they do not judge, “they can only suggest” (23).

Paupers’ petitions such as Gideon’s can present difficulty in this regard. They are rarely formatted correctly and are unlikely to form a clear legal statement. As such, they are held to different standards, not needing to be as thorough as those submitted by people of means. The number of pauper petitions has increased exponentially, as encouraged by many of those involved with the Court, though few “turn out to be worth the Supreme Court’s time” (24). Roughly three percent are granted, compared to 13 per cent of regular petitions. While many of the petitions are spurious at best, the Court is committed to finding those of merit.

Gideon’s case is handled in the typical fashion: once received, it is held for 30 days while the Florida authorities form a response. As is the case with many prisoners’ petitions, the state does not bother to respond. Gideon’s petition is then sent to be examined by the law clerks. Deciding that the case might merit the Court’s attention, the clerks flag it and the Chief Justice’s office requests a response from the Florida authorities. The response arrives, in which the authorities claim that Gideon was not entitled to trial counsel under the rule of the 1942 decision in Betts v. Brady, as counsel is only guaranteed in cases in which special circumstances dictate that a fair trial would be otherwise impossible.

As Gideon has never claimed to have any disabilities or exceptional circumstances, the Florida authorities consider his claim invalid. Gideon was simply too poor to hire a lawyer—he was not incumbered by his age, experience, mental capacity, or unfamiliarity with court procedure as to the complexity of the charge. Gideon responds that “a citizen of the state of Florida cannot get a just and fair trial without the aid of counsel” (26); had he been granted counsel, Gideon argued, then hearsay and perjury would have played no part in the trial against him. Regardless of his age, race, or faith, Gideon argued, he did not get a fair trial.

These responses were returned to the Court and circulated among the justices. It was placed on the list of items to be discussed. At a secretive conference where only serving justices are present, they discuss and vote on each petition. Many are swiftly disposed of by unanimous consent, others are argued over. Among issues of segregation and labor practices, Gideon’s case comes up. His petition is accepted, with justices instructed to consider the question: “should this Court’s holding in Betts v. Brady, 316 U.S.455, be reconsidered?” (29).

When his case is heard by the Supreme Court, Gideon is to be granted legal counsel. It is considered a great honor to be appointed by the Court to represent a poor person; there is no financial compensation but there is the satisfaction of service. Not even secretarial work or hotels for the lawyer are covered. The poor person whose case is to be heard must formally ask for a lawyer; Gideon does so and a lawyer is selected for him by the justices. The options range from former clerks to law professors to established practitioners. Offers are floated to potential lawyers informally at first, to avoid the embarrassment (from both parties) if the lawyer must decline. Abe Fortas of Washington is offered the assignment and he accepts, becoming Gideon’s counsel.

Fortas is “a high-powered example of that high-powered species, the Washington lawyer” (32). As one of the titular partners in the law firm Arnold, Fortas, and Porter, he is well-known to Washington political observers. The firm has a heavy Yale influence and employs approximately 30 lawyers. All three named partners are graduates of the New Deal and the firm has a liberal and Democratic reputation. Aged 52, Fortas himself is an old friend of Lyndon Johnson and will be a close confidant of the future President in years to come. Nevertheless, the firm remains focused on making money and does so with litigation against the Government.

Fortas is well-regarded as one of the nation’s premier appellate advocates and has represented numerous clients before the Supreme Court. He also advises businesses on how to maximize profits while remaining within the law—a practice that is described as “wheeling and dealing” and “big social engineering.” As a smallish, charming man, “there is a nice touch of Mephistopheles” (34) to his character. Even those who dislike Fortas would love for him to be on their side in the event of an emergency. Though he may appear sober, detached, unsentimental, and fiercely objective, Fortas does what he feels is best for society and is angry at injustice. A collector of antiques and art, as well as the driver of a Rolls Royce, Fortas evidently enjoys opulence.

Fortas and his team begin to work on the case. They examine everything filed thus far in Gideon’s legal entanglements but find the available information is, at first, scant. Fortas must focus on the primary questions, of whether Betts v. Brady should be scrapped and whether there should be an absolute requirement of counsel imposed. It is against tradition for a lawyer to argue purely in the abstract, however. In examining Gideon’s case, Fortas might find a technicality or subtle reason why Gideon might be set free. He would have a moral duty to argue this case, rather than to address the abstract question. The problem facing Fortas is this: should he try to find out as much as possible about Gideon, thus heightening the chances of having Gideon freed for some as-yet-unknown reason, or should he address the abstract issue that brought the case before court? The former might set one man free but not set a precedent, while the latter might fail in both regards and leave Gideon in a jail cell when he might have been freed on a technicality. Fortas chooses the former, believing that his “duty was to Gideon” (36) first and foremost.

Gideon’s original trial was on August 4, 1961. Fortas examines the transcript of the trial, noting potential mistakes made by the judge. Judge Robert L. McCrary Jr. asks a jury of six men if Gideon’s lack of a lawyer would impair their judgement. They say they will try him fairly. Witnesses are called. After one particularly damning testimony, Gideon attempts to cross-examine the principal witness himself. Without legal training, Gideon’s attempts are little more than “a meandering, argumentative affair that got nowhere” (37). Gideon calls his own witnesses; many contribute nothing and Gideon’s reason for calling them to the stand remains unclear. There are two police offices and a number of people who live nearby, many of whom know Gideon and know that he works occasionally at the pool hall that he had supposedly burglarized. Gideon then delivers an 11-minute final argument (not recorded) and the jury is sent away to deliberate.

Gideon is found guilty and sentenced to five years in prison. To Fortas’s reckoning, there is “no longer any question about the appropriateness of this case as the vehicle to challenge Betts v. Brady” (39): Gideon is not mentally unstable, the case seems uncomplicated, the judge had tried (at least) to be fair, and there seems to have been no overt bias in the court room. Therefore, Gideon does not meet the requirements of the special circumstances that would entitle him to legal counsel. It is evident, however, that a lawyer would have helped; even an ordinary, competent lawyer would have destroyed the prosecution’s case.

However, Fortas wants to know more about Gideon himself. Fortas does not know Gideon’s criminal history or even his race. Rather than meeting Gideon, Fortas corresponds with him via letter. Fortas asks for a detailed biography and Gideon obliges with a 22-page long letter. Gideon prefaces the biography by noting that he is not proud of his past and that he does not remember every single detail.

Gideon describes his childhood in Missouri. Only three days after Gideon is born, his father dies. His mother is remarried five years later to a man who works in the same shoe factory as Gideon’s father. His childhood is one of strict discipline and a tense relationship with his step-father. His life is miserable, he states, and he runs away from home at age 14. Gideon becomes an itinerant, stealing when he must. He spends time in a reformatory as a teenager and is brutally beaten. A brief period of success sees Gideon marry, but he loses his job, and after committing a crime he is sent to prison for ten years. He is released during the Great Depression and again struggles to find work. Soon, he is back behind bars.

For the next decade, Gideon’s life is a blur of temporary jobs, petty crimes, and prison stints. By 1956, however, he is on his fourth marriage and has a small business. He has two sons named Ronald and David but struggles to give up gambling. After an illegal card game, he is thrown in jail by a crooked cop. His wife is forced to find work, his children are placed into foster care. When he is released, Gideon tries to join a Baptist church and get his family back in order. It works for a while but then he is taken sick, and after two months of treatment in the hospital he finds that his wife has taken up with another man. He moves away for a while but soon finds out that his children have been placed into foster care. His ex-wife has been arrested for drunk driving. Unable to hold down a job for health reasons, Gideon tries to make money via gambling to pay for his children’s care. He cannot do so. After more false starts and more jail time, he is arrested for breaking into the pool hall where he occasionally works. Again, he blames this on local corruption and insists that he is innocent. He finishes his letter by mentioning that he is working in prison but has not been able to determine the location or welfare of his children. He wants to get out of prison and be reunited with his children, “the only real love [he has] ever had” (48).