Gideon’s Trumpet

Clarence Gideon has “an intuitive sense that his case [is] larger than himself” (58). To those who visit him, he seems an unlikely champion of legal issues. Instead, he seems used-up and deadened by a hard life. Gaunt, aged, with thin glasses hiding worried eyes, gray hair, and deep wrinkles, Gideon speaks with a defeated voice. Likewise, Panama City (where Gideon supposedly committed his crime) seems undeveloped and bitter. It makes his prison seem cheerful in comparison. The prison is home to more than 3,000 inmates segregated by race.

Inside, Gideon has become the closest the inmates have to a legal expert as he knows more than most. Prison records describe Gideon as “the typical recidivist type—an incurable repeater” (59). There is no one on his visiting or mailing list. Gideon knows that a lawyer is his only chance of escaping the courtroom without conviction, hence his legal efforts. He believes that Florida officials are prejudiced against the poor and the unfortunate. Though he will not say it aloud, there are suggestions that he believes the Supreme Court will rule in his favor. He knows that—if he wins—he will not be freed but hopes that a lawyer will be provided to him at a new trial. Afterward, he could reunite with his children and get a steady job.

It is almost impossible for a person to “adequately appreciate the need for a lawyer in a criminal case until he is himself a defendant” (61), as it is a lonely, confusing position. The law and the criminal code have grown exponentially since the drafting of the Constitution and the chances that an average citizen understands all the nuances of state and federal criminal law is slim. Likewise, the complexity and subtlety trial procedure has increased and a defendant cannot be expected to adequately handle all of the necessary components.

However, the right to counsel is a generally modern expectation. Historically, the rights of a defendant have been minimal. The Sixth Amendment was only added to the Constitution in 1836, for example, and directly contravened many centuries of legal precedent. Though it was not intended necessarily to provide legal counsel for those who cannot afford it, by the time Gideon’s Trumpet was published (1964), 30-60 percent of those convicted could not afford a lawyer. The Sixth Amendment has developed slowly into the vehicle that would allow the Supreme Court to address this issue. One particularly relevant case was Powell v. Alabama in 1932, in which a group of African-American men were accused of rape. They were tried without (or with dubious access to) legal representation and sentenced to death. The Court ruled that it would be a denial of due process of law (thus a violation of the 14th Amendment) for a court to arbitrarily deny defendants the right to be heard by legal counsel. It was the first time the Supreme Court held that the poor might be entitled to a lawyer, but it was limited to certain circumstances, such as “ignorance, feeblemindedness, illiteracy, or the like” (64).

Other cases challenged the precedents further, including Betts v. Brady in 1942. Smith Betts, a poor farm hand charged with robbery, could not afford a lawyer. It was the state’s practice to only assign one in the case of rape and murder. Betts tried to defend himself, was found guilty, and took his case to the Supreme Court. The Court rejected Betts’s appeal to the Sixth and 14th Amendments, leaving the power to decide if a lawyer should be assigned to reside with the states. One justice worried that Betts’s demand would lead to lawyers being appointed for traffic and civil cases, which he considered to be unnecessary. The dissenting opinion was written by Justice Black, forewarning his later decisions, who invoked the Sixth and 14th Amendments in his belief that the right to counsel was fundamental. Though Betts lost his case, he began a national discussion in newspapers and among students of the Court. Over the coming years, similar cases were brought before the Court, and the range of distinctions employed by states to assign lawyers became nearly incomprehensible. Nevertheless, it was clear that opinion both within and without the Court was beginning to change.

Though Fortas feels “that the current of legal history [is] moving with him” (69), he feels the need to win over as many justices as possible to his cause. He must garner as much intellectual support as possible. He knows his chances are slim despite public opinion. Of the nine justices, he is certain to win over four (Warren, Black, Douglas, and Brennan) and stands a good chance of winning over two (Stewart and Clark). Meanwhile, it is impossible for him to win over two justices (Frankfurter and Harlan). This left Justice White, the most recent appointee and a man without the record to indicate that way he might vote.

Fortas personally believes that Gideon was right; his personal experiences informed his belief in the essentialness of legal counsel. However, he could not argue from experience. Rather, the Court demanded that he set forth a legal argument based on the interpretation of the Constitution and a century of legal precedent. Fortas begins by learning everything he possibly can about the 14th Amendment and begins to craft his legal argument. Staff at the law firm spend months researching every conceivable shred of background information. They find that there are discrepancies in how the Supreme Court and the Florida courts evaluate the ‘special circumstances’ that dictate a defendant’s right to counsel, as well as inconsistencies in how these standards are applied. They also try to reverse the federalist argument, suggesting that a blanket requirement for legal counsel was less intrusive on states’ criminal processes because it is more clear-cut and needs less enforcement. They examine the transcript of Gideon’s trial and find numerous errors and missteps by the judge, demonstrating that Gideon had been hurt by his lack of counsel.

When the time to print the record (the material to be submitted before the Court) of Gideon’s case arrives, there are disagreements between the legal teams over what to include. Fortas eventually wins this argument against the Florida courts and is allowed to include a transcript of the trial. Fortas and his team begin to prepare their brief, their opening argument in the case. They examine both abstract and practical reasonings, finding conservative and liberal arguments that fit their overall brief. This includes the worries regarding whether a lawyer might be required for minor civil violations and the effect a victory on every other prisoner in Gideon’s position.

The concern “that an absolute counsel requirement would lead to a wholesale emptying of prisons was perhaps the most powerful emotional argument” (75) against Gideon’s case. Fortas’s recommendation, then, would be a prospective overruling: the idea that cases would not be thrown over retrospectively; only future cases would be held to the new standard. Additionally, many states already provide legal counsel to poor people. Only 13 states had no formal requirement for this, but eight of these 13 states had already instituted an informal practice of appointing legal counsel to the poor. Even in Florida—where Gideon had been tried—three big cities already had public defenders available.

Finally the 53-page brief is completed and filed. It is “a frontal assault on Betts v. Brady” (77). The brief is separated into five sections: the 14th Amendment; federalism; Betts v. Brady being an unsatisfactory standard; the timing of when a lawyer should be appointed; and the practical implications of the case. The brief is sent to the Florida authorities and Gideon, who writes to thank Fortas for his work on the “wonderful and brilliant document” (79).

The lawyer arguing the case against Gideon is relatively inexperienced. His name is Bruce Robert Jacob, and until the Gideon case, he has never set foot in the Supreme Court. While the Florida attorney general Richard W. Ervin might technically be presenting the state before the Court, it is Jacob who bears responsibility for the majority of the work. Jacob, aged just 29, has been working on the Gideon case since the first time the Supreme Court notified the Florida authorities. His colleagues tease him, warning him not to lose the case. He contacts the other 49 states in an attempt to muster a demonstration of sentiment against overturning Betts v. Brady. This approach—an amicus curiae—is designed to indicate to the Court the political and public pressures that might affect the case.

The response shocks Jacob; very few attorneys general respond sympathetically (if at all). Indeed, some of his correspondents actually begin to organize an effort to form an amicus curiae on behalf of Gideon. In all, 23 states support Gideon’s case and make many arguments similar to those put forth by Fortas (that they arrive at independently). Though Jacob is surprised, he still believes that he has done the right thing. This effort by the states is joined by civil liberties groups who, upon hearing about Gideon’s case, begin to research the issue themselves. They find that granting legal counsel to defendants is be cheaper, more efficient, and more likely to reduce “the federal-state conflict” (86).

Jacob’s case does receive support from two states: Alabama and North Carolina. The attorneys general from these states argue that it remains a state issue and to impose this requirement would hinder “man’s social evolution” (87). It would also be pointless, they suggest, as any lawyer appointed to the defendant would be as much a match for a hardened prosecutor as the defendant themselves. They argue in favor of Betts v. Brady. Jacob then completes the rest of his brief, his progress interrupted by two weeks spent at National Guard camp and job interviews at private law firms. Once Jacob receives a job offer, he struggles to balance his new job with his commitment to the case.

By the time the Court is nearly ready to hear the case, Jacob has abandoned the hope that he might win. Further discouragement comes when Justice Frankfurter announces that he is to retire. He is replaced by Justice Goldberg, who will likely not share his predecessor’s predilection against federalism. Jacob also marries during this time, taking a short honeymoon and moving house. His new wife Ann helps him with clerical work on the nights and weekends; he finishes just before Christmas and files his brief to the Court. Following his eight arguments, he ends with a request: that, should Gideon win, “it be accomplished in such way as to prevent the new rule from operating retrospectively” (90). The oral argument of the case is set for January 14, 1963.