Background to Gideon’s Trumpet and the intent of this page
In Gideon’s Trumpet, Anthony Lewis provides a detailed account of Clarence Earl Gideon’s appeal to Supreme Court in order to gain his right to counsel, but Lewis also gives an excellent description of the process of appealing to the Supreme Court in general.I intend to outline the major aspects of Gideon’s case, as described by Lewis, and I also hope to convey some of the most important aspects of the appellate process that he discusses.
Chapter 1 describes Gideon’s claim to the Supreme Court (hereafter simply the Court).Gideon petitioned the Court in forma pauperis, in the manner of a pauper.An in forma pauperis petition exempts indigent plaintiffs without having to pay the normal fees associated with the petitioning the Court and also provides for wide discretion in the filing of affidavits for the Court.Lewis states that the Court’s “Rule 53 allows an impoverished person to file just one copy of a petition, instead of the forty ordinarily required, and states that the Court will make ‘due allowance’ for technical errors so long as there is substantial compliance” (4).
From his initial filing to the Court, it appears as though Gideon made a substantial effort to comply with the standards set by the Court in regard to in forma pauperis petitions.Gideon’s application was written in pencil, but he included the affidavit required to proceed in forma pauperis and he appeared to have filed within the required 90 days of the lower court decision.In his petition, Gideon also provided the Court with a copy of his habeas corpus petition that he filed to the Florida Supreme Court and the Florida Supreme Court’s rejection of that petition.
In his petition, Lewis states that Gideon provided little, if any, personal information.Lewis describes Gideon as a destitute man who bore the marks of a destitute life.Gideon was 51 years old at the time of his petition to the Court.He had been convicted on four previous felonies.According to Lewis, hardly anyone would describe Gideon as a violent man; rather, Gideon was a man who found great difficulty in settling down and working to live.Thus, Gideon often turned to crime.
In his filing to the Court, Gideon’s case was originally titled Gideon v. Cochran.Gideon’s primary submission to the Court was a 5-page petition for writ of certiorari, which is a petition asking the Court to bring the case up from the lower court.Gideon had been convicted of breaking and entering into the Bay Harbor Poolroom in Panama City, Florida.The crux of Gideon’s petition to the Court was that the due process clause of the Fourteenth Amendment, which states that “No state shall…deprive any person of life, liberty, or property, without due process of law,” had been violated when the trial court had denied Gideon’s request for an attorney.In Gideon’s petition to the Court, he states, “[w]hen at the time of the petitioners trial he ask the lower court for the aid of counsel, the court refused the aid. Petitioner told the court that this Court made decision to the effect that all citizens tried for a felony crime should have aid of counsel.The lower court ignored this plea” (8).Altogether Gideon mentioned a right to counsel approximately six times.However, he never mentioned the case of Betts v. Brady.
Betts v. Brady would prove to be a critical, if not the most critical, aspect of Gideon’s claim. Without Betts Gideon really would have had no claim before the Court.Betts was precedent and it stood to limit the right of counsel except in special circumstances.In Betts, Justice Roberts for the Court stated that the Fourteenth Amendment did not provide a universal right to counsel in all felony cases.Instead, the Court said that a defendant was only to be provided with counsel in such cases as when the lack of counsel would result in “a denial of fundamental fairness.”The precedent of Betts was to be applied on a case-by-case basis.Although Gideon did not realize it, he was asking for one the great occasions in which the Court reverses itself.As Lewis states, “[h]e was asking the Supreme Court to change its mind” (11).
In Chapter 2, Lewis describes the Court as institution.Particularly, he focuses on the rules, both stated and unstated, that the Court follows in determining which cases it will hear and its holding in those cases.In order to stay within the scope of the task at hand, I shall seek to address these topics as they are relevant to Gideon.However, I think you shall see that the characteristics of the Court described by Lewis are relevant in almost every case coming before the Court.
In considering the decisions of the Court it is essential to remember that the Court is a passive institution. The Court cannot address issues as it wishes.Instead, the Court must wait for cases and controversies to be brought before them.However, in order for the Court to address the cases and controversies brought before them, several preconditions must be satisfied.
First, a case must be within the jurisdiction of the Court.As established by Article III of the Constitution, the Court is to have jurisdiction in
all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made…; to all Cases of Admiralty and maritime jurisdiction;…to Controversies between two or more States;…[and] between Citizens of different States…
I shall not seek to interpret this phrase.Needless to say, volumes of works have attempted to do so.Instead, Gideon’s claim involves an issue that has come to be derived from this phrase: the issue is a federal question.Gideon’s questioned hinged on the issue of whether the Constitution and, in particular, the Fourteenth Amendment’s due process clause provided for the right to counsel in all felony cases.
Viewed as a federal claim, the case of Gideon v. Cochran presents the conflict between the federal government and states.To observe Gideon’s claim simply as the case of an individual versus a state government is to ignore another, perhaps, more significant problem: that is what is the proper role of the federal government in mandating the standards applied by the states in criminal proceedings.In the case of a conflict between the federal and state levels of government, states are to yield to the federal government.The Supremacy Clause in Article VI of the Constitution states that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”The conflict between the states and the federal government was addressed in Martin v. Hunter’s Lessee, in which the Court held that contrary to Virginia state court rulings the Jay Treaty of 1794 was law, not a Virginia statute that ran contradictory to it.In considering the conflict between the federal and state levels of government, do not underestimate the importance of the Supremacy Clause and the Court’s holding in Martin.Consider the impact if the Court had not held that the federal government rule was to be superior.Would there be uniformity of laws? Would one be able to engage in interstate travel secure in the knowledge that they are protected by uniform standards of law?
Having sufficiently addressed the issue of whether or not the Court actually had jurisdiction to hear Gideon’s claim, we now turn to some of the procedural hurdles that Gideon must have cleared before the Court could address his claim.The foremost issues, as they pertain to Gideon, were (1) whether he exhausted his possible state remedies and (2) whether he had followed procedures generally applicable in the state courts.The Exhaustion Rule, as it is known, is intended to prevent premature ruling by the Court before a case ran its course through the state court system.However, the Exhaustion Rule should be understood to be an explicit prohibition against the Court from reaching into the lowest levels of the state court system to right a wrong.As Lewis states, the Court did just that in the 1960s when “Shuffling Sam” Thompson brought his claim.In Thompson’s case, Kentucky law prohibited appeal to state court for fines under twenty dollars.Thompson brought his case to the Court where his conviction was overturned.Generally speaking, the Court will waive procedural errors committed by a petitioner if state courts agreed to decide the federal question even though there was a procedural error.
Beyond these general conditions for hearing cases, the Court has developed other conditions that a case must satisfy prior to cert being granted.First, a petitioner to the Court must have standing. In short, the petitioner, his or herself must have suffered “the” injury.The Court will not issue advisory opinions.
Gideon’s case satisfied each these conditions.
With the passage of the Judges’ Bill of 1925, the Court was allowed almost unilateral control over the cases it would hear.Thus, Gideon had satisfied the procedural conditions of the Court, but “the ball was in the Court’s corner” to decide whether they would actually hear the case.In order to petition the Court for a hearing, one generally files a writ of certiorari.Granting cert, as it is known, is not a mysterious process.In fact, it simply means that the Court is willing to hear the petitioner’s claim.More than 90 percent of the cases that the Court hears come in the form of cert.However, there are certain classes of cases that have an absolute right of appeal.An example of such a class is antitrust cases brought by the government and decided in federal district court.
The reasons why the Court denies cert are unknown. The Court does not provide its reasoning to the public.They simply state that the case lacks a substantial federal question.Furthermore, one can draw no inferences as to how the Court might have ruled in the case on the basis of denial of cert.As Justice Brennan stated, “[v]ery often I have voted to deny application when I thought that the [lower] court’s result was very wrong” (29).
The Court’s decision to grant cert to Gideon was one of timing and strategy, according to Lewis.Since the “special circumstances” rule had been established in Betts, the Court had struggled with its interpretation.However, there were also problems which still confronted abandoning in a drastic fashion the standard of Betts.Would a new rule be retroactively applicable? What would be the impact on the Court of changing its opinion so drastically?
Chapter addresses in more detail how the Court decides which cases to bring before it and the actual procedure of getting the case before the Court.Within the Court, there is no hierarchy.Each justice holds equal power in the process of deciding which cases will be granted cert.Although the Court receives thousands of petitions for cert, the petitions are not divided up amongst the justices.Each justice reviews each petition.
The formal procedure by which a writ of certiorari is handled is as follows.In a “normal” petition for cert, petitioner is required to provide 40 copies of his petition.Respondent is required to file a brief in opposition within 30 days.The Clerk’s Office holds petitioner’s brief until a brief in opposition is received.Once both sides’ briefs are received, they are distributed amongst the justices.Most justices then allow their clerks to summarize the issues of the case.(This has led critics to claim that clerks often have too much influence on the Court.)Law clerks also assist the justices in research and may draft documents for the justices.
The formal or “normal” process described thus far, however, is not applicable to Gideon’s case.Remember, Gideon’s case was an in forma pauperis petition.In forma pauperis petitions are exempted from such formalities as the printing requirements.Only about 3 percent of in forma pauperis petitions are granted, as compared to about 13 percent of normal cert petitions.Gideon had mailed a copy of his petition, as required by the rules of the Court, to H.G. Cochran, Jr., who was the named respondent in his case and the head of the Florida prison system.The state of Florida did not respond within the required 30 days to Gideon’s claim, and, thus, Gideon’s petition was circulated without Florida’s brief.On February 8, 1962, Gideon’s petition was sent to the office of Chief Justice Earl Warren (37).
The law clerks for the Chief Justice, of which there are 3 only for the Chief Justice, review in forma pauperis petitions.If the clerks believe that a petition presents an interesting question, they may bring this to the attention of the Chief Justice even before petitioner’s briefs are circulated amongst the other justices.The Chief Justice may then request a response from petitioner on the particular issue.This process occurred in Gideon’s case and the Attorney General of Florida, Richard Ervin, was sent a letter requesting his response to Gideon’s claim.
On April 9, 1962, the Court received a response from an Assistant Attorney General of Florida, Bruce R. Jacob, in regard to Gideon’s claim.Jacob’s response was founded upon one basic claim: Gideon was not entitled to representation by an attorney at his trial because Gideon had not shown “special circumstances,” as required by Betts v. Brady.Jacob appeared to assume that Betts was a constitutional principle etched in stone.Gideon then responded to Jacob’s brief.Gideon’s reply reiterated the claim he made initially: the absence of representation at his trial meant that he had been denied a fair trial.Gideon also included a sentence that cut to the heart of the Betts Rule, whether intentionally or not: He said, “[i]t makes no difference how old I am or what color I am or what church if I belong too if any” (40).
Upon receipt of Gideon’s reply, Gideon’s petition was put on the conference schedule where it would be decided if the Court would, indeed, hear his claim.Conference discussions are conducted in secrecy; however, generalities are known.In the conference, issues of interest are presented in order of seniority.Votes are conducted from the most junior members to the most senior members.In conference, it takes only 4 votes to grant cert.On June 1, 1962, the Court decided that they would hear the case of Gideon v. Cochran and decide if “this Court’s holding in Betts v. Brady, 316 U.S. 455, [should] be reconsidered” (44).
Lewis addresses the appointment of Gideon’s counsel before the Court in Chapter 4.Of course, Gideon’s counsel was no amateur in matters involving the Court. Gideon’s counsel was Abe Fortas (pictured at left).Lewis provides a great deal of background regarding the “special” lawyers that are often appointed to represent indigents.For the task at hand, suffice to say that the lawyers appointed to represent indigents are usually the crème de la crème.Furthermore, the top lawyers that are appointed do not receive compensation for their services.They simply act out of a sense of duty.
For an indigent to receive legal assistance provided by the Court, the indigent must be willing to request assistance from the Court. In the case of Gideon, this was no problem.He readily wrote a letter requesting the provision of an attorney.As for the decision as to who shall represent the indigent, as in most other matters before the Court, the Court itself decides.
Lewis goes into a great deal of describing Fortas, which I shall not do hear.In class, we have discussed the “Washington lawyer.” Well, if ever there was a lawyer who represents the quintessential example of a “Washington lawyer,” it is Abe Fortas.Fortas worked in the firm of Arnold, Fortas, and Porter of Washington.In his work, he acted, just as we have described, as an intermediary between the private sector and the governmental sector, primarily advising industry as to how they may stay within the parameters of the law and, yet, maximize their “well-being.”However, Fortas also held a keen interest in criminal law.
The shaping of the argument to be presented to the Court is largely a discretionary decision by counsel.In Gideon’s case, Fortas faced a difficult decision: would he use Gideon’s case as an attempt to overturn a previously established constitutional principle, the Betts Rule, or would he attempt to reverse Gideon’s conviction within the “special circumstances” rule of Betts?Fortas’s first step in making this decision was to obtain the transcripts of the lower court trial of Gideon.
Chapter 5 begins by recounting Gideon’s original trial.For brevity’s sake, one should simply understand that Gideon was not well versed in the actions of a lawyer at trial.Gideon appeared to understand the procedure and the general tasks he was to undertake.As Fortas reviewed the transcripts, it was clear to him that Gideon had not addressed witnesses and certain legal principles effectively.However, Gideon’s case would not fall under the purview of the Betts Rule.As Lewis states
[w]hen that transcript was read at Arnold, Fortas, and Porter, there was no longer any question about the appropriateness of this case as the vehicle to challenge Betts v. Brady.Plainly Gideon was not mentally defective.The charge against him, and the proof, were not particularly complicated.The judge had tried to be fair; at least there was no overt bias in the courtroom.In short, Gideon had not suffered from any of the special circumstances that would have entitled him to a lawyer under the limited rule of Betts v. Brady.And yet it was altogether clear that a lawyer would have helped.The trial had been a rudimentary one, with a prosecution case that was fragmentary at best.Gideon had not made a single objection or pressed any of the favorable lines of defense.An Arnold, Fortas and Porter associate said later: ‘We knew as soon as we read that transcript that here was a perfect case to challenge the assumption of Betts that a man would have a fair trial without a lawyer.He did very well for a layman, he acted like a lawyer. But it was a pitiful effort really.He may have committed the crime, but it was never proved by the prosecution.A lawyer—not a great lawyer, just an ordinary, competent lawyer—could have made ashes of the case.(64-5)
The remainder of this chapter describes correspondence between Fortas and Gideon.I do not find the historical sketch of Gideon’s life particularly helpful in understanding the case. However, in one of Gideon’s letters to Fortas he wrote something that I found quite prophetic (and extraordinary, to say the least).Gideon said
I have no illusions about law and courts or the people who are involved in them.I have read the complete history of law ever since the Romans first started writing them down and before of the laws of religions.I believe that each era finds a improvement in law each year brings something new for the benefit of mankind.Maybe this will be one of those small steps forward… (81)
No, Gideon’s grammar is not flawless, but he could not have been more “on-the-mark” than to suggest that his case might be one of the giant leaps forward in the progress of law.
Chapter 6 provides an excellent review of methods of judicial, particularly those employed by Justices Black (constitutional absolutism) and Frankfurter (judicial self-restraint).
Lewis’s objective in this chapter is to provide the reader with some idea of the difficulty that a justice faces each time he is forced to decide a case.Gideon had lodged his complaint as if there was no precedent in the area of right to counsel.Gideon had made no reference to Betts, but the Court could certainly not ignore the presence of Betts in making its decision.At the crux of the issue which Lewis raises in this chapter is judicial review.The principle of judicial review has been accepted; however, the method about which method of judicial review should be used is still very much in question.
As previously stated, Justice Frankfurter supposedly employed the judicial self-restraintist mode of judicial review.According to this model, the Court is to defer to the legislature and the states in its decision-making.Frankfurter expressed “apprehensiveness” about the Court interjecting its wisdom over that of the popularly elected legislature. (As an aside, Justice John Marshall Harlan is probably a purer embodiment of this mode of interpretation that Frankfurter.)
In a stark contrast to Frankfurter, Justice Black’s method of interpretation held the Constitution’s provisions as “absolute” truths inviolable by the legislature.From this view, Justice Black did not have trouble overturning an act of the legislature that ran afoul of a Constitutional provision.
However, as Lewis describes, the differing modes of interpretation employed by Frankfurter and Black are not always logically consistent.Frankfurter did not show deference in striking down the constitutionality of wiretapping and the provision of public funds to parochial schools.Justice Black did not act to strike down such actions as unconstitutional.
As Abe Fortas began formulating his argument for the Court, he realized that for a justice like Frankfurter overturning the precedent of Betts would not be a simple task.As a judicial self-restraintist, Frankfurter usually held that the Court’s opinions were to be made under the guise of stare decisis.(A literal translation of stare decisis is “to stand by what has been decided.”)However, Frankfurter was not absolute in conforming to precedent.For instance, he voted to overturn the “separate but equal” doctrine proscribed in Plessy v. Ferguson (1954) in the case of Brown v. Board of Education of Topeka.For the reasons previously stated, Fortas felt that he would not face similar difficulties in convincing Justice Black to join his argument.
Beyond precedent, the issue of federalism also presented a difficulty in Gideon’s case.Federalism has been an issue of utmost importance for the Court ever since its momentous decisions in McCulloch v. Maryland, in which the Court held that the federal government’s power to create a bank was superior to the states’.Relevant to Gideon’s claim was Frankfurter’s belief that the federal government should not impose upon the states to protect individual liberties.Justice Black had little of the same resistance.
At the crux of the considerations Fortas was making in regard to the views of Justices Black and Frankfurter was the issue of incorporation.(list of different views 94-99).
The primary purpose of Chapter 7 is to provide the reader with greater insight as to who Clarence Earl Gideon actually was.
Clarence Earl Gideon probably had no idea what concepts such as incorporation and stare decisis represented.However, Gideon did have a fairly clear idea of the extraordinary importance of his claim.Gideon said, “[i]n Betts versus Brady they were trying to allow ‘em their states’ rights.They gave the state courts discretion.They just say no.They talk about states’ rights.I think there’s only one state—the United States.”
Gideon had supposedly committed the crime of breaking and entering and larceny at Bay Harbor Poolroom in June of 1961.Gideon lived in Bay Harbor Community, which is just outside of downtown Panama City, Florida.Gideon had been a model prisoner, and he often helped other prisoners in their legal claims.
Lewis provides an in-depth look at the prejudice Gideon felt that he had received in the Florida justice system.According to Gideon
I don’t know if you’ve ever been in one of these courtrooms, but the prejudice is obvious.In this state—except for Dade County [Miami], in Dade County they go by the books—they just run over people who have nothing.I’ve never taken the witness stand in this case, nobody knows what I’d say.Without a lawyer, the criminal record I had, what I’d have said they’d never have paid any attention to. (104)
In Chapter 8, Lewis provides a synopsis of major events regarding the right to counsel prior to Gideon’s claim.I shall review the complexity of the law that Lewis describes.I presume that everyone reading has recognized the complexity of the law, and the inherent difficulty an intelligent man, much less a layman, would have in defending himself.So, I turn to Lewis’s historical account.
For the sake of brevity, it suffices to say that the adoption of the Sixth Amendment in the Bill of Rights was, in all probability, not intended to apply to the states. The Sixth Amendment was intended to protect the individual from unguarded persecution by the federal government.
In American case law, the right to counsel presents an interesting example of how constitutional doctrine evolves slowly and methodically case-by-case over time.The first major case Lewis examines is the 1932 case of Powell v. Alabama (also the Scottsboro Case).In Powell, the Court held that indigents were entitled to counsel in capital cases.(In the Scottsboro case, the Court scolded the lower court for implying that counsel appointed the day of trial was even counsel, as if such a counsel could be expected to act effectively.)
The second major case Lewis examines is Johnson v. Zerbst.In Zerbst, the Court carried its decision in Powell to its logical conclusion and made the provision of appointed counsel applicable to all federal prosecutions.I will not indulge into the background that Lewis provides.
Lewis also reviews the Court’s holding in Betts v. Brady (which I will not given the prominent role it has taken both earlier in my discussion and in our class discussions).Just remember that the Betts Rule was a flexible one that ultimately showed an extreme bias against defendants in practice.The Court’s decision in Betts is infamous for the “fundamental fairness” doctrine (which appears to be an adaptation of Justice Cardozo’s “selection incorporation” view).
In most cases, the state possesses an enormous advantage in seeking the prosecution of a person.This was the case for Gideon throughout the trial and appellate process.However, this trend came to an abrupt halt when Gideon was appointed Fortas as his counsel before the Court.In comparison to the tremendous resources of the firm Arnold, Fortas, and Porter, the state of Florida’s staff devoted to this case was minimal, at best.
Bruce Robert Jacob, an assistant attorney general for Florida, had taken responsibility for the case since Gideon began the appellate process.Lewis goes into a great amount of detail providing background into Jacob.I do not think that the background is necessary for our purposes.Instead, it is adequate to note that Jacob was an extremely busy fellow that, needless to say, did not devote his full attention to Gideon’s case.However, there were some very interesting aspects of the case that evolved out of Jacob’s preparations for the case.
One critical development occurred when Jacob attempted to solicit amicus curiae briefs from other states.Jacob hoped to elicit support from other attorney generals around the United States.As it turned out, his decision to write other attorney generals for support was a terrible blunder, especially after the Minnesota attorney general Walter F. Mondale found out about Jacob’s stance on the issue of right to counsel.Mondale began his own campaign for amicus curiae briefs urging the overturning of Betts.Ultimately, Mondale gained support from 23 states; Jacob received support from only 2 states, Georgia and North Carolina.
By the time that argument neared, it had become clear to Jacob that the tide of the Court was turning against him.As if things could not get worse for Jacob, on August 28, Justice Felix Frankfurter (at right) retired.
Chapter 11 deals with the presentation of arguments before the Court.
Chapter 12 serves a simple task in the context of Gideon v. Wainwright.It describes the decision writing process, whereby a justice is assigned the duty of writing the opinion by the Chief Justice (if the Chief Justice is in the majority) or by the most senior member of the majority, and the chapter also describes the actual opinion of the Court, as issued by Justice Black.
In Chapter 13, Lewis confronts, what I believe is the reality of the Gideon ideal.Ultimately, defendants need more than mere counsel. They need effective counsel.However, in the search for effective counsel, one must confront the gruesome reality of limited financial resources.Lewis discusses various studies commissioned before and after the Gideon ruling that point to the lack of resources being funneled to indigent defenders.I take it that most readers will find it no surprise that the F. Lee Bailey’s and Johnny Cochran’s of the world do not rush out to defend clients who are unable to pay them.
However, Lewis does note that, after the Court’s ruling in Gideon, action was taken with surprising quickness.After Gideon numerous states, including Florida, acted through their legislature to provide more financial resources to indigent defenders.Also, Florida courts acted retroactively to enforce the rule of Gideon.
Lewis uses Chapter 14 to make a general statement about the role of the Court in American society.He argues that the Court both reinforces the values of society and shapes the values.I do not feel it worth to effort to examine the examples he discusses because they are implied above.In short, he mentions the effect of the absolute principle of Powell v. Alabama (1932) as an especially important example.
Yes, Gideon was retried and found innocent.However, the actual process of trying Gideon again was in no way so simple.Gideon himself raised yet another constitutional: Gideon thought that being retried for the same crime was in violation of the Fifth Amendment’s protection against double jeopardy.The Florida trial court readily dismissed such claim.The foremost problem at Gideon’s retrial was who would represent him.
Soon after the Supreme Court’s ruling, Abe Fortas wrote to Gideon suggesting the he had arranged for an attorney, Tobias Simon, of the Florida Civil Liberties Union (a unit of the ACLU) to represent Gideon.Gideon, however, would not allow Simon to represent him.In fact, at trial proceedings, Gideon rejected the presence of Simon and, ultimately, the trial judge dismissed Simon.Finally, Fred Turner was appointed to take Gideon’s retrial, which he was able to complete successfully.
Page composed by Ben Sessions