CLARENCE EARL GIDEON, PETITIONER, NO.
155
Vs.
H. G. COCHRAN, etc., RESPONDENT
Washington, D. C.
January 15,1963
The above – entitled
cause came on for oral argument, pursant to notice,
BEFORE:
EARL WARREN, Chief Justice of the United
States
HUGO L. BLACK, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
THOMAS C. CLARK, Associate Justice
JOHN M. HARLAN, Associate Justice
WILLIAM J. BRENNAN,
JR., Associate
Justice
POTTER STEWART, Associate Justice
BYRON R. WHITE, Associate Justice
ATHUR J. GOLDBERG, Associate Justice
PROCEEDINGS
THE COURT: No. 155, Clarence Earl Gideon, petitioner,
versus
H. G. Cochran, Director, Division of
Corrections.
Mr. Fortas.
ORAL ARGUMENT BY ABE
FORTAS,
BY APPOINTMENT OF THE
COURT,
370 U.S. 932, ON BEHALF OF
PETITIONER
MR. FORTAS: Mr. Chief Justice, may it
please the Court, this case is here on writ of certiorari to the Supreme Court
of the State of Florida. In issuing the writ of certiorari, this Court expressly
requested counsel to discuss the following question: Should this Court’s holding
in Betts versus Brady, 316 U.S. 455, be reconsidered?
The question, of course, is the right of accused in State criminal proceedings
to the appointment of counsel. Specifically in the present case which you have
before you, the question is an exceedingly narrow one.
The question in the present case is
whether requests being made by the accused that counsel be appointed to him, the
accused being concededly indigent, it is the duty of the State to accede to that
request and to appoint counsel for purposes of assisting the accused in the
trial of the case. In other words, the present case involves a trial, a plea of
not guilty; it involves a felony. And that is the narrow question that this case
presents.
Clarence Earl Gideon was convicted by
the State of Florida for the violation of a statute which makes it a felony,
unlawfully and feloniously, to break and enter the building of another with
intent to commit a misdemeanor. He was charged with breaking and entering the
Bay Harbor Poolroom in Panama City, Florida. And having broken and entered that
poolroom, he is charged with having extracted some wine, perhaps some
cigarettes, and a sum of money. There is no evidence in the record as to the
amount, but the amount must have been less than $100 because the statute of the
State of Florida defines petty larceny as the taking of goods or money in an
amount less than $100.
At the commencement of the trial, the
court asked Clarence Earl Gideon if he was ready to proceed; he said he was not.
He said he was not because he was without funds and without counsel; and he
asked the court to appoint counsel to represent him.
As you will see on page 2 of the
petitioner’s brief, the court replied that he could not appoint counsel to
represent a defendant in a noncapital case. Whereupon, the case proceeded to
trial, with Clarence Earl Gideon doing what he could—
THE COURT: Mr. Fortas, could you excuse
me.
MR. FORTAS —doing what he could to
defend himself. Yes, Mr. Justice?
THE COURT: There is some question
whether or not we have before us the trial transcript. But it really doesn’t
make any difference, does it, because these were the allegations of his habeas
corpus—
MR. FORTAS That’s
correct.
THE COURT: -application in the State of
Florida. They don’t— there’s no variance between them and this copy—
MR. FORTAS No, that’s correct. You will
also see on page 2 of petitioner’s brief in the footnote that the State of
Florida concedes that the allegations in the habeas corpus petition are true:
namely, that petitioner was without funds and without an attorney at the time of
trial; that he requested the appointment of counsel and that the trial court
failed to appoint counsel. You will see that quoted on page 2 of our
brief.
THE COURT: So that we have the same
case here, whether the transcript is before us or not, don’t
we?
MR. FORTAS That is, that is my view,
yes. I must say, Your Honor, that it was at my request. The transcript was not
before the Supreme Court of Florida. I was coming to that in a
moment.
After Gideon—and let
me state it this way: After Gideon was convicted and sentenced, several months
later he sent a petition for a writ of habeas corpus to the Supreme Court of the
State of Florida—which appears in this transcript. That petition cited no
special circumstances; it made the bald, bare claim that Gideon was entitled to
counsel as a constitutional matter and that the trial court refused to appoint
counsel for him. And on that basis, Gideon asked that he be released. The
Supreme Court—there were no supporting affidavits, there was no supporting
information, there was no supporting trial transcript. Gideon—the Supreme Court
of Florida denied the writ and dismissed the petition; and they dismissed it
without opinion without hearing or without reference for the taking of testimony
whatever. And it’s from that denial that the case is here on Gideon’s
application, per se, for a writ of
certiorari. Accordingly, the record before the Supreme Court of Florida consists
of nothing except Gideon’s old application for a writ of habeas
corpus.
After the case came to
this Court and this Court granted the writ of certiorari, I, as counsel for Mr.
Gideon, requested the Clerk of this Court to ask the Florida trial court to
certify the transcript here. I did that because I thought that the transcript
should be here, that the Court should be, this Court should be completely
informed as to what had happened.
The attorney general
of Florida filed a motion to deny my request that the transcript be sent to this
Court. That motion was—the attorney general’s opposition was turned down by this
Court; my motion was granted, and the transcript was sent up from the trial
court directly to this Court. The attorney general of Florida now takes the
position that the transcript is not properly before this Court. We disagree, but
for reasons that I shall come to, we do not believe that makes any difference,
whether the transcript is here or not. We believe that Betts against Brady is properly raised in this case
and must unavoidably be considered. The reason for that is that I see no basis,
or I do not see an adequate basis for an argument that special
circumstances exist in this case. And I will come to that in more length in a
moment.
Let me say this, if
the Court please: If you will look at this transcript of the record, perhaps you
will share my feeling, which is a feeling of despondency. This record does not
indicate that Clarence Earl Gideon is a man of inferior natural talents. This
record does not indicate that Clarence Earl Gideon is a moron or a person of low
intelligence. This record does not indicate that the judge of the trial court in
the State of Florida, or that the prosecuting attorney in the State of Florida,
was derelict in his duty. On the contrary, it indicates that they tried to help
Gideon. But to me, if the Court please, this record indicates the basic
difficulty with Betts against Brady. And the basic difficulty with Betts against Brady is that no man, certainly no
layman, can conduct a trial in his own defense so that the trial is a fair
trial.
THE COURT: Well, Betts and Brady did not proceed on that basis; it
did not deny the obvious. Obviously, a man who is not represented is not as,
hasn’t had as good a shake in court as the man who is represented. Betts and Brady didn’t go on any such basis as
that.
MR. FORTAS: Are you
suggesting, Mr. Justice Harlan—which I believe to be the case—that the real
basis for Betts against Brady is the following: That a man does
not get a fair trial if he is not represented by a lawyer, but that the demands
of federalism overweigh the absence of a fair trial?
THE COURT: That’s what
I understood the basis of Betts and
Brady to be,
yes.
MR. FORTAS: I read it
as indicating both; but of course, we must remember in reading Betts against Brady that Betts against Brady was—involved a trial before a very
distinguished jurist, Judge Bond of Maryland, and it did not involve a jury
trial. But it’s interesting, after all these years, Mr. Justice Harlan, to read
the recent article by Professor Kamisar of the University of Minnesota in which
even in Betts against Brady, even in that case, tried to a
judge alone and not to a jury, and tried before a very distinguished judge, the
record, the transcript of record, as Professor Kamisar shows, is replete with
error. And the case that he makes is an entirely convincing case to me, just as
in Gideon’s case. There is error in this transcript; there’s error in most
criminal trials, I think we all know it, even when lawyers are present. There’s
error in this transcript. But I suggested in my brief, and I hope it’s not a
gross overstatement, that to say that this transcript distinguishes this case
from the run of criminal trials is like trying to distinguish between Tweedle
Dum and Tweedle Dee. And I believe that. I believe that this case dramatically
illustrates the point that you cannot have a fair trial without counsel. Indeed,
I believe that the right way to look at this, if I may put it that way, is that
a court, a criminal court is not properly constituted—and this has been said in
some of your own opinions—under our adversary system of law, unless there is a
judge and unless there is a counsel for the prosecution and unless there is a
counsel for the defense. Without that, how can a civilized nation pretend that
it is having a fair trial, under our adversary system, which means that counsel
for the State will do his best within the limits of fairness and honor and
decency to present the case for the State, and counsel for the defense will do
his best, similarly, to present the best case possible for the defendant, and
from that clash there will emerge the truth. That is our concept, and how can we
say, how can it be suggested that a court is properly constituted, that a trial
is fair, unless those conditions exist.
Someone
said—
THE COURT: Well, it
isn’t quite so simple as that, because there are concepts in the Federal system
apart from the Sixth Amendment. We would consider that a man in a felony case
hadn’t had a fair shake if he wasn’t tried before a jury. And I suppose the
State could do away with the jury trial and you wouldn’t say this trial was
inherently unfair, would you?
MR. FORTAS: That’s
right, and that’s what I want to get to, Mr. Justice.
THE COURT: I think
you’d have to argue this on the basis of Federalism.
MR. FORTAS: I
appreciate that, and I am happy if we can clear the debris, if I may say so, so
we can understand exactly what is at issue here. And I just want to say and to
nail this, if I may, that we are not and we cannot, as I think this colloquy has
disclosed, Mr. Justice Harlan, proceed on the assumption that there is any such
thing as a fair criminal trial where the defendant is not represented by
counsel.
And now I would like to get to the
question of federalism.
THE COURT: Well, this
federalism that Justice Harlan mentions implicit, I gather, in all that we have
written. I believe I have read all of them; have written some of them. I don’t
know if anyone has—any member of this Court has come out and said in so many
terms it’s the constitutional right of a State to provide a system whereby
people get unfair trials.
MR. FORTAS: Well, Mr.
Justice Douglas—
THE COURT: I don’t
believe that suggested that; I don’t suppose—
THE COURT: I thought
that’s what we were talking about, isn’t it.
MR. FORTAS: Well, Mr. Justice Douglas,
I—
THE COURT: I mean, if a person can’t
have a fair trial without a lawyer, and this is a problem of federalism, you
come down to how a State has a constitutional right to provide a system that
perpetuates unfair trials.
MR. FORTAS: Mr.
Justice Douglas, it seems to me that perhaps he propo—I would state the
proposition this way—and I do believe that it is a proposition that proves
itself: That is to say, the Fourteenth Amendment requires a fair trial. You
cannot have a fair trial unless the defendant has counsel. Now, the Q.E.D. to me
is so obvious that I can’t escape from it, and I can’t escape from it by saying
that the Q.E.D. does not follow because of a principle of federalism. We start
with the proposition that the Fourteenth Amendment requires a fair trial, and we
say that the defendant in criminal proceeding cannot get a fair trial unless he
has counsel, and it seems to me to follow without any possible escape hatch that
he’s got to have a fair trial, but I think—I may be wrong about this, but I do
believe that in some of this Court’s decisions there has been a tendency from
time to time, because of the pull of federalism, to forget, to forget the
realities of what happens downstairs, of what happens to these poor, miserable,
indigent people when they are arrested and they are brought into the jail and
they are questioned and later on they are brought in these strange and awesome
circumstances before a magistrate, and then later on they are brought before a
court; and there, Clarence Earl Gideon, defend yourself. Apply the doctrine of
Mapp against Ohio; construe this statute of the State
of Florida which says that breaking and entering with intent to commit a
misdemeanor is a felony. You should know, Clarence Earl Gideon, that the State
of Florida, the Supreme Court of the State of Florida, has construed this
statute and it has made available to you various defenses. Well, then, how can
Clarence Earl Gideon do it?
I was reminded the
other day as I was pondering this case about Clarence Darrow’s trial. The Court
will remember that Clarence Darrow was accused and subsequently acquitted of
attempting to bribe jurors and subordination of perjury. And I looked at Irving
Stone’s book; Irving Stone’s book says that the first thing that Clarence Darrow
realized was that he had to have a lawyer. Here was a man who by our folklore,
anyway, and I think perhaps really was our greatest criminal lawyer, he needed a
lawyer. He got a lawyer. He was eventually acquitted.
But I think that in
some of the Court’s opinions, if I may say so, Mr. Justice Harlan, this element,
this failure to remember what happens downstairs, has crept in. Not because of
an insensitivity of the judges but because of the understandable pull of
the sensitivity about the States’ old jurisdiction. And that’s why I want to
analyze that. I don’t think that it stands the test of logic, and I don’t think
that the argument of federalism here is either correct or soundly founded or
stands the test of experience, and that’s what I want to come
to.
Now, first—
THE COURT: “Understandable sensitivity”
to describe a basic principle of our Government doesn’t seem to me to be a very
happy expression.
MR. FORTAS: Well, I’m
sorry, sir. I meant that a regard, which I myself share, for the principles of
federalism. But I believe that those principles are misapplied here. First, they
are misapplied, if I may respectfully say so, when they are used for the purpose
of negating a Fourteenth Amendment right to a fair trial. Secondly, they are
misapplied here because a true regard, in my judgment, Mr. Justice Harlan, for
federalism here means that this Court will lay down a principle, will establish
a principle, and that this Court will not exercise the kind of minute, detailed,
ex post facto supervision over State
court trials that you have been exercising for these past years and which, in my
opinion, is the most corrosive possible way to administer our Federal-State
system. And that, it is—I should like to restate that very simply and very
plainly, Your Honors: I believe that Betts against Brady does not incorporate a proper
regard for federalism. I believe that Betts against Brady, laying down as it does the
principle of case-by-case supervision by the Federal courts of State criminal
proceedings, is antithetical to federalism. Federalism requires, in my judgment,
if Your Honors please, that the Federal courts should refrain so far as possible
from intervention in State criminal proceedings. And certainly, where
intervention is necessary because of a constitutional principle, that that
intervention should be exercised in the least corrosive, the least abrasive
fashion possible.
Now, let’s take a look
at that.
In Betts against Brady, we have to start back with that
magnificent opinion, magnificent decision and opinion of this Court written
by Mr. Justice Sutherland in Powell
against Alabama, in the
Scottsboro case, when Mr. Justice Sutherland’s opinion makes it perfectly clear
that the correct principle in capital cases is that a State court cannot conduct
a criminal proceeding without providing counsel for the accused. Now, this Court
has said that that is a flat rule; that in capital cases this Court does not
stop to inquire whether there are special circumstances: counsel must be
appointed for the accused. That was in 1932.
In 1938, along came Johnson against Zerbst, in which this Court construed
the Sixth Amendment to require the appointment of counsel for indigent accused
in all Federal criminal proceedings.
Then, in 1942, Betts against Brady came to this Court. And in Betts against Brady, this Court, in an opinion by Mr.
Justice Roberts held that the Fourteenth Amendment would not be construed to
require that the States appoint counsel for the accused in all criminal cases
where the accused is not able to afford counsel, but that counsel would be
required as part of the Fourteenth Amendment’s requirement of a fair trial only
when there were special circumstances or, to quote the Court’s words, “only
where there has been a denial of fundamental fairness shocking to the universal
sense of justice,” which, according to the Court, required something more than
the mere absence of counsel.
All right, what has
happened in the years since Betts
against Brady? I have read, I
think—I’m sure I have read all of the cases that have come to this Court; I’ve
read a great many of the State cases and the lower Federal court cases, as many
as I could find. It is a fascinating inquiry, a fascinating inquiry. In the
brief filed by the American Civil Liberties Union here, which is represented by
my brother Mr. Rankin, they have examined 139 State cases, reported cases. They
say that they have found only 11 cases in which the State apellate courts found
special circumstances under Betts
against Brady. Contrast that with
what’s happened in this Court. Take a look, as—I beg your pardon. As I have read
the opinions of this Court, I hope I may be forgiven for saying that my heart
has been full of compassion for the judges who during these years have had to
review and pass on these cases. Most of the time, of course, this Court has said
there are special circumstances. Sometimes a majority of this Court, usually a
bare majority, has found that there were not special
circumstances.
THE COURT: How long
has it been since we’ve failed to find special circumstances? I think I’m right
in saying that in the four and a half terms that I’ve been here, we’ve always
found special circumstances in any case—
MR. FORTAS: I think
you’re right, sir. I’d like to check this, but I believe the last case in which
you failed to find special circumstances was—
THE COURT: One of
those Michigan cases?
MR. FORTAS: It was Quicksall, I
think.
THE COURT: Well, it’s not very
important, but I think I’m right in the comment I made.
MR. FORTAS: Yes,
sir.
THE COURT: In my
recollection.
MR. FORTAS: Now, of
course this is wrong, and it’s wrong as a matter of federalism, because what
happens is the following. Let’s take a look at it. A defendant is arraigned. How
can a judge, looking at the defendant, decide whether there are special
circumstances in his case? Does the judge look at this defendant and say: You
look stupid; you look as if you’re a moron. Does he have a mental examination of
him at the time? Does the judge, does the judge or the magistrate before whom
these defendants are arraigned on a typical day in court take a look at the
crimes with which they are charged and say: Now this one involves complicated
questions of intent, so I think that at the trial you’re going to need a
counsel. Now your case, the crime that you’re charged with doesn’t look to me to
be so complicated, so I don’t think you’re going to need counsel. Now that’s at
arraignment; then you go to trial and the defendant, the accused man has pleaded
not guilty. And the judge that’s sitting on the bench, he’s hearing a lot of
these cases. How is he going to decide at the beginning of the case whether
there are special circumstances within the criteria laid down by this Court? The
interesting thing, too, according to the study made by the American Civil
Liberties Union, they have not encountered a single case in the State courts in
which the trial has been stopped in midstream and the court has said: There are
special circumstances here and you’d better have a lawyer, because it looks to
me that you’re not brighter than Clarence Darrow, or you’re a moron and you
can’t really defend yourself. You just don’t correctly understand the hearsay
rule and I’m going to appoint you counsel. The whole point is just totally
unadministerable. [Inaudible]’
THE COURT: Practically
all the States have recognized that’s so.
MR. FORTAS: Yes, sir,
and there are 37 states now—
THE COURT: And they’ve
done that under a line of decisions in this Court which, at least so far, would
have permitted an opposite conclusion.
MR. FORTAS: Well, I
don’t believe they’ve done it so much under the decisions of this Court, Mr.
Justice Harlan, I’m sorry to say. I believe that they have done it because of a
growing conscience and growing awareness on the part of the Bar, stimulated by
the opinions of this Court. But the decisions of this Court—and this is
precisely my plea, here—the decisions of this Court are still struggling with
this impossible question of: Do special circumstances exist in this case or
don’t they? Whereas the Bar and the States are far beyond that
point.
No. There is a brief
amicus here, a remarkable document,
filed by the attorneys general of 22 States urging this Court to overrule Betts against Brady. It is filed here; I am proud of
our country that we have this. It was not solicited by counsel for Cochran or by
counsel for Gideon or anybody associated with him, and I am proud that it is
here. It is a fine document. If you will look at that document at page—I don’t
find it here— [Inaudible].
MR. FORTAS: All right; thank you. The
attorneys general point out to this Court that the rule of Betts against Brady is an unadministrable rule. I call
your attention to page 17, at the bottom of the page—
THE COURT: What brief is
that?
MR. FORTAS: That is
this brown brief, Mr. Justice Black, brief for the State governments, amici curiae.
At the bottom of page 17, it says: “But
it is difficult to comprehend how, as a practical matter, a trial judge can do
this”—that is, to apply Betts against
Brady—”with the degree of consistency presupposed
by a judicial determination, placing the onus of such decisions upon him. In the
first place, in a felony case, it is highly unlikely that there is one trial
judge as such; different judges may preside at the arraignment, at the grand
jury session, possibly at pretrial motions, if any, and at the trial itself. How
can the judge in the arraignment session anticipate what is to come up in trial?
How is the trial judge to know what crucial matters transpired at the
arraignment which thenceforth require counsel?” And so on.
Now, if the Court please, there’s one
aspect of this brief amicus curiae to
which I want to call your particular attention. There are three States whose
attorneys general have subscribed to this which do not by law or court rules, so
far as we can find out, require the appointment of counsel in all felony cases.
Those three States are Hawaii, Maine and Rhode Island.
THE COURT: I thought
Colorado was—[Inaudible]
MR. FORTAS: Colorado
has recently adopted a rule of court—
THE COURT:
Oh.
MR. FORTAS: That is cited—
THE COURT: I see Colorado on both
lists, and that’s the reason I wondered—
MR. FORTAS: That is cited in our—
THE COURT: —since Colorado is one of
the 22 here.
MR. FORTAS: Yes; that’s cited in our
brief.
THE COURT:
[Inaudible]
MR. FORTAS: I beg your pardon,
sir?
THE COURT:
[Inaudible]
MR. FORTAS: That’s correct; yes, sir. I
don’t know the circumstances, Mr. Justice Black.
THE COURT:
[Inaudible]
MR. FORTAS: That’s
right.
THE COURT:
[Inaudible]
MR. FORTAS: Yes,
sir.
THE COURT:
[Inaudible]
MR. FORTAS: That’s
correct, yes, sir.
Sir, I believe the
fact of the matter is this: I think that we can confidently predict, we can
confidently say, that overruling Betts
against Brady at this time is
acting in accordance with the common opinion of those citizens of our country
who are qualified to have an opinion. That’s not always the case with respect to
great constitutional changes. I think with respect to this one that is the case,
and that—you will remember that in Betts
against Brady, this Court placed
some emphasis upon the fact that at the time less than a majority of the States,
as I remember, required the appointment of counsel. That is no longer true in
these—
THE COURT: Yes, I just
looked at it. The appendix to the dissenting opinion in Betts against Brady indicated that some 35 States
required the appointment of counsel at that time, and I wondered if there had
been so little development since.
MR. FORTAS: No, I
don’t—the fact of the matter is—I’ll find that in just a minute—
THE COURT: Well, don’t
tarry now, you can—
MR. FORTAS: That at
the time of Betts against Brady there were less than a majority of
the States that required it by statute or court rule. Now, I should say that
presently, in addition to the 37 States that require the appointment of counsel
for indigents by statute or court rule, a recent study, a very careful study, by
Professor Kamisar shows that there are eight States that require, that do
appoint counsel when requested. That makes a total of 45 States that appoint counsel either by
statute, court rule or by practice; and it really leaves only five States. And
of those five States—those five States are Alabama, Florida, Mississippi, North
Carolina and South Carolina. And even in Florida, from which four of this
Court’s last eight cases have come, there is a situation that is worth notice.
In Florida there is a statute providing for a public defender that functions in
the four largest counties of Florida, and I’m sure you’ll hear more about that
from my brother representing the State.
So that my point here
is that we may be comforted in this constitutional moment by the fact, as it
clearly is, that what we are doing represents a deliberate change after 20
years, after 20 years of experience; and it represents a change that clearly has
the overwhelming support of the Bench and the Bar and even of the States
themselves.
THE COURT:
[Inaudible]
MR. FORTAS: This case,
of course, narrowly presents the question of the appointment after time of
trial, and it presents, narrowly presents the question of a felon. In my own
view, I believe that the requirement that counsel should be appointed for
indigents in State criminal proceedings should be co-extensive with the
proposition that persons who are able to hire counsel, to employ counsel, have a
right, a legally protected right, a constitutional right, to utilize the
services of such counsel.
Now, we all know that the scope of the
latter principle is not entirely clear. There are some decisions of this Court,
there are many aspects of the problem where it has not been
decided.
Now, let me cut back on that, if I
may.
In the literature, there seems to be
clear agreements that the right to counsel should attach not later than the time
of arraignment. And this brief of the 22 attorneys general reiterates that
point. In other words, that the latest point is the time of
arraignment.
THE COURT: Of course, that very word
has so many different meanings in the different States—
MR. FORTAS: It does; that’s correct.
THE COURT: —and that’s the trouble with
verbalizing any test. Arraignment in some States is quite a different process
from what it is in other States.
MR. FORTAS: Yes,
sir.
My own view, Mr. Justice Stewart, is
that there is a right to counsel as soon as practicable after
arrest.
THE COURT:
[Inaudible]
MR. FORTAS: No, sir,
we do not. I was responding to Mr. Justice Goldberg’s inquiry. You certainly do
not have to pass on it here.
THE COURT:
[Inaudible]
MR. FORTAS: There are
some just in the District of Columbia of petty offenses which probably don’t
require appointment of counsel. With respect to the question of juries, under
the Sixth Amendment, this Court, in a case that we have cited in our brief
coming up from the District of Columbia, held that the constitutional
requirement of the Sixth Amendment with respect to jury trial did not apply to
petty offense, which in that case involved an offense punishable by imprisonment
up to 90 days, as I remember it.
THE COURT: [Inaudible]
MR. FORTAS: I beg your
pardon?
THE COURT:
[Inaudible]
MR. FORTAS: Yes, sir,
but you will recall that in the Sixth Amendment that language runs together,
right to jury and right to counsel.
THE COURT:
[Inaudible]
MR. FORTAS: I don’t
recall one; I don’t recall a decision of this Court on that subject. But it
does—there is this case involving jury, the right to jury. And if you’d like me
to continue, Mr. Justice Goldberg, I would—so far as I’m concerned, I would say
that the right to counsel attaches as soon as practicable after the arrest, just
as I believe that a person who can retain counsel should have a recognized right
to consult counsel shortly after arrest. Here we have a problem relating to Crooker against California.
Now, as to the extent on the other end,
this Court has held that the States must supply transcripts to indigents for
purposes of enabling the indigents to perfect their appeal. I believe that the
right to counsel also attaches for the purposes of perfecting appeal and for the
appeal. The decisions of this Court have not, as I read them, gone quite that
far, although there is language indicating that.
Now, as to the type of crime—the Sixth
Amendment, of course, speaks in terms of criminal prosecutions. The question—
there is a consensus, I believe, that the right of counsel should be recognized
in felony cases—I’m talking now about the States— and that is the provision,
that is the attitude of the 22 attorneys general.
THE COURT: Does that
word have a common meaning in all the 50 States?
MR. FORTAS: It does not. It has—there
is an area in which the word is very fuzzy—
THE COURT: Well, I know in my own
State, Mr. Fortas, we don’t recognize the felony. High misdemeanors or
misdemeanors—
MR. FORTAS: Yes, sir. And then—that’s
correct. Even the word “misdemeanor” is a fuzzy word which does not have a
common meaning. My own view about this, again, is that the right should attach
on a much broader basis, and that it should attach to all except petty offenses.
And I think this Court’s opinion in the District of Columbia case points the way
to handle that particular problem.
THE COURT: Well, there again, though,
how do you measure petty offense? For example, I know before I left New Jersey
we downgraded a number of former misdemeanors to something we called “disorderly
person offenses” –
MR. FORTAS: Yes.
THE COURT: —petty offenses; the notion
being that in that way, no requirement of jury trial for that. But conviction
for some of those can bring a jail sentence up to a year, and a fine, as I
remember it now, up to $1,000. Is that a petty offense?
MR. FORTAS: Mr.
Justice Brennan, I’d certainly pay no attention to the nomenclature adopted by
the States; you can’t, because the words mean so many different things in the
States. But fortunately, in times of stress such as this, when you are asked to
confront a problem of this sort, we lawyers can point to the fact that a
straight line can be drawn in many ways, and a line can be drawn by a series of
dots represented by individual decisions of this Court.
THE COURT: Of course, that’s just what
you’re asking us not to do; that becomes more of this ad hoc and ex post facto
situation.
MR. FORTAS: No,
because what we’re really talking about, Mr. Justice Stewart, is the extremes of
this problem. Now a good many of the States—I believe it’s over 20; one list
shows 20, one list shows 21—a good many of the States that require the
appointment of counsel to indigents include misdemeanors or their statutes are
broad enough so that they indicate that they include misdemeanors under the laws
of the particular States.
THE COURT: Well, tell me, Mr. Fortas,
would there by anything in trying to measure the line, if a line must be drawn,
based on the confinement which conviction might bring?
MR. FORTAS: Well, that would be—my own
view about that, Mr. Justice Brennan, is that one day’s confinement is
enough.
THE COURT: You
do?
MR. FORTAS: And I really believe, if I
may put it this way, I really believe that the difficulties, technical
difficulties, which we can envision here are more fancied than real. And I think
our experience in the District of Columbia with our public defender here
indicates that; in other words, that when a State goes about this job, as your
State of California has so well done, Mr. Chief Justice, and as I hope we’re
doing in the District of Columbia, what it does is to set up a system by which
persons, when they are arrested, without nice regard to whether, to the extent
of punishment or the classification of the crime, those persons are told that
they go and see the public defender or that they can have a lawyer appointed for
them. And the system works and the difficulties are much greater when we sit
here and apply our minds to the problem than those difficulties are when we
really create a mechanism for handling them.
THE COURT: How about
the traffic violation? A person who can afford a lawyer is entitled, so far as I
know, in every State, to hire a lawyer for traffic
violations.
MR. FORTAS: I see no
real difficulty, Mr. Justice, in saying to—
THE COURT: Most of
them don’t.
MR. FORTAS: —people
for a traffic, when they’re arrested for a traffic violation, if you want to see
the public defender, he’s in room 102, and to assign a public defender to
anybody who wants him. It’ll really work, it’ll work; it sounds crazy, perhaps,
but it works; it’ll work, I’m sure it will.
THE COURT: Suppose you
don’t have one?
MR. FORTAS: Well,
I—more and more States, Mr. Justice Clark, are building orderly systems and, of
course, one of the great functions that this Court performs by announcing the
law and clarifying the principles of law is to provide an impetus to the States
to erect such systems. But there are many systems that are now available: there
is the public defender system; there is the voluntary legal aid system; there is
a system of assignment; there is a system that is in vogue here in the District
and, I believe, in Massachusetts, which is very promising, indeed, of using law
students working under the supervision of experienced members of the Bar for
handling many offenses.
THE COURT: Well, that
might be all right, but I just wonder if the Legal Aid would want to take on a
traffic [Inaudible] defense—
MR. FORTAS: Well,
again—
THE COURT: They have
so many felons already, I’m just wondering.
MR. FORTAS: Again, Mr.
Justice Clark, I think that most people involved in a traffic offense really
would be sort of the, if I may use a vulgarism, the “oddball” who’s involved in
a minor traffic offense who will say that he wants a lawyer; but if he’s got a
real problem, if a person involved in a traffic offense has a real problem and a
real defense and really thinks he should have a lawyer: Why
not?
THE COURT: Mr. Fortas,
I want to ask you a question you can answer when I get back. I attached to my
dissent in Betts versus Brady a study made after much hard work
which I believed then and believe now was accurate, which said this: States
which require that indigent defendants in noncapital as well as capital criminal
cases be provided with counsel by request, I stated there were 35. What I would like to know is if there
are only 35 now, have some of those
before Betts versus Brady gone back to the Betts versus Brady ruling, or what has
happened?
MR. FORTAS: Yes,
sir.
THE COURT: We’ll
recess now.
[Whereupon a recess was
taken.]
AFTERNOON
SESSION
MR. FORTAS: I would just like briefly
to address myself to Mr. Justice Black’s question, and then reserve the balance
of my time.
Mr. Justice Black, I do not believe
that there has been any retrogression at all in any of the States. There is a
difference of opinion as to some of the statutes and cases that you cite.
Research in this field is very difficult and there are differences of opinion. I
believe that in Professor Kamisar’s article, which has just been published in
the Chicago Law Review, a companion piece in the Michigan Law Review, there is a
discussion of your footnote and some criticism of some of the
citations.
THE COURT: To the State
cases?
MR. FORTAS: Yes,
sir.
Now actually, here is the position, as
well as I understand it: In Betts
against Brady, in the majority
opinion, in the Court’s opinion, the following is stated: “In the great majority
of the States, it has been the considered judgment of the people, their
representatives and their courts, that appointment of counsel is not a
fundamental right essential to a fair trial. And in the majority opinion there
are citations and analyses. Now, in your own opinion, Mr. Justice Black, on page
477, footnote 2, I think it is, you say: In 35 States there is some clear legal
requirement or an established practice.
THE COURT: That’s
right.
MR. FORTAS: Now, could we just hold
that a minute? The intervening point that I want to make is that in 1961, in McNeal against Culver, Mr. Justice Douglas appended a
list of 35 States which were, had
such provisions by constitution, statute, court rule or judicial decision. That
was in 35 States in 1961, which shows the growth in the number. Now, since the
list compiled by Mr. Justice Douglas, there have been two others, Colorado and
Michigan—You’ll find that on page 29 of our brief—which makes 37 States that by
constitution, court rule, statute, or judicial decision make the appointment of
counsel for indigents in State criminal prosecutions, at least in felony cases,
compulsory. Now, in addition—
THE COURT: And my figure was limited to
felony or penitentiary offenses.
MR. FORTAS: Some of them are; there are
about 20 or more that include misdemeanors, of those
statutes.
Now, in addition to
those 37, there are eight States which have a practice, a general practice—not
invariable, but a general practice—of appointing counsel in State felony
prosecutions. They are listed in our brief. That would bring it up to a total of
45.
Of the remaining five,
as I pointed out in my argument— Florida, for example, by statute and apparently
by practice; by statute in the case of two counties and by practice in the case
of two others—has a public defender system. And a recent study made by the
American Bar Association Foundation of the workings of that system in those
selected counties in Florida shows that the public defender system is
extensively utilized.
THE COURT: Could I ask you one
question? As I understood it, you said in answer to Mr. Justice Stewart as to
how far—whether you would draw the line at any point in appointment of counsel
if Betts against Brady were overruled—and I understood
you to say that you’d make the right as to types of cases co-extensive with
cases in which the right to counsel of your own selection would be a
constitutional requirement.
MR. FORTAS: Yes,
sir.
THE COURT: Well, is there any type of
case where a State could deny a man the right to be represented by counsel of
his own choice?
MR. FORTAS: In my opinion, there is
not, Your Honor, but I am concerned about—
THE COURT: I wouldn’t have thought so.
Even in civil cases, I don’t think a State could do that.
MR. FORTAS I am concerned about this
Court’s decision in Crooker against
California, which was a five-to-four
decision. I was asked for my own view, and in my own view—and I hope I’m not
impertinent in saying that I do not agree with this Court’s ruling in Crooker—
THE COURT: That’s a different question
from the one I was putting to you. That relates to the time of appointment, time
of the right to counsel. I’m asking you as to whether you can draw a distinction
between felony cases, misdemeanor cases, traffic cases or, for that matter,
civil cases, if, as you say, you would make the right co-extensive with the
right to counsel of your own choice.
MR. FORTAS: I was speaking only of
criminal cases, Your Honor; I was not speaking of civil cases. I know that there
are some people, but very few, so far as I know, who argue for the right in
civil cases. I do not argue for that right in civil cases, at least the broad
category, what we think of as civil cases. There can be a case called a civil
case in which the State is a party. I myself, Your Honor, believe that that is
the significant criterion: whether the State is in an adversary capacity in the
particular situation. But that’s another problem. And I am not arguing the civil
cases here, whatever; no, sir.
THE COURT:
[Inaudible]
MR. FORTAS: No, I would not use that
terminology. I believe that some of the scholars recently are using the
terminology of “absorption,” rather than “incorporation.” That is to say that
from time to time it becomes clear that in the Fourteenth Amendment they have
been absorbed—certain aspects of the Sixth Amendment. But I do believe that—
THE COURT:
[Inaudible]
MR. FORTAS: Sir?
THE COURT:
[Inaudible]
MR. FORTAS: Well, I don’t like any of
those words.
THE COURT: Was that the language used
by Justice Cardozo?
MR. FORTAS: It was; that is correct.
And it’s being used a great deal these days in the spate of literature on the
subject.
THE COURT: But in
telling us your thoughts as to the scope of this right, are you—just as a matter
of technique—are you relying now on equal protection, the equal protection
clause?
MR. FORTAS: I think
that the equal protection clause teaches us something here. That is to say, you
can say that equal protection means that the indigents in a situation where the
State is an adversary, a criminal procedure, that the equal protection clause
requires that the poor shall not be subject to a disability to which the rich
are not subject.
THE COURT: You are
arguing equal protection rather than the due process
clause?
MR. FORTAS: That is
equal protection. So far as I’m concerned, Your Honor, I reached the result—
THE COURT: Either
one?
MR. FORTAS: —through
the due process clause standing alone, and I also get comfort from the equal
protection clause. But I believe the equal protection clause reaches only a
phase of this problem, and the due process clause reaches it in its entirety and
is self-sufficient.
THE COURT: Do any of
the States that now require counsel, require counsel in criminal traffic
cases?
MR. FORTAS: Some of
the States, Mr. Justice Clark, require it in misdemeanors; and whether any of
those States make a distinction between misdemeanors and types of traffic cases,
I don’t know.
THE COURT: Most of the
States are felonies or penitentiary sentences or some such phrase as that,
aren’t they?
MR. FORTAS: Well,
let’s see; it doesn’t split quite that way, because there are about 20 States,
at least 20 States, in which the language used seems to indicate in varying
degrees the inclusion of misdemeanors; and we’re talking about 37 States in all
where this rule has been established in a statutory or constitutional form. But
Mr. Justice Clark, getting this thing fined down with respect to the individual
States is a very difficult job of research. Professor Kamisar probably has done
the best job that’s been done to date in his two articles, one in Chicago and
one that I don’t believe we cite, that is in the forthcoming Michigan Law
Review. He sent us a copy of the galley proof. But it’s very difficult to know
precisely what the situation is in each State.
THE COURT: Am I to
understand that you think the Sixth Amendment’s guarantee or the Constitution’s
guarantee of the right to counsel has nothing to do with this? It’s solely due
to due process?
MR. FORTAS: Your
Honor—
THE COURT: Do I
understand that you lay aside the Federal guarantee of the right to counsel?
MR. FORTAS: No, sir, I
certainly do not lay it aside, and you’ll see in our brief that we argue it not,
Mr. Justice Black, in terms of the argument that the Fourteenth Amendment
incorporates with respect to the States the provision of the Bill of Rights; we
don’t—
THE COURT: Well, with
reference to what, then?
MR. FORTAS:
Sir?
THE COURT: How does
the Fourteenth Amendment do it?
MR. FORTAS: Fourteenth
Amendment? Mr. Justice Black, I like that argument that you have so eloquently
made time and time again—
[Laughter]
MR. FORTAS: I can’t make it to this
Court as an advocate because this Court’s turned it down so many
times.
[Laughter]
MR. FORTAS: I hope and pray that you
will never cease contending for it.
THE COURT: I’m inclined to think the
Court’s accepted it in a number—
MR. FORTAS: In a
number of particulars—
THE COURT: In a
particular one, yes.
MR. FORTAS: And this is a particular,
and frankly, I think there are alternative forms of language that the Court can
use and I’m in favor of the Court’s using the broadest possible—
THE COURT:
[Inaudible]
MR. FORTAS: You seem to know me well,
Mr. Justice Brennan.
THE COURT: Mr. Fortas, you haven’t had
an opportunity to sum up your argument because of all of our questions. You may
have five minutes at the conclusion to do that—
MR. FORTAS: Thank
you.
THE COURT: —and the
State may have 5 extra minutes, too,
if it wishes to—
MR. FORTAS: Thank you,
sir.
THE COURT: —for the
same purpose. Mr. Rankin.
ORAL ARGUMENT BY J. LEE
RANKIN,
BY SPECIAL LEAVE OF COURT, ON
BEHALF
OF THE AMERICAN CIVIL LIBERTIES
UNION
MR. RANKIN: Mr. Chief
Justice, may it please the Court, the amici urge the Court to reconsider Betts against Brady and overrule it. We have carefully
examined the Federal question and we do think that is the heart of the problem.
But in the examination of that question, we think you have to start back with
the Fourteenth Amendment and the question of due process and equal protection.
And we think that the error in Betts
against Brady is the basic
assumption that you can have a fair trial in the ordinary circumstances where
you do not have special circumstances without a lawyer. There is where we think
the error in Betts against Brady is, and that’s where it needs to
be corrected.
Now it’s our position that the judges
of this country, including this Court and all the other judges, have a special
responsibility concerning this problem. And right along with that is the
responsibility of lawyers, because the layman doesn’t know this problem like we
do. This is the judges’ and the lawyers’ problem. We deal with the intricate
questions. We’re here before this Bench from time to time with them. All that
was involved, for instance, in Mapp
against Ohio; the coerced
confession; the question of whether or not there has been discrimination in the
selection of a grand jury or petit jury; the right to cross-examination. And
then Betts against Brady assumes that the layman knows
enough to present those arguments on his own behalf.
Now in most cases, we should be the
ones, we of the Bar at least, and I think the courts know it just as well as we
do because they observe it day by day. It just isn’t true that the layman knows
those rules of law, and if he does happen to hear about them, he doesn’t know
how to express them and represent himself. Well, that’s what’s wrong with Betts against Brady and it is time, long passed, that
our profession should stand up and say: We know because of our day-by-day
experience that the ordinary layman can’t get a fair trial, either in the
Federal courts where it’s corrected or in the State courts of this country where
he represents himself.
Just imagine all of the rules that the
lawyer has to deal with to represent a client properly, from the moment he is
first consulted, in the ordinary criminal case, and then imagine the layman
trying to follow that track: find the cases, find the distinctions between one
case and another, and applying them. Now, it would be bad enough for us of the
profession to say that you could have a fair trial under those circumstances,
knowing what we do with regard to the ordinary layman without counsel, but we
also know that on the other side of the case, whether it’s the Government of the
United States, which you are particularly familiar with and I am, who has
skilled counsel that try hundreds of cases, or whether it’s the State prosecutor
with his vast experience. It is enough of a fiction to be able to claim that the
ordinary lawyer, with the greatest diligence and skill, is able to present
fairly a case on behalf of a defendant against this skilled prosecutor that’s
had hundreds of cases behind him and understands the reactions of the court, in
addition to knowing right off every case that could have a bearing upon the
question. But when you take the poor layman and put him against those odds,
there isn’t the remotest possibility that you can get a fair trial except by
pure accident.
Now, how does it affect the Federal
situation? In the first place, if you assume that you can’t have a fair trial in
the ordinary case, then I contend that the Fourteenth Amendment does not permit
the States to have unfair trials. I don’t think there’d be any question about
that with this Court, any member of this Court.
THE COURT: You’re
talking about the due process clause:
MR. RANKIN: That’s
right.
There is no question but what they—and
you’ve said it time and time—cannot set up a system which provides under that
system for unfair trials.
Now, special circumstance has many
problems that are damaging to the Federal system beyond that. This Court has
struggled with them; it has tried in good faith to apply special circumstance.
And out of the last nine cases where the State courts couldn’t find, since 1942,
special circumstances, this Court has found it six times. Now that doesn’t help
Federal-State relations.
THE COURT: What are
the two cases in which the Court did not find special
circumstances?
MR. RANKIN: Quicksall is one that I recall
particularly, Your Honor.
THE COURT: That’s at
339.
MR. RANKIN: Yes,
sir.
THE COURT: And what’s
the other one?
THE COURT: Demilier? Or the-
THE COURT: I can’t
remember any—
MR. RANKIN: Demilier—
THE COURT: I can’t
remember any since I’ve been here—
MR. RANKIN: Yes, there
are two—
THE COURT: I can’t
remember any since I’ve been here where we failed to find special circumstances.
MR. RANKIN: There are
two Pennsylvania cases and a Michigan case, that I recall. One Pennsylvania case
found special circumstances and the other one didn’t. And we have great
difficulty in trying to analyze them to justify the one that didn’t. But the
Court found it—and in the Burke case,
if you will recall, the Court of Appeals of Pennsylvania said that it shouldn’t
have to guess about these matters. It just couldn’t figure out from the Supreme
Court decisions, when one went one way and one went the other, where the special
circumstances law did lie. And it is a very difficult situation. Of course, as
you look toward later years, the Court has quite generally found special
circumstances. But every time that that is done, the States have resented it,
oftentimes because it was done not merely by this Court, but often by a Federal
trial court, United States District Court, which they felt was overruling their
highest appellate court. And all of that is involved in this attack upon the
writ of habeas corpus that has been made from time to time, and the effort
before the Congress to try to limit it. It’s been an abrasive effect and it
hasn’t been fair—
THE COURT:
[Inaudible]
MR. RANKIN:
Yes.
THE COURT:
[Inaudible]
MR. RANKIN: Yes. They
have resented the—not only the procedure, but also the difficulty of trying to
determine when special circumstances did lie under this
rule.
Now it also, as we
show in our brief, out of 139 cases, the State courts have only been able to
find 11 in which they could find any special circumstances of any kind. And it
is curious that when there’s as many as have been found by this Court where
there were special circumstances out of those that came before it since 1942,
that only in 11 out of 139 the State courts could find special circumstances.
Now that in itself does not help the situation; but beyond that, when you
consider the procedure and the fact that only certain cases come before this
Court, only certain cases can possibly get here regarding special circumstances,
and by the very nature of things, even though there might have been many of
those cases which we didn’t have time to analyze in detail, of the 139 where
there were special circumstances that would have satisfied this Court, they did
not get here. Now, in order to get here, as Your Honors well know, there has to
be an exhaustion of State remedies, and then if it comes here on an appeal or a
petition for certiorari it’s different than if it comes here collaterally and
the attack is made collaterally. But on the percentages, this rule is very
damaging to the individual as well as the whole system. This history shows how
bad the effect is.
THE COURT: Before Betts and Brady came alone, would you have thought
it was plain that if Congress had passed a law saying that in all kinds of
criminal cases, no matter what kind, the States would have to provide counsel
free to an indigent, would you think it was perfectly clear that that law was
constitutional—would be constitutional?
MR. RANKIN: Mr. Justice Harlan, I don’t
think it’s so obvious in the earlier part of our history as it is later. I think
that our country—
THE COURT: Well, Betts and Brady was what? 19—
MR. RANKIN: 1942.
THE COURT: ‘42.
MR. RANKIN: Our country has developed
since then. I think the mere fact that we have some 43 States now—45 States, in
fact— who have come to the place where they have recognized by either, by the
constitution, state statute or court rule, or by practice, there should be such
a provision, it seems to me that the country has developed to the extent that it
recognizes—
THE COURT: That’s characteristic and an
example of the workings of our federalism at its best.
MR. RANKIN: Well, the difficulty I have
with—
THE COURT: It doesn’t take every—it
doesn’t take this Court’s decisions to reform everybody in the United States or
the States; they come to these things, too.
MR. RANKIN: Yes, Mr. Justice Harlan,
and I think it’s to their credit that they have come so far, but I don’t think
this Court has to wait until the last one comes, either—
THE COURT: Maybe
not.
MR. RANKIN: —and—
THE COURT:
[Inaudible]
MR. RANKIN: I think
it’s inherent in my argument that you can’t—if you cannot have a fair trial, the
States are required to do something about it.
THE COURT:
[Inaudible]
MR. RANKIN: Yes, Your
Honor.
THE COURT: The civil
rights cases might give you some pause on that.
MR. RANKIN: Well, I
think that if you assume that you can’t have a fair trial without counsel—which
I am sure every lawyer here knows—as the ordinary case—now, there may be
exceptions—
THE COURT: That’s a
terribly broad generalization, Mr. Rankin.
MR. RANKIN: As a
generalization, I think—
THE COURT: There are
many cases where—you’ve had them and I’ve seen them and advised people in that
way—where very often you would say that the best thing that a client could do, a
given client could do, is to go in and try his case himself. You see it every
day in this Court in these in forma
pauperis cases. I’m not saying that there isn’t force to your argument, but
to make a sweeping generalization as a dogmatic piece of, a dogmatic assertion
that there can be no fair trial without a counsel ignores the facts of life that
every lawyer knows.
MR. RANKIN: Mr.
Justice Harlan, I’m trying to draw the distinction between the generalization in
Betts against Brady that generally you can have a fair
trial without counsel; that’s what Betts
against Brady says. And that only
in special circumstances do you have an unfair trial without counsel. I say the
rule has got to be turned around according to the facts; that generally you
can’t have a fair trial without counsel and the exception is the case that you
and I know about where some skilled layman has been able to get a fair trial
despite not having counsel. But Betts
against Brady is built upon the
premise that generally you can get a fair trial without counsel. And that’s
where I think it’s unsound.
THE COURT:
[Inaudible]
MR. RANKIN: Well,
that’s my understanding of it.
THE COURT: Isn’t that
the assumption behind the distance of the legal profession? Florida wouldn’t let
Gideon represent anybody else on trial in that State, would
it?
MR. RANKIN: And it’s
rarely, as we lawyers all know, that a man does as well, because we have a
saying, as you all know, that when he represents himself he has a fool for
counsel, and it’s often true. Now, there are exceptions, but I don’t think the
rule is sound when it’s based upon the exception; it should be based upon the
general rule that you can’t have a fair trial without
counsel.
THE COURT:
[Inaudible]
MR. RANKIN: Well, in
my own experience, the things that I am thinking of, and possibly Mr. Justice
Harlan, were the cases where a man had no real defense and the best thing for
him to do was to go down there and sort of ask for the mercy of the court and
pay whatever fine he had and get out of it the best he could.
THE COURT:
[Inaudible]
MR. RANKIN: Well,
sometimes not, and oftentimes that’s part of the problem, too, about not having
counsel before arraignment; that he will not know that there are various charges
against him and that he might plead against one of the lesser charges rather
than the greater charge and he has to make the selection on his own without even
knowing what the sentences could be, and the range, and oftentimes winds up with
something very adverse to him.
THE COURT:
[Inaudible]
MR. RANKIN: Well, I think that—
THE COURT:
[Inaudible]
MR. RANKIN: I think that—
THE COURT:
[Inaudible]
[Laughter]
MR. RANKIN: Mr.
Justice Clark, I think that was a peculiar situation in regard to those cases
and that skilled counsel might advise them to represent themselves and throw
themselves upon the mercy of the court and the jury—
THE COURT:
[Inaudible]
MR. RANKIN: —but I am
sure that there are many cases that come before this Court and before the lower
Federal courts and State courts where no member of this Court and no member of
the Bar that are here would want to advise a layman to go out and see what
happened to him in the case of a serious charge of any
kind.
Now there are a number
of contentions by the respondent in regard to emptying the jails that I would
like to deal with here. On page 55,
they present a number of cases in which they show the large number of
persons who are incarcerated and what the effect would be of this
rule.
In the first place it
is the position of the amici that we
are dealing now with the representation in criminal cases and that civil cases
are not involved and that question isn’t before the Court.
Secondly, I have great
difficulty trying to appraise and be of any help to the Court with regard to the
various cases that are listed on page 55
because they are grouped in such a way that there are pleas of guilty with
no counsel, some 4,000; 1,500 pleas of guilty represented by counsel. I don’t
know how those cases could be, could come before the Court again; they’ve had
their chance to have counsel presumably on most facts, although they’re very
sketchy. And 477 pleas of not guilty and were not represented by counsel—if they
were represented by counsel during the trial—
THE COURT: Do you
remember generally whether they were— following our decision in Griffin versus Illinois requiring the State to furnish
the indigent transcripts on appeal—whether there was a general release of
prisoners all around the country or in Illinois?
MR. RANKIN: Well, I
didn’t know of any and it hasn’t been brought to the attention of the Court by
the respondent at all, and—
THE COURT: We hear
that argument made many times in various situations and there may be something
to it at times, but I—as a matter of fact, I’ve never heard of anybody actually
being set free on a writ of habeas corpus in this country. Have
you?
MR. RANKIN: No, they
always have a right to retrial, and of course I recognize that there may be
difficulty in getting the evidence at a late date, but still there is that right
of retrial that they have. And if they haven’t had a fair trial, they ought to
have one fair trial in regard to it.
Now, in Johnson against Zerbst, this same argument was made, you
will recall, in the Government’s brief, and Attorney General Homer Cummings was
not sympathetic with the idea of not having counsel because of, I’m sure,
because of some remarks he made independently. But the Government did present a
brief in which it was trying to support the position and presented all they
could on behalf of not having counsel in Federal cases, and it was urged that it
would empty the jails, as one of the arguments. And the Court treated that
question; it wasn’t frightened by it as apparently [Inaudible] by the
Government’s brief, but it did deal with it. And it said that of course there is
a presumed regularity about judgments that would have to be dealt with, but it
proceeded to recognize that Johnson
against Zerbst could be applied
retrospective regardless of that in
terrorum argument.
And there is
considerable argument here about, by the respondent, about the application of Mapp against Ohio, and some of the cases as explained
by counsel I don’t think are quite completely revealed to the
Court.
Now, in the State of
New York, the Court of Appeals took the position that Mapp against Ohio would be applied by it in all cases
where the court had not disposed of an appeal, even though Mapp against Ohio was not in effect at the time of
the trial. And Judge Foley, in the United States District Court, in several
cases dealt with the problem and said that in regard to federalism, recognizing
the problem, that the States should be given, particularly in a State like New
York where the Court of Appeals had been advanced in consideration of such
matters, to examine the problem in the first instance. But he didn’t in any way
say that Mapp against Ohio would not be applied if the State
courts did not properly examine the question to see whether it should be applied
in particular cases.
Now, there’d be many
cases, of course, where the defendant, the prisoner, would decide that he didn’t
want, after serving a period of time, to have his case opened and see whether he
would get a greater sentence or something else happen to him; many of them would
be disposed of in that way. Others would be disposed of by the conclusion that
they, after considering the entire matter, didn’t care to have them reopened any
way, and that would get down to some kind of hard core that would depend upon
whether they did have a fair trial. And in those cases, when it’s shown that
they didn’t have counsel and they didn’t have a fair trial because they didn’t
have counsel but it would be obvious they asked for it now, it seems to me that
in the interests of society they should go back and reexamine to see that they
did have a fair hearing at one time in regard to the charges against
them.
THE COURT: This
argument that you’re making now seems to assume that if Betts and Brady were to be overruled that it
couldn’t be made prospective.
MR. RANKIN: No, I
don’t assume that it could not be made prospective, I am
urging—
THE COURT: Have you given thought to
that question?
MR. RANKIN: I am urging you to make it
retrospective in my argument.
THE COURT: You don’t see any
constitutional difficulty in the way of making it prospective
only?
MR. RANKIN: Well, I do myself, but I am
fearful that that’s more personal than fundamental constitutionality. But I do
think that there is a problem if you determine something is unconstitutional, in
my own thinking, to not apply it back to where the error occurred. I know there
are those who have advocated to the contrary; but for myself, I do not accept
that and I would ask that you go back to the point where the error occurred and
correct it.
THE COURT: Mr.
Jacob.
ORAL ARGUMENT BY BRUCE R.
JACOB,
ASSISTANT ATTORNEY GENERAL OF
FLORIDA,
ON BEHALF OF
RESPONDENT
MR. JACOB: Yes, Your
Honor.
Mr. Chief Justice, may it please the
members of the Court, I am Bruce Jacob from the attorney general’s office of
Florida, representing the respondent. With me at the counsel table is Mr. George
D. Mentz, who is an assistant attorney general of Alabama. The State of Alabama
has filed an amicus brief, together
with the State of North Carolina, on our behalf; and Mr. Mentz has been allowed
20 minutes of my time.
At the outset, I would briefly like to
explain the procedure followed by the Florida Supreme Court when a petition for
habeas corpus is presented to that tribunal.
The Florida Supreme Court does not
stand on formalities. Any scrap of paper which comes to its attention which
alleges any facts whatsoever that raise a constitutional issue or raise a
probable cause question as to whether that defendant is legally or illegally
held, it is treated as a petition for habeas corpus by the Florida Supreme
Court. Of course, if the petition does not raise any justiciable issue
whatsoever, the court denies the petition on its face. If a justiciable issue is
raised, the court will issue a writ and require our office, the office of the
attorney general, to file a return. In right to counsel cases, when the question
of denial of counsel is raised by a petition, it is our policy in the attorney
general’s office to attach a transcript of the trial proceedings to show
the court or give the court a chance to look at the trial proceedings to
determine whether or not the defendant received a fair
trial.
THE COURT: May I ask a question right
here?
MR. JACOB: Yes, Your
Honor.
THE COURT: I notice that the brief
filed by the State of Oregon, an amicus
brief, suggests, indicates that it would be less bothersome, less burdensome
to the State of Oregon to see that defendants get counsel at the trial rather
than to follow up and process all of these habeas corpus cases that follow in
the wake of the thousands of cases where no lawyer is allowed to represent
them.
MR. JACOB: That may be true, Your
Honor—
THE COURT: Is that true in your
experience?
MR. JACOB: In our experience—we haven’t
made any studies of that, Your Honor, so I really couldn’t say, but it may well
be true; but we haven’t made any studies to that effect.
THE COURT: May I ask you a
question?
MR. JACOB: Yes,
sir.
THE COURT: Could I ask you a question—
MR. JACOB: Yes,
sir.
THE COURT: —about the operation of your
Florida statute. The judge said he couldn’t under your law appoint counsel to
this man. Does that mean that he couldn’t appoint counsel that would be
compensated by the State or does it mean that if he chooses, as a judge of the
court, to say: You, Mr. X, a member
of the Bar, will serve this man without compensation, that he couldn’t have done
that?
MR. JACOB: Your Honor, in a noncapital
case, he could not have appointed counsel who would have been compensated.
THE COURT: Who would have been
compensated.
MR. JACOB: Right. He could have—
THE COURT: But there’s nothing in your
law that prevents the judge from appointing counsel without
compensation?
MR. JACOB: That’s right, Your Honor. In
our State, the judges in our State have discretion and they can appoint counsel
when exceptional circumstances—
THE COURT: Are there some that
do?
MR. JACOB: Yes, Your Honor. In fact,
there are some judges who appoint counsel in all case.
THE COURT: All
cases.
MR. JACOB: And
generally, that is in the more urban areas. In the rural areas where there are
fewer lawyers, and especially fewer criminal lawyers, available, the courts have
many times not appointed counsel as often as they do in urban
areas.
Now this—
THE COURT: I notice some interesting
figures. Concerned with—in one of the briefs—I think it’s in the brief of the
American Civil Liberties Union. They show that in—no, I think first your
figures, on page 56 of your brief,
are as follows: that there are 65 percent of all of your prisoners now in jail
were not represented by counsel; 65 percent. And you had 8,000 prisoners;
therefore 5,200 prisoners have not been represented by counsel in the trial
court. And then I noticed also that ever since, in all the time following Betts and Brady up to the present time, there’s
only been one decision in your State courts finding special circumstances under
Betts versus Brady.
MR. JACOB: Your Honor,
there may be. I’m not sure of the cases and I’m—there may only be one reported
case that holds that, but many trial courts appoint counsel when they see
special circumstances.
This trial, this particular trial judge
in this case misquoted the law on the—according to the transcript which has been
filed with the Court. He said: “Sorry, Mr. Gideon, I cannot appoint counsel for
you except in a capital case.” Now, on its face, that appears to be a
misstatement of the law because Florida does follow Betts versus Brady and in Florida a man is entitled
to counsel if he can show, if he is indigent and also he is ignorant, illiterate
or incompetent in some way.
Since our brief has been printed, I
have received a letter from the trial judge who handled this case. I asked him
what happened at arraignment because I just couldn’t believe that a judge would
make this statement at the trial without examining the man and finding out
whether he really was incompetent or unable to handle his own defense. And Judge
McCurry wrote back and said this: He said, “I do remember the arraignment of
this defendant and also that he asked for counsel at arraignment and on the date
of trial. He was advised that when a person appears to have the mental ability
to interview witnesses and present testimony to the jury, the practice of
appointing counsel is not followed except in capital cases. After talking with
this defendant, it was my opinion that he had both the mental capacity and the
experience in the courtroom at previous trials to adequately conduct his
defense. This was later borne out at the trial, as you can determine from
examination of the record in this case.”
I will leave this letter with the Clerk
of the Court in case any of the Justices wish to examine the
letter.
Gideon filed a petition for habeas
corpus in the Florida Supreme Court which did not allege any circumstance
whatsoever which would entitle him to counsel under the rule of Betts versus Brady, and therefore the Florida Supreme
Court properly denied his petition.
Mr. Fortas, in his designations for
printing, asked that the trial transcript and other matters which were not
before the Florida Supreme Court be included in the transcript. We moved to
strike those designations for printing, but our motion was denied. We take the
position—
THE COURT:
[Inaudible]
MR. JACOB: Your Honor,
the Florida Supreme Court denies a petition on its face if it does not raise any
question of law which is raised by the petition. If a justiciable issue is
raised, if there is some question about whether the petitioner is legally held,
they will issue a writ and require our office, the attorney general’s office, to
file a return. We will file a return, and if the right to counsel is involved it
has been our practice to attach a transcript of the trial proceedings so that
the supreme court can determine whether the man had a fair trial. And if the
court cannot determine from our return and from the petition whether the man is
entitled to release, many times they will appoint a commissioner and hold a
hearing.
We take the position in this proceeding
that the trial transcript and record which constitute pages 1 through 44 of the
transcript of record in this case are in the transcript of record for
informational purposes only. We take the position that if this Court were to
base its decision in this case upon any matters which are contained on pages 1
through 44, it would be exceeding its jurisdiction because under the statute
under which jurisdiction is invoked in this case, this Court has jurisdiction to
review judgments of State courts. This trial transcript and proceedings do not
constitute a judgment; they were not included in the judgment of the Florida
Supreme Court because it was not before the Florida Supreme Court. So we take
the position that these matters are in the transcript for informational purposes
only. But since the petitioner has seen fit to include them in the transcript of
record in this case, we’ve seen fit to supplement the record, too, for
informational purposes. For instance, in our brief we pointed out that this man
is 50 years old; he’s a white male;
has been convicted of four prior felonies, three of which included burglary in
some form or another; he’s had experience, work experience, as an auto
electrician; and in addition—
THE COURT: Why do you
have to waste time on that? Because Mr. Fortas is not contending that if the Betts and Brady rule, as I understand him, that if
the Betts and Brady rule is adhered to, that this case
should be reversed.
MR. JACOB: Okay, Your
Honor, I was—I wanted to be sure that the Court did not rule upon the transcript
as it appears in this—
THE COURT: His
position is that we are faced in this case really with either affirming,
adhering to Betts against Brady or overruling it. And that’s the
only premise he’s argued his case on.
MR. JACOB: Okay, Your
Honor, I’ll proceed with our argument—
THE COURT: Well, I
take it you’re not raising any questions at all about this being, the judgment
that’s here for review, being a final judgment—
MR. JACOB: No, Your
Honor.
THE COURT: —of the
highest court in the State of Florida, on the merits.
MR. JACOB: The
petition and the denial constituted final judgment, subject to review by this
Court.
THE COURT: And there’s
no question of our appellate jurisdiction here?
MR. JACOB: No, Your
Honor.
Before getting into
the argument on Betts versus Brady, I’d like to briefly outline our
argument on this point.
First of all, I’m
going to point out that historically there is no basis whatsoever for including
the right to automatic appointment of counsel in noncapital cases in the due
process clause. Secondly, I’d like to indicate to the Court that due process,
the term “due process,” as it has been developed by this Court in many cases
since the Civil War, is a relative and not an absolute concept; and therefore,
this Court cannot impose an inflexible rule requiring appointment in all felony
cases or in all criminal cases, for that matter.
Next, I’ll discuss the
question of federalism and attempt to show the Court that imposition of an
inflexible rule in this area would be an unwarranted intrusion into historic
rights of the States to determine their own rules of criminal procedure. I’ll
also point out that although the majority of the States now do provide for
automatic appointment in cases less than capital, the States that do that do so
by court rule and by statute and not by constitutional construction. In fact,
there are only about 11 cases—about 11 jurisdictions that I can count that have
required the appointment of counsel in cases less than capital as an automatic,
fundamental requirement under their constitutions.
THE COURT: May I ask you why your
argument of federalism doesn’t apply alike to the Betts and Brady method of setting aside judgments
and to the automatic method?
MR. JACOB: Because,
Your Honor, this Court has power to review decisions of State courts when State
courts have treated a defendant unfairly; and in many cases—in some cases, the
State courts do treat a man unfairly if he is not represented by counsel, but in
other cases, he is not treated unfairly.
THE COURT: But why
isn’t it as much interference with the State in one instance as the
other?
MR. JACOB: Because—
THE COURT: As a matter
of fact, I—one of my objections to Betts
and Brady is that it does impose
an unfair burden on the States in that it leaves them uncertain in every
criminal case whether it will come up here and the facts will be viewed
differently to the way the facts were viewed by the State courts. And so far as
the injury to federalism is concerned, injury to the States, one of my
objections to Betts and Brady has been just that, that the
State’s entitled to know with some degree of certainty what they can do to
comply with what this Court says the Constitution
requires.
MR. JACOB: Your Honor,
I don’t think Betts versus Brady is that unclear. I think it’s
inconsistent in the same way that the entire common law is
inconsistent.
THE COURT: You think
it’s clear?
MR. JACOB: Yes, Your Honor, it’s
progressive—
THE COURT: Well, how come most States
don’t know what circumstances will be held sufficient after we review them
several years after your States view them?
MR. JACOB: Each time this Court decides
a case, that adds a new special circumstance which we must consider in
determining whether the defendant is entitled to counsel.
THE COURT:
[Inaudible]
MR. JACOB: Your Honor,
we contend that it’s—we prefer that this Court do it on a case-by-case basis
than—
THE COURT:
[Inaudible]
MR. JACOB: In the last
few years, yes, Your Honor, it is. We contend that it would be better for this
Court to review them on a case-by-case basis. It still allows us some freedom to
impose our own criminal procedure rules.
THE COURT: Well, but
it doesn’t allow you freedom—if habeas corpus turns up after a man’s gone to
jail, and you have to have another trial and you don’t know even then whether
the district judge’s judgment will be taken—
MR. JACOB: Well, Your
Honor—
THE COURT: —or whether
we will accept it.
MR. JACOB: Your Honor,
those are questions which should be decided by our State legislature or by our
State, but—
THE COURT: But your
State legislature can’t decide the—under the Betts and Brady rule, your State legislature can’t
decide it. This Court has to finally decide whether, looking backwards to the
past, sometimes 5 years, circumstances were such that the man should have had a
lawyer. Then your State conviction is set aside. If your State had a rule under
which it could act, it would interfere with it, it seems to me, far less than
the method of ex post facto review of
the record.
MR. JACOB: Perhaps it
would be better for the State to do it, I don’t know, but that is a matter for
the State legislature to determine. And we feel that if this Court were to
impose its—
THE COURT: Well, how
can the State legislature determine it? The rule is, under Betts and Brady, that it has to come up to the
Federal court, and this Court has to determine the circumstances for itself; it
doesn’t leave it to your legislature.
MR. JACOB: Our State supreme court also
determines these special circumstances, Your Honor.
THE COURT: But it’s not final, under Betts and Brady.
MR. JACOB: Well, the average judge in
Florida who reads your cases plus the Florida Supreme Court cases has a standard
to follow. It may not be entirely clear—it may not be exactly precise—
THE COURT:
[Inaudible]
MR. JACOB: It may not be precise, but
we’d rather have it that way because we feel the State still has the power to
determine its own rules for procedure.
THE COURT: Do you have any information
as to the number of lawyers that the State of Florida has that are engaged in
processing habeas corpus proceedings for the State, either at the State level or
the Federal level?
MR. JACOB: Your Honor, are you speaking
of lawyers for the State or—
THE COURT: Yes, lawyers for the State.
MR. JACOB: Well, every—the members of
the criminal division of the attorney general’s office, which constitutes seven
men, plus every State attorney—
THE COURT: Yes—
MR. JACOB: —in the State, which amounts
to, in area system, which amounts to, it amounts to something like 60 or 70 men,
I imagine; approximately 60 or 70 men.
THE COURT: Has your Bar in Florida ever
taken a position on this with reference to the State legislature? Has there been
any movement in your Bar to do what most other States have done to get modern
legislation on this thing to see that counsel are
provided?
MR. JACOB: The only movement have been
movements by individual counties to impose rules which would apply only for that
county, sir; so far, to date, there have only been movements by certain
counties, delegations from certain counties which have asked the legislature to
impose, to pass laws requiring the setting up of a public defender
system.
THE COURT: How many have done
this?
MR. JACOB: We have about four counties
which have public defender systems, and also some of these statutes which set up
public defender systems are general laws of local application and other counties
can grow into those population brackets.
THE COURT: Mr. Jacob, I suppose out of
those 5,200 prisoners now in your
jails who are not represented by counsel, that a vast majority of them are not
only poor but are illiterate. Would that be a fair
observation?
MR. JACOB: Your Honor, I don’t
know.
THE COURT: Well, what’s your
observation?
MR. JACOB: My
observation is that it—in all honesty, my observation is that there are some—
THE COURT:
Some—
MR. JACOB: —but I have
no idea how many. But I think in general the judges in Florida do make a
very careful observation of every defendant that comes before them. And as I
said, many judges are now at the point where they provide counsel in every
single instance.
THE COURT: Even if
they’re illiterate? If they’re just poor and illiterate, you think they always
give them a lawyer in Florida?
MR. JACOB: I can’t say
they always do, Your Honor, because there are some—they do—
THE COURT: Well, do
they, as a general rule, give them?
MR. JACOB: If the
judge knows that he’s illiterate or incompetent some way, from his own
observation, he does appoint counsel.
THE COURT: Well, do
they try to find out whether—
MR. JACOB: Yes, they
do, and here’s the way they do it: They spend perhaps 15, 20 minutes asking him questions about
his work experience, about his past history, his education, his experience in
life, whether he’s been convicted before and how much experience he’s had in
court; in other words, they try to follow the rules that have been set down by
this Court in the cases since Betts
versus Brady.
THE COURT: Well, is it
assumed that a man who has been in jail a lot of times and been tried a lot of
times becomes a lawyer from that? I would think that that group of people are
probably about as little capable of taking care of themselves as any group you
could get.
MR. JACOB: That circumstance in and of
itself does not, of course—that circumstance in and of itself does not mean that
a man can handle his own defense, but it certainly has a bearing on the
question.
Going back to the
history of this thing, I’d like to show that historically there’s no basis for
imposing the Federal rule on the States.
Justice Cardozo said
in Schneider versus Massachusetts that due process—before I
get to that, before the Federal Constitution was adopted in 1790 or 1791, the
right to counsel meant the right to employ counsel. I don’t think there’s any
question about that. Even the legal writers on the subject, such as Professor
Beanie, agree that before the Bill of Rights was adopted the right included only
the right to employ counsel. In Johnson
versus Zerbst, this Court decided
that in the Federal court system every man was entitled to counsel unless he
waived that right. And we take the position that in Johnson versus Zerbst this Court, although it proceeded
by construing the Sixth Amendment, we take the position that this Court had in
mind, at least to some extent, the supervisory powers of this Court over the
Federal—the inferior courts in the Federal system.
THE COURT: It wasn’t put on that basis,
was it?
MR. JACOB: It wasn’t
put on that basis, Your Honor, but we can—
THE COURT: Is there
any intimation that it was on that basis either in the argument or the Court’s
opinion?
MR. JACOB: No, Your Honor, it wasn’t,
but generally when a court construes the Constitution, they go into history and
the intention of the Framers. In that case, the Court did not go into the
history of the provision, it did not go into the intention of the Framers, so we
feel that at least this Court took cognizance of its supervisory powers and knew
that it could impose—
THE COURT: Well, I can assure you
that’s the first time I’ve ever thought about it in that
way.
MR. JACOB: We may be
wrong, Your Honor, this is our own position in the case, and we feel that—we at
least feel that this might have been the case.
Now, Justice Cardozo
said in Schneider versus Massachusetts that due process requires
that the proceedings shall be fair, but fairness is a relative not an absolute
concept. It is fairness with reference to particular conditions or particular
results. The due process clause does not impose upon the States a duty to
establish ideal systems for the administration of justice with every modern
improvement and with provision against every possible hardship that may befall.
What is fair in one set of circumstances may be an act of tyranny in
others.
This concept of
relativity has been followed in every case before and since. Lisenba versus California comments on it. And at the
present time, the concept of due process means that this Court will take into
consideration the totality of factors in every single case. And that the right
to counsel is just one of these circumstances which the Court must take into
consideration. There are recent cases which say the pattern of due process is
picked out of the facts and circumstances of each case. Powell versus Alabama was decided on the circumstances
of that case; it did not lay down an inflexible rule in all capital
cases.
So, historically,
under the definition of due process as it’s been formulated by this Court, due
process cannot be an absolute requirement. We cannot have a fixed rule requiring
appointment of counsel in these cases and not in those cases. We cannot draw an
inflexible dividing line anywhere.
THE COURT: We said in
Betts versus Brady that they must furnish counsel in
all capital cases, didn’t we?
MR. JACOB: In Betts versus Brady no mention was made, no
distinction was made between capital and noncapital cases, Your Honor. I realize
that since that case, legal writers and judges have cited Betts versus Brady for the proposition that an
inflexible rule exists in capital cases and not in noncapital cases, but I
couldn’t— in reading Betts versus Brady, not in one place is there the
word “capital” as opposed to “noncapital.”
THE COURT: What about
Powell versus Alabama?
MR. JACOB: Powell versus Alabama was decided on the circumstances
in that case, Your Honor. There the Court held that in a capital case where a
man can show that he is illiterate, ignorant or incapable of handling his own
defense, he should have counsel appointed for him.
THE COURT: Well,
that’s quite true, but you’ve got to recognize that in substantive cases in this
Court we have laid down an absolute rule in capital cases. Hamilton against Alabama is the latest expression of it
and of course we can’t argue that.
MR. JACOB: I’m not
sure that Hamilton versus Alabama does say that, Your Honor. In
that case there was a State court finding that the man was entitled to counsel
because the State court appointed counsel for a man and he was arraigned on a
charge of burglary. That charge was then dropped and then he was arraigned on a
capital charge and counsel was not present. And 2 days later, the same counsel
who had been previously appointed was appointed for him on that capital charge.
And we take the position that Hamilton
merely says that when the State court has already determined that a man is
entitled to counsel in a State court procedure—an arraignment is very difficult
and very complex—the man should have counsel at the arraignment
stage.
I realize that this
Court has many times drawn the distinction between capital and noncapital cases,
but Betts versus Brady did not say that; Powell versus Alabama did not say that; and in the
cases that have followed since Betts,
this statement has been made as a matter of dicta, generally; it has not
been included in the holding of the Court.
THE COURT: What
historical support do you find in history, back before the early days, for
thinking that a man who is charged with a crime for which he might be only
sentenced to life or sentenced to 50
years was any less entitled to a fair trial than the man who might be
executed? What historical support do you find for that? In your studies of
history in this field.
MR. JACOB: Your Honor,
I’m not sure if I understand the question. What historical support is
there—
THE COURT: What
historical support do you find, outside of what’s crept into some opinions in
the last few years, that a man is any less entitled to a fair trial who is
charged with a noncapital offense and might lose his liberty than a man who is
charged with a capital offense?
MR. JACOB: Your Honor,
I can’t think of any historical—I’m not-
THE COURT: I can’t either; that was the
reason I asked you.
THE COURT: There’s no
distinction in the words of the Fourteenth Amendment itself either between a
capital offense or a penitentiary offense or an offense that leads to a fine of
a dollar; because it says life, liberty or property, doesn’t
it?
MR. JACOB: That’s right, Your Honor,
and if—I think if—I don’t think, first of all, to take the position that this
Court has not drawn an absolute rule—I think the rule exists between capital and
noncapital cases only because all the States which have capital cases also
provide for appointment of counsel.
THE COURT: Would you
mind stating the rule of Betts versus
Brady as you understand
it?
MR. JACOB: As I understand it, the rule
of Betts versus Brady—
THE COURT: And Powell along with
it.
MR. JACOB: The rule of Powell and Betts is that in any criminal case a man
is entitled to counsel if he can show special circumstances which show that he
would be denied a fair trial without counsel.
THE COURT: Then you
believe we have not decided that in all capital cases he must be supplied
counsel?
MR. JACOB: I don’t think there’s been a
holding to that effect. I know it’s been said many times. But even if there is,
assuming that there is a rule, an inflexible rule in capital cases, we feel that
that is the logical place to draw the line. There’s very little distinction
between a misdemeanor and a noncapital felony. For instance, in Florida, for
some misdemeanors you can be placed in the county jail for 5 years, while for a felony you can go to
the State prison for 1 year or more. So, in Florida, for instance, there is very
little distinction between the two in many cases. Five years in the county jail
isn’t much different than one year or five years in the State
prison.
Also, the States have
drawn so many distinctions between capital and noncapital cases that we feel
that if there is an inflexible rule in capital cases that that is the logical
place to draw the distinction. In capital cases—well, capital cases are a
creature all to themselves; they just are unlike any other case because
everybody is fearful of being put to death by electrocution or some other
means.
THE COURT: I suppose
most people are fearful about being put in jail, in the penitentiary,
too.
MR. JACOB: They are
fearful of that, too, but it’s nothing like being put to death, Your Honor. And
when you’re put in jail for a few years, there’s always a chance that you’ll get
out on probation or parole.
THE COURT: Are you
arguing that we should draw such a line?
MR. JACOB: I’m arguing
that you shouldn’t draw such a line under the due process clause; but if you do,
that is the logical place to draw it, between capital and noncapital
cases.
If the Sixth Amendment
as it’s presently construed in Johnson
versus Zerbst is to be
incorporated or absorbed into the Fourteenth Amendment, the rule would have to
extend to all misdemeanors because the Sixth Amendment just says in all criminal
prosecutions the defendant is entitled to counsel. And of course, misdemeanors
are crimes. I don’t see how the Court could draw a distinction; they’d have to
provide lawyers in all crimes no matter how minute or how small they are. This
would place a tremendous burden upon the taxpayers of every State; it would be
foolish—
THE COURT: What do you
understand Johnson and Zerbst held with reference to that
right?
MR. JACOB: Johnson versus Zerbst held that the Sixth Amendment
meant you are entitled to counsel in every single case.
THE COURT: Without
exception?
MR. JACOB: Without
exception, because the Sixth Amendment doesn’t make any differentiation between
different types of crimes.
The main point, it seems to me, in the
argument for the petitioner is that it’s impossible to get a fair trial without
counsel. That seems to be the main point that they rely upon. This, of course,
is not true, because if a judge takes care of a man, sees to it that he’s—that
inadmissible evidence is not admitted, takes care of him throughout the trial,
he can receive a fair trial.
THE COURT:
[Inaudible]
MR. JACOB: Yes, we do, Your Honor, if
he—
THE COURT:
[Inaudible]
MR. JACOB: Because
those cases which decide [Inaudible] the judge has taken too large a part in the
trial are decided on the circumstances in those cases, and there the judge took
complete charge of the trial and didn’t let the defense attorney—there the man
usually had an attorney; in fact, in every case that I can recall, the man had
an attorney.
THE COURT: Does the
State have a right of appeal in a criminal case in your
State?
MR. JACOB: It has the
right of appeal in certain circumstances, not from a judgment of conviction,
though. It has the right of appeal from a denial of a motion or the granting of
a motion for new trial; that’s one instance I can think
of.
THE COURT: That would, as a practical
matter, answer Mr. Justice Goldberg’s question. I suppose the State could never
appeal the—if the judge intervened to the extent—
MR. JACOB: That’s
right.
THE COURT: —that he acted as defense
counsel. Am I right in thinking that the State had no appeal from
such?
MR. JACOB: No, It wouldn’t; it doesn’t
have the right of appeal from a judgment of conviction.
THE COURT: I suppose
the judge and the defendant might disagree, though, as to whether the judge was
actually helping him or hurting him by examining witnesses and so forth,
wouldn’t they?
MR. JACOB: Yes, Your
Honor.
THE COURT: Well, how
would he ever work himself out of that dilemma, if he couldn’t have a
lawyer?
MR. JACOB: Your Honor,
I’m getting to a point that I think will answer that. The petitioner seems to
base his entire argument on the proposition that a man just cannot receive a
fair trial, or at least generally, he just cannot receive a fair trial without
counsel. I’d like to point out that even under the Federal rule, even under Johnson versus Zerbst, a man can defend himself if he
waives his right to counsel and decides to handle his own defense. To me, that
shows that a man can get a fair trial. If he couldn’t get a fair trial by
handling his own defense, then I think that this Court should require that every
single man in any criminal case must have counsel, whether he waives it or
not.
THE COURT: Well, the
trouble is there you have two things conflicting. I suppose a man has a
constitutional right or a right as a free individual human being to insist on an
unfair trial, doesn’t he? And to insist on waiving his—
MR. JACOB: Right to a
fair trial.
THE COURT:
Yes.
MR. JACOB: That’s
possible, Your Honor.
THE COURT: You
wouldn’t feel that the Court should hold that the Constitution permits the
Government to force a lawyer on a man who objects to having him, would
you?
MR. JACOB: I don’t
think it should, but I think that the fact that a man can stand trial by himself
does show that at least this Court isn’t too concerned about a man not being
able to receive a fair trial. I think there are circumstances where he can
receive a fair trial. If he just couldn’t possibly receive a fair trial in any
instance—
THE COURT: I don’t
think anybody would go—
MR. JACOB: —I don’t
think this Court would even allow him to waive— What was that, Your
Honor?
THE COURT: I don’t
think anybody would go that far who’s tried cases, because there are some
defendants who are pretty smart.
MR. JACOB: That’s
precisely our point, Your Honor. Many defendants are smart, and it shows up
every day in our handling of these habeas corpus petitions. Some of these men
know exactly what they’re doing, and there’s no problem in raising special
circumstances. This is the only petition I’ve ever seen where they didn’t set
out all the circumstances of the case. Usually they just go on and on and tell
everything that happened; and usually it raises a question that must be decided
by requiring a return and a hearing, in some instances.
By imposing an
inflexible rule in all criminal cases, we feel that this Court would be
intruding into a field that has been historically reserved for the States. Ever
since the Fourteenth Amendment was adopted, this Court has in one case after
another pointed out that a State can abolish the jury trial, trial by jury, if
it wishes. It doesn’t have to follow the specific guarantees of the Sixth
Amendment. There’s one case that says that a State can adopt a civil law if it
wishes. A State should be free to adopt any system it wants. If it wants, it
should be able to do away with the need for a prosecutor. Perhaps a judge could
handle the whole trial. I’m not urging this, but I’m saying that the Court—that
the States have the right to do this.
THE COURT:
[Inaudible]
(Laughter]
MR. JACOB: In other
words, if this Court were to impose an inflexible rule that counsel must be
appointed in all felony cases or in all criminal cases, it would be discouraging
the State from experimenting and adopting the types of rules and procedures that
it feels are necessary. It would be discouraging the State from adopting fair
rules as well as unfair. Now, if this Court were to lay down a rule which
discourages the State from adopting an unfair rule or prevents them from
adopting a rule that is unfair in every situation, I could see some reason for
it. But if this Court adopts a rule that prevents the State from promulgating
fair rules as well as unfair, I think the Court is stepping into the field of
State legislation.
One problem that couldn’t be covered by
the—even if this Court does lay down an inflexible, would be the problem of
adequate representation. Our study of the cases which have been reported in
recent years show that that has become the big problem, not the problem of
whether a man actually had counsel or not; but the big problem is whether he had
adequate representation. Now, just because we impose an inflexible rule
requiring appointment in all cases, that does not mean that a man is going to
have an adequate trial. We feel that in some cases where a man is competent, he
can give himself an adequate representation. In some cases, of course, he can’t,
and in those cases he should have counsel appointed for him. But we feel that
the line, if any line is to be drawn, it should be drawn on the basis of whether
a man has had adequate representation. And of course, I think he can have
adequate representation even though he represents himself, in some
instances.
It would be absurd—
THE COURT: I suppose I am right in my
assumption I made earlier that Florida wouldn’t permit Gideon or any other
layman to defend anyone else in the State on trial, would it?
MR. JACOB: No, it
wouldn’t, Your Honor. Gideon could—if a man came into court and said, I want to
be defended by Gideon, then certainly the court would not
object.
THE COURT: It
wouldn’t?
THE COURT: Wouldn’t
Gideon maybe get in trouble for practicing law without a
license?
[Laughter]
THE COURT: With the
local bar association.
MR.JACOB: I’m sorry,
Your Honor; that was a stupid answer. [Laughter]
MR. JACOB: If this
rule is imposed under the equal protection clause, I think it would result in a
number of absurd situations. For instance, if we required that counsel be
appointed in all cases as a necessary requisite of equal protection, the courts
or the States would also be required to appoint counsel in civil cases because a
man who has money can be represented by a lawyer in civil cases. The court would
have to see to it that a man is given investigators, that he’s given
psychiatrists and expert witnesses if he wants them, because those things are
available to the man who has money. This Court would have to see to it that
every man is equally entitled to bail; that the State would have to give him
money for bail if he couldn’t afford it. This Court would have to require that
all States provide for a lawyer on appeal or in post-conviction proceedings or
on appeals from post-conviction proceedings. In effect, the Court would be
requiring that the States follow a program of socialism or would be requiring
that the States adopt a welfare program. And the States, we feel, should be
allowed to adopt that program themselves if they want to, but that it should not
be required as a constitutional requirement.
Griffin versus Illinois does not constitute grounds for
making this a right under the equal protection clause or making the absolute
right to counsel a requirement under the equal protection clause. In Griffin, the Court said that a State
cannot discriminate if they provide for transcripts—if they provide that no one
can receive an adequate appeal without a transcript, they cannot bar the door to
the courtroom, so to speak, by requiring that a poor man pay. It’s just as
though they closed the door on him. Under the Betts versus Brady doctrine, a man’s—the door to the
courtroom may be closed if a man is deaf and dumb or if he is illiterate or
ignorant or if he’s incapable of handling his defense; but if he is capable of
handling his own defense, the door to the courtroom is not closed. Also, Griffin points out that a State does not
have to give the indigent the exact same treatment which the rich man is able to
afford. Mr. Justice Black said that the State, if it wished, would not have to
always supply transcripts in every case; it could find other ways to do it. In
other words, as long as it substantially gives a man the same protection that a
rich man is given, that is all that is required under the equal protection
clause. And we contend that a man does get substantial protection if he’s
competent enough to handle his own defense.
Now, counsel for petitioner has said
that the imposition of an inflexible rule in all noncapital cases or in all
criminal cases would create less—would mean that there would be less friction
between the Federal courts and the State courts. Justice Brandeis once said that
separation of powers was adopted in the Constitution not to promote efficiency
but to preclude the exercise of arbitrary power.
Even if there is some
friction created between Federal and State courts, it is better to have that
friction than to allow the Federal courts to substitute their opinions on what
States should require under their State law.
In their briefs, the petitioner and the
amici have pointed out that if an
inflexible rule is adopted there will be much fewer— there will be fewer
petitions for certiorari. That position is a fantasy because first of all, if an
inflexible rule is set down by this Court and it is made retroactive,
immediately the State courts and this Court will be flooded with a number of
petitions from prisoners who have been incarcerated for a number of
years.
THE COURT:
[Inaudible]
MR. JACOB: No, Your
Honor, because historically the right to employ counsel has always been present
and I don’t think that it could be that.
THE COURT:
[Inaudible]
MR. JACOB: Logically,
I suppose that it could be done; but as a practical matter, it never would be
done, it wouldn’t even be considered by the States, I don’t
believe.
Another good reason for—in our position
is that the Federal system which has been adopted by this Court has not worked
perfectly. There have been many flaws in it. For instance, a newspaper article
just Sunday pointed out that there has been great difficulty in procuring
lawyers to handle of these defenses. Just because a system is imposed does not
mean that there won’t be many difficulties in getting counsel to undertake that
system.
As to this matter of retroactivity, or
making this decision retroactive, logically the decision would have to be
retroactive because Gideon filed a petition for habeas corpus, which is a
collateral attack. So if this Court were to reverse the case and impose an
inflexible rule in all criminal cases, as I pointed out in our brief,,
approximately 5,200 prisoners would be at least eligible to be set free under
the new rule. And I would like to point out that Florida, until the last year or
so, has not required that transcripts be taken—in fact, they still do not
require that transcripts be taken at arraignment and in many cases it would be
difficult, in other words, to get information to show that a man had waived or
had not waived his right to counsel. So, many of these men would be entitled to
be set free. And of course, you say they may be retried, but that would be
difficult in many cases because it’s difficult to get information for an offense
that was committed many years ago. In fact, it’s difficult to get evidence with
which to prosecute a man even when he was convicted only a few months ago, in
many instances.
THE COURT: Why would
there be difficulty in showing whether he had counsel or not? I understood you
to say there were 5,200 in jail whom
the record showed did not have counsel.
MR. JACOB: That’s
right, Your Honor.
THE COURT: Well, what
would be difficult then about—
MR. JACOB: It would be
difficult for the State to gather—to marshal its evidence to retry the
man.
THE COURT: Oh, I see;
you’re talking the retrial.
MR. JACOB: Retrial,
yes, sir.
THE COURT: You were
also talking about the difficulty of proving that he might have waived counsel
at arraignment.
MR. JACOB: That’s
right; the difficulty of proving that he has waived counsel and also the
difficulty in retrying the man. So, many of these men would be set
free.
THE COURT: Would
judges ask them if they waived counsel?
MR. JACOB: No, Your
Honor, because we do not follow the Federal rule. The judge examines the man
himself and makes a determination from his own observations as to whether the
man is able to handle his own defense. Even if a man asked for counsel, that
doesn’t mean he’s going to get it; it depends upon whether the man is capable of
handling his own defense.
THE COURT: Except—as
I’ve understood it, you said that in your four most populous counties, as a
matter of practice, as a matter of fact, criminal defendants are provided with
counsel. Is that right?
MR. JACOB Yes, they
are, but even in those counties, in some instances the public defender is so
overworked that they don’t provide counsel every time a man decides to plead
guilty. Sometimes a man—in fact, usually the case is that a man can plead guilty
without consulting with counsel if he tells the judge he wants to plead guilty.
They don’t require that the man consult with counsel before he enters a plea of
guilty because there aren’t enough public defenders under our present set-up to
provide lawyers in every single case, whether a man pleads guilty or not
guilty.
THE COURT: Do you know
offhand how much of the population of Florida is in those four counties? Half of
it?
MR. JACOB: Just about,
Your Honor. Dade County alone has a million people, and the State has between
four and five million, I believe; so Dade County alone has, I believe, about 25
percent of the population.
THE COURT: Presumably
if the percentage of crime was pretty well scattered out representatively
throughout the State, then half of the convictions would have come from those
four counties.
MR. JACOB: Well, these
public defender systems have only been set up in the last few years. The
Hillsborough system was set up by the 1961 legislature, for
instance.
THE COURT: I
see.
MR. JACOB: As our
final request, we urge that if the Court does decide to reverse this case, we
implore the Court to find some way to not make the rule retroactive because the
State of Florida and the other States which have followed the Betts versus Brady doctrine have done so in good
faith. They have followed the decisions of this Court from year to year and have
tried their best to apply the rule which has been followed by this Court. They
have followed the rule in good faith, and therefore we respectfully request that
some means be found by which not to make—to make the rule nonretroactive. I have
cited several cases in my brief which cite the problem and which—some of which
indicate that even though logically a case such as this would have to be
retroactive, since this came to this Court from an appeal by a prisoner to the
State supreme court, some courts have seen fit to cast aside this legal fiction
and have made a new rule retroactive as to the one particular litigant as an
incentive, so to speak, to other litigants who might desire to, who might have
questions of constitutionality that could be
litigated.
So, our argument turns
primarily upon the doctrine of federalism. We feel that the States have
historically always had power to provide rules of procedure in their own courts.
This Court has, in construing the due process clause, has always said that it is
a relative, not an absolute concept. And for that reason, I think that any
decision laying down an inflexible rule with respect to felonies or all criminal
cases would change the whole concept of due process as it has been set out by
this Court.
THE COURT: When was
the Federal statute requiring appointment of counsel first passed, do you
know?
MR. JACOB: The first
statute was the statute in 1789 or ‘90 which required appointment in capital
cases. Are you speaking of the present rule or the first statute, Your
Honor?
THE COURT: My
recollection is that there was no Federal statute on the books as late as 1940
that required the appointment of counsel.
MR. JACOB: That’s
right. I believe it was 1944 or—
THE COURT:
‘44.
MR. JACOB: —about that
time that the rule of ‘44 was adopted.
THE COURT: Up to that
time, the Betts and Brady philosophy was—obtained in the
Federal system.
MR. JACOB: Yes, Your
Honor.
THE COURT: Mr.
Mentz.
ORAL ARGUMENT BY GEORGE D.
MENTZ,
ASSISTANT ATTORNEY GENERAL OF
ALABAMA,
ON BEHALF OF THE STATE OF
ALABAMA,
AS AMICUS CURIAE
MR. MENTZ: Mr. Chief Justice, may it
please the Court, in company with Florida, Alabama and North Carolina are of the
opinion that Betts versus Brady should not be overruled.
Regretably, my presentation will in many areas duplicate that of Mr. Jacob, but
fortunately, I’ll be brief.
We contend that the
Sixth Amendment providing for representation by counsel in criminal prosecutions
operates only on the Federal Government; that State appointment of counsel, in
and of itself, is not an essential to a fair trial; that an asserted denial of
due process should be tested by an appraisal of the totality of the facts in a
given case; and that the Fourteenth Amendment’s due process clause does not make
the Sixth Amendment applicable to the States.
Now, I candidly admit that along with
other forms of public assistance for indigent persons it would be desirable for
the States to furnish counsel in all criminal prosecutions, but we contend that
there is no need for appointment of counsel in every State prosecution and that
each individual State should have the privilege of exercising its constitutional
right under the Tenth Amendment of determining when appointment is necessary. We
say that it’s a sound rule that an asserted denial of due process is to be
tested by an appraisal of the totality of the facts in a given case and that a
constitutional violation occurs only where the failure to appoint counsel
constitutes a denial of fundamental fairness which is shocking to the universal
sense of justice.
The petitioner in this case has
asserted that from 75 to 90 percent of all State cases are decided on pleas of
guilty. In accepting as valid those statistics, we say that it is unrealistic to
assume that anything more than a very few of those pleas result from the
accused’s ignorance or fear or from any improper influence by State authorities.
Practically everyone who pleads guilty to a criminal charge does so because he
knows that the prosecuting authorities can prove his guilt and because he hopes
to obtain leniency by dispensing with an unnecessary trial. And we say that a
State should not be burdened with the expense of appointing an attorney who in
good conscience could recommend only to his client that he enter a plea of
guilty.
Now, its critics complain that in the
20 years following Betts versus Brady that this Court has been compelled
to reverse more and more State cases, indicating a necessity for overruling Betts versus Brady. We don’t deny that this Court has
observed some cases which have shocked its sense of justice. The State judges—
THE COURT: I didn’t—going back just a
minute, I didn’t understand the argument to have been made that a State was
under the obligation to appoint a lawyer for an indigent who in turn was under
an obligation to enter a not guilty plea. Often in the case of a nonindigent,
the best advice that a lawyer can give to a client is to plead
guilty.
MR. MENTZ: Yes, I agree with
that.
Well, as I understood the arguments
advanced here today, they said that the necessity for counsel existed almost
from the time of arrest. And if that is true, then wouldn’t counsel have to be
appointed in time for him to make his plea?
THE COURT: I think that would follow
from—that was argued here. But I didn’t understand the further argument to be
made that it was State-appointed counsel’s duty to enter a not guilty plea in
every case.
MR. MENTZ: No, sir,
not in every case, but I mean I’m just saying that the great majority of State
cases are disposed of on guilty pleas.
THE COURT: Yes, but I
don’t know what that proves. Maybe some of them would have been, many of them
would have been guilty pleas if counsel had been appointed and if competent
counsel had been there advising the defendant, but some of them would not have
been.
MR. MENTZ: That’s
quite possible, yes, sir.
THE COURT: And a
guilty plea—you’re not arguing that a guilty plea is itself a waiver of
counsel?
MR. MENTZ: No, sir;
no, sir. I’m just saying that it—well, I say that in view of the fact that so
many cases are disposed of by guilty pleas, that no great advantage would occur
to the indigent accused if counsel were appointed.
THE COURT: Can’t you
conceive of the possibility that many of these pleas of guilty are entered by
people who, if advised by counsel, would have pleaded not guilty and might well
have been acquitted?
MR. MENTZ: Well, yes,
sir, I admit that certain cases might turn that way; but on the other hand, my
main contention is that by and large most of them would not. Of course, that’s
in the realm of speculation. I don’t know, sir.
THE COURT:
[Inaudible]
MR. MENTZ: That’s
correct, sir.
THE COURT:
[Inaudible]
MR. MENTZ: Yes,
sir.
THE COURT:
[Inaudible]
MR. MENTZ: I don’t
doubt it, sir.
As I was saying,
critics complain that this Court has found it necessary to reverse more and more
State convictions, indicating a necessity for overruling Betts versus Brady, but it seems to me that here the
emphasis is placed on those cases which this Court in its opinion has seen fit
to reverse and has ignored the thousands of State prosecutions which are
conducted absent the aid of defense counsel which present no cause for
complaint. True, it’s said that all indigents can’t bring their cases to this
Court, but to me that is not a realistic criticism because of the ease with
which indigents can proceed as paupers in the Federal courts, all of the Federal
courts, including this one. Our office is flooded with coram nobix and habeas
corpus petitions, and I’m sure that this Court gets its fair share of
them.
THE COURT: What would
be your—this is pretty speculative, I must admit, but supposing Betts and Brady isn’t overruled, what are you
fore—how many years is it going to take Alabama to pass a law like New York and
24 or 25 other States?
MR. MENTZ: Mr. Justice
Harlan, I don’t know. I can only say this, that it is my firm conviction that
there is a growing awareness among the judges, our trial judges, of the
necessity or desirability of appointing counsel, and—
THE COURT: There is
debate on the subject in Alabama?
MR. MENTZ: Yes, sir.
It is—
THE COURT: In the
Bar?
MR. MENTZ: Yes, sir, it is. But I
don’t—
THE COURT: Naturally you can’t be a
soothsayer.
MR. MENTZ: I
couldn’t—I don’t have that prophetic endowment. I just don’t know,
sir.
THE COURT: Do any of
your counties, as a matter of practice or custom, do the trial judges appoint
lawyers?
MR. MENTZ: Mr. Justice
Stewart, I don’t know of any in the trial stage. I do know this: that in
Montgomery, we run into all of these prisoners, State prisoners who are filing
habeas corpus petitions—
THE COURT:
Yes.
MR. MENTZ: —and it’s not uncommon there
for the circuit judge to appoint attorneys for the prisoners—
THE COURT: For the collateral
proceedings.
MR. MENTZ: To help them in their
post-conviction proceedings.
THE COURT: Their post-conviction
proceedings.
MR. MENTZ: Yes,
sir.
THE COURT: In that
connection, North Carolina, which is one of the five States, as I understand,
that, like Alabama and Florida, make no provision for trial counsel, does, as a
matter of statutory law, require that an indigent bringing post-conviction
proceedings must be assigned counsel. [Inaudible]
MR. MENTZ: This
practice that I speak of in Alabama is not by statute, it’s
just—
THE COURT: Custom or
practice.
MR. MENTZ: It’s just
out of the—
THE COURT: It’s just
occasionally done, is that it?
MR. MENTZ: Yes, sir.
It’s just a gratuitous act on the part of the judge, and that is one of the
arguments which we contend obviate or negates the contention that you’ve got to
have counsel to get a fair trial. In other words, I think our judges as a whole
are men of very high caliber. I think that they are intellectually and morally
capable of fulfilling the duties of their office, and I think they sincerely try
to prevent a miscarriage of justice.
THE COURT: We can
assume, and I do assume, all that, right along with you, but a judge’s job is to
be a judge, not to be defense counsel.
MR. MENTZ: Well, that
is true, sir, and—
THE COURT: And they
would not be the kind of men you’re describing if they, instead of acting as a
judge, acted as one of the litigants, counsel for one of the
litigants.
MR. MENTZ: But I
think, and I have seen it happen, I have seen trial judges wear two hats without
any great degree of incompatibility to this extent, that they—I’ve seen
them strike juries for an indigent defendant who had no counsel, and they
usually come up with pretty good defense juries.
THE COURT:
[Inaudible]
MR. MENTZ: Yes, sir, I
do.
THE COURT:
[Inaudible]
MR. MENTZ: Well, I
don’t—they don’t go to that extent of making a plea to the jury. But I have seen
them do this, that when they would charge the jury as to the law of the case
that they would point out what the defendant’s theory of defense was and what
evidence he had educed in support of it. No, I’ve never seen them actually
espouse the defendant’s cause.
THE COURT:
[Inaudible]
MR. MENTZ: No, sir, he
is not supposed to.
Another thing that we
think militates against the argument that a layman can’t get a fair trial
without aid of counsel lies in the fact that your defense attorneys—or rather,
your prosecuting attorneys are much more lenient insofar as not interposing
objections to the introduction of evidence; the—or, during the
cross-examination, the examination or cross-examination of witnesses. And even
if the accused himself presents an argument to the jury, the solicitor
invariably will refrain from doing it. Now, I think—
THE COURT: In all
honesty, isn’t that a matter of just good trial strategy—
MR. MENTZ: Yes, sir,
it is.
THE COURT: —from the
prosecutor’s point of view?
MR. MENTZ: It is; but
nevertheless, as you know, the closing argument to a jury is one of the most
critical stages of a trial, and by refraining from giving that argument, the
prosecuting attorney is deprived of a very potent weapon. And—
THE COURT: But as a
matter of trial strategy, it’s a weapon that might well backfire if the jury saw
that the defendant was just there helpless—
MR. MENTZ: Well, that’s it. I mean, I
freely admit that the solicitor does it because he knows that he’d be put at a
disadvantage by not doing it; in other words, he recognizes the fact that a man
appearing unaided is in the role of an underdog and he just engenders the, our
almost universal sense of sympathy for the underdog. Now—
THE COURT: And I—as a matter—
MR. MENTZ: Sir?
THE COURT: —of logic,
also, I don’t see quite where this argument leads you, because what you’re
saying is that the deprivation of counsel to a criminal defendant impairs and
impedes the adversary system of justice because it makes it necessary for you
not to try your case to the utmost.
MR. MENTZ: Well, no,
sir, I don’t—I wouldn’t mean to go that far. I don’t think the man falls back
all the way. But I mean there are certain areas in which he gives, that—which he
wouldn’t do if there was an adversary counsel representing the defendant. I’ve
talked—at the last meeting of the bar association, when I talked to a group of
the State solicitors and they were of the widespread agreement that an indigent
appearing without aid of counsel really stood a better chance of getting a
lighter sentence or even an outright acquittal than one who does have an
attorney. And I think one reason for that is this: that the prosecuting attorney
feels free to pull out all the stops if he’s got an opponent—and the average
opponent, at least in Alabama, the average lawyer there is just not sufficiently
versed in criminal practice to cope with most of your career
prosecutors.
I just mention these
things to demonstrate that generally speaking indigents charged with crime are
not as unfortunately situated as the critics of Betts versus Brady would have us
believe.
Another thing, I think
that since Betts versus Brady there’s been a progression in the
education of most groups and I believe that if the average man who has got a
real valid defense is sufficiently articulate enough to get it across to the
jury—he may not do it in the nice legal niceties, but he gets the story
across.
THE COURT: That’s not
very complimentary of our profession, is it?
[Laughter]
MR. MENTZ: Well, not
completely, no, sir.
Of course, now,
critics of Betts have said that
defendants prosecuted of crimes are entitled to counsel whether it’s life,
liberty or their property. And this, of course, raises the problem of whether
the protection of counsel should be limited to felony or to misdemeanors or to
whatever terms we’re going to use for these different offenses. Because
certainly an illegal sentence of, I think, 30 days is just as much a violation
of due process as one for life. Another thing is: Why should we limit it to
criminal prosecutions? The due process clause protects property, so it seems
just as logical that if you say the Fourteenth Amendment requires appointment of
counsel in criminal cases, it also requires appointment of counsel in civil
cases where property is involved.
THE COURT: I suppose
that you could argue that it would require the State to appoint counsel where
all that was wanted was the advice of a lawyer.
MR. MENTZ: Yes, sir,
that would certainly be a logical extension of it. Of course, you might say that
this is carrying it to the absurd degree—
THE COURT: That’s what
I thought you were trying to do.
MR. MENTZ: —but certainly logic would
carry you that far. And it’s been mentioned about the police courts. Now, in
Alabama, I know we have people who get a certain number of traffic violations or
certain type traffic violations have their driver’s license taken away from
them. Well, that’s a very—if a man’s a salesman, loss of his driving license is
a very vital thing to him, and—
THE COURT: Of course there’s nothing in
the Sixth Amendment that talks about driver’s license.
MR. MENTZ: No, sir,
but it—as I say, the Fourteenth Amendment protects -
THE COURT: Maybe we should have some
new constitutional limits. Maybe if these laymen are so good at defending
themselves as you say, maybe we should get the Sixth Amendment
repealed.
MR. MENTZ: Well, Mr. Justice Douglas, I
didn’t mean to say that these lay defendants are all that good, but I say that
they’re not as helpless as some people seem to think they
are.
THE COURT: As appellate judges seem to
think.
MR. MENTZ: Sir?
THE COURT: As appellate judges seem to
think.
MR. MENTZ: As some appellate judges,
yes, sir.
[Laughter]
THE COURT: Maybe the States and the
Federal Government shouldn’t hire lawyers—
MR. MENTZ: I didn’t understand you,
sir.
THE COURT: Maybe the States and the
Federal Government shouldn’t hire lawyers, prosecutors; put us all out of
business, now, if they do that.
MR. MENTZ: I agree with Mr. Jacob
completely now when he says that Powell,
although Powell is often cited
for the proposition that as a mandatory rule that counsel be appointed in all
capital cases, I don’t find that in Powell. I think that Powell holds that under the facts of
that case there were special circumstances which required that counsel be
appointed in order to meet the requirements of due process. And as for Hamilton versus Alabama, now I’m not sure; certainly the
decision in Hamilton does not
expressly say that it’s decided on due process grounds, and I’m of the opinion
that that case doesn’t lay down any broad principle of law applicable to all
States, but that it’s applicable only in Alabama, because of the special
circumstances attendant at the time of arraignment there.
THE COURT: Let me put this question to
you—
MR. MENTZ: Yes,
sir.
THE COURT: Supposing you had the
choice, as you see it, representing a State, of maintaining Betts and Brady on the books, and then having a
succession of cases in this Court where in every instance where a State did not
appoint counsel; the case is brought up here and you have it automatically
reversed, finding special circumstances; so that while Betts and Brady is being obeyed in form paid lip
service to, any discerning person would know that unless the State does that,
the case is coming up here and getting reversed. Do you think that between
maintaining that kind of a situation and just getting Betts and Brady off the books, which would you
think was the better? Sitting as you, with your responsibility representing the
State, knowing the operation of your courts.
MR. MENTZ: I’d rather see each case—
THE COURT: I beg your
pardon?
MR. MENTZ: I’d rather see each case
decided individually.
THE COURT: Even though you know they’re
all going to be decided the one way?
MR. MENTZ: Well, we—hope springs
eternal—
THE COURT: That’s what I’m
assuming.
MR. MENTZ: Sir?
THE COURT: That’s what is in my
assumption.
MR. MENTZ: Yes, sir. Well, as I say,
we—it’s the old situation of hope springs eternal, I guess. We hope to win
one.
And again, repeating what Mr. Jacob
said, I’d like to say that as a practical matter I think that a great many
States will have difficulties in finding enough qualified lawyers who are versed
in criminal practice to appoint; and certainly they are going to, in Alabama, at
least, we’re going to have financial difficulties in paying them. And as I have
said before, I don’t think that the popular plea now is not that I was denied
counsel, it’s that I was denied effective counsel; and that is going to
be—they’ll just switch from one horse to the other in their efforts to attack
the State judgments.
Thank you.
THE COURT: Mr.
Fortas.
REBUTTAL ARGUMENT BY ABE
FORTAS,
BY APPOINTMENT OF THE
COURT,
ON BEHALF OF
PETITIONER
MR. FORTAS: Thank you, Mr. Chief
Justice.
The basic proposition that I believe
the Court has before it is a problem of constitutional statesmanship, perhaps,
that this Court has recently traversed in Mapp versus Ohio. Mapp against Ohio, in my opinion, presented a more
difficult situation, not an easier situation. I believe, to paraphrase Mr.
Justice Clark’s notable opinion in Mapp
against Ohio, that time has set
its face against Betts v. Brady. I believe, again to quote Mr.
Justice Clark in Mapp against Ohio, and I quote:
Private delight in reaching the present
result could have no effect other than to compound the difficulties in the
future.
I believe that that is
the beginning and the end of the situation on the practical side of this case.
On the side of principle, I respectfully submit from the depths of my heart and
my understanding that there can be no two ways about it; that there can be no
choice here; that there is no room for doubt; that the rule is the rule that was
so eloquently stated—and perhaps I’ll be forgiven if I say never better stated
than it was by Mr. Justice Sutherland in Powell against Alabama, in that eloquent opinion, an
opinion which has since been applied only to capital cases and, in my opinion,
wrongly confined to capital cases.
As to the
capital/noncapital distinction, I think that this Court itself has demonstrated
that that distinction is untenable as a constitutional matter, and nowhere has
that been better stated than in the court martial cases which we have analyzed,
because of their remarkable pertinence here, in appendix C to our brief. And I
would like to say, to quote again from Mr. Justice Clark’s dissenting opinion in
the first case—in the second court-martial case he wrote the opinion of the
Court—in the first court-martial case Mr. Justice Clark said, for the
dissenters, for himself and Mr. Justice Burton, that the dissenting Justices
could “find no distinction in the Constitution between capital and other cases.
And that, of course, I believe has always been the case here. I think that Betts against Brady was wrong when decided; I think
time has illuminated that fact. But I think that perhaps time has also done a
service, because time has prepared the way so that the rule, the correct rule,
the civilized rule, the rule of American constitutionalism, the rule of due
process, may now be stated by this Court with minimum irritation and disruption
in the States.
THE COURT: Mr. Fortas,
in your studies of this problem, and I know you’ve thought a lot about it, did
you find, come across any errors or overstatements of the parade of
constitutional history that Mr. Justice Roberts brought to bear in his majority
opinion in support of the conclusion that was reached by the
Court?
MR. FORTAS: That would
be very difficult. I don’t read Mr. Justice Roberts’ opinion without a bias of
my own, Mr. Justice Harlan. I don’t believe—I—there’s one significant neglect
that I find in that opinion and that is that in reciting the history of the
English common law, I find an important omission, which is the omission of the
very strong current that ran against the English rule allowing counsel only in
misdemeanor cases. And we have cited in our brief very shortly a passage that I
found—I’m sure a lot of other people have found it, too—in Blackstone, in which
Blackstone points out, is extremely critical of the English restriction on
counsel, and points out that so onerous and so irritating was the restriction on
the right of counsel that the English judges developed a practice of permitting
counsel to stand at the side of the accused and tell the accused what to say.
And it is that omission that I find in Mr. Justice Roberts’ opinion. But we make
no case here on the basis of the conventions of the historical type of
constitutional interpretation. I don’t say that the historical technique of
constitutional interpretation will reach my result, but that is only one—
THE COURT: What you’re left with is to
get your hand—what one is left with is to get his hands on something that has
happened between 1942 and 1963 that has made what the Court then regarded as
constitutional suddenly become unconstitutional.
MR. FORTAS: Well, in
the first place, Your Honor, I think that—
THE COURT: Not in
terms of the generation, not in terms of long periods of
history.
MR. FORTAS: I would
have to say, Your Honor, that I believe that Betts against Brady is wrongly decided. We lawyers
always like to avoid that. I would say second that there are some intervening
facts that we point out—I have taken too much of your time. Mr. Justice, Mr.
Chief Justice, there are some figures with respect to Florida practice in a
study made by the American Bar Foundation of October 1962 that came to me after
our brief was written, and they may be of some possible interest to the Court
and I should like permission to file a copy, furnishing a copy to other counsel,
of course.
THE COURT: You may do
that.
MR. FORTAS: Thank
you.
THE COURT: Mr. Fortas,
before you sit down, I should like to say this: This is a very important case,
it’s a very fundamental case. It’s important to the State of Florida, to the
State of Alabama and the other States that have that same rule; it’s important
to thousands and thousands of poor litigants throughout our country. But as
important as it is, I can’t escape the feeling that in many of the cases of
these indigent defendants that we’re talking about, problems just as fundamental
and just as important as this arise, and it shows what benefit we do get from
counsel in deciding those issues.
I want to say that
we’re always indebted to members of the Bar who are willing to undertake cases
of this kind as a public service, and we’re grateful to you for having done so
for this indigent defendant. We’re very grateful to you, General Rankin, for
having appeared as a friend of the Court in the same cause. And of course,
gentlemen of the attorney general’s offices of Florida and Alabama, we realize
the great burden that you have in representing your State, and we
appreciate the fair, frank and earnest manner in which you have represented your
States here.
We’ve had a good argument and we thank
all of you.
[Whereupon, argument
in the above-entitled matter was concluded.]