by Bruce R. Jacob
Early one morning in June 1961, a breaking and entering took place in the Bay Harbor Pool Room a few miles east of downtown Panama City, Florida. Clarence Earl Gideon, who was living across the street in a rooming house, was arrested later that morning and charged with the felony of breaking and entering with intent to commit petit larceny.
Gideon appeared in the circuit court for Bay County, where he pled not guilty and asked for a lawyer. In the 1942 case of Betts v. Brady, 316 U.S. 455 (1942), the U.S. Supreme Court held that the 14th Amendment did not require the appointment of counsel in every criminal case, but counsel should be appointed for an indigent defendant whenever a special circumstance was present that would make it difficult for that person to receive a fair trial without the assistance of counsel. If a defendant was young, inexperienced, illiterate, uneducated, or had mental problems, for example, any one of such factors could constitute a special circumstance that would require a trial judge to appoint counsel for him or her. But Gideon was about 50 years old, had previous experience as a defendant in state and federal criminal courts, and seemed to be of at least average intelligence. Consequently, Circuit Judge Robert McCrary told him that he would have to conduct his own defense.
At that time Dade and Broward counties had defender systems. Florida’s population was around five million, and about one-fourth of the state’s population was in those two counties.1 Duval County had adopted a court-appointed counsel system.2 In 1961, the Florida Legislature had enacted a “population act” that provided for the establishment of defender offices in counties with between 390,000 and 450,000 people. Hillsborough County was the only county in that category, so a public defender’s office was about to be established there.3 Also, many Florida trial judges in other parts of the state were appointing counsel at least when a defendant pled not guilty in a felony case and wanted a jury trial, whether a special circumstance was present or not.
Why didn’t the trial judge in Gideon’s case appoint counsel for him? I believe at least part of the reason was that there were too few lawyers available for appointment in Bay County. There were about 1,200 serious crimes committed in Bay County in 1961.4 Of course, not all of the perpetrators would have been apprehended, and not all of those who were caught would have been indigent, but there could have been hundreds of cases requiring appointment of counsel each year. According to the 1960 edition of Martindale-Hubbell, Bay County had a population of 67,000, and only 34 licensed lawyers.5 Not all lawyers do trial work and not all have experience in criminal cases. If Judge McCrary had wanted to provide free legal help in very many cases without compensation to the lawyers appointed, it would have been difficult to find enough lawyers to represent all those defendants.
At his trial, Gideon, representing himself, cross-examined the witnesses for the prosecution. He decided not to take the witness stand on his own behalf. He was convicted and given a five-year sentence, based on the fact that he previously had been convicted of state and federal felonies.
Gideon did not take a direct appeal. However, he did what many Florida inmates did in those days. He filed a handwritten habeas corpus petition directly to the Florida Supreme Court. In the petition, he argued that an attorney should have been appointed for him, but he did not allege that any special circumstance had been present in his case. The court denied the habeas petition, because under Betts there was no right to have counsel appointed. Gideon then sent a handwritten certiorari petition to the U.S. Supreme Court. In March 1962, that court asked the Florida attorney general’s office to provide a typewritten response to Gideon’s petition.
I was a 26-year-old lawyer in the criminal appeals section of the attorney general’s office, and the case was assigned to me.
There were four lawyers in the criminal appeals section, handling almost all of the criminal appeals and postconviction cases for the state. When one of the four left, the remaining three would vote on a successor to fill the vacancy. After I had been in the attorney general’s office for about a year, a lawyer left the criminal appeals section, and those left voted to extend the opening to me.
Reeves Bowen, a former county judge, was the head of our section. He and the second-most experienced lawyer in the section, George Georgieff, each had handled cases in the Supreme Court. James (Jim) Mahorner had just represented the state before the Supreme Court in the case of Carnley v. Cochran, 369 U.S. 506 (1962). I was the newest and youngest and the only one of the four who had not yet argued a case before the U.S. Supreme Court. Even though I was young and less than three years out of law school, I handled 18 appeals before the district courts of appeal and the Florida Supreme Court while in the criminal appeals section and, therefore, was not inexperienced in criminal appeals at the time of the Gideon case.
Reeves Bowen enjoyed working with young lawyers and giving them valuable experience. He could have taken the case himself, but I am convinced that he knew it would provide tremendous experience for one of the younger lawyers.
Richard W. Ervin, the attorney general and later chief justice of the Florida Supreme Court, could have decided to take over the case after the grant of certiorari because the issues in the Gideon case were so significant, but he, too, cared for the young attorneys in the office and always helped promote our careers whenever he could. I was very fortunate to have them as mentors early in my career.
In Gideon, my personal belief was that counsel should be provided to all indigent defendants. But there were legitimate issues that needed to be argued and decided by the Supreme Court, in addition to whether there should be an automatic right to counsel in noncapital felonies.
1) In our constitutional structure of federalism, what should be the proper role of the federal government versus that of the states in determining state rules of criminal procedure?
2) Should the states, through their legislatures or courts, have control over their own rules of criminal procedure, or should the U.S. Supreme Court be allowed to set standards for the states?
3) Should the states be allowed some room for experimentation in determining how to provide fairness to all defendants in criminal proceedings?
4) Are there situations involving minor crimes in which a trial could be fair if neither side were represented by counsel?
5) Are there any situations when a lay person could be allowed to represent a criminal defendant?
6) Is the need for counsel as great for a defendant who wishes to plead guilty as for one who wants a trial?
7) If Betts is to be overruled, should the equal protection clause or the due process clause be the part of the Constitution relied upon by the court to reach that result?
8) If due process is selected, should selective incorporation be the method used by the court?
9) Would modification have to be made in our concept of what is meant by “due process” in criminal cases in order to overrule Betts and impose an absolute rule requiring counsel in noncapital felony cases?
10) If Betts is to be overruled, should the new decision be retroactive or prospective in its effect?
It is gratifying that Gideon won in the Supreme Court, and that other provisions of the Bill of Rights have been incorporated into the concept of due process and made applicable to the states. But there were many issues involved, not just whether counsel should be appointed for all indigents in noncapital felonies, and it was not inappropriate for me to represent the state in this case, no matter what my personal beliefs were regarding the need for counsel in such cases. My basic feeling was that counsel should be required, but that it should be left to the state legislature to decide on how to effectuate such a change.
In April 1962, I prepared and submitted the typewritten response. About two months later, the court granted Gideon’s petition and asked counsel on both sides to argue the question of whether the decision of Betts v. Brady should be “reconsidered.”
Preparing the Brief
Those of us in the criminal appeals section realized that Gideon probably was the case which the court would use to overrule Betts v. Brady. We hoped, however, that any such decision would not be retroactive. We also hoped that the rule would not be extended to misdemeanors or to criminal appeals, because we believed that it would be very difficult for any state, as a financial and practical matter, to implement requirements of that kind.
When certiorari was granted, I immediately began doing research for our brief. I asked the Division of Corrections to do a survey to determine how many prisoners would be affected if Betts were to be overruled. That survey resulted in these findings:
1) As of June 30, 1962, the Division of Corrections had custody of about 8,000 prisoners.
2) For 979 of the 8,000, the records were either so old that the information needed was not contained in them, or for some other reason the division was unable to ascertain whether those prisoners were represented by counsel. That left 7,021 prisoners for which the division was able to determine whether each had counsel.
3) Of the 7,021, 4,065 entered pleas of guilty with no counsel.
4) Of the 7,021, 477 entered pleas of not guilty and were not represented by counsel at their trials.
5) Of the 7,021, 1,504 entered pleas of guilty and were represented by counsel when they entered their pleas.
6) Of the 7,021, 975 entered pleas of not guilty and were represented by counsel.
Thus, of the 7,021 for whom records were available, 4,542, or 64.7 percent, were not represented by counsel in the proceedings resulting in their convictions. If this percentage is dependable, it appears that as of June 30, 1962, when there were 8,000 inmates in Florida, the division had custody of 5,176 prisoners who had not been represented by counsel in the trial court.
In the summer of 1962, Abe Fortas was appointed in the case to represent Gideon. He had been the personal attorney to Lyndon Johnson and was a member of the prestigious Washington, D.C., firm Arnold, Fortas and Porter, now Arnold and Porter.
In September 1962, while awaiting the brief from Fortas, I changed jobs, moving to Bartow to the firm now known as Holland & Knight. I asked Richard Ervin and Reeves Bowen if it would be all right for me to continue handling the Gideon case, and they said that it would be fine. I also asked Chesterfield Smith, the head of the Holland firm, for permission and he agreed.
The case then was called Gideon v. Cochran because H.G. Cochran was the director of the state Division of Corrections. On weekends, my wife, Ann, and I would drive from Bartow either to Stetson Law School to research or to Tallahassee to do research in the Supreme Court Library, which had historical and English materials that I needed for my research. The Supreme Court librarian, Agatha Thursby, gave us a key to the front door of the Supreme Court building and we worked in the basement where the English materials were kept. There were no copy machines in those days, and I would point out excerpts from cases that were helpful and Ann would copy those sections onto index cards by hand. When providing the key to the front door of the Supreme Court building, Mrs. Thursby said, “Just be sure to lock the front door when you leave.” Several years ago I visited the court and it took several minutes just to get through the front door because of screening devices.
Fortas’ brief was filed in November 1962. He argued that a defendant in a criminal case cannot effectively prepare a defense. A defendant who is not trained in the law is unable adequately to determine whether to plead guilty or not guilty, and doesn’t have the training to defend himself or herself in a trial. Fortas argued that even if the right to counsel was not a “fundamental right” at the time of Betts in 1942, it certainly was now, in 1962.
Ann typed our brief at our home. We didn’t have automatic typewriters in those days, and whenever a change had to be made, she would have to retype the entire page.
Assistant Attorney General A.G. Spicola, Jr.’s name was included on the brief. Since I was in Bartow and the brief was printed in Tallahassee, A.G. did the proofreading as the brief was printed.
These arguments were made in our brief:
1) First, historically, the Constitution did not require that an indigent state criminal defendant in a noncapital case be provided with counsel. The Sixth Amendment, which only applied in federal courts, said a criminal defendant was entitled to the assistance of counsel for his defense, but when the Sixth Amendment was adopted, it only meant that a defendant had the right to retain an attorney. It did not include the right to an appointed lawyer if the defendant was indigent. It was not interpreted to require appointment of counsel for indigents in federal cases until 1938, in Johnson v. Zerbst, 304 U.S. 458 (1938).
2) Under the Constitution, the states were allowed to develop their own rules of criminal procedure. We argued that states should be free to experiment with regard to criminal procedure.
3) Due process, in the early 1960s, was a flexible concept, based on fairness. It depended on the circumstances of each case. That’s why the court in Betts had said you have to examine the facts of each case to determine whether counsel is necessary. We argued that a flat rule in every noncapital felony would be inconsistent with the concept of due process of the 14th Amendment.
4) The right to the appointment of counsel had not yet risen to the level of a fundamental right. There still were 13 states that were not automatically providing counsel to indigents in noncapital felony cases, and only a handful of states were providing counsel in misdemeanors.
5) To incorporate the Sixth Amendment, which required appointment in federal criminal cases, into the due process clause of the 14th Amendment would mean that the states would have to provide counsel in misdemeanor cases. Due process protects against a taking of life, liberty, or property. Misdemeanors involve sentences that take away a person’s liberty or property, property in the form of fines. Also, if the 14th Amendment due process clause was construed to require an automatic right to counsel whenever property is being taken, logically counsel would have to be appointed in civil cases as well as in criminal cases. We argued that, as a practical matter, the state did not have enough lawyers or financial resources to provide free counsel at state expense in all these types of cases.
6) If the equal protection clause of the 14th Amendment was used to overrule Betts, the states would have to provide counsel for indigents in appeals, postconviction proceedings, and all other legal proceedings in which a person of means could hire counsel. The equal protection clause would require equal treatment of all people in every kind of case: criminal, civil, or administrative. This also would create tremendous practical and financial problems for the state.
7) If Betts was overruled, this would lead to claims by convicted defendants that they received ineffective representation, and, of course, that has happened in the years since Gideon.
8) If Betts should be overruled, we asked the court to make the new decision prospective, not retroactive. We hoped that thousands of prisoners throughout the United States would not be released from confinement at the same time.
The Oral Arguments
The arguments were set for January 1963.
There was one case before ours, White Motor Co. v. United States, 372 U.S. 253 (1963). The government’s lawyer was Archibald Cox, who was the solicitor general of the United States.
There are backup or “ready” tables behind the tables of the lawyers arguing a case. I was seated at the backup table behind Gerhard Gesell, the lawyer for the White Motor Co. Gesell later became a federal judge. Both he and Cox were wearing morning coats and tails.
No one was seated at the ready table on the other side to my right. But suddenly, as the White arguments ended, Fortas appeared. He must have made arrangements with the clerk to phone him just before it was time for the arguments to begin, or had been waiting in the clerk’s office until our case began.
Soon after he began talking, the noon hour arrived and the court recessed for lunch. Fortas and I were led downstairs, one floor below the courtroom, into a small room for lunch. We introduced ourselves and sat at a tiny table in the middle of the room, facing each other. We were the only people in the room, other than the waiter, who was there only part of the time.
We returned from lunch and Fortas resumed his argument. By this time the spectator section was empty except for one person, my wife, Ann. It seemed strange that for a case of this importance there was only one person in the audience. One other nonlawyer was present in the courtroom: Anthony Lewis, a reporter for the New York Times.
When Fortas finished, it became my turn to argue. I began to make my prepared argument, but immediately there were questions. The intensity level was very high. The justices were animated and took a much more active part in the arguments than the judges in the Florida appellate courts.
I argued for an hour. A few years ago I read the transcript of the argument and counted 92 questions or interruptions during my argument and most of them came during the first half hour. Every justice except Justice Douglas asked at least one question or interrupted at least once.
After the case had been argued, H.G. Cochran stepped down as director of the Division of Corrections and Louie Wainwright became the director. I wrote the clerk and informed them of this. I did not receive a response, but when the opinion was released in March, the name of the case had been changed to Gideon v. Wainwright.
There was a newspaper strike at the time and Anthony Lewis, the reporter for the New York Times who had been present in the courtroom during the Gideon arguments, phoned and asked to interview me. We met at the Hawaiian Village, a motel near the Tampa Airport. During the interview he told us he wanted to write a book (which became Gideon’s Trumpet) because he had nothing to do during the strike. We provided copies of letters and documents from our files for his use in writing the book.
The decision in Gideon was announced on March 18, 1963. Betts v. Brady was overruled. The Sixth Amendment’s right-to-counsel provision, as interpreted in Johnson v. Zerbst, 304 U.S. 458 (1938), which previously had applied only in federal courts, now was made applicable to the states. Justice Black, writing for the majority, said that Betts had been wrong when decided. I think he may have done this to prevent future debates about whether Gideon should operate retroactively or prospectively. The Gideon opinion did not specifically answer this question. However, if Betts was wrong when it was decided, Black could later take the position that the courts should never have followed it, and, therefore, Gideon, could apply retroactively to cases decided while Betts was in effect. It was left for another case, Burget v. Texas, 389 U.S. 109 (1967), four years later, to tell us that Gideon did apply retroactively to prisoners who had been convicted before the Gideon decision.
Gideon contained no discussion of whether the holding should apply in misdemeanor cases. This issue was dealt with in Argersinger v. Hamilton, 407 U.S. 25 (1972), nine years later. The opinion did not specify whether the decision in Gideon was based on the due process clause or the equal protection clause of the 14th Amendment. In the opinion, Justice Black merely said that the decision was based on the “14th Amendment.”
I believe that the Gideon decision marked a major turning point in our understanding of what is meant by due process in criminal cases. Clearly the selective incorporation theory had now become the method for including the guarantees of the Fourth, Fifth, and Sixth amendments into the 14th Amendment. Also, due process was no longer the flexible, amorphous, fact-based test for determining whether the trial had been fair. In the past, reviewing courts adjudicated the totality of the facts after the trial to determine whether the trial had been fair. Now the question was not just overall fairness, looking back at all of the facts of a case after trial, but whether any specific pre-requirements or pre-rules, such as the requirement that counsel must be provided, had been violated. Now also, there was a “federalization” of criminal procedure. The federal model now has become the national model. Federal case law interpreting the Fourth, Fifth, Sixth, and Eighth amendments now is binding on the states.
Was Clarence Gideon Innocent?
After the Gideon opinion had been released, the case was returned to Bay County for retrial. Criminal defense attorney Fred Turner was appointed to represent Gideon, and Gideon was acquitted at that second trial.
Fred Turner and I became friends from 2000 until he died in 2003, and he shared with me a copy of the pre-sentence investigation report made following the first trial. Gideon had admitted that he had been in the pool room and had taken the items he was charged with taking. He admitted he was guilty of petit theft, a misdemeanor, but said that the door had been open when he entered and, therefore, he argued that he could not be guilty of the more serious felony of breaking and entering with intent to commit a misdemeanor.6
Whether Gideon was the person who broke into the pool room will never be known for certain. Only Gideon himself and the key witness against him, eyewitness Henry Cook, knew for sure whether he committed the crime. What we do know from the two trials in Bay County is that being represented by effective counsel in a criminal case can make a tremendous difference in terms of outcome.
After Gideon had been decided, the 1963 Florida Legislature established our present public defender system. In that law was a provision allowing attorneys to volunteer to serve as unpaid volunteer “special assistant public defenders.”7 I signed up with the 10th Circuit Court in Polk County the day that provision became law.
Looking back over these past 50 years, I realize that working on this case had quite an impact on me. Since 1963, I have dedicated much of my life to providing legal help to indigent defendants, and even today I respond to requests for legal help from inmates. Also, my interest in law teaching as a career was due largely to my involvement in Gideon.
I have had a satisfying, enjoyable career as a lawyer. Looking back, I realize how fortunate I have been to be a member of such a great profession and be able to enjoy such challenging work. Over a period of 50 years, I have handled many pro bono cases for criminal defendants and prison inmates, and just about every one of these has been incredibly interesting. Clearly, the most interesting and most memorable experience of my career and my life, however, was being the lawyer for our state in Gideon v. Wainwright.
1 Bureau of the Census, U.S. Dept. of Com., County & City Data Book, A Statistical Abstract Supplement 52 tbl. 2 (U.S. Govt. Printing Off. 1962).
2 Br. of Pet. at 31, Gideon v. Wainwright, 372 U.S. 335 (1963).
3 1961 Fla. Laws, Ch. 61-639.
4 Florida Crime Rates 1960–2000, Rothstein Catalog on Disaster Recovery. The number of violent crimes per 100,000 was 223.4, and the number of property crimes per 100,000 was 1,622.4.
5 U.S. Bureau of the Census, Florida Population: A Summary of 1980 Census Results 26 (U. of Fla. 1981).
6 In the pre-sentence investigation report prepared by the Florida Parole Commission, Parole and Probation System, in August 1961, to aid Judge McCrary in imposing the sentence, it was reported that “the [d]efendant admits taking the items from the poolroom after finding the back door open, which he claims the operator, Mr. Strickland, does quite frequently after becoming intoxicated himself. The [d]efendant claims that he has been framed with the breaking and entering charge with a penalty of five years when actually he is only guilty of a misdemeanor, that being petit larceny.” He also admitted “being under the influence of intoxicants at the time of the offense….” A copy of this report is on file with the author.
7 That provision still can be found at Fla. Stat. §27.53 (2) (2012)
Bruce R. Jacob is the dean emeritus and a professor at the Stetson University College of Law, where he teaches in the areas of constitutional law, administrative law, criminal law, and criminal procedure. He began his career in 1960 as an assistant attorney general for the state of Florida. There he represented the respondent in Gideon v. Wainwright, 372 U.S. 335 (1963).
For a longer article about this case, see Bruce Jacob, Memories of and Reflections about Gideon v. Wainwright, 33 Stetson L. Rev. 201 (Fall 2003), available at http://www.law.stetson.edu/lawreview/media/memories-of-and-reflections-about-gideon-v-wainwright.pdf.