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 a