GIDEON v. WAINWRIGHT

Transcript: 

Argument of Rankin

Mr. Abe 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 in 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 Chicago Law Review, a companion case in the Michigan Law Review, there is a discussion of your footnote and some criticism of some of the citations.

Now --

Justice Hugo L. Black: To the state cases?

Mr. Abe Fortas: Yes, sir.

Now, actually here is the position as well as I understand it in Betts against Brady, in the majority opinion of -- in the Court's opinion, the following is stated quote, “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 analysis.”

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.

Justice Hugo L. Black: That's right.

Mr. Abe Fortas: Now, this -- could we just hold that a minute?

The intervening point 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 a 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 the state criminal prosecutions, at least in felony cases, compulsory.

Now, in addition --

Justice William J. Brennan: And my figure was limited to felony or penitentiary offenses.

Mr. Abe 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 you up to a total of 45.

Now, 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, it shows that the public defender system is extensively utilized.

Justice John M. Harlan: Could I ask you one question?

Mr. Abe Fortas: Yes, sir.

Justice John M. Harlan: As I understood it, you said in answer to Mr. Justice Stewart as to how far you would -- whether you would draw the line at any point in appointment of counsel if Betts and 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. Abe Fortas: Yes, sir.

Justice John M. Harlan: Was there any type of case where a state could deny a man the right to be represented by counsel of his own choice?

Mr. Abe Fortas: In my opinion, there is not, Your Honor, but I am concerned about --

Justice John M. Harlan: I wouldn't have thought so.

Even in civil cases, I don't think a state could do that.

Mr. Abe Fortas: I am concerned about this Court's decision in Crooker against California, which was a five-to-four decision.

I was asked from 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.

Justice John M. Harlan: 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 --

Mr. Abe Fortas: I beg your pardon?

Justice John M. Harlan: -- 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. Abe 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 --

Justice John M. Harlan: Yes.

Mr. Abe Fortas: -- 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.

Justice Arthur J. Goldberg: Of course, this does lead to (Inaudible) Sixth Amendment (Inaudible) under your own view.

Mr. Abe 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 the -- it becomes clear that in the Fourteenth Amendment they have been absorbed certain aspects of the Sixth Amendment.

But I do believe that --

Justice Arthur J. Goldberg: Is this absorption?

Mr. Abe Fortas: Sir?

Justice Arthur J. Goldberg: The absorption.

Mr. Abe Fortas: Well, I don't like any of those words though.

Justice Hugo L. Black: Was that the language used by Justice Cardozo?

Mr. Abe Fortas: Absorption?

It was.

That is correct.

And it's being used a great deal these days in the spate of literature on this subject.

Justice Potter Stewart: Could you -- 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, Equal Protection Clause?

Mr. Abe 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 Equal Protection Clause requires that the poor shall not be subject to a disability to which the rich are not subject.

Justice Potter Stewart: You are arguing equal protection rather than the Due Process Clause?

Mr. Abe Fortas: That is equal protection.

So far as I'm concerned, Your Honor, I reached the result --

Justice Potter Stewart: Either one?

Mr. Abe Fortas: -- through the Due Process Clause standing alone and I can -- 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.

Justice Tom C. Clark: Do any of the States that now require counsel -- require counsel in criminal traffic cases?

Mr. Abe Fortas: There are -- some of the States, Mr. Justice Clark, require misdemeanors and whether any of those States make a distinction between misdemeanors and types of traffic cases, I don't know.

Justice Tom C. Clark: Most of the States are felonies, or penitentiary sentences, or some such phrase is set out.

Mr. Abe Fortas: Numeric -- 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 there -- we're talking about 37 States in all where this rule has been established in a statutory or constitutional form.

But Mr. Justice Clark, doing -- 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.

Justice Hugo L. Black: Am I to understand that you think the Fifth Amendment's guarantee or the Constitution's guarantee of the right to counsel has nothing to do with this?

It solely deals with due process?

Mr. Abe Fortas: I didn't say that.

Justice Hugo L. Black: Do I understand that you lay aside the federal guarantee of the right to counsel?

Mr. Abe 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.

Justice Hugo L. Black: Well, with reference to --

Mr. Abe Fortas: We don't --

Justice Hugo L. Black: -- what, then?

Mr. Abe Fortas: Sir?

Justice Hugo L. Black: How does the Fourteenth Amendment do it?

Mr. Abe Fortas: Fourteenth Amendment?

Mr. Justice Black, I like that argument that you have so eloquently made time and time again.

I can't make it to this Court as an advocate because this Court's turned it down so many times.

I hope and pray that you will never cease contending for it.

Justice Hugo L. Black: I've been trying to say that the courts accepted it in a number of cases.

Mr. Abe Fortas: Sir?

Justice Hugo L. Black: I've been trying to think that the courts accepted it in a number of --

Mr. Abe Fortas: In a number of particulars.

And this is --

Justice Hugo L. Black: Yes, this particular one, yes.

Mr. Abe 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 --

Justice William J. Brennan: (Inaudible) in other words restore and to incorporate by some other way to get into trial.

Mr. Abe Fortas: You seem to know me well, Mr. Justice Brennan.

Chief Justice Earl Warren: 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. Abe Fortas: Thank you.

Chief Justice Earl Warren: -- and the State may have five extra minutes, too, if it wishes to --

Mr. Abe Fortas: Thank you, sir.

Chief Justice Earl Warren: -- for the same purpose.

Mr. Rankin.

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 to the Fourth -- 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 these 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 thestate 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 was 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 tried hundreds of cases, or whether it's a 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 reaction 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.

Justice Potter Stewart: You're talking about the Due Process Clause.

Mr. Rankin: That's right.

There is no question but what they are -- and you've said it time after time, it 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 is 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.

Justice John M. Harlan: 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.

Justice John M. Harlan: That's at 339.

Mr. Rankin: Yes, sir.

Justice John M. Harlan: And what's the other one?

Justice Potter Stewart: Demilier?

Or the --

Justice John M. Harlan: I can't remember any --

Mr. Rankin: Demilier --

Justice John M. Harlan: I can't remember any since I've been here --

Mr. Rankin: Yes, there are two --

Justice John M. Harlan: -- where we failed to find special circumstances.

Mr. Rankin: There are two Pennsylvania cases and a Michigan case as I recall.

One is 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 at toward later years, the Court has quite generally found special circumstances.

But every time that that is done, the States have presented 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 --

Justice William J. Brennan: (Inaudible)

Mr. Rankin: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: That's correct.

Justice William J. Brennan: That's the point, isn't it?

Mr. Rankin: Yes.

They have presented 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 the petition for certiorari is 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.

Justice John M. Harlan: Before Betts and Brady came along, 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 law is 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 --

Justice John M. Harlan: Well, Betts and Brady was what?

19 --

Mr. Rankin: Its 1942.

Justice John M. Harlan: -- 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 that either by the Constitution, 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 --

Justice John M. Harlan: That's characteristic and an example of the workings of our federalism at its best.

Mr. Rankin: Well, the difficulty I have with --

Justice John M. Harlan: 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 --

Justice John M. Harlan: Maybe not.

Mr. Rankin: -- and --

Justice William J. Brennan: Mr. Rankin, I don't know why you went (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.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: Yes, Your Honor.

Justice John M. Harlan: Now, the civil rights cases might give you some point 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 --

Justice John M. Harlan: That's a terribly broad generalization, Mr. Rankin.

Mr. Rankin: As a generalization, I think --

Justice John M. Harlan: 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 and try his case himself.

You see it every day in this Court 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 everybody -- 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.

Justice Arthur J. Goldberg: But could we say then General Rankin that these provisions, these (Inaudible) in the Constitution and the Sixth Amendment (Inaudible)in a federal case.

Isn't that the spirit of the Sixth Amendment of the Constitution?

Well, that's my understanding of it.

In the --

Justice Potter Stewart: 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.

Mr. Rankin: That's right.

Justice Potter Stewart: -- 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.

Justice Arthur J. Goldberg: Frankly, I don't know (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.

Justice Arthur J. Goldberg: Would he know that (Inaudible) lawyer?

Mr. Rankin: Well, oftentimes 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 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.

Justice Tom C. Clark: (Inaudible)

Mr. Rankin: Well, I think that --

Justice Tom C. Clark: Suppose it's held on the mercy of the judge and put himself on the mercy of the jury.

Mr. Rankin: I think that --

Justice Tom C. Clark: Would that be (Inaudible)

Mr. Rankin: Mr. Justice Clark, I think that was a peculiar situation in regard to those cases and that a skilled counsel might advise them to represent themselves and throw themselves upon the mercy of the court and the jury --

Justice Tom C. Clark: (Inaudible)

Mr. Rankin: Yes, 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 there's -- that question is 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 those facts, although they're very sketchy.

And the 477 pleas of not guilty and were not represented by counsel.

If they were represented by counsel during the trial --

Justice William J. Brennan: Do you remember General whether they were following our decision in Griffin versus Illinois requiring the indigent 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 --

Justice William J. Brennan: 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 retry, and of course I recognize that there may be difficulty of 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, if 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 terrorem argument.

And there is a 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 that 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 in that -- 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 to ask 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.

Justice John M. Harlan: 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.

The --

Mr. Rankin: No, I don't assume that it could not be made prospective, I am urging --

Justice John M. Harlan: They didn't urge that question?

Mr. Rankin: I am urging you to make it retrospective in my argument.

Justice John M. Harlan: 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.

Chief Justice Earl Warren: Mr. Jacob.

Argument of Bruce R. Jacob

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 have -- 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.

Justice William J. Brennan: May I ask a question in that direction?

Mr. Jacob: Yes, Your Honor.

Justice William J. Brennan: I notice that the brief filed by the State of Oregon, an amicus brief, suggests and 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 --

Justice William J. Brennan: Is that true in your experience?

Mr. Jacob: In our experience we have -- 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.

Justice John M. Harlan: May I ask you a question?

Mr. Jacob: Yes, sir.

Justice John M. Harlan: Could I ask you a question about --

Mr. Jacob: Yes, sir.

Justice John M. Harlan: -- the operation of your Florida statute.

The judge said that 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 chosen 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.

Justice John M. Harlan: He would have been compensated?

Mr. Jacob: Right.

He could have --

Justice John M. Harlan: But there's nothing in your law that prevents the judge from appointing counsel without compensation?

Mr. Jacob: That's right, Your Honor.

Our State, the judges in our State have discretion and they can appoint counsel when exceptional circumstances --

Justice John M. Harlan: Are there some that do?

Mr. Jacob: Yes, Your Honor.

In fact, there are some judges who appoint counsel in all case.

Justice John M. Harlan: 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 --

Chief Justice Earl Warren: I notice some interesting figures concerning that 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% of all of your prisoners now in jail were not represented by counsel, 65%.

Mr. Jacob: Yes, Your Honor.

Chief Justice Earl Warren: 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 --

Justice Arthur J. Goldberg: (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 --

Justice John M. Harlan: 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 --

Justice John M. Harlan: 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 --

Justice Byron R. White: 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.

Justice Byron R. White: -- 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.

Justice Byron R. White: 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.

Justice Hugo L. Black: 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.

Justice Hugo L. Black: But why isn't there as much interference with the State in one instance as the other?

Mr. Jacob: Because --

Justice Hugo L. Black: 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.

Justice Hugo L. Black: You think it's clear?

Mr. Jacob: Yes, Your Honor, it's progressive --

Justice Byron R. White: 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.

Unknown Speaker: (Inaudible)

Mr. Jacob: Your Honor, we contend that it's -- we prefer that this Court do it on a case-by-case basis than --

Unknown Speaker: (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.

Justice Hugo L. Black: Well, but it doesn't allow you the 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 --

Justice Hugo L. Black: -- 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 --

Justice Hugo L. Black: 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 five 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 --

Justice Hugo L. Black: 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.

Justice Hugo L. Black: 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 --

Justice Hugo L. Black: (Voice Overlap) agree about it.

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 of procedure.

Justice William O. Douglas: 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 --

Justice William O. Douglas: 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 --

Justice William O. Douglas: 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.

Justice John M. Harlan: 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 counsels are provided?

Mr. Jacob: The only movement have been movements by individual counties to impose rules which would apply only (Inaudible) 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.

Justice Tom C. Clark: 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.

Chief Justice Earl Warren: 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.

Chief Justice Earl Warren: Well, what's your observation?

Mr. Jacob: My observation is that it -- in all honesty, my observation is that there are some --

Chief Justice Earl Warren: 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.

Chief Justice Earl Warren: Even if they're illiterate?

If they're poor or 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 --

Chief Justice Earl Warren: Well do they -- as a general rule, give them?

Mr. Jacob: If the judge knows that he's illiterate or incompetent in some way, from his own observation, he does appoint counsel.

Chief Justice Earl Warren: 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.

Justice Hugo L. Black: 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 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 that the supervisory powers of this Court over the federal -- the inferior courts in the federal system.

Justice Hugo L. Black: It wasn't put on that basis, was it?

Mr. Jacob: It wasn't put on that basis, Your Honor, but we can --

Justice Hugo L. Black: 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 in 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 --

Justice Hugo L. Black: Well, I can assure you that's the first time I 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.

Chief Justice Earl Warren: 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” or non -- or as opposed to “noncapital.”

Justice William J. Brennan: 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.

Justice John M. Harlan: 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 the counsel was not present.

And two 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.

Justice Hugo L. Black: 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 --

Justice Hugo L. Black: 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 --

Justice Hugo L. Black: I can't either.

It was the reason I asked you.

Justice Potter Stewart: 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.

Chief Justice Earl Warren: 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 --

Chief Justice Earl Warren: 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.

Chief Justice Earl Warren: 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 either 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 five years, while for a felony, you can go to the state prison for one 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 is 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.

Justice Hugo L. Black: 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.

When you're put in jail for a few years, there's always a chance that you'll get out on probation or parole.

Justice Hugo L. Black: 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 due pro -- 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 --

Justice Hugo L. Black: 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.

Justice Hugo L. Black: 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.

Justice Arthur J. Goldberg: Mr. Jacob, do you have exactly the remark of (Inaudible) the persons denied with fair trial?

Mr. Jacob: Yes, we do, Your Honor, if the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jacob: Because those cases which decide -- where 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.

They are the man usually had an attorney.

In fact, in every case that I can recall, the man had an attorney.

Justice Potter Stewart: 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.

Justice Potter Stewart: 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.

Justice Potter Stewart: -- that he acted as defense counsel.

Am I right in thinking that the State would have no appeal from such?

Mr. Jacob: No, It wouldn't; it doesn't have the right of appeal from a judgment of conviction.

Chief Justice Earl Warren: 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.

Chief Justice Earl Warren: 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 --

Chief Justice Earl Warren: I beg your pardon?

Mr. Jacob: 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.

Justice Potter Stewart: Well, the trouble is there and 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: His right to a fair trial.

Justice Potter Stewart: Yes.

Mr. Jacob: That's possible, Your Honor.

Justice Hugo L. Black: 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 --

Justice Hugo L. Black: I don't think anybody would go --

Mr. Jacob: -- I don't think this Court would even allow him to waive --

Justice Hugo L. Black: -- (Voice Overlap) to decide cases.

Mr. Jacob: What was that, Your Honor?

Justice Hugo L. Black: I don't think anybody would go that far to decide 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.

Justice John M. Harlan: Because that's what you thought.

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 rule 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 --

Justice Potter Stewart: But I suppose I am right in my assumption that 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.

Justice Hugo L. Black: It wouldn't?

Justice Potter Stewart: Wouldn't Gideon maybe get in trouble for practicing law without a license?

Justice Hugo L. Black: With the local bar association.

Mr. Jacob: I'm sorry, Your Honor; that was a stupid answer.

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 all -- 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 for 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 of 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 of 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 in this Court, fewer habeas corpus petitions, 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.

Justice Arthur J. Goldberg: Mr. Jacob, you say that (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.

Justice Arthur J. Goldberg: (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 rule for -- 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 this Sunday pointed out that there has been great difficulty in procuring lawyers to handle all 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 two, 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.

Justice Hugo L. Black: 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.

Justice Hugo L. Black: Well, what would be difficult then about it?

Mr. Jacob: It would be difficult for the State to gather -- to marshal its evidence to retry the man.

Justice Hugo L. Black: Oh, I see.

You're talking the retrial.

Mr. Jacob: Retrial, yes, sir.

Justice Hugo L. Black: You were also talking about the difficulty of proving that he might have waived counsel at arraignment.

Mr. Jacob: That's right.

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.

Chief Justice Earl Warren: 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.

Justice Potter Stewart: 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.

Justice Potter Stewart: 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% of the population.

Justice Potter Stewart: 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.

Justice Potter Stewart: 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 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 the legal -- 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.

Justice John M. Harlan: When was the federal statute requiring the appointment of counsel first passed, do you know?

Mr. Jacob: The first statute was the statute in 1789 or 1790 which required appointment in capital cases.

Are you speaking of the present rule or the first statute, Your Honor?

Justice John M. Harlan: My recollection is that there was no federal statute on the books as late as 1940 that required --

Mr. Jacob: That's right.

Justice John M. Harlan: -- the appointment of counsel.

Mr. Jacob: I believe it was 1944 or --

Justice John M. Harlan: 1944.

Mr. Jacob: -- about that time that the rule of 1944 was adopted.

Justice John M. Harlan: Up to that time, the Betts and Brady philosophy was obtained in the federal system.

Mr. Jacob: Yes, Your Honor.

Chief Justice Earl Warren: Mr. Mentz.

Argument of George D. Mentz

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.

Regrettably, 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 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% 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 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, as critics complain that in the 20 years following Betts versus Brady, 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 --

Justice Potter Stewart: 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?

Justice Potter Stewart: 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.

Justice Potter Stewart: Yes, but that's -- 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 maybe some of them would not have been.

Mr. Mentz: That's quite possible, yes, sir.

Justice Potter Stewart: 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.

Justice Potter Stewart: Well don't you -- 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.

Unknown Speaker: (Inaudible)

Mr. Mentz: That's correct, sir.

Unknown Speaker: (Inaudible)

Mr. Mentz: Yes, sir.

Justice William J. Brennan: In fact 94% (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 with 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 of which indigents can proceed as paupers in the federal courts, all of the federal courts, including this one.

Our office is flooded with coram nobis and habeas corpus petitions, and I'm sure that this Court gets its fair share of them.

Justice John M. Harlan: What would be your -- this is pretty speculative, I must admit, but supposing Betts and Brady isn't overruled, what are you for -- 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 --

Justice John M. Harlan: There is debate on the subject in Alabama?

Mr. Mentz: Yes, sir.

It is --

Justice John M. Harlan: In the bar?

Mr. Mentz: Yes sir, it is.

But I don't --

Justice John M. Harlan: 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.

Justice Potter Stewart: 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 --

Justice Potter Stewart: Yes.

Mr. Mentz: -- and it's not uncommon there for the circuit judge to appoint attorneys for the prisoners --

Justice Potter Stewart: For the collateral proceedings.

Mr. Mentz: To help them in their post-conviction proceedings.

Justice Potter Stewart: Their post-conviction proceedings.

Mr. Mentz: Yes, sir.

Justice Potter Stewart: I -- 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.

That's in Hudson against North Carolina that I --

Mr. Mentz: This practice that I speak of in Alabama is not by statute, it's just --

Justice Potter Stewart: Custom or practice.

Mr. Mentz: It's just out of the --

Justice Potter Stewart: This is 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.

Justice Potter Stewart: We can assume, and I do assume, all that, I'm right along with you, but the judge's job is to be a judge, not to be a defense counsel.

Mr. Mentz: Well, that is true, sir, and --

Justice Potter Stewart: And they would not be the kind of men that 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mentz: Yes sir, I do.

Justice Arthur J. Goldberg: (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.

Justice Arthur J. Goldberg: (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 --

Justice Potter Stewart: In all honesty, isn't that a matter of just good trial strategy --

Mr. Mentz: Yes sir, it is.

Justice Potter Stewart: -- 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 --

Justice Potter Stewart: 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 --

Justice Potter Stewart: And I -- as a matter --

Mr. Mentz: Sir?

Justice Potter Stewart: -- 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.

Justice Hugo L. Black: That's not very complimentary to our profession, is it?

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 felonies or to misdemeanors or to whatever terms we're going to use 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.

Justice Potter Stewart: 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 --

Justice Potter Stewart: 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 of 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 --

Justice William O. Douglas: Of course, there's nothing in the Sixth Amendment that talks about driver's license, or is there?

Mr. Mentz: No sir, but it -- as I say, the Fourteenth Amendment protects --

Justice William O. Douglas: 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.

Justice Byron R. White: As appellate judges seem to think.

Mr. Mentz: Sir?

Justice Byron R. White: As appellate judges seem to think.

Mr. Mentz: As some appellate judges, yes, sir.

Justice Hugo L. Black: Maybe the --

Mr. Mentz: Sir?

Justice Hugo L. Black: States and the Federal Government shouldn't hire lawyers --

Mr. Mentz: I didn't understand you, sir.

Justice Hugo L. Black: Maybe the States and the Federal Government shouldn't hire lawyers and prosecutors.

Mr. Mentz: It will put us all out of business, now, if they do that.

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 that's applicable to all States, but that it's applicable only in Alabama, because of the special circumstances attendant at the time of arraignment there.

Justice John M. Harlan: Let me put this question to you.

Mr. Mentz: Yes, sir.

Justice John M. Harlan: 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 -- it's your responsibility representing the State, knowing the operation of your courts.

Mr. Mentz: I'd rather see each case --

Justice John M. Harlan: I beg your pardon?

Mr. Mentz: I'd rather see each case decided individually.

Justice John M. Harlan: Even though you know they're all going to be decided the one way?

Mr. Mentz: Well, we -- hope (Voice Overlap)

Justice John M. Harlan: That's what I'm assuming.

Mr. Mentz: Sir?

Justice John M. Harlan: That's what is in my assumption.

Mr. Mentz: Yes, sir.

Well, as I say, we -- it's the old situation we hope the Framers would tell, 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.

Chief Justice Earl Warren: Mr. Fortas.

Mr. Abe 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 against 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, “Further delay 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.

Justice John M. Harlan: 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. Abe 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 --

Justice John M. Harlan: What you're left with is to get your hand one -- 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. Abe Fortas: Well, in the first place, Your Honor, I think that --

Justice John M. Harlan: Not in terms of the generation, not in terms of long periods of history.

Mr. Abe 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.

Chief Justice Earl Warren: You may do that.

Mr. Abe Fortas: And I thank you.

Chief Justice Earl Warren: 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.

Unknown Speaker: Thank you sir.

Transcript: 

Chief Justice Earl Warren: Number 155, Clarence Earl Gideon, Petitioner, versus H.G. Cochran, Director, Division of Corrections.

Mr. Fortas.

Mr. Abe 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 as a -- 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 a building of another with intent to commit a misdemeanor.

He was charged with breaking and entering the Pearl -- the Bay Harbor Poolroom in the city -- 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 --

Justice Potter Stewart: Mr. Fortas, excuse me.

Mr. Abe Fortas: -- doing what he could to defend himself.

Yes, Mr. Justice?

Justice Potter Stewart: There is some point -- the question whether or not its -- 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. Abe Fortas: That's correct.

Justice Potter Stewart: -- application in the State of Florida.

They don't -- there's no variance between them and this copy.

Mr. Abe Fortas: No, that's correct.

If you -- 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.

Justice Potter Stewart: So that we have the same case here, whether the transcript is before us or not, don't we?

Mr. Abe 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 State of -- 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, and 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, pro 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 and 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.

That 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 as -- 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 is not -- 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.

Justice John M. Harlan: Betts and Brady did not proceed on that basis.

It did not deny the obvious.

Obviously, a man is not represented -- who is no represented, who 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. Abe Fortas: Do you -- 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 does -- is not represented by a lawyer, but that the demands of federalism overweigh the absence of a fair trial.

Justice John M. Harlan: That's what I understood the basis of Betts and Brady to be, yes.

Mr. Abe 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, trial to -- tried to a judge alone and not to a jury, and tried before a very distinguished judge, the record -- 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's -- there is error in this transcript.

There is error in most criminal trials.

I think we all know even where lawyers are present.

There is error in this transcript.

But I have 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 --

Justice John M. Harlan: Well that isn't quite so simple as that because under our 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.

I suppose the State could do away with the jury trial and yet you wouldn't say this trial was inherently unfair, would you?

Mr. Abe Fortas: That's right.

Now that -- and that's what I want to get to, Mr. Justice.

Justice John M. Harlan: I think you got to argue this on the basis of federalism.

Mr. Abe Fortas: I appreciate that and I am happy if we can clear the debris, if I may say so.

We can understand exactly what is that 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.

Justice William O. Douglas: Well, this federalism that Justice Harlan mentions is implicit, as I gather in all that we have written, I believe I have read all of them, 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 the State to provide a system whereby people get unfair trial.

Mr. Abe Fortas: Well, Mr. Justice Douglas --

Justice John M. Harlan: I don't believe I suggested that, I don't suppose --

Justice William O. Douglas: I thought that's what we were talking about, isn't it?

Mr. Abe Fortas: Mr. Justice Douglas, I --

Justice William O. Douglas: You mean, if a person can't have a fair trial without a lawyer and this is the problem of federalism, you come down to whether -- how a State has a constitutional right to provide a system that perpetuates unfair trials.

Mr. Abe Fortas: Mr. Justice Douglas, it seems to me that's -- perhaps the prop -- that -- I would state the proposition in 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 a 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 -- I think I maybe 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 with these -- 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 them the doctrine of Mapp against Ohio.

Construe the 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.

Court will remember that Clarence Darrow was accused, 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.

He 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 State's own jurisdiction and I want -- that's what I want to analyze.

That I don't think that it's -- that it stands a 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 --

Justice John M. Harlan: Understandable sensitivity to describe a basic principle of our Government doesn't seem to me to be a very happy expression.

Mr. Abe Fortas: Well, I'm -- 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, in which in my opinion, is the most corrosive possible way to administer our federal state system.

And that, it is I -- -- I should like to restate that very simply and very plainly, Your Honor.

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 a prin -- 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 at where intervention is necessary because of a constitutional principle that that intervention should be exercised in the least corrosive, the least aggressive fashion possible.

Now let's take a look at that.

In the 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, and 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 State's 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 where 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.

Alright, what has happened in the years since Betts against Brady?

I have read, I think, I'm sure I've 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, 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 Appellate 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.

When I have -- as I have read the opinions of this Court, I hope I maybe 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.

Justice Potter Stewart: 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 I've been here, we've always found special circumstances in any case.

Mr. Abe 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 --

Justice Potter Stewart: One of those Michigan cases?

Mr. Abe Fortas: It was Quicksall, I think.

Well --

Justice Potter Stewart: That's not very important but I think --

Mr. Abe Fortas: Yes.

Justice Potter Stewart: I'm right in --

-- the comment I made.

Mr. Abe Fortas: Yes, sir.

Justice Potter Stewart: From my recollection.

Mr. Abe 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 a judge look at this defendant and say, “You look stupid.

You look as if you are a moron.”

Does he have a -- 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 in 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 let's have arraignment.

Then you go to trial and the defendant -- the accused man has pleaded not guilty.

And the judge who'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 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.

I'm going to appoint you to counsel.”

The whole rule is just totally unadministerable.

Mr. Justice Harlan, I'd like --

Justice John M. Harlan: Practically all the states have recognized that so.

Mr. Abe Fortas: Yes, sir, and there are 37 states now.

Justice John M. Harlan: And they've done that under a line of decisions in this Court which, at least so far as -- would have permitted an opposite conclusion.

Mr. Abe Fortas: I don't believe they have 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 20 -- 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.

Unknown Speaker: (Inaudible)

Mr. Abe Fortas: Alright.

Unknown Speaker: (Inaudible)

Mr. Abe Fortas: Thank you.

The Attorneys General point out to this Court that the rule of Betts against Brady is an unadministerable rule.

I call your attention to page 17 at the bottom of the page.

Justice Hugo L. Black: What brief is that?

Mr. Abe Fortas: That is this brown brief, Mr. Justice Black, a brief for the State Government, 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 say 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 the 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 on 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.

Justice Potter Stewart: I thought Colorado wasn't completely (Inaudible)

Mr. Abe Fortas: Colorado has recently adopted a rule of court.

Justice Potter Stewart: So --

Mr. Abe Fortas: That's cited --

Justice Potter Stewart: I see Colorado on both lists and that's the reason I wondered --

Mr. Abe Fortas: That is cited in our --

Justice John M. Harlan: -- and Colorado is one of the 22 here.

Mr. Abe Fortas: Yes.

That's cited in our brief.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: I beg your pardon, sir.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: That's correct.

Yes, sir.

And I don't know of the circumstances, Mr. Justice Black.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: That's right.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: Yes, sir.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: That's correct.

Yes, sir.

So I believe that the fact of the matter is this.

I think that the -- 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, is the case and that -- you will remember that in Betts against Brady, this Court placed some emphasis upon the fact that at that time less than a majority of the States, as I remember, required the appointment of counsel.

That is no longer true in these --

Justice Potter Stewart: Yes, I just looked at 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. Abe Fortas: No.

I don't -- the fact of the matter is I'll find that in just a minute.

Justice Potter Stewart: Well, don't -- don't tarry now.

You can --

Mr. Abe 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 a statute or court rule, a recent study, a very careful study by a 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 a 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 the -- 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 defendant in the larger counties.

As a matter of fact, there is a public defendant 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Abe Fortas: This case, of course, narrowly presents the question of the appointment at the time of the 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 coextensive 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.

Justice Potter Stewart: Of course, that very word has many different meanings in the different states --

Mr. Abe Fortas: Exactly.

Justice Potter Stewart: That's the trouble of --

Mr. Abe Fortas: That's correct.

Justice Potter Stewart: -- of verbalizing any test.

Arraignment in some states has -- is quite a different process from what it is in other states.

Mr. Abe Fortas: Yes, sir.

My own view, Mr. Justice Stewart, is that there is a right to counsel as soon as practicable after arrest.

Justice Hugo L. Black: (Inaudible)

Mr. Abe 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.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: There are some just in the District of Columbia of petty offenses which probably don't require appointment of counsel.

The -- in the question -- with respect to the question of jury 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.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: I beg your pardon.

Justice Hugo L. Black: (Inaudible)

Mr. Abe Fortas: Yes sir but you will recall that in the Sixth Amendment that language runs together, right to jury and the right to counsel.

Unknown Speaker: (Inaudible)

Mr. Abe Fortas: I don't recall one.

I don't recall a decision of this Court on that subject.

But it does -- but there is this case involving jury, the right to jury.

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 recognized the right to consult the 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 indigent to perfect their appeal.

I believe that the right to counsel also attaches for purposes of perfecting appeal and for the appeal.

The decisions of this Court have not, as I read them, going quite that far although there is a 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 to 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.

Justice Potter Stewart: Does that word have a common meaning in all --

Mr. Abe Fortas: It does --

Justice Potter Stewart: -- of the 50 states?

Mr. Abe Fortas: It does not.

It has a -- there is an area in which the word is very fuzzy.

Justice William J. Brennan: Well, I know in my own state, Mr. Fortas, we don't recognize this thing as felony.

They're high misdemeanors or --

Mr. Abe Fortas: Yes sir.

Justice William J. Brennan: -- misdemeanors.

Mr. Abe Fortas: 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.

Justice William J. Brennan: 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. Abe Fortas: Yes.

Justice William J. Brennan: 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 to $1000.

Is that a petty offense?

Mr. Abe Fortas: Mr. Justice Brennan, I'd certainly pay no attention to the nomenclature adopted by the States.

You can't, because the (Inaudible) -- 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.

Justice William J. Brennan: 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. Abe Fortas: No, because what we're 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 24, one list shows 21.

A good many of the States had required the appointment of counsel, the indigents, include misdemeanors or their statutes are broad enough so that they indicate that they include misdemeanors under the laws of the -- of the particular States.

Justice William J. Brennan: Well tell me, Mr. Fortas, would there be anything in trying to measure the line if the line must be drawn based on the confinement which conviction might bring?

Mr. Abe Fortas: Well, that that would be -- my own view about that, Mr. Justice Brennan, is that one day's confinement is enough.

And I really believe, if I may -- if I may say -- put it this way, I really believe that the difficulties, practical difficulties, which we can envision here are more fancy 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 can 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.

Justice Potter Stewart: How about the (Voice Overlap) --

Mr. Abe Fortas: Then it is -- then those difficulties are when we sit -- really create a mechanism for handling them.

Justice Potter Stewart: How about the traffic violation?

A person who can afford a lawyer is entitled, as far as I know in every state, to hire a lawyer for traffic violation?

Mr. Abe Fortas: I see no real difficulty, Mr. Justice, in saying to --

Justice Potter Stewart: Most of them don't.

Mr. Abe Fortas: -- people for a traffic when they're arrested for traffic violation.

If you want to see the public defender, he's in Room 102, and to assign a public defendant, anybody who wants it.

It really works.

It will work.

It sounds crazy, perhaps, but it work.

It will work.

I'm sure it will.

Justice Tom C. Clark: Suppose you don't have one.

Mr. Abe 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 a public defender system, there is the voluntary legal aid system, there is the 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 --

Justice Tom C. Clark: (Inaudible)

Mr. Abe Fortas: -- for handling many offenses.

Justice Tom C. Clark: I just wonder if the legal aid would want to take on a traffic (Inaudible) --

Mr. Abe Fortas: Well, I -- again --

Justice Tom C. Clark: They have so many felons already, I'm just wondering.

Mr. Abe Fortas: Again, Mr. Justice Clark, I think that most people involved in traffic offense really be just sort of the -- if I may use, 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 traffic offense has a real problem and a real defense and really need -- thinks he should have a lawyer, why not.

Justice Hugo L. Black: Mr. Fortas, I want to ask you a question you can answer it when I get back.

I attached to my dissent in Betts versus Brady a study made after much hard work --

Mr. Abe Fortas: Yes.

Justice Hugo L. Black: -- which I believed then and believe now was accurate, which had 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. Abe Fortas: I accept that.

Chief Justice Earl Warren: We'll recess now.