He was 27, a licensed lawyer for just three years, facing a pre-eminent U.S. Supreme Court advocate in a potentially landmark challenge that he knew he would lose.
Fifty years after the justices’ unanimous decision in Gideon v. Wainwright, Bruce Jacob still is asked by some people how he could have argued against Clarence Earl Gideon’s claim that the Sixth Amendment guaranteed him a right to a lawyer.
"I don’t understand that question," said Jacob, dean emeritus of Stetson University College of Law. "If I could have argued either side, there is no question I would have taken the other side. You don’t always get the side you prefer. The lawyer takes the case entrusted to him."
However, he added, "Probably the greatest plum ever handed out by the court was giving Abe Fortas that case."
When Gideon’s carefully printed-in-pencil petition reached the high court in 1962, Jacob was an attorney in the Florida attorney general’s office in Tallahassee in the criminal appeals section. The office was not involved in Gideon’s case at all until the U.S. Supreme Court called for a response to his petition. And when it did, Jacob was assigned to the task.
Jacob recalled that all of the office’s attorneys expected the Supreme Court to grant review, which the justices did in June 1962. Later that month, the high court appointed Fortas to present Gideon’s case, and Jacob was offered and accepted an associate position at the law firm that is today known as Holland & Knight.
Jacob received permission from the firm’s head and the Florida attorney general to continue to work on Gideon. Not wanting to use the firm’s time, Jacob would leave the office at 5:30, have supper and then travel with his wife to various courthouse and county law libraries, where he did research and she copied case excerpts by hand onto index cards; no photocopy machines existed at the time.
On the Sunday before the January 15, 1963, arguments, Jacob, with 35 law books in suitcases (no way to copy opinions back then) and his wife flew through a storm to Washington. He had 90 minutes for the argument and had decided to give 30 minutes to Alabama Assistant Attorney General George Mentz, who had filed a brief for Alabama and North Carolina supporting Florida.
On argument day, Jacob said, he was struck by the fact that, for this potentially landmark case, only one public spectator was in the courtroom — his wife. Off in a corner of the bar section sat The New York Times‘ Anthony Lewis with a small typewriter. Lewis would later write the book Gideon’s Trumpet.
As Jacob began his argument, intense questioning ensued. "I had argued a lot of cases in the Florida appellate courts, and they always asked how you would differentiate the cases," he recalled. "The Supreme Court was not at all concerned about precedent. In the Florida courts, the judges are very quiet. It was a lot different from anything I ever experienced. It was pretty grueling. It was exhausting. Obviously we were losing. There was no question about it."
Afterwards, he said, he felt he had done a terrible job, but Abe Fortas came over to him and said, "You know, you have a wonderful way before the court." Years later, Fortas gave a speech at Emory University School of Law, where Jacob was teaching, and praised him again. "What a wonderful guy," Jacob said. "I really liked him. [Fortas' co-counsel] Abe Krash told me back in 1993 that my comments about Fortas being so kind and good to me didn’t sound like Fortas to him. He said Fortas was pretty hard on young lawyers. He had a really bad reputation at Yale; he was so tough. Nobody wanted to go downtown and work with him."
After the court decided Gideon, the Florida Legislature created a statewide public defender system, which also permitted volunteer lawyers to serve as unpaid special assistant public defenders. As soon as the bill became law, Jacob volunteered. He left the Holland firm in 1964 for academia. At Emory University, he established the Legal Assistance for Inmates Program at the federal penitentiary in Atlanta.
That program brought him back to the Supreme Court in 1969, when the justices appointed him to represent an inmate whom he had been assisting. He argued and won Kaufman v. U.S. with Justice Abe Fortas sitting on the bench.
Jacob also helped to establish the Harvard Prison Legal Assistance Program for Massachusetts inmates. During law school teaching positions at Ohio State and Mercer universities and later at Stetson, where he served as the university’s vice president and law dean, he continued to handle indigent defense cases on a pro bono basis.
"Even now I’m working on a case — 10 years now — and finally got it to the Florida Supreme Court," he said. "It’s almost like full-time pro bono. I try to get students involved as much as I can, and some have gone on to do a lot of post-conviction and pro bono work."
He offers a resounding "No!" when asked if Gideon‘s promise has been realized. "Even the requirements of Gideon are not being met. We have public defenders handling 500 to 600 felonies a year. There is no way on earth they can devote the time needed to provide effective representation." Lack of money and lack of an "army of volunteer lawyers" are behind the failure, he said.
Some would see irony in the fact that Jacob is best known, and likely always will be, for arguing against Gideon when, in fact, he has spent most of his career on the other side representing poor defendants, but not Jacob. "I’ve always felt the best way to reach the right result is to have full briefs and good arguments on both sides in a case like Gideon," he said, but, he added, for himself, "I like being on the side of the underdog."
Marcia Coyle can be contacted at email@example.com.