Fifty years ago today, on March 18, 1963, the U.S. Supreme Court decided Gideon v. Wainwright, perhaps the most famous decision in the history of American criminal procedure.1
‘Betts v. Brady’
Any discussion of Gideon should start with the Supreme Court’s 1942 decision in Betts v. Brady.2
An unemployed farm hand, Smith Betts was indicted for robbery in Carroll County, Maryland. At his arraignment, Betts requested that counsel be appointed to represent him. The judge denied the request, telling Betts that the practice in the county was to appoint counsel for indigent defendants only in murder and rape cases. Without the aid of counsel, Betts proceeded to trial and was convicted and sentenced to eight years’ imprisonment. After failing to obtain relief in the Maryland courts, he successfully petitioned the Supreme Court to hear his case.
Four years earlier, the court had held (in an opinion written by Justice Black, who was then in his first term) that the Sixth Amendment required the appointment of counsel for indigent defendants in federal prosecutions. In 1942, when Betts reached the Court, a debate was simmering among the justices as to whether the requirements of the Sixth Amendment—and, more broadly, those of the first eight amendments—applied to the states through the due process clause of the Fourteenth Amendment. Justice Owen Roberts began his opinion for the court in Betts by rejecting the incorporationist position: "the due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment." As Justice Roberts saw it, states could adopt procedures for safeguarding the interests of the accused that were different from those employed in federal courts.
Justice Roberts framed the question in Betts as whether appointment of counsel was a "fundamental right, essential to a fair trial." He concluded that it was not—at least not in Smith Betts’ case, where the "simple issue was the veracity of the testimony for the State and that for the defendant." Betts, Justice Roberts found, "was a man forty-three years old, of ordinary intelligence and ability to take care of his own interests on the trial of that narrow issue."
Justice Black, joined by Justices Douglas and Murphy, dissented. After first stating his view that the Fourteenth Amendment made the Sixth applicable to the states, Justice Black addressed the majority on its own terms: "A practice cannot be reconciled with common and fundamental ideas of fairness and right, which subjects innocent men to increased dangers of conviction merely because of their poverty." Black’s dissent had been foreshadowed at the court’s conference in Betts, when he told his colleagues that it made him "vomit to think men go to prison for a long time" without having counsel to defend them.3
From ‘Betts’ to ‘Gideon’
Between Betts and Gideon, the Supreme Court considered some 22 cases in which the question was whether there were "special circumstances" requiring the appointment of counsel for an indigent defendant charged in state court with a serious crime. It found special circumstances in all but three. Special circumstances came to include "the complicated nature of the offense charged and the possible defenses thereto"; the "ignorance, youth, or other incapacity of the defendant [that] made a trial without counsel unfair"; and the presence of a legal issue that was "too intricate for the layman to master."4 As Justice John Harlan would later write, the doctrine was stretched so thin that "the mere existence of a serious criminal charge [came to] constitute in itself special circumstances requiring the services of counsel at trial."5 The state courts, however, took a different approach. In the same period, state appellate courts considered the issue in 139 cases and found special circumstances in only 11.6
By 1961, Chief Justice Warren had his law clerks on the lookout for a case to overrule Betts. When Carnley v. Cohran reached the court in 1962, there was thought that it might be the one.7 Carnley, however, was charged with molesting his 13-year-old daughter, and Justice Frankfurter cautioned his colleagues that there could not be "a worse case, a more unsavory case to overrule a longstanding opinion."8 And so the court found special circumstances in Carnley and waited for a better case to come along. Gideon was that case.
Our image of Clarence Earl Gideon is shaped by Anthony Lewis’ book "Gideon’s Trumpet" and by Henry Fonda’s portrayal of Gideon in the 1980 made-for-television movie. Lewis describes Gideon as a "fifty-one-year-old white man who had been in and out of prison much of his life"—"never a professional criminal or a man of violence" but rather a drifter "tossed aside by life," who had "made his way by gambling and occasional thefts." That portrait may be too flattering. In 1928, Gideon had received a 10-year sentence on three separate charges: robbery, burglary and larceny. He was released after three years but arrested again in 1932, this time on a federal charge, when he and others broke into a federal armory and stole a machine gun to use in a bank robbery. After serving three years in federal prison, Gideon was arrested for another burglary and convicted and sentenced to 10 years. In 1944, he escaped from prison but was rearrested a year later. Released in 1950, he was arrested in 1951 in Texas for burglary and served two more years.9 Thereafter, he supported himself by working tugboats and gambling, moving from Texas to Panama City, Florida in 1957 with his third wife.
The crime that led Gideon to the Supreme Court occurred on June 3, 1961. Early that morning, a man broke into a poolroom in Panama City and took coins from the cigarette machine and juke box, as well as a small amount of beer and wine. One witness identified Gideon as the culprit, and he was charged with the crime. Famously, the trial transcript begins as follows:
The Court: What says the Defendant? Are you ready to go to trial?
The Defendant: I am not ready, your Honor.
The Court: Why aren’t you ready?
The Defendant: I have no counsel….
The Court: Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a Defendant is when that person is charged with a capital offense….
The Defendant: The United States Supreme Court says I am entitled to be represented by counsel.
Unaided by counsel, Gideon was tried and convicted and sentenced to the maximum term of five years.
It remains a mystery why Gideon believed the Supreme Court had held that he was entitled to appointed counsel. Why he wanted a lawyer is clear. As he later told Anthony Lewis: "In this state…they just run over people who have nothing…. Without a lawyer, with the criminal record I had, what I’d have said they’d never have paid any attention to."
Gideon did not appeal his conviction, but he did file a habeas petition with the Florida Supreme Court, a procedure permitted at the time. When that court denied the application, Gideon sent a handwritten in forma pauperis petition to the Supreme Court. After the state submitted its response, Gideon forwarded a four-page reply, which included this:
It makes no difference how old I am or what color I am or what church I belong to if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me [an] attorney and the court refused.
On June 4, 1962, the court granted the petition and directed the parties to discuss this question: "Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered." Three weeks later, the court appointed Abe Fortas, then one of Washington’s most prominent lawyers, to brief and argue the case for Gideon. (Fortas, of course, was later appointed to the Court by President Lyndon Johnson and served there from 1965 to 1969.)
Gideon’s handwritten submissions have taken on the quality of historical relics, but there is some question as to authorship. According to one source, Gideon received the assistance of a former municipal judge, Joseph A. Peel, who was serving time in the same prison for a double murder.10 (Peel had hired killers to drown a couple who were about to expose his corrupt dealings.) If Peel did help Gideon, he was wise enough to make Gideon’s petition seem homespun.
Briefs and Argument
When Fortas was assigned to argue Gideon’s case, he asked a summer intern at his law firm, then Arnold, Fortas & Porter, to research the central issues. The intern was John Hart Ely, later a constitutional law scholar and the dean of the Stanford Law School. Ely produced a stream of memoranda and a draft brief, which Fortas’ partner Abe Krash reshaped into the final product. (Ely later referred to the experience as "the best summer job ever."11) On reading the brief, Gideon wrote Fortas that "[e]veryone and myself thinks it is a very wonderful and brilliant document."12
Fortas’ oral argument was just as good. In his memoir, Justice Douglas pronounced it perhaps the finest that he had heard in all his years on the bench.13 Fortas spoke slowly and comfortably, acknowledging at the outset that there were no special circumstances in Clarence Gideon’s case. Rather, the point was that "you cannot have a fair trial without counsel." Because of the pull of federalism, Fortas lamented, there was a tendency "to forget the realities of what happens downstairs…to these poor, miserable, indigent people…arrested and brought to court" without a trained advocate by their side.
Fortas argued that the special circumstance rule was "unadministerable." How could a judge decide at the outset of a case whether special circumstances existed requiring the appointment of counsel? Inevitably, Betts resulted in "ad hoc and post facto" evaluations by federal judges of state court decisions, which impaired state-federal relations. As Professor Corinna Lain has noted, Fortas’ insight was that "more federal intrusion [a flat ruling requiring the appointment of counsel in all felony cases] would actually mean less."14
Fortas was careful not to endorse Justice Black’s incorporationist approach. There was this interchange:
Fortas: [Justice Black,] I like that argument that you have made so eloquently. But I cannot as an advocate make that argument because the Court has rejected it so many times. I hope you never cease making it [Laughter].
Justice Brennan: You are saying that the right to counsel is assured by the Fourteenth Amendment whether by absorption, incorporation or whatever.
Fortas: Mr. Justice, you seem to know me well.
The lawyer for Florida was Bruce Jacob, then a 27-year-old assistant attorney general. As Jacob tells the story, he got the assignment because the four other lawyers in the state’s appellate section had already argued in the Supreme Court, and Gideon was his turn.15 Jacob was peppered with questions and struggled for answers. The low point came when Justice Potter Stewart asked him whether Florida would allow Gideon to represent anyone other than himself. Jacob responded that if another man wanted to be defended by Gideon, "then certainly the Florida court would not object." That answer prompted Justice Black to question whether Gideon might not "get in trouble for practicing law without a license." "I’m sorry Your Honor," Jacob said, "that was a stupid answer."
The States’ Amicus Brief
Remarkably, 23 states submitted an amicus brief on Gideon’s behalf. Never before or since have states lined up on the side of expanding defendants’ rights. (By comparison, three years later, 27 states filed an amicus brief in Miranda v. Arizona on Arizona’s side.) The states’ amicus brief was organized by Walter Mondale, then the 35-year-old attorney general of Minnesota. Mondale became involved in Gideon when Jacob wrote him asking whether Minnesota would join an amicus brief supporting Florida. "I believe in federalism," Mondale wrote back, "[b]ut I also believe in the Bill of Rights." And he added this observation: "Nobody knows better than [a state Attorney General] that rules of criminal law and procedure which baffle trained professionals can…overwhelm the uninitiated."16
The ‘Gideon’ Opinion
Gideon was decided two months after oral argument. Chief Justice Warren assigned the opinion to Justice Black in what has rightly been called a poetic gesture. Although the leading proponent of the total incorporation approach, Justice Black eschewed it to garner as many votes as he could. In a letter to Justice Brennan accompanying the first draft, he wrote: "[t]here is no intimation in what I have written of an en masse application of the Bill of Rights to the States."17 The court in Betts, Justice Black opined, had failed to appreciate that "any person who is haled into court, who is too poor to have a lawyer cannot be assured a fair trial unless counsel is provided to him."
Justice Black ended his opinion in Gideon by quoting from the states’ amicus brief that Betts was "an anachronism when handed down and should now be overruled." To those words, he added two of his own: "We agree." The vote was 9-0 for Gideon. Justice John Harlan wrote separately to protest the terseness of Justice Black’s opinion. Betts, he observed, deserved "a more respectful burial."
Justice Black read his Gideon opinion from the bench. His biographer has described the scene: "When [Chief Justice] Warren called on him…[Black] leaned forward and spoke in an almost folksy way. Happiness, contention, gratification filled his voice."18 Black’s own view of the matter was more coy. In a letter to legal philosopher Edmund Cahn, he noted that he "did not find it wholly unpleasant to write the Gideon case overruling Betts v. Brady."19
Gideon was a towering victory for Justice Black. In Professor Akhil Amar’s words, Black "did not so much come to the Warren Court; the Warren Court came to him."20
After Gideon was decided, Attorney General Robert Kennedy waxed eloquent about it: "Gideon wrote that letter [to the Court] and the whole course of American legal history has changed."21 But Gideon’s impact is easy to overstate. By 1963, all but five states —Florida, Alabama, Mississippi, North Carolina and South Carolina—provided counsel for indigent defendants in felony cases. Even in Florida, counsel was regularly appointed in some counties. The real significance of Gideon was bringing what Fortas called "the stragglers" into line, especially when the stragglers were five Southern states. Among the Warren Court’s highest priorities was protecting African Americans in the South from Jim Crow justice. That mission required Gideon. Without a lawyer to make pretrial motions and trial objections, the panoply of rights that the court was to extend to criminal defendants would have been of little value in those states.
‘Douglas v. California’
The same day that the court announced Gideon, it also decided Douglas v. California, holding on equal protection grounds that an indigent defendant has a right to appointed counsel on first appeal.22 At the time, only a handful of states appointed counsel for indigents on appeal, so that, viewed from a national perspective, Douglas was more consequential than Gideon. Douglas was argued in April 1962 but not decided in the 1962 term as had been anticipated. Had it been decided in 1962, the question posed in Gideon would already have been answered. For if equal protection requires the appointment of counsel on first appeal, then surely it demands the appointment at trial.
Thanks to the research of Professor Lucas Powe, we now know the inside story.23 By June 1962, five justices—Chief Justice Warren and Justices Douglas, Black, Brennan and Byron White, who had only recently joined the court—had signed on to an opinion in Douglas requiring appointed counsel on first appeal. When Fortas agreed to accept the appointment as counsel for Gideon, Justice White suggested that Douglas be put over until the next term so that Fortas could argue the case that overruled Betts, rather than a case that would be a fortiori after Douglas. And so reargument was ordered in Douglas on June 25, 1962, the same day that Fortas was formally appointed to represent Gideon.
That history confirms what should be obvious: The outcome in Gideon was never in doubt. It explains Justice Potter Stewart’s barb that "probably no lawyer could have lost Gideon."24 Put differently, Fortas was superb, but Gideon could have won Gideon.
For Clarence Gideon, the Supreme Court’s decision meant release from prison and a new trial. Gideon refused the services of two Miami attorneys provided by the ACLU, which had submitted an amicus brief and argued on his behalf in the Supreme Court, and asked the judge to appoint a local lawyer of some repute. The lawyer had previously defended the key prosecution witness, but Gideon waived the conflict. (The lawyer had also represented Gideon’s wife in a child support case against him.) Before the start of the trial, an overconfident prosecutor announced that "[i]f [Gideon] had a lawyer in the first place, he’d have been advised to plead guilty." But the outcome proved different. After deliberating for 65 minutes, the jury acquitted Gideon of the burglary. On hearing the verdict, a tearful Gideon told a local reporter that it was "the happiest moment in [his] life."25
Gideon had one more brush with the law—an arrest in Ohio for vagrancy. On learning who the defendant was, the judge offered Gideon a chance to make more history. As Anthony Lewis tells it, the judge told Gideon: "I was just going to let you go…[b]ut if you would like to see whether the Supreme Court would extend [Gideon] to petty crimes like this one…I will sentence you to six months in jail and you can take it on up." Gideon declined the offer and pleaded guilty.26 A few years later, in Argersinger v. Hamlin, the Supreme Court extended Gideon to petty offenses that result in imprisonment.27
Gideon died in 1972 at age 61 and was buried in Hannibal, Missouri, his birthplace, in an unmarked grave. In 1984, the local ACLU chapter placed a headstone on his grave inscribed with a sentence from a letter that he had sent to Fortas. It reads: "I believe that each era finds an improvement in law for the benefit of mankind."
Paul Shechtman is a partner at Zuckerman Spaeder and an adjunct professor at Columbia Law School.
1. 372 U.S. 335 (1963).
2. 316 U.S. 455 (1942).
3. D. Dickson, The Supreme Court in Conference 499 (2001).
5. Gideon, 372 U.S. at 351.
6. Amicus brief for the ACLU in Gideon, Appendix II.
7. 369 U.S. 506 (1962).
8. For Frankfurter’s quote, see B. Schwartz, Super Chief 408 (1983).
9. Gideon’s criminal record is detailed in B. Jacob, "Memories of and Reflection about Gideon v. Wainwright," 33 Stetson L. Rev. 181, 212 (2003).
10. Peel’s possible role is discussed in Jacob’s article, 33 Stetson L. Rev. at 214-17.
11. Ely’s summer job is discussed in A. Alfieri, "Gideon in White/Gideon in Black," 114 Yale L.J. 1459, 1464-66 (2005).
12. A. Lewis, "Gideon’s Trumpet" 145 (1964).
13. W. Douglas, "The Court Years" 187 (1980).
14. C. Lain, "Rethinking the Warren Court’s Role in the Criminal Procedure Revolution," 152 U. Pa. L. Rev. 1361, 1394 (2004).
15. See Jacob, 33 Stetson L. Rev. at 217.
16. W. Mondale, "The Good Life" 6 (2010).
17. Quoted in R. Newman, "Hugo Black" 527 (1997).
18. Id. at 528.
19. Super Chief at 460.
20. A. Amar, "Hugo Black and the Hall of Fame," 53 Ala. L. Rev. 1221, 1240 (2002).
21. Super Chief at 459.
22. 372 U.S. 353 (1963).
23. L. Powe, "The Warren Court in American Politics" 381-85 (2000).
24. L. Kalman, "Abe Fortas" 183 (1990).
25. "Gideon Happy After Acquittal In Famed Case," St. Petersburg Times, Aug. 6, 1963.
26. "Conference on the 30th Anniversary of the United States Supreme Court’s Decision in Gideon v. Wainright," 43 Am. U. L. Rev. 1, 20 (1994).
27. 407 U.S. 25 (1972).