An analysis of the judiciary decisions leading to the absolute right to counsel for criminal defendants. Evaluates the cases of Powell v. Alabama, Betts v. Brady, and Gideon v. Wainwright in light of the social periods in which they were litigated.

1. The Evolution of An Absolute Right<br />Julia Muhlnickel<br />U.S. Legal History Seminar<br />Dr. Judith Schafer<br />April 26, 2011<br />The Sixth Amendment to the United States Constitution states that, “In all criminal prosecutions, the accused shall enjoy the right to…have the Assistance of Counsel for his defense.” At first, the amendment was simply believed to mean that no accused person should be denied the right to an attorney. The development of the full, present-day meaning of this seemingly simple phrase began with the case of Powell v. Alabama in 1932 and continued until the landmark decision of Gideon v. Wainwright in 1963, with even more recent cases expanding the right to counsel. The outcomes of these cases and the Supreme Court opinions written about them were heavily linked to the general social attitude of the era; they highlight the ever-growing civil rights movement and trend away from the more conservative decisions of the early twentieth century.<br />In colonial America, the laws of England even refused counsel to persons standing trial for felonies; only those accused of misdemeanors were even allowed to have an attorney. This was because the English legal system did not consider it necessary for a defendant to have counsel; it was thought that in a criminal case, one had either committed the crime or had not committed the crime, and the defendant should simply tell his story. William Hawkins, in his A Treatise of the Pleas of the Crown, originally published in 1721, wrote that no attorneys were needed “unless some point of law arise proper to be debated.” In the 1730s, many more merchants were hiring lawyers for prosecution, in accordance with a growth in commerce. The use of attorneys for the defense was then allowed to increase, since that seemed fairer. However, in 1800, only one quarter to one third of defendants actually had lawyers. The Prisoner’s Counsel Act of 1836 was passed to allow the prisoner “to be properly defended by counsel,” but twelve of the fifteen judges in the Incorporated Law Society “strongly condemned this bill,” as they were still not in the agreement with the principle of the right to counsel. Even then, no provision was made for the poor to have appointed counsel until 1903, in the Poor Prisoner’s Defence Act.<br />The United States first defined the right to counsel in the Sixth Amendment, enacted in 1791, and subsequently the Fourteenth Amendment, which became law in 1868. The time it took to actually have these concepts enforced as we perceive them today, however, was astonishing. Powell v. Alabama was the first to bring the issue to national attention, and did not occur until 1932. A group of nine black male teenagers boarded a freight train in Chattanooga, Tennessee along with a separate group of white boys and two white girls, named Victoria Price and Ruby Bates. A fight broke out between the males, and eventually all but one white boy was thrown from the car. The black boys, who were stopped ahead at the town of Scottsboro, Alabama and would become known in history as the “Scottsboro Boys,” were charged not with assault but with rape of the two girls on board, at the accusation of Victoria Price. The most complete account of the first trial of the boys comes from a report written for the American Civil Liberties Union by Hollace Ransdell. She interviewed both Victoria and Ruby, who gave their ages as 21 and 17, respectively. The girls gave the story that the black boys had threatened everyone on the train with a pistol, and thrown off all the white boys except one. After that, six had raped Victoria and six had raped Ruby. These charges were not even mentioned until well after the girls were safely in custody, and Ransdell implies that the girls may have only accused the boys of rape after seeing the hysterical crowd that was ready to lynch the blacks. Ransdell also thought that Victoria was apt to act for attention in any way she could, and Ruby simply followed along because she did not know what else to do.<br />The lack of any plan of defense by the counsel given to the black boys is shocking. At their arraignment, the judge appointed the entire Scottsboro Bar Association to represent them, assuming someone would take responsibility. Steven Roddy, an attorney from Chattanooga, came to the courthouse to speak on the boys’ behalf but pleaded with the judge to not record his name as actual counsel for the boys. The judge did not want to have to appoint counsel if Roddy said he would help, but Roddy was unfamiliar with Alabama law and stated himself that he was unprepared for the case. Milo Moody, originally assigned to the case as part of the bar, said that he was willing to help Roddy. This entire event did not take place until immediately before the trials began, leaving no time to prepare. Both attorneys were then recorded as counsel for the defendants, but neither actually made an effort to act as counsel should. Courtroom witnesses said that Roddy did little to actually use the law for the boys’ benefit. Moody apparently worked even less than Roddy, while both attorneys agreed that it was acceptable for all nine boys to be tried together. The boys, varied in age from around fourteen to twenty, were separated into groups by the prosecution with no reason given. It is inferred, however, that the prosecution did not want any convictions thrown out because the boys were of such different ages and could have been viewed as having very different intentions, if they were found guilty.<br />The first trial was for the nineteen-year-old Clarence Norris and twenty-year-old Charlie Weems. Any evidence for conviction lay with the testimony of the prosecution’s primary witness, Victoria. She seemed to be playing the part of an actress, and did not show signs of psychological or emotional damage from rape, as one might expect to see in the trials of one’s alleged rapists. She could even be described as bubbly and excited to be able to entertain the court. She also gave “flip retorts” to the defense attorney Roddy. Unlike Victoria, Ruby was quiet and seemed to not want to tell the story. Officials called her a “weak witness” and public opinion deemed her too mentally slow for her testimony to be seriously considered. The only other eyewitness was the lone white boy left on the train, named Orvil Gilley. He did not come from a reputable family and also was not taken seriously, since he was seen as stupid. The other white boys who had been thrown off the train were not even called upon to testify, since no one thought it necessary to verify any events that happened before or during the fight. Two doctors who had examined Victoria and Ruby did take the stand. They said that both girls showed signs of recent intercourse, but not of any “rough handling” or resistance. Victoria did have one scratch and one or two small bruises, but none of these were serious and could have resulted from an incident other than with the defendants. The first trial was over before the end of the first day, and the jury left to deliberate. They returned a guilty verdict along with a sentence of death for both boys being tried. Over the next thirty-six hours, the second and third trials returned similar results. The second trial was for Olin Montgomery, 17, Andy Wright, 18, Eugene Williams, 17, Willie Robeson, 17, and Ozie Powell, 16. The only difference in this trial was the admission that Willie Robeson had venereal disease. This condition would have made it very painful for him to have intercourse, let alone rape a girl using brutal force. All these boys were once again sentenced with death. The third trial was for one boy, the fourteen-year-old Roy Wright. Still essentially a child, the prosecutors decided to ask for life in prison instead of the death penalty for him not because of his youth in itself, but because of the public opinion coming from other regions of the country. More northern areas would have seen a death sentence for someone so young as an abomination. Roy Wright’s trial had started later in the morning of the second day, April 9, because the jury’s decision in the second case had been given that morning before his trial. By two in the afternoon, the jury had decided that they could not come to a decision. Even though the prosecution had requested life imprisonment, eleven jurors had voted for the death penalty, and only one for prison. Judge A.E. Hawkins declared Wright’s ordeal a mistrial, and he would have to wait in the Birmingham jail for a second trial.<br />The controversy surrounding the events on the train near Scottsboro and the subsequent court case had the potential to grow into a national uproar. One of the representatives of the Communist Party who had attended the first series of trials recognized this possibility, and presented the case to the legal branch of the political party, the International Labor Defense. The primary purposes of the International Labor Defense were to oppose groups such as the Ku Klux Klan and also to promote itself through high-profile cases exactly like this one. One of the leaders of the group, Joseph Brodsky, hired George Chamlee as the attorney for the Scottsboro boys. Chamlee would be the primary attorney in the appeal to the Alabama Supreme Court. Before the appeal, however, the International Labor Defense had to defend its right to represent the boys to the National Association for the Advancement of Colored People. The NAACP had initially been hesitant to involve itself with the trials in case it became known that one or more of the boys was actually guilty, since rape by blacks of white women was seen as such a horrible crime in the South. After the International Labor Defense had already committed to the case, the NAACP wanted to also become involved. The boys, not having any prior knowledge of either group, remained committed to the International Labor Defense and the Communist Party. On June 22, 1931, the executions of all eight boys were stayed, since they had appealed to the Alabama Supreme Court. However, the court process took a long period of time and the appeal trial was not held until March of 1932. The Alabama Supreme Court, made up of justices who were elected by the residents of Alabama, voted six to one to uphold the lower court’s decisions on all but one of the boys. Chamlee was able to prove that this boy, Eugene Williams, was underage and so should have been tried as a juvenile, not an adult. He, like Roy Wright, returned to the jail in Birmingham to await another trial. The one dissenting justice on the Alabama Supreme Court was Chief Justice John C. Anderson, who made a point to strongly dissent. Unlike the other justices, Chief Justice Anderson believed that the boys had not received adequate counsel, had been paraded outside to incite public hatred, and had not received a jury of their peers. His opinion was not the majority, though, and the lower court’s decision was upheld.<br />In order to appeal to the United States Supreme Court, the International Labor Defense hired the well-known and successful attorney Walter Pollak. Pollak had to appeal to the Supreme Court using a writ of certiorari. The Rules of the Supreme Court state, “Review on a writ of certiorari is not a matter of right, but of judicial discretion.” The writ of certiorari cannot be used to dispute facts that were erroneous or misrepresented or to undo the misapplication of the law. It can only be used as a type of judicial review in which the Supreme Court can overturn or affirm the judgments of lower courts. Today, most appeals to the Supreme Court are through a writ of certiorari. The Supreme Court granted a writ of certiorari and agreed to hear the case of Powell v. Alabama on May 31, 1932. The briefs were presented on September 19, and a decision made in November. The argument given by Pollak was comprehensive, covering every issue that deprived the defendants of due process. For example, he argued that the crowd’s highly polarized opinion tainted the jury. The crowd was only encouraged by the Sheriff’s request that the National Guard protect the defendants on their journeys between the jail and the courthouse each day. Pollak then highlighted the actions of the trial judge, who, at the arraignment of the defendants a week before their trial, did “appoint all the members of the Scottsboro bar” to represent the boys. Pollak also cited the judge’s statement that he “anticipated them to continue to help them if no counsel appears.” Not only was this evasive and unfair, Pollak wrote, but it was also against Alabama law, which only allowed two attorneys for defendants. Between the arraignment and trial, none of the defendants were seen by any members of the Scottsboro bar nor were they allowed to contact any attorney of their own. They were also not allowed to have their parents find attorneys for them. Pollak then showed that, at the trial, the lawyers Roddy and Moody were unprepared and had not been given any chance to adequately create any sort of defense for the boys. Thirdly, the systematic exclusion of blacks from juries was not equal protection under the law. Essentially, Pollak showed that the defendants had not been given any semblance of a fair trial under federal or state law. The attorney for the State of Alabama, Attorney General Thomas E. Knight, essentially restated the opinion of the Alabama Supreme Court and denied that any due process had been withheld from the defendants.<br />Justice George Sutherland delivered the opinion of the U.S. Supreme Court. Six other justices shared his views, while Justices Pierce Butler and James Clark McReynolds dissented. Sutherland first explained which parts of the law would be addressed. The appeal was for a review of whether or not the trial court had granted the defendants due process in accordance with the Fourteenth Amendment. While there were questions regarding whether the trial was fair and whether the jury selection had systematically excluded blacks, the court would only rule on whether or not the boys were denied the right to counsel. Sutherland reviewed the events leading up to the charges, and affirmed, “The attitude of the community [Scottsboro] was one of great hostility.” Sutherland also made it clear that the defendants were youthful and separated from their families, who were all in other states. Upon officially being charged with rape, the defendants were not asked whether they already had, were able to obtain, or had family who could obtain counsel. They also were not asked if they needed counsel appointed. Sutherland, as well as Alabama Supreme Court Chief Justice Anderson, recognized that the trial was hastened and counsel for the boys sent by their families appeared shortly after the trial, showing that a “fair opportunity to secure counsel” was not given to the boys. A transcript from the day of the trial is quoted in Sutherland’s opinion, showing that the attorneys Roddy and Moody were not interested in serving as primary counsel for the boys, but that the trial judge casually made them official counsel. Sutherland criticized the naming of all the members of the Scottsboro bar as counsel before the day of trial, since it would not instill any sense of responsibility in any individual who was a member of the bar. He even said, “And in this casual fashion the matter of counsel in a capital case was disposed of.” Additionally, it was wrong that during the week between the arraignment and trials, which is the time most important to investigation and preparation of a defense, the boys did not have any attorney. The right to an attorney during this time was proven just as important as having an attorney during the trial, decided in the cases of People ex rel. Burgess v. Riseley and Batchelor v. State. As soon the judge appointed Roddy and Moody as counsel, though, he rushed the trial to begin and did not give an opportunity for any sort of investigation by the counsel. Sutherland then began what would define the right to counsel more specifically. He stated that the United States Supreme Court could not interfere with the Alabama Supreme Court’s decision, since that court had decided that the Alabama state law requiring courts to appoint counsel had not been broken. However, Sutherland further stated, “The question…is whether the denial of the assistance of counsel contravenes the due process clause of the Fourteenth Amendment to the Federal Constitution.” Sutherland reverted to the practice in England at the time the United States Constitution was ratified, saying that there was no right to counsel in felony cases. However, twelve of the thirteen original colonies had laws in their original constitutions expressly stating that defendants in all criminal cases had the right to counsel, so the laws of England were no longer pertinent. Sutherland also established that the Sixth Amendment guaranteed the right to have the assistance of counsel, but this right was further included under the due process clause of the Fourteenth Amendment. In the case Twining v. New Jersey, the Supreme Court decided that although there were rights that are protected in the first eight constitutional amendments, when these rights were violated it was actually a violation of due process of law, which is affirmed in the Fourteenth Amendment. The court also asserted that a hearing must include the right to counsel, if provided by the defendant, for “the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Without someone trained in the application of the laws, even an intelligent defendant could not adequately prepare a legal defense for himself. The question then became whether or not a state was required to provide adequate counsel to the defendant. The answer was determined to be yes. Sutherland found denial of due process in two parts of the case. Firstly, the refusal of the trial court to allow the defendants enough opportunity to secure counsel and communicate with their family in other states was a denial of due process. The defendants were all young, illiterate, imprisoned and surrounded by the National Guard, and knew no one in the state. They were also surrounded by residents of a town that was incredibly hostile towards them. Not giving these nearly helpless boys a chance to find an attorney literally denied them the chance to defend themselves. Secondly, the Supreme Court found that even if the opportunity to hire counsel had been given, due process of law was also denied when the trial court did not “make an effective appointment of counsel” for the boys. Sutherland then clearly stated that it was absolutely required for the trial judge to appoint an attorney for a defendant who could not obtain one. This would vary by each state’s individual laws as to whether counsel was required in only capital cases or simply all criminal cases. The decisions of the trial courts and Alabama Supreme Court were then reversed.<br />Justices Butler and McReynolds disagreed with the majority decision. Butler wrote their opinion, saying that the court’s decision was “utterly without merit.” Butler agreed that if the defendants had been denied the right to counsel, it would have clearly been a denial of due process. However, he argued that there was not a denial of the right to counsel. Butler cited the rulings from the Alabama Supreme Court, where the chief justice did not believe that the lack of counsel was enough to overturn the lower court’s rulings but the total considerations altogether were sufficient for a reversal. Butler also quoted that the Alabama Supreme Court believed Moody to be an experienced, successful local attorney. Butler said that several factors showed that the defendants did have adequate counsel. For example, at the original trials Moody and Roddy asked for a change of venue and had witnesses to support their request. They also were prepared to show that Roy Wright and Eugene Williams were juveniles. Butler said that there was nothing the two attorneys “erroneously did or omitted for their defense.” They also did not request postponement of the trial, which would have shown that they were not yet prepared. Since they did not, they must have already been prepared. Butler also did not agree with the somewhat extravagant decision that a denial of due process was an infringement on the Fourteenth Amendment, because this constituted a federal interference with something that was a matter of the states. Butler interpreted the right to counsel in a very formal way, and believed that officially appointing a lawyer as counsel was enough to show that the defendants did indeed have adequate counsel.<br />There is no doubt that the people of Alabama influenced how the original trials turned out. Media coverage showed the fiery attitude from the very beginning. The first articles appeared on the night of arrest, March 25, 1931. The article sent to the nation from Huntsville, Alabama wrote that mobs were ready to lynch the nine boys that night, so the governor ordered the militia to the prison to protect them. The sheriff who asked for the troops said that the mob around the prison was consisted of three hundred people. Another article from December 1931, after the boys were sentenced to death and were awaiting an appeal, noted that the Governor of Alabama, Benjamin Miller, had received protests of the unfair sentencing from “England, Germany, France, Switzerland, Canada, Cuba, several South American countries and many places in this country.” At the same time, African American newspapers showed public opposition to the injustice of the trials. Articles on the Scottsboro case appeared frequently on the front pages of Southern papers organized by African Americans. An especially informative article from Kansas’s Negro Star newspaper anticipated the decision of the Alabama Supreme Court and says that Chamlee, the attorney appointed by the International Labor Defense, was already preparing for a Supreme Court case. The article talked about “mass protest” occurring all over the United States and even in Europe, especially in cities where the Negro population was high. Seventy-four Negro organizations in Chicago even held a “Scottsboro Parade” as a rally of support for the boys.<br />What happened to the Scottsboro boys after their victory in the Supreme Court? They did not lead lives of happiness, and most were troubled for the rest of their days. A series of retrials occurred in Alabama from 1933 to 1937, which did not clear the names of all of the boys. They were all separated from that time on. Haywood Patterson endured three more guilty convictions with death sentences, before a fourth trial gave him seventy-five years in prison. He escaped prison twice, once for five days and once for three years. In 1950, he killed a man in a fight in a bar and was eventually convicted of manslaughter. He died of cancer in prison in 1952. Charles Weems was convicted in his retrial in 1937, but was let out on parole in 1943 after he endured beatings, tear-gassing, and a stabbing in prison. Clarence Norris was also convicted in a retrial, which went to the Supreme Court in the case of Norris v. Alabama because blacks were systematically excluded from his jury, which was then deemed unconstitutional. Norris was eventually sentenced to death, but the governor reduced his punishment to life imprisonment. He was released on parole, but moved to New York in violation of the parole and was caught. Three years later he was again released and moved to New York, and was aided by the NAACP in a successful request for pardon. Norris lived the longest of any of the boys, and died in 1989. Andy Wright, chronically depressed inside prison walls, was in and out of prisons until 1950. Eugene Williams, the second youngest boy, had all charges dropped in 1937 because he was so young at the time the alleged rapes occurred. Ozie Powell tried to slash the throat of a sheriff who was transporting him from testifying in Haywood Patterson’s 1936 trial and was shot in the head by the sheriff as he held his hands in the air in the sign of surrender – but he lived. He refused to speak to the governor to be paroled in 1938, and was eventually released in 1946. Olen Montgomery, who aspired to be a jazz musician after his release in 1937, became an alcoholic who could not hold a job and lived the rest of his life in Georgia. Willie Roberson suffered from asthma and syphilis while in jail and could not walk without a cane. He was finally released in 1937, innocent of all charges. Charges were also dropped against the young Roy Wright in 1937, who often wrote to his mother how much he missed her. He was kept in jail from the original trial until 1937 without any retrial. After release, Wright served in the military and married. However, he believed his wife was having an affair and killed her just before killing himself. Even after the Supreme Court overturned the original trials, none of the Scottsboro boys were freed before having spent six entire years in jail. <br />While by no means could it be said that the decision of the Supreme Court to reverse the original trials of the Scottsboro boys ensured them happy lives, the case of Betts v. Brady is an example of how the rights we take for granted today were not always given freely. Although the case was not covered widely and was not seen as a landmark decision, it was mostly notable for its reversal in the Gideon v. Wainwright decision. Nevertheless, it is worth discussing, because the points made in the decisions written by Supreme Court justices were a prime picture of societal thought at the time.<br />Smith Betts was a poor farm worker convicted of robbery in Maryland in 1939. He requested that the court appoint an attorney for him because he could not afford one, but the state laws of Maryland only allowed the court to provide an attorney in capital cases. Betts then represented himself in the Circuit Court for Carroll County, Maryland. He waived his right to trial by jury, electing to have his verdict decided by a single judge. The judge found Betts guilty and sentenced him to eight years in prison. Just over two years later, in June 1941, Betts filed for a writ of habeas corpus. After presenting his case, though, the judge reaffirmed Betts’s sentence. In August, Betts filed for the writ of habeas corpus once again, and Judge Carroll T. Bond was assigned to hear his argument. However, Judge Bond refused to release Betts. On January 3, 1942, Betts filed a petition for a writ of certiorari to the United States Supreme Court, which the court accepted on February 16. The case was argued in April and decided on June 1.<br />Jesse Slingluff, counsel for Betts, argued three distinct points. First, the Supreme Court had the right to review the case because the highest court in Maryland had already passed judgment. Second, Betts had gone through all appeals possible in the state of Maryland. Last, and most important, Slingluff held that the Fourteenth Amendment guaranteed the right for all indigent persons in a criminal trial to be appointed an attorney in state courts. The most debatable point of the trial was not whether or not Betts had been denied appointed counsel, for he indeed had. However, whether or not the Fourteenth Amendment required states to appoint counsel for all criminal defendants was the question. Slingluff argued that while the Sixth Amendment guaranteed the right to counsel in federal courts, it was through the Fourteenth Amendment that this right was given to defendants in state courts. In the decision of Johnson v. Zerbst, the Supreme Court had made mandatory the appointment of an attorney for all criminal defendants in federal courts. The case of Powell v. Alabama held that defendants accused of crimes punishable by death in state courts should also have an attorney appointed. Slingluff considered the guarantee of a free attorney for indigents a fundamental right “guaranteed by the due process clause of the Fourteenth Amendment.” Since many of the other rights guaranteed by the federal government in the Bill of Rights were transferable to the states in the Fourteenth Amendment, Slingluff was requiring the justices of the Supreme Court to make the assumption that the Sixth Amendment right to counsel should also be transferred. This was not a small technical detail, he argued, but a fundamental humane right. Justice Sutherland even described this fundamental right in Powell v. Alabama when he wrote, “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel…Without it, thought he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Because the court failed to appoint counsel for Betts, Slingluff then argued that the conviction was illegal.<br />The argument for the petitioner rested entirely on the question of whether or not the Sixth Amendment right to counsel in federal courts was transferable through the Fourteenth Amendment to all criminal defendants in state courts. The statement made by Attorney General for Maryland William C. Walsh argued that it was not. Walsh understood that the brief for the petitioner argued that the appointment of an attorney was a violation of due process because a trial could never be deemed fair and just without the appointment. However, he relied on a formal interpretation of the law, basing his argument on the fact that the Supreme Court had not yet decided a case from the state courts on whether or not an appointment of counsel should be made in non-capital cases. No legal decision, then, had ever been made on whether the Fourteenth Amendment required courts to appoint counsel for poor defendants. Powell v. Alabama, although a trial in state courts, only applied to capital cases. In the Supreme Court decision, it was specifically stated that this mandate would only apply to capital cases, and at that time the court would not create rules for any other type of case. Johnson v. Zerbst, although it included defendants in non-capital cases, only required the appointment of counsel in federal courts. Walsh contended that if the Supreme Court had wanted to make appointment of counsel necessary in all criminal cases, federal or state, it would have done so in a previous case. There was no legal basis for overturning a conviction based on the fact that the court had simply omitted appointing counsel. The fact that there was no counsel appointed was not enough to call Betts’s trial unfair, Walsh believed.<br />The majority of the court agreed with Walsh. The vote was 6-3 in favor of upholding the Maryland courts’ decision. Justice Owen Roberts delivered the opinion. He wrote that the Sixth Amendment right to counsel was guaranteed in federal courts, but the lack of appointed counsel in a state court was a violation of the Fourteenth Amendment if it was in connection with other elements that also violated due process. Interestingly, he did not use the words “only if,” because he believed that the application of the Sixth Amendment in state courts was “less a matter of rule.” Essentially, Roberts meant that a denial of appointed counsel could be both a denial of due process by itself or in conjunction with other injustices. In one case, the events may constitute a violation of due process, while in a case with different circumstances, those same events may not constitute a violation. Roberts did not wish to “impose” an obligatory rule upon the states. He reviewed the history of the right to counsel in the colonies and then in the states, and came to the conclusion that the statutes giving the right to an attorney in the states were simply an objection to any rule that was a denial of representation, not a steadfast law that an appointment of a lawyer must be made. The concept behind due process was not a right to have an attorney no matter who paid for it, and supposedly had never been thought of in that way in the United States. Roberts wrote that the right to have counsel appointed should be considered on a case-by-case basis, and since Betts was an average man with “ordinary intelligence,” he was at no disadvantage without a lawyer in court. Roberts refused to allow the absolute right to appointed counsel in all criminal cases, because he believed it would impose a belief of the federal government upon the states. He even lightly compared Betts’ criminal sentence to a traffic violation, not wanting to require the states to provide counsel in such small, petty cases.<br />Justice Hugo Black, his opinion representing all three dissenters, refused to take the concept of personal rights so lightly. He did not go into detail regarding the several reasons why, but he believed firmly “that the Fourteenth Amendment made the sixth applicable to the states.” Black found contradictory that the Supreme Court had just said a trial is unfair if it was “shocking to the universal sense of justice,” while the Supreme Court had said in Palko v. Connecticut that whatever is “implicit in the concept of ordered liberty” and “essential to the substance of a hearing” is part of the right to due process. Black concluded with what he believed was the consequence of the Supreme Court’s decision. Not only would the decision affect Betts’s life, but also people in poverty. The poor who could not afford a lawyer would have an increased chance of conviction, because they would not be able to defend themselves properly. In a wise and socially progressive statement, Black wrote, “Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.” The case of Betts v. Brady failed to attract much attention from the media, but it remained an example of the friction between conservative and progressive groups in the twentieth century. It marks a setback that would later be overturned in the development of absolute personal rights.<br />Clarence Earl Gideon, like Betts, was arrested for simple robbery. On June 3, 1961, a robbery occurred at the Bay Harbor Poolroom in Panama City, Florida. The burglar broke a window to get in, and also destroyed a jukebox and cigarette vending machine to take the money from them. The act had taken place while the poolroom was closed sometime between midnight and eight in the morning. Gideon was found nearby and arrested by police after a supposed witness said that he had seen Gideon in the poolroom at five thirty that morning. Gideon was immediately charged with breaking and entering. At his arraignment, Gideon “requested permission to consult counsel,” but it was not apparent in the records whether or not he actually had counsel at that time. At the beginning of his trial, Gideon said that he was not prepared because he had no attorney, and asked for one to be appointed. The court granted that Gideon had no means of paying for an attorney, but the judge refused to appoint one. His reason was that in 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 judge’s statement did not even leave room for the case-by-case determinations encouraged by Betts v. Brady. The trial continued and Gideon had to represent himself. He did his best, but was found guilty and sentenced to five years in prison. By October, Gideon submitted a petition for a writ of habeas corpus to the Florida Supreme Court. Handwritten on prison stationary, Gideon stated his case and never made any reference to a condition that would render him unable to defend himself. His petition said that due to Supreme Court decisions, all defendants charged with a felony were entitled to a lawyer. When the petition was denied without a hearing or opinion, Gideon appealed to the U.S. Supreme Court. Gideon requested both to continue in forma pauperis and for a writ of certiorari. The Latin term in forma pauperis simply means to allow a person in poverty to continue a case in court without responsibility for the court costs. The Supreme Court accepted the two requests and assigned Abe Fortas, a prominent lawyer from Washington, D.C., to represent Gideon. Fortas was instrumental in writing a thirty-page brief for the Supreme Court in which he contended that Betts v. Brady should be overturned and Gideon’s sentence reversed.<br />Fortas’s brief was so complete in its argument that it left no room for the question of whether or not it was a fundamental right to have counsel. First he reviewed the facts of the case, which were all clearly defined. Gideon was an indigent, could not afford counsel, and was denied counsel when he requested it. The key points in Fortas’s argument were that defendants could not effectively defend themselves, that the poor are likely unable to make bail and so sit in jail without means to prepare a defense, and to deny the poor the right to counsel while it is guaranteed for the wealthy who could afford it is a denial of equal protection under the law. Fortas believed that the relationship between federal and state courts had suffered due to the decision of Betts v. Brady and the supervisory role into which it forced the federal court. The progression of social issues in the twenty years since Betts v. Brady, he said, required its overrule. Quoting the 1956 case of Griffin v. Illinois, Fortas said, “Due process is, perhaps, the least frozen concept of our law – the least confined to history and the most absorptive of powerful social standards of a progressive society.” The concept of fairness for all under the law was dynamic and the public was constantly accepting a more inclusive interpretation. Fortas then turned his attention to the fundamental right to fairness in court. He reasoned that there was no means possible for a man untrained in the law to successfully take in, analyze, and react to the many different situations presented in the courtroom. He would not be able to know whether or not certain events, such as his arrest or interrogation, were legally carried out, or even if he could recognize that they were unlawful, he would not know how to object to them. He could not fill out any preliminary motions or fairly reason with a prosecuting attorney for a plea. In addition, a knowledgeable attorney would never represent himself due to his emotions affecting his ability to competently argue in court. A man untrained should never be expected to represent himself, then. A man who cannot afford counsel also probably cannot afford bail, and would not be able to prepare a defense in any way from his cell. Fortas cited Justice Sutherland’s opinion in Powell v. Alabama to show the necessity of counsel to a fair trial, as well as the writings of Illinois Supreme Court Justice Walter Schaefer, saying, “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” A defendant inexperienced in the law would not know of certain specific rights or how to use those rights in court without an attorney. The question then turned to whether or not the absolute mandate that defendants be supplied with an attorney in federal courts meant that defendants in all state cases should have access to an attorney. In Johnson v. Zerbst, the Supreme Court decided that an attorney was inherently necessary for a fair trial. Justice Black wrote in that case that it was especially unfair when the prosecution should have “experienced and learned Counsel” and the defendant was inexperienced and representing himself. The justice system in the United States was considered accusatorial, meaning that both sides of the case had to be “vigorously advocated,” said Fortas. To provide the prosecution with highly experienced and well-trained lawyers while the defendant did not have any counsel at all is a true violation of human rights. Recognizing this in federal courts but ignoring it in state courts should also be a violation of human rights. Also, the trial judge in the case should not be seen as backup defense counsel. His primary job was to ensure the legality and justice of the trial, not to act as a biased source of aid for the defendant. Fortas also pointed out that a judge enters the trial too late to be of much help to the defendant. Too many important decisions and statements must be prepared before the trial, and a judge should not be involved in that part of the defense. Therefore, it cannot be contended that a trial judge can act as a replacement for appointed counsel. Another aspect of the current practices regarding the right to counsel that Fortas criticized was the distinction between capital and non-capital cases in state courts. This division, he argued, was not valid. The Supreme Court had eliminated this separation in federal courts, and it was directly relevant to Gideon’s case. The Fourteenth Amendment right to due process included the rights to life, liberty, and property, not simply life. Liberty taken away while in prison was invaluable in a person’s life, and some would argue that life in prison was a worse punishment than the death penalty. The possibility of a case ending in capital punishment did not give any indication to the necessity of counsel, for many non-capital cases could encompass situations that were much more complicated than some capital cases. The Supreme Court itself had eliminated the need for separation between capital and non-capital cases in Ferguson v. Georgia. The decision of the court was, “The command of the Fourteenth Amendment also applies in the case of an accused tried for a non-capital offense,” showing that the possibility of the death penalty should not affect one’s right to due process under the Fourteenth Amendment. Fortas also agreed with what Justice Black had said in his dissenting opinion of Betts v. Brady. The system was flawed in that it guaranteed an attorney to the wealthy, but refused the same guarantee to the poor. This process violated due process and equal protection under the law, resulting in a higher incidence of conviction for the poor, as well as their higher likeliness to plead guilty due to the seemed hopelessness of their situation.<br />Fortas also specifically argued for the overrule of Betts v. Brady, a question which the Supreme Court, in its acceptance of Gideon’s petition, had asked be addressed by both the petitioner and respondent. While a survey of the states which had laws requiring the appointment of counsel for all felony defendants should not be considered a valid claim by itself, as a refute of Betts v. Brady, it was valid. Part of the reason the Supreme Court upheld the lower courts’ decision in Betts v. Brady was because the general consensus from a review of state laws was that counsel was not necessary in all criminal cases. Therefore, by showing that all but five states now required counsel for indigent defendants in all felony cases, Fortas was able to undermine one of the bases of Betts v. Brady. Also, the decision of Betts v. Brady was creating very serious friction between the state and federal courts. Some people argued that if the federal government had the right to require states to provide defendants with attorneys, it was proof that the federal government was too powerful. Fortas argued that this was not a valid reason, for the “special circumstances” test created by Betts v. Brady required the Supreme Court to interfere whenever a defendant believed he had special circumstances for an attorney and had still been denied. It required the federal court to have a supervisory attitude, and a repeal of Betts v. Brady would only smooth the relationship between the federal and state courts. Additionally, both the Supreme Court and the state courts tended to contradict themselves when deciding matters of special circumstances. For example, in the case of Gayes v. New York, the decision was not overturned even though the defendant was sixteen years old, while in DeMeerleer v. Michigan, the case was reversed because the defendant was only seventeen. Another problem with the test for “special circumstances” was that it was required to occur post facto, or after the original trial. The convicted defendant would have to file for a writ of habeas corpus after being convicted and wait in prison while his petition was read. The delay could result in the defendant serving his entire sentence in prison while waiting, or, if his petition was accepted and his case reversed for a new trial, witnesses could have died or forgotten the events, or records could be lost. Receiving a fair second trial years after the first trial was not probable. For the many reasons Fortas described in his brief, he argued that the overrule of Betts v. Brady and the reversal of Gideon’s earlier conviction were necessary.<br />Like the Supreme Court in its decision of Betts v. Brady, Assistant Attorney General of Florida Bruce R. Jacob interpreted the Fourteenth Amendment very formally, relying on an outdated and conservative outlook on criminal procedure. Jacob alleged that Gideon was intelligent enough to defend himself in court, his case did not warrant habeas corpus relief, and there was no basis whatsoever to require states to appoint counsel for indigents. He also believed that a federal requirement such as the one requested by the petitioner would impose on states’ rights and that the “special circumstances” or “fairness of trial” rule was completely adequate. Jacob even said that the convicts who may be released if Betts v. Brady was overturned would be a danger to society. Jacob spent the first seven pages of his detailed argument specifying that Gideon was given a fair trial. He seemed to think that the fact that Gideon did not have any special circumstances that might require counsel under the Betts v. Brady ruling eliminated the need for judicial review, and therefore for any appeal Gideon might make. Gideon was a white male of age fifty and average intelligence, facing a so-called “uncomplicated” charge of breaking and entering. However, the fact that Jacob spends paragraphs in his brief explaining the difference between breaking and entering with or without intent clearly shows that the matter is naturally complicated. In his explanation of the charge he also cites five separate cases from Florida courts that further specify definitions of the crime of breaking and entering. It is unthinkable to ask Gideon, with no knowledge of these cases or legal vocabulary, let alone the legal process, to defend himself against the charge of breaking and entering. Jacob also writes that Gideon was competent to defend himself since he was able to cross examine witnesses and give a closing argument. However, Gideon’s cross-examinations were not complete, as he was unable to phrase the correct line of questioning that would prove his innocence. He also tried to imply that he could not have committed the crime with intent to do so, since he was intoxicated, but did not know how to say this without incriminating himself. Jacob uses these examples as testimony to Gideon’s competence in defending himself, but in another light they actually show the shortcomings of not having appointed counsel.<br />In Jacob’s discussion of whether or not Betts v. Brady should be overturned, he reverts to historical practice as his answer. Originally, English courts did not allow lawyers in felony cases, but began allowing them in 1836. Of the thirteen original colonies at the time the Bill of Rights was ratified, only one had any rules for the appointment of counsel in non-capital cases. The view at this time was that the laws giving the right to counsel were to “do away with the rules which denied representation,” but they were not seen as requiring that counsel be appointed for those who could not afford it. Before the ratification of the Bill of Rights, Congress also passed a law that defendants in capital cases should be allowed to have counsel appointed. Jacob interpreted this as meaning that in cases that were non-capital, no counsel should be appointed. In Johnson v. Zerbst, the Supreme Court extended the assignment of counsel to non-capital defendants in state courts, but Jacob portrayed this negatively, implying that it was a simple exercise of the federal government’s power. He also called Johnson v. Zerbst a “radical change” just a few sentences after asserting that the federal government had a tradition of appointing counsel in all federal criminal cases. In a stagnant society, this 1938 case may be called radical, but in the United States, progressiveness was popular, and Johnson v. Zerbst took place a full six years after Powell v. Alabama’s ruling. Still, Jacob thought that the assignments of attorneys were “not required by the constitutional provisions and have never been supposed to be.” He also refuted the idea that the Fourteenth Amendment was a general application of the Bill of Rights to state governments, because the Bill of Rights, at its conception, was only intended to limit the federal government. The state should be allowed to determine its own criminal procedure and the federal government only be involved if the trial could be considered wholly unjust, shocking to our opinion of fairness. Jacob thought that creating a federal rule on the appointment of counsel would “introduce extraordinary confusion and uncertainty into local criminal procedure.” There is no doubt he believed Betts v. Brady caused no confusion at all. In fact, he said that Betts v. Brady and the decision to use the “fair trial” test to determine whether or not the absence of counsel impacted the fairness of a trial was a good system. He quoted the 1909 case of Moyer v. Peabody, which said that due process was dependent on circumstances. In conclusion he noted that a denial of due process could not be defined by any mechanical formula, and having an attorney was only one facet of due process. The ability to determine denial of due process case by case was descended from common law, and Jacob contended that opponents of the case-by-case determination were opponents of common law. Determining whether a trial was unfair based on a denial of due process was “a clear, consistent and operable standard,” no matter how many complicated cases had to be appealed to the Supreme Court because of it. Like Justice Roberts in the majority opinion in Betts v. Brady, Jacob likened serious felony trials to those of misdemeanors. He saw no end to the mandates, saying that to require states to provide attorneys in felony trials would “logically have to apply in civil cases as well as criminal cases.” With this overwhelming new demand for attorneys, the poor would be forced into having inadequate representation, which would only lead to another debate on representation. Jacob also claimed that if Betts v. Brady were overruled, thousands of Florida convicts alone would have to be set free, and these “hardened criminals” were a danger to society. If the court did decide to overrule, he asked that the decision not be retroactive, so as to keep these dangerous criminals in prison. In short, Jacob’s argument was the best he could do, the best representation of conservatism at the period. However, he was not aligned with the forty-five states who provided counsel for all felony defendants, or with the Supreme Court justices who would vote against his ideas.<br />The Supreme Court also took into consideration the amicus curiae submitted by the American Civil Liberties Union, as well as separate amici curiae submitted by twenty-four states. Amicus curiae is literally defined to mean a friend of the court. A party who is not formally a part of the case but has an interest in it may petition for amicus curiae, or may be invited to submit such a brief. In this case, the American Civil Liberties Union argued that the right to counsel was fundamental and guaranteed by the Constitution, which a brief submitted by a coalition of twenty-two states also supported. The Attorney General for the state of Oregon submitted a separate brief not to support the application of the Sixth Amendment to state courts, but to present information that they believed would aid in the court’s decision. The brief summarized the results of Oregon’s 1959 Post-Conviction Relief Act, which required court-appointed counsel for all felony defendants who could not afford a lawyer. The program cost the state an estimated $100,000 per year. In another argument, the state of Alabama asserted that the Bill of Rights was only designed to apply to the federal government, and it was an infringement upon the rights of the states to force the Bill of Rights upon them.<br />Despite opposition from a minority of states, the vote of the Supreme Court to reverse the lower court’s decision in Gideon v. Wainwright was unanimous. Justice Black, who had so strongly dissented twenty years earlier in Betts v. Brady, wrote the regular opinion for the court. Three of the nine Supreme Court justices would write their own opinions, but all agreed that the right to counsel was present and applied to state courts in the Fourteenth Amendment. Black first commented on the many similarities between the facts of Betts and Gideon’s cases. Because the events were so similar, there would be no way for the court to reverse the lower court’s decision in Gideon v. Wainwright without also overturning the Supreme Court decision in Betts v. Brady. In Betts v. Brady, the decision had said that the “appointment of counsel is not a fundamental right, essential to a fair trial.” If it had been determined then that counsel was a fundamental right and necessary for a fair trial, the decision would have mandated appointment of counsel for all criminal defendants in state courts. Black found that the historical basis upon which the court had decided Betts v. Brady should have resulted in the equal protection of rights set out in the Bill of Rights in both the federal and state governments. The Supreme Court, however, had not voted that way, so in the Gideon v. Wainwright opinion, Black had to clearly state that the Sixth Amendment right to counsel, interpreted as the right to have counsel assigned if you could not pay for an attorney, was a fundamental right without which a defendant could not be afforded a fair trial. This had been more subtly stated in Powell v. Alabama, but ignored in Betts v. Brady. Black believed that Betts v. Brady had been “an abrupt break with [the Supreme Court’s] own well-considered precedents.” In overturning the 1942 decision, the Supreme Court was then restoring justice to criminal trials. When governments spent enormous sums to prosecute and wealthy defendants hired the best attorneys they could find for their own trials, it would be unjust to deny that the right to counsel was a necessity. Justice William Douglas agreed, but elaborated on the history of the relationship between the Bill of Rights and the Fourteenth Amendment in his opinion. He essentially stated that while several justices have supported the Fourteenth Amendment as a full transfer of the Bill of Rights to the states, others have believed that the Fourteenth Amendment was only “a lesser version” of those rights. That theory, though, was outdated and as of Gideon v. Wainwright, the Bill of Rights should be wholly present in the Fourteenth Amendment applied to states. Justice Tom Clark also elaborated on the court’s decision, but in regards to the separation of capital and non-capital cases. Only in Betts v. Brady was the distinction made between capital and non-capital cases, and the court’s decision in Gideon v. Wainwright simply functioned to erase that divide. The idea that life was more valuable than liberty was not accepted by all, and could not serve as the basis for a just trial. Justice John Marshall Harlan II in his opinion agreed that Betts v. Brady should be overruled, but believed “it entitled to a more respectful burial than has been accorded.” Harlan pointed out the vast attention given to “the ignorance and illiteracy of the defendants [in Powell v. Alabama], their youth, the circumstances of public hostility…and above all that they stood in deadly peril of their lives” by the Supreme Court, and judged that this was not an “afterthought” by the court. They were considered important, and the decision in Betts v. Brady only conceded that these circumstances could exist and should be taken into account when they did exist. He believed, unlike Black, that the decision in Betts v. Brady was a continuation of earlier court precedents. However, since Betts v. Brady, public opinion as well as the opinion of the government had changed, and the change was seen in the decisions made by the Supreme Court. Gideon v. Wainwright, then, was a clearly defined extension of the recent decisions made by the Supreme Court.<br />A study of newspapers from the year following the Supreme Court decision shows a general agreement with the theory of the fundamental right to have counsel appointed, but concerns on how the new ruling would be practically implemented. In Tallahassee, Florida, the number of inmates in prisons was decreasing, not because any prisoner had yet been released due to Gideon v. Wainwright, but because courts were proceeding slowly and cautiously in all felony cases. After the creation of public defender systems in the following few months, however, the number was expected to go up as cases were more easily pushed through the system. In addition, two thousand of the convicts in Florida prisons were in the process of appealing their sentences through Gideon v. Wainwright. The Baltimore Sun called the period before Gideon v. Wainwright “the callous olden day,” which was interesting, because Maryland was the state that had denied Betts counsel twenty years earlier. The article went on to wholeheartedly support the court’s decision in Gideon v. Wainwright and also supported the Senate Bill 1037, which set up a federal system of public defenders. The National Legal Aid and Defender Association concentrated on improving this system in their annual conference in October 1963. Gideon v. Wainwright had “wreaked havoc” on the court system, which had to quickly set up public defender offices in places where they had not previously existed, such as in eleven of the sixteen circuit districts of Florida. With a generous $2.3 million donation from the Ford Foundation, the National Legal Aid and Defender Association set up new training clinics with fifty universities and colleges and opened new offices. However, a study conducted by the American Bar Association an entire year after Gideon v. Wainwright found that the public defender system was quite lacking. The lawyers assigned to defendants in poverty were inexperienced and “no match for prosecuting attorneys.” The attorneys were often paid little or nothing for their work, simply asked to volunteer for the job. The study found that most people thought the current system was unfair to both the attorneys and the defendants. In addition, consistency needed to be honed from state to state, and many states needed much work to be able to say they provided adequate counsel to their poorer defendants.<br />At first, the idea that a judge could refuse to appoint counsel for someone who could not afford a lawyer seemed absurd, unfair, and ancient. Through analysis of the ideas and arguments associated with the cases that led to this liberty, the progression can be better understood. It highlights how greatly social ideas can change and how our legal system can adapt to them. It parallels segregation in schools, another landmark overruling of an earlier decision. Time will only tell if these cases will also parallel the issues of gay marriage, illegal immigration, or other topics that seem to not yet have a firm legal definition.<br />Bibliography <br />Atlanta Daily World. “Says Defense of Penniless Felons Lowers Jail Quota.” July 26, 1963. ProQuest Historical Newspapers.<br />“Gideon v. Wainwright: Background Summary and Questions.” The Supreme Court Historical Society. Accessed April 2, 2011. http://www.streetlaw.org//en/‌Page.Landmark.Gideon.background.three.aspx.<br />Greene, Logan. “Betts v. Brady: Hugo Black’s Forgotten Dissent.” Master’s thesis, University of Montevallo, 2006. http://www.uga.edu/‌juro/‌2006/‌greene.pdf.<br />Hawkins, William, and John Curwood. A Treatise of the Pleas of the Crown. London: C. Roworth, 1824. 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Ct. 792 (1963) (1962 WL 115121, Brief of the American Civil<br />Liberties Union and the Florida Civil Liberties Union, Amici Curiae).<br />Gideon v. Wainwright, 372 U.S. 355 (1963), accessed February 16, 2011,<br />http://laws.findlaw.com/us/372/335.html. <br />Powell v. Alabama, 53 S. Ct. 55 (1932) (1932 WL 33639, Brief for Petitioners). <br />Powell v. Alabama, 53 S. Ct. 55 (1932) (1932 WL 33639, Brief for Respondent). <br />Powell v. State of Alabama, 287 U.S. 45 (1932), accessed March 25, 2011,<br />http://laws.findlaw.com/us/287/45.html. <br />Weems et al. v. State, 141 So. 321 (1932), accessed March 25, 2011, <br />http://law2.umkc.edu/faculty/projects/ftrials/scottsboro/Weems1.htm. <br />Reference Documents<br />Black's Law Dictionary, s.v. quot;
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