↩ the History · a speech, filed

Arguing Gideon

Abe Fortas, for the petitioner, and the Justices · the Supreme Court of the United States · January 15, 1963
text: the argument transcript via the Oyez Project · a proceeding of the United States government, in the public domain · the opening, through the turn that names federalism as the question
colour carries the act's function; a dashed underline marks a predicted misfire; hover or focus any span for its filing

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

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 --

Potter Stewart: Mr. Fortas, excuse me.

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

Abe Fortas: That's correct.

Potter Stewart: -- application in the State of Florida. They don't -- there's no variance between them and this copy.

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.

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

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. But 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.

John M. Harlan II: Betts and Brady did not proceed on that basis. It did not deny the obvious. Obviously, a man is not represented -- who is not 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.

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.

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

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 --

John M. Harlan II: 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?

Abe Fortas: That's right. Now that -- and that's what I want to get to, Mr. Justice.

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

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.

The divergences

"specifically in the present case which you have before you, the question is an exceedingly narrow one." — counsel files a Decoupling-flag: one man, one felony, one refused request, and nothing else asked of the Court. Florida files the same sentence as the front of a demand to overrule a holding twenty years old, which is what the same voice says a few minutes later — Betts "must unavoidably be considered." They part on scope, and the narrowing is what makes the wide ruling askable: a Court shown the whole of a constitutional question inside one poolroom burglary is a Court that can decide it without deciding anything else.

"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." — counsel files an Assertion about what the precedent got wrong; Harlan files it as an attack on a holding nobody made: "Betts and Brady did not proceed on that basis. It did not deny the obvious." They part on target — whether the sentence acts on the world or on a reading of a case — and what happens next is the method of the whole page. Counsel does not defend his version. He asks the bench for its own.

"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." — read narrow, a Question asking a Justice to clarify a remark; read wide, the formulation that decides the case, since a rule that trades away fair trials must say what it buys with them. They part on scope. The answer is "That's what I understood the basis of Betts and Brady to be, yes," and the terms the State will have to defend were written at the lectern and ratified from the bench.

"you cannot have a fair trial without counsel" — counsel files an Assertion about what a trial is; Harlan tests it as an absolute and produces the case it cannot survive: "I suppose the State could do away with the jury trial and yet you wouldn't say this trial was inherently unfair, would you?" The answer is "That's right." They part on scope, and the concession moves the case onto the only ground where it can be won — which of the things a federal court owes a defendant the Fourteenth Amendment also requires of a State. Set this beside 1987-north-nields.html, where counsel builds a proposition the witness must accept and the acceptance costs him everything. Here a proposition built from the questioner's chair is accepted in two words and gives the man at the lectern his case.

"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." — Florida files an advocate throwing away his own record; counsel files the disposal of the middle way, because Betts can only be applied by making exactly that distinction, transcript against transcript. They part on scope: a remark about one document, or a verdict on the rule that would have to read it. Nothing else in the excerpt costs him as much, and he pays it in a nursery rhyme.

"I think you got to argue this on the basis of federalism." — Harlan files an Order, hedged and in the second person, keyed to where the case actually is. Counsel files it as a gift: "I appreciate that and I am happy if we can clear the debris, if I may say so." They part on orientation — an instruction about standing, counsel being told his argument is in the wrong place, against one about the world. Set this beside 1954-welch-mccarthy.html, where the chair's directives are ignored, answered with something else, or answered by a voice they were not addressed to, and a man has to ask twice to be recognised after he has already been recognised. In that room interruption takes the floor away. In this one it hands over the argument.

"And now, I would like to get to the question of federalism." — read as housekeeping, a transition sentence at the end of an excerpt; read as a Frame-set, the installation of a frame that was not counsel's and that he accepted eight lines earlier. They part on target. The whole excerpt has been clearing ground: the special circumstances struck out one by one, the transcript conceded to be worth nothing, the fair-trial absolute given up under the jury counterexample. What is left standing when the ground is clear is the question in the last sentence, and it was named from the bench.