Walter Pollack, Supreme Court representation Ever since society has established courts to try criminals, the right

to a lawyer in almost all cases has been indisputable; the right to have your private attorney present to represent you was written by the Founding Father themselves. It is when the experienced, educated defense counsel struggles with the skilled state prosecutor that the facts of the matter are discovered and justice may be served. But what happens when the defendant is too poor to afford a lawyer? How does he receive his justice? On March 25, 1931, nine young Negros, some of them still boys, were hoboing through Chattanooga County, Alabama, riding a boxcar to try to find work in the Depression-riddled south. A fight broke out between the negros and some white boys who had boarded, and the white boys were kicked off the train; they sent a message ahead to the nearest town, saying they had been assaulted, and a posse quickly formed with orders to arrest all the Negros on the train. The mob arrived at the nearest railroad stop and rounded up the nine boys, but almost missed two quieter passengers, Victoria Price and Ruby Bates. These young white ladies claimed that they had both been raped by each one of the nine arrested boys. They were wearing mens clothes, and were destitute, riding the rails, looking for work, just like the accused. They, however, were given the benefit of the doubt, whereas all the boys got were an angry mob outside of the local jail, ready to lynch every last one of them. Thankfully, the sheriff had the sense to call the governor, who brought in the National Guard to calm the hysteria. The boys were denied counsel while incarcerated, and at the indictment the judge hastily appointed, and I quote, all the members of the local bar to represent the defendants. In reality, the grisly old lawyer who mounted their weak defenses was given no time to research or prepare his case, and represented them half-heartedly. The nine boys were rail-roaded through a series of one day trials, a clear denial of justice and due process. Some local communist-affiliated

newspapers picked up the story and wired it back to the Communist Partys office in New York City. The Party persuaded the defendants parents to let their legal arm, the International Labor Defense, or IDL, represent the boys in their appeals. They appealed their cases to the Alabama State Supreme Court, but only won a new trial for the juvenile defendant; the rest were still headed towards the electric chair. Thats when the IDL hired me, Walter Pollack, to represent the boys before the United States Supreme Court. Well, the court decided that due process had been violated, and any pretending that the boys had been given a fair trial was a denial of the actual facts of the case. The trials themselves took place in an environment of such hostility that a fair trial was impossible, but even more importantly their attorneys had not been given time to prepare the case; the boys were therefore not truly represented then. The Supreme Court, for the first time, ruled that criminal defendants in certain special circumstances needed to be given public defenders to speak on their behalf. The Supreme Court had finally announced that, when there are special circumstances, a defendant needs a lawyer, even if he is too indigent to afford one himself.

Abe Fortas, Defense Attorney for Gideon Clarence Earl Gideon. Although I am his attorney, I never met the man; I can be certain, however, that I did change his life. It was in May of 1961 when I got a letter from the Supreme Court. Apparently, some lucky Florida convict had won a chance to have his case heard by the Supreme Court; he had at the time of trial requested a lawyer to defend him, and was denied one, and the premise of his argument was that he needed a lawyer to have a fair trial. This flew in the face of Betts v. Brady of course. See, Betts v. Brady was the case of a Maryland farm hand, a drifter by all accounts, who had been accused of robbery and was found guilty. His writ

of certiorari to the U.S. Supreme Court was granted, so he got his day in court, but the justices decided against him, affirming the rule of special circumstances; in order to be guaranteed a public defender, one still needed a special circumstance. That was in forty-two. So there it was almost 2 decades later, Gideon, some indigent, indignant drifter, said that the constitution flat-out gave him the right to an attorney even if he could not afford it; he was wrong, of course. At his trial after he was denied counsel he conducted his own defense with some gentle guidance from the presiding judge, was found guilty and was sentenced to the maximum 5 years prison time. Gideon was sent to a local minimum-security prison, and got right to work appealing his case. He first sued the Florida State Supreme Court for a writ of habeas corpus against the Director of the Department of Corrections, alleging that his imprisonment was unlawful on account of his lack of representation at the time of trial. The court denied his writ without comment, so his last hope was the U.S. Supreme Court. He tried sending a petition of certiorari to the Court, but it was so bungled that the clerk couldnt accept it. Instead, the clerk mailed Gideon a book of rules on how to re-submit an affidavit in support of his petition for leave to proceed in forma pauperis, or in the form of a pauper; this was so that he could show that he was too poor to follow the normal rules. He painstakingly wrote, in pencil, on jailhouse stationary, his entire affidavit and petition to the Supreme Court. No reply was heard from the state of Florida after the 30 day waiting period, and so on February 8, 1962, a Supreme Court clerk sent Gideons petition to the Office of the Chief Justice Earl Warren. One of his personal law clerks then prepared a memorandum on the case, stating the basic argument of the claim and including general background knowledge on the pertinent legal framework. The Chief Justices office wished for more information regarding the case, and so instructed the clerks office, which handles correspondence, to please ask the state of Florida for

a response. Once again, the Attorney General didnt seem to think Gideons petition of much importance, as the response was two days late in arriving. 13 typewritten pages, it basically reiterated the rule of special circumstances of Betts against Brady while pointing out that in his demands for a public attorney, Gideon never attempted to show that he fulfilled any special circumstances that would entitle him to one. Less than two weeks later, Gideon had replied to the Supreme Court. His reply was 4 pages long, and was once again hand-written. Gideons reply started with the humble disclaimer, Petitioner cannot make any pretense at being able to answer the learned Attorney General of Florida. Gideon stated, somewhat irrelevantly, that, quote, It makes no difference how old I am or what color I am or what church I belong to, if any. While this might seem like an assertion of obvious Constitutional maxims and American values, the special circumstances law actually said that his age, race, and the like mattered greatly as to his eligibility for a public attorney. The case was discussed at a formal conference of the Court early the next month. Now, those meetings are for the Supreme Court Justices ears only, and are confidential as to not hinder open debate for fear of public rebuke. Well, something went right for Gideon inside that private meeting, because a few days later, a mimeographed notice was posted on a bulletin board for the public to see, saying that Gideon would have his day in court. The day came, and it was time to give my oral presentation. Transition to speaking to court I told the court that Clarence Earl Gideon was not an ignorant man. He was not mentally stupid, nor was he illiterate. He was not a child, and he was not tried in a capital case. Some would say his case was not complicated. Yet, he was found guilty, so there is still the question of whether he was given a fair trial. I say that he was not. When one feels the full weight of the states legal system, only then can they begin to appreciate the depth of what may be the simplest case. In our adversary system of

justice, how can we claim that the facts are borne out when one side is so greater than the other? The state had a professional, competent attorney, but Clarence Earl Gideon had only his wits, with no formal legal training. I say the trial could not have been fair and just. Many states had enacted, on their own, public defender laws, and their courts were the better for it; on the other hand, the addition of a special circumstance every so often made it more difficult for judges to administer justice when the defendant had no counsel, for there were many judges who had their cases remanded back to them because of a special circumstance they did not predict. It would be better if the states had one rule, the rule of representation for all. End speaking to judges Florida didnt put up much of a fight. Their representative, Jorge Jacobs, hadnt been given much time to prepare for the case. He had, in fact, asked other states attorney generals to submit amicus curiae briefs, opinions by outside parties. He was clearly expecting them to advocate a continuation of special circumstances, only to be shocked when more than twenty states submitted briefs asking for a ruling against Betts v. Brady and its special circumstances! Well, when we were all done, the justices thanked us and went back to their chambers. In March of the following year, Justice Hugo Black, one of the most strenuous dissenters in Betts versus Brady, announced that the court had unanimously turned over the system of special circumstances, and was now mandating public defenders for all crimes. Gideon would get a new trial, and with the aid of his public defender, was found innocent. He later said that the only reason that he was so anxious to get out of prison was so that he could regain custody of his children. Whatever the reason, this one man provided the impetus for a complete overhaul of the American legal system, and whenever you are reminded that if you can not afford an attorney, one will be provided for you, you have Clarence Earl Gideon to thank.