Gideon v. Wainwright

PETITIONER:Clarence Earl Gideon
RESPONDENT:Louie L. Wainwright, Director, Division of Corrections
LOCATION:Bay County Circuit Court

DOCKET NO.: 155
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 372 US 335 (1963)
ARGUED: Jan 15, 1963
DECIDED: Mar 18, 1963

Facts of the case

Clarence Earl Gideon was charged in Florida state court with a felony: having broken into and entered a poolroom with the intent to commit a misdemeanor offense. When he appeared in court without a lawyer, Gideon requested that the court appoint one for him. According to Florida state law, however, an attorney may only be appointed to an indigent defendant in capital cases, so the trial court did not appoint one. Gideon represented himself in trial. He was found guilty and sentenced to five years in prison. Gideon filed a habeas corpus petition in the Florida Supreme Court and argued that the trial court’s decision violated his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas corpus relief.

Question

Does the Sixth Amendment’s right to counsel in criminal cases extend to felony defendants in state courts?

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.

Abe Fortas:

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.

Abe Fortas:

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.

William O. Douglas:

Well, this federalism that Justice Harlan mentions is implicit, as I gather in all that we have written, I believe I have read all of them, written some of them.

I don’t know if anyone has — any member of this Court has come out and said in so many terms it’s the constitutional right of the State to provide a system whereby people get unfair trial.

Abe Fortas:

Well, Mr. Justice Douglas —

John M. Harlan II:

I don’t believe I suggested that, I don’t suppose —

William O. Douglas:

I thought that’s what we were talking about, isn’t it?

Abe Fortas:

Mr. Justice Douglas, I —

William O. Douglas:

You mean, if a person can’t have a fair trial without a lawyer and this is the problem of federalism, you come down to whether — how a State has a constitutional right to provide a system that perpetuates unfair trials.

Abe Fortas:

Mr. Justice Douglas, it seems to me that’s — perhaps the prop — that — I would state the proposition in this way.

And I do believe that it is a proposition that proves itself.

That is to say the Fourteenth Amendment requires a fair trial.

You cannot have a fair trial unless the defendant has counsel.

Now, the Q.E.D. to me is so obvious that I can’t escape from it, and I can’t escape from it by saying that the Q.E.D. does not follow because of a principle of federalism.

We start with the proposition that the Fourteenth Amendment requires a fair trial and we say that the defendant in a criminal proceeding cannot get a fair trial unless he has counsel.

And it seems to me to follow without any possible escape hatch that he’s got to have a fair trial.

But I — I think I may be wrong about this, but I do believe that in some of this Court’s decisions, there has been a tendency from time to time because of the pull of federalism to forget — to forget the realities of what happens downstairs, of what happens with these — to these poor, miserable, indigent people when they are arrested and they are brought into the jail, and they are questioned.

And later on, they are brought in these strange and awesome circumstances before a magistrate, and then later on they are brought before a court.

And there, Clarence Earl Gideon, defend yourself.

Apply them the doctrine of Mapp against Ohio.

Construe this statute of the State of Florida which says that breaking and entering with intent to commit a misdemeanor is a felony.

You should know, Clarence Earl Gideon that the State of Florida, the Supreme Court of the State of Florida, has construed this statute and it has made available to you various defenses.

Well then how can Clarence Earl Gideon do it?

I was reminded the other day as I was pondering this case about Clarence Darrow’s trial.

Court will remember that Clarence Darrow was accused, subsequently acquitted of attempting to bribe jurors and subordination of perjury.

And I looked at Irving Stone’s book.

Irving Stone’s book says that the first thing that Clarence Darrow realized was that he had to have a lawyer.

Abe Fortas:

He was a man who, by our folklore anyway, and I think perhaps really was our greatest criminal lawyer.

He needed a lawyer.

He got a lawyer.

He was eventually acquitted.

But I think that in some of the Court’s opinions, if I may say so, Mr. Justice Harlan, this element, this failure to remember what happens downstairs, has crept in not because of an insensitivity of the judges, but because of the understandable pull of the sensitivity about the State’s own jurisdiction and I want — that’s what I want to analyze.

That I don’t think that it’s — that it stands a test of logic and I don’t think that the argument of federalism here is either correct or soundly founded or stands the test of experience, and that’s what I want to come to.

Now, first —

John M. Harlan II:

Understandable sensitivity — to describe a basic principle of our Government — doesn’t seem to me to be a very happy expression.

Abe Fortas:

Well, I’m — I’m sorry, sir.

I meant that a regard which I myself share for the principles of federalism.

But I believe that those principles are misapplied here.

First, they are misapplied, if I may respectfully say so, when they are used for the purpose of negating a Fourteenth Amendment right to a fair trial.

Secondly, they are misapplied here because a true regard, in my judgment, Mr. Justice Harlan for federalism here means that this Court will lay down a principle, will establish a principle, and that this Court will not exercise the kind of minute, detailed, ex post facto supervision over state court trials that you have been exercising for these past years, in which in my opinion, is the most corrosive possible way to administer our federal state system.

And that, it is I — — I should like to restate that very simply and very plainly, Your Honor.

I believe that Betts against Brady does not incorporate a proper regard for federalism.

I believe that Betts against Brady laying down as it does a prin — the principle of case by case supervision by the federal courts of state criminal proceedings is antithetical to federalism.

Federalism requires, in my judgment, if Your Honors please, that the federal courts should refrain, so far as possible, from intervention in state criminal proceedings and certainly at where intervention is necessary because of a constitutional principle that that intervention should be exercised in the least corrosive, the least aggressive fashion possible.

Now let’s take a look at that.

In the Betts against Brady, we have to start back with that magnificent opinion, magnificent decision and opinion of this Court written by Mr. Justice Sutherland in Powell against Alabama, and the Scottsboro case.

When Mr. Justice Sutherland’s opinion makes it perfectly clear that the correct principle in capital cases is that a state court cannot conduct a criminal proceeding without providing counsel for the accused.

Now, this Court has said that that is a flat rule.

That in capital cases, this Court does not stop to inquire whether there are special circumstances.

Counsel must be appointed for the accused.

That was in 1932.

In 1938, along came Johnson against Zerbst, in which this Court construed the Sixth Amendment to require the appointment of counsel for indigent accused in all federal criminal proceedings.

Then in 1942, Betts against Brady came to this Court.

And in Betts against Brady, this Court in an opinion by Mr. Justice Roberts held that the Fourteenth Amendment would not be construed to require that the State’s appoint counsel for the accused in all criminal cases where the accused is not able to afford counsel, but that counsel would be required as part of the Fourteenth Amendment’s requirement of a fair trial only where there were special circumstances or to quote the Court’s words, “Only where there has been a denial of fundamental fairness shocking to the universal sense of justice”.

Which according to the Court, required something more than the mere absence of counsel.

Alright, what has happened in the years since Betts against Brady?

I have read, I think, I’m sure I’ve read all of the cases that have come to this Court.

Abe Fortas:

I’ve read a great many of the State cases and the lower federal court cases, many as I could find.

It is a fascinating inquiry, a fascinating inquiry.

In the brief filed by the American Civil Liberties Union here, which is represented by my Brother, Mr. Rankin, they have examined 139 State cases, reported cases.

They say that they have found only 11 cases in which the State Appellate Courts found special circumstances under Betts against Brady, contrast that with what’s happened in this Court.

Take a look as — I beg your pardon.

When I have — as I have read the opinions of this Court, I hope I may be forgiven for saying that my heart has been full of compassion for the judges who during these years have had to review and pass on these cases.

Most of the time, of course, this Court has said there are special circumstances.

Sometimes, a majority of this Court, usually a bare majority, has found that there were not special circumstances.

Potter Stewart:

How long has it been since we’ve failed to find special circumstances?

I think I’m right in saying that in the four and a half terms I’ve been here, we’ve always found special circumstances in any case.

Abe Fortas:

I think you’re right, sir.

I’d like to check this but I believe the last case in which you failed to find special circumstances was —

Potter Stewart:

One of those Michigan cases?

Abe Fortas:

It was Quicksall, I think.

Well —

Potter Stewart:

That’s not very important but I think —

Abe Fortas:

Yes.

Potter Stewart:

I’m right in —

— the comment I made.

Abe Fortas:

Yes, sir.

Potter Stewart:

From my recollection.

Abe Fortas:

Now, of course, this is wrong and it’s wrong as a matter of federalism, because what happens is the following.

Let’s take a look at it.

A defendant is arraigned.

How can a judge, looking at the defendant, decide whether there are special circumstances in his case? Does a judge look at this defendant and say, “You look stupid.

You look as if you are a moron.”

Does he have a — does he have a mental examination of him at the time?

Does the judge — does the judge or the magistrate before whom these defendants are arraigned on a typical day in court take a look at the crimes with which they are charged and say, “Now this one involves complicated questions of intent.

So I think that at the trial you’re going to need a counsel.”

“Now in your case, the crime that you’re charged with doesn’t look to me to be so complicated.

Abe Fortas:

So I don’t think you’re going to need counsel.”

Now let’s have arraignment.

Then you go to trial and the defendant — the accused man has pleaded not guilty.

And the judge who’s sitting on the bench, he’s hearing a lot of these cases.

How is he going to decide at the beginning of the case whether there are special circumstances within the criteria laid down by this Court?

The interesting thing too, according to the study made by the American Civil Liberties Union, they have not encountered a single case in the state courts in which the trial has been stopped in midstream and the Court has said, “There are special circumstances here and you better have a lawyer, because it looks to me that you’re not brighter than Clarence Darrow, or you’re a moron and you can’t really defend yourself.

You just don’t correctly understand the hearsay rule.

I’m going to appoint you to counsel.”

The whole rule is just totally unadministerable.

Mr. Justice Harlan, I’d like —

John M. Harlan II:

Practically all the states have recognized that so.

Abe Fortas:

Yes, sir, and there are 37 states now.

John M. Harlan II:

And they’ve done that under a line of decisions in this Court which, at least so far as — would have permitted an opposite conclusion.

Abe Fortas:

I don’t believe they have done it so much under the decisions of this Court, Mr. Justice Harlan.

I’m sorry to say.

I believe that they have done it because of a growing conscience and growing awareness on the part of the bar stimulated by the opinions of this Court.

But the decisions of this Court — and this is precisely my plea here.

The decisions of this Court are still struggling with this impossible question of do special circumstances exist in this case or don’t they?

Whereas, the Bar and the States are far beyond that point.

No.

There is a brief amicus here, a remarkable document, filed by 20 — by the Attorneys General of 22 states urging this Court to overrule Betts against Brady.

It is filed here.

I am proud of our country that we have this.

It was not solicited by counsel for Cochran or by counsel for Gideon or anybody associated with him, and I am proud that it is here.

It is a fine document.

If you will look at that document at page — I don’t find it here.

Earl Warren:

(Inaudible)

Abe Fortas:

Alright.

Earl Warren:

(Inaudible)

Abe Fortas:

Thank you.

Abe Fortas:

The Attorneys General point out to this Court that the rule of Betts against Brady is an unadministerable rule.

I call your attention to page 17 at the bottom of the page.

Hugo L. Black:

What brief is that?

Abe Fortas:

That is this brown brief, Mr. Justice Black, a brief for the State Government, amici curiae.

At the bottom of page 17, it says, “But it is difficult to comprehend how as a practical matter, a trial judge can do this” — that is to say apply Betts against Brady, with the degree of consistency presupposed by a judicial determination placing the onus of such decisions upon him.

In the first place, in a felony case, it is highly unlikely that there is one trial judge as such.

Different judges may preside at the arraignment, at the grand jury session, possibly at the pretrial motions, if any, and at the trial itself.

How can the judge in the arraignment session anticipate what is to come up in trial?

How is the trial judge to know what crucial matters transpired at the arraignment which thenceforth require counsel, and so on?

Now if the Court please, there’s one aspect of this brief amicus curiae to which I want to call your particular attention.

There are three states whose attorneys general have subscribed to this which do not, by law or court rules, so far as we can find out require the appointment of counsel in all felony cases.

Those three states are Hawaii, Maine, and Rhode Island.

Potter Stewart:

I thought Colorado wasn’t completely (Inaudible)

Abe Fortas:

Colorado has recently adopted a rule of court.

Potter Stewart:

So —

Abe Fortas:

That’s cited —

Potter Stewart:

I see Colorado on both lists and that’s the reason I wondered —

Abe Fortas:

That is cited in our —

Potter Stewart:

— and Colorado is one of the 22 here.

Abe Fortas:

Yes.

That’s cited in our brief.

Hugo L. Black:

(Inaudible)

Abe Fortas:

I beg your pardon, sir.

Hugo L. Black:

(Inaudible)

Abe Fortas:

That’s correct.

Yes, sir.

And I don’t know of the circumstances, Mr. Justice Black.

Hugo L. Black:

(Inaudible)

Abe Fortas:

That’s right.

Hugo L. Black:

(Inaudible)

Abe Fortas:

Yes, sir.

Hugo L. Black:

(Inaudible)

Abe Fortas:

That’s correct.

Yes, sir.

So I believe that the fact of the matter is this.

I think that the — we can confidently predict.

We can confidently say that overruling Betts against Brady at this time is acting in accordance with the common opinion of those citizens of our country who are qualified to have an opinion.

That’s not always the case with respect to great constitutional changes.

I think with respect to this one that is, is the case and that — you will remember that in Betts against Brady, this Court placed some emphasis upon the fact that at that time less than a majority of the States, as I remember, required the appointment of counsel.

That is no longer true in these —

Potter Stewart:

Yes, I just looked at the appendix to the dissenting opinion in Betts against Brady indicated that some 35 states required the appointment of counsel at that time.

And I wondered if there had been so little development since.

Abe Fortas:

No.

I don’t — the fact of the matter is I’ll find that in just a minute.

Potter Stewart:

Well, don’t — don’t tarry now.

You can —

Abe Fortas:

That at the time of Betts against Brady, there were less than a majority of the States that required it by statute or court rule.

Now I should say that presently in addition to the 37 states that require the appointment of counsel for indigents by a statute or court rule, a recent study, a very careful study by a Professor Kamisar, shows that there are eight states that require that do appoint counsel when requested.

That makes a total of 45 states that appoint counsel either by a statute, court rule or by practice, and it really leaves only five states.

And of those five states — those five states are Alabama, Florida, Mississippi, North Carolina, and South Carolina.

And even in Florida, from which four of the — this Court’s last eight cases have come, there is a situation that is worth notice.

In Florida, there is a statute providing for a public defender in the larger counties.

As a matter of fact, there is a public defender that functions in the four largest counties of Florida and I’m sure you’ll hear more about that from my Brother representing the State.

So that my point here is that, we may be comforted in this constitutional moment by the fact, as it clearly is, that what we are doing represents a deliberate change after 20 years, after 20 years of experience, and it represents a change that clearly has the overwhelming support of the bench and the Bar and even of the states themselves.

Arthur J. Goldberg:

(Inaudible)

Abe Fortas:

This case, of course, narrowly presents the question of the appointment at the time of the trial and it presents — narrowly presents the question of a felon.

In my own view, I believe that the requirement that counsel should be appointed for indigents in State criminal proceedings should be coextensive with the proposition that persons who are able to hire counsel, to employ counsel, have a right, a legally protected right, a constitutional right, to utilize the services of such counsel.

Now we all know that the scope of the latter principle is not entirely clear.

There are some decisions of this Court.

There are many aspects of the problem where it has not been decided.

Abe Fortas:

Now, let me cut back on that, if I may.

In the literature, there seems to be clear agreements that the right to counsel should attach not later than the time of arraignment, and this brief of the 22 attorneys general reiterates that point.

In other words, that the latest point is the time of arraignment.

Potter Stewart:

Of course, that very word has many different meanings in the different states —

Abe Fortas:

Exactly.

Potter Stewart:

That’s the trouble of —

Abe Fortas:

That’s correct.

Potter Stewart:

— of verbalizing any test.

Arraignment in some states has — is quite a different process from what it is in other states.

Abe Fortas:

Yes, sir.

My own view, Mr. Justice Stewart, is that there is a right to counsel as soon as practicable after arrest.

Hugo L. Black:

(Inaudible)

Abe Fortas:

No, sir.

We do not.

I was responding to Mr. Justice Goldberg’s inquiry.

You certainly do not have to pass on it here.

Hugo L. Black:

(Inaudible)

Abe Fortas:

There are some just in the District of Columbia of petty offenses which probably don’t require appointment of counsel.

The — in the question — with respect to the question of jury under the Sixth Amendment, this Court, in a case that we have cited in our brief coming up from the District of Columbia held that the constitutional requirement of the Sixth Amendment with respect to jury trial did not apply to petty offense which in that case involved an offense punishable by imprisonment up to 90 days, as I remember.

Hugo L. Black:

(Inaudible)

Abe Fortas:

I beg your pardon.

Hugo L. Black:

(Inaudible)

Abe Fortas:

Yes sir but you will recall that in the Sixth Amendment that language runs together, right to jury and the right to counsel.

Earl Warren:

(Inaudible)

Abe Fortas:

I don’t recall one.

I don’t recall a decision of this Court on that subject.

But it does — but there is this case involving jury, the right to jury.

If you’d like me to continue, Mr. Justice Goldberg, I would — so far as I’m concerned, I would say that the right to counsel attaches as soon as practicable after the arrest, just as I believe that a person who can retain counsel should have recognized the right to consult the counsel shortly after arrest.

Here we have a problem relating to Crooker against California.

Now, as to the extent on the other end, this Court has held that the States must supply transcripts to indigents for purposes of enabling the indigent to perfect their appeal.

Abe Fortas:

I believe that the right to counsel also attaches for purposes of perfecting appeal and for the appeal.

The decisions of this Court have not, as I read them, going quite that far although there is a language indicating that.

Now, as to the type of crime, the Sixth Amendment, of course, speaks in terms of criminal prosecutions.

The question — there is a consensus, I believe, that the right to counsel should be recognized in felony cases.

I’m talking now about the States and that is the provision — that is the attitude of the 22 attorneys general.

Potter Stewart:

Does that word have a common meaning in all —

Abe Fortas:

It does —

Potter Stewart:

— of the 50 states?

Abe Fortas:

It does not.

It has a — there is an area in which the word is very fuzzy.

William J. Brennan, Jr.:

Well, I know in my own state, Mr. Fortas, we don’t recognize this thing as felony.

They’re high misdemeanors or —

Abe Fortas:

Yes sir.

William J. Brennan, Jr.:

— misdemeanors.

Abe Fortas:

And then — that’s correct.

Even the word “misdemeanor” is a fuzzy word which does not have a common meaning.

My own view about this again is that the right should attach on a much broader basis, and that it should attach to all except petty offenses.

And I think this Court’s opinion in the District of Columbia case points the way to handle that particular problem.

William J. Brennan, Jr.:

Well, there again though, how do you measure petty offense?

For example, I know before I left New Jersey, we downgraded a number of former misdemeanors to something we called “disorderly person offenses”.

Abe Fortas:

Yes.

William J. Brennan, Jr.:

Petty offenses, the notion being that in that way, no requirement of jury trial for that.

But conviction for some of those can bring a jail sentence up to a year and a fine up to, as I remember it now, to $1000.

Is that a petty offense?

Abe Fortas:

Mr. Justice Brennan, I’d certainly pay no attention to the nomenclature adopted by the States.

You can’t, because the (Inaudible) — the words mean so many different things in the States.

But fortunately, in times of stress such as this, when you are asked to confront a problem of this sort, we lawyers can point to the fact that a straight line can be drawn in many ways, and a line can be drawn by a series of dots represented by individual decisions of this Court.

Potter Stewart:

Of course, that’s just what you’re asking us not to do.

That becomes more of this ad hoc and ex post facto situation.

Abe Fortas:

No, because what we’re really talking about, Mr. Justice Stewart is the extremes of this problem.

Abe Fortas:

Now a good many of the States, I believe it’s over 20, one list shows 24, one list shows 21.

A good many of the States had required the appointment of counsel, the indigents, include misdemeanors or their statutes are broad enough so that they indicate that they include misdemeanors under the laws of the — of the particular States.

William J. Brennan, Jr.:

Well tell me, Mr. Fortas, would there be anything in trying to measure the line if the line must be drawn based on the confinement which conviction might bring?

Abe Fortas:

Well, that that would be — my own view about that, Mr. Justice Brennan, is that one day’s confinement is enough.

And I really believe, if I may — if I may say — put it this way, I really believe that the difficulties, practical difficulties, which we can envision here are more fancy than real.

And I think our experience in the District of Columbia with our public defender here indicates that.

In other words, that when a State goes about this job, as your State of California has so well done, Mr. Chief Justice, and as I hope we’re doing in the District of Columbia.

What it does is to set up a system by which persons when they are arrested, without nice regard to whether — to the extent of punishment or the classification of the crime, those persons are told that they can go and see the public defender or that they can have a lawyer appointed for them and the system works.

And the difficulties are much greater when we sit here and apply our minds to the problem.

Potter Stewart:

How about the (Voice Overlap) —

Abe Fortas:

Then it is — then those difficulties are when we sit — really create a mechanism for handling them.

Potter Stewart:

How about the traffic violation?

A person who can afford a lawyer is entitled, as far as I know in every state, to hire a lawyer for traffic violation?

Abe Fortas:

I see no real difficulty, Mr. Justice, in saying to —

Potter Stewart:

Most of them don’t.

Abe Fortas:

— people for a traffic when they’re arrested for traffic violation.

If you want to see the public defender, he’s in Room 102, and to assign a public defendant, anybody who wants it.

It really works.

It sounds crazy, perhaps, but it work.

It will work.

It’ll work, I’m sure it will.

Tom C. Clark:

Suppose you don’t have one.

Abe Fortas:

Well I — more and more states, Mr. Justice Clark, are building orderly systems and of course, one of the great functions that this Court performs by announcing the law and clarifying the principles of law is to provide an impetus to the States to erect such systems but there are many systems that are now available.

There is a public defender system, there is the voluntary legal aid system, there is the system of assignment, there is a system that is in vogue here in the District and, I believe in Massachusetts which is very promising indeed of using law students working under the supervision of experienced members of the Bar —

Tom C. Clark:

(Inaudible)

Abe Fortas:

— for handling many offenses.

Tom C. Clark:

I just wonder if the legal aid would want to take on a traffic (Inaudible) —

Abe Fortas:

Well, I — again —

Tom C. Clark:

They have so many felons already, I’m just wondering.

Abe Fortas:

Again, Mr. Justice Clark, I think that most people involved in traffic offense really be just sort of the — if I may use, vulgarism, the “oddball” who’s involved in a minor traffic offense who will say that he wants a lawyer.

Abe Fortas:

But if he’s got a real problem — if a person involved in traffic offense has a real problem and a real defense and really need — thinks he should have a lawyer, why not.

Hugo L. Black:

Mr. Fortas, I want to ask you a question you can answer it when I get back.

I attached to my dissent in Betts versus Brady a study made after much hard work —

Abe Fortas:

Yes.

Hugo L. Black:

— which I believed then and believe now was accurate, which had said this, “States which require that indigent defendants in noncapital as well as capital criminal cases be provided with counsel by request.”

I stated there were 35.

What I would like to know is if there are only 35 now, have some of those before Betts versus Brady gone back to the Betts versus Brady ruling, or what has happened?

Abe Fortas:

I accept that.

Earl Warren:

We’ll recess now.