Anthony Lewis, Gideon's Trumpet: Chapters 8 and 9

An interesting preliminary note: not only did Abe Fortas argue the case, but John Hart Ely drafted the brief as a summer law school intern.

Leading up to Gideon v. Wainwright, there were a few key Fourteenth Amendment cases bearing on the right to counsel for indigent defendants.

Powell v. Alabama (1932) required provision of counsel for defendants who had been unable obtain their own lawyers. It did not institute a general rule for provision of counsel, however. Leaving open the question of whether there was a universal requirement, it instead relied on a number of circumstances of that case -- a capital crime, a hostile public environment, and defendants incapable of conducting their own defense -- to find that lack of counsel had represented a denial of due process.

Johnson v. Zerbst (1938) required counsel to be provided for indigent defendants in all federal cases.

Betts v. Brady (1942) found that access to counsel for poor defendants was not a fundamental right secured by the due process clause's guarantee of a fair trial, while admitting that in some circumstances providing a lawyer was necessary to ensure fairness. In essence, it closed the door on a more expansive interpretation of Powell, making the existence of special circumstances a prerequisite for a due process entitlement to a lawyer.

Although Griffin v. Illinois (1956) did not directly address the issue of counsel for poor defendants, it invoked the equal protection clause of the Fourteenth Amendment to hold that a poor defendant could not be denied an appeal because of inability to afford a trial transcript.

The large number of recognized special circumstances under the Betts rule had provided a rich ground for appeals. In the years since Betts, the Court had reviewed a steady stream of indigent counsel cases, almost always ruling to overturn state court decisions where counsel had been denied. Fortas' brief used this history to turn the most potent objection to imposing a right to counsel on its head. He argued that the existing standard, far from being a bulwark of federalism, had instead required constant review and correction of the decisions of state judges. It had thus actually led to more federal interference in state courts than a straightforward requirement of counsel would.

Although overcoming concerns about federalism was the core of the case, there were a number of practical issues raised by a uniform requirement to provide access to counsel. Among these were the scope, timing, and retrospective impact of the requirement.

With respect to the first, Fortas' brief argued that the Court could exempt petty offenses.

When a lawyer should be provided was a more difficult issue, since Fortas thought a defendant really needed a lawyer immediately upon arrest. In the end, however, he only argued only for the necessity of providing a lawyer for the trial.

Finally, Fortas had to address the Court's hesitance to create grounds for overturning a large number of convictions. This was such a concern that it had even been mooted that the Court would prospectively overrule Betts -- that is, that it would let existing convictions stand while requiring counsel in all future cases. Fortas argued that states would still have the option to retry the cases if the convictions were overturned by the Court.

With regard to the concept of prospective overruling, I find it curious that Lewis does not draw the analogy to advisory opinions. In overruling prospectively, the Court decision would not be subject to the restraint imposed by the consquences of the case immediately before it, which seems to have the same dangers as the advisory opinions which the court has always abjured.