Clarence Gideon Story
Before the Court
On January 15, 1963, Fortas stood at a lectern at the Supreme Court Building in Washington. Before him sat nine robed men: Associate Justices Arthur Goldberg, Potter Stewart, John Harlan, William Douglas, Hugo Black, Tom Clark, William Brennan and Byron White, and Chief Justice Warren.
Fortas argued, quite simply, that no layman is a match in court against a trained lawyer.
Most observers agreed that Fortas made an exemplary presentation — impassioned but reserved, forceful but respectful.
"I believe that this case dramatically illustrates the point that you cannot have a fair trial without counsel," Fortas said in his slow, southern-inflected baritone. "A criminal court is not properly constituted ...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."
He continued, "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 clench will emerge the truth."
Bruce Jacob, the assistant Florida attorney general, argued against Gideon. He said appointment of lawyers at taxpayer expense was a state issue, not federal.
He said the standard of "special circumstances" in non-capital cases should stand, and he warned that thousands of convictions would be thrown out if the standard were changed. He noted that states such as Florida had for 21 years followed "in good faith" the 1942 Supreme Court ruling in the Betts case.
An American Civil Liberties Union attorney joined Fortas in speaking in support of Gideon. An Alabama state prosecutor joined Jacob in opposition.
The session was more cordial than contentious, a recording of the historical session reveals, but there was far more intense questioning by the justices of Jacob than of Fortas.
The hearing ended three hours and five minutes after it began. Chief Justice Warren thanked the participants. Attorneys and witnesses in the gallery rose, and the justices filed out.
Florida's Jacob later told author Anthony Lewis that he had little doubt of the outcome. He knew he had lost.