File: JACOB.331.GALLEY(5).doc Created on: 9/16/2003 9:00 AM Last Printed: 12/18/2003 11:43 AM ARTICLES MEMORIES OF AND REFLECTIONS ABOUT GIDEON v. WAINWRIGHT Bruce R. Jacob* I. INTRODUCTION ............................................................ 183 II. RIGHT TO COUNSEL: BACKGROUND OF THE GIDEON DECISION ....................................................... 186 A. Early Developments............................................. 186 B. The “Scottsboro” Case .......................................... 188 * © 2003, Bruce R. Jacob. All rights reserved. Dean Emeritus and Professor of Law, Stetson University College of Law. B.A., Florida State University, 1957; J.D. (replacing LL.B.), Stetson University College of Law, 1959; LL.M., Northwestern University, 1965; S.J.D., Harvard Law School, 1980; LL.M. (Taxation), University of Florida, 1995. Special Assistant and Assistant Attorney General, State of Florida, 1960–1962; Associate, Hol- land, Bevis & Smith (now Holland & Knight), Bartow, Florida, 1962–1964; Assistant and Associate Professor, Emory University School of Law, 1965–1969; Research Associate, Center for Criminal Justice, Harvard Law School, 1969–1970; Staff Attorney, Community Legal Assistance Office (now Cambridge and Somerville Legal Services), Cambridge, Mas- sachusetts, 1970–1971; Associate Professor, Professor, and Director of Clinical Programs, Ohio State University College of Law, 1971–1978; Dean and Professor, Mercer University School of Law, 1978–1981; Vice President of Stetson University, Dean and Professor, Stet- son University College of Law, 1981–1994. This Article is an outgrowth of remarks that I gave at American University School of Law in 1993 at the Conference on the Thirtieth Anniversary of the United States Supreme Court’s decision in Gideon v. Wainwright, 43 Am. U. L. Rev. 1, 33–43 (1993), and remarks to the members of the St. Andrew Bay American Inn of Court, Panama City, Florida, on September 14, 2000. I wish to thank Professor, then Dean, and later Interim President of American University, Elliott S. Milstein. Also, I would like to thank Jerry W. Gerde and the members of the Inn of Court for inviting me to speak about the landmark case that began and ended in their county, Bay County, Florida. Meeting with them gave me the opportunity to talk with several lawyers who had known Judge Robert L. McCrary, Jr., and attorney William E. Harris, participants in the two trials of Clarence Earl Gideon that took place there. I was able to meet Judge W. Fred Turner, the defense lawyer who won an acquittal for Gideon in the second trial that occurred in Panama City, in 1963. I wish to thank Andrew Rosin and Kelly Kuljol for their research assistance, and Laura Turbe, of the Stetson Law Review, for her excellent editorial contributions. Further thanks go to Connie Evans, Director of the Faculty Support Services Department at Stetson, and Sharon Gisclair, Shannon Mullins, and Barbara Lernihan, of that office, and to Beth Cur- now, the executive secretary for the Stetson Law Review. I also thank my daughter, Lee Ann Gun of Ashland, Massachusetts, for her assistance, and faculty colleagues Professors Robert R. Batey, Mark R. Brown, and Jerome C. Latimer for reading the manuscript and making suggestions for improvement. I wish to give particular thanks to good friend Pro- fessor Krishna Mohan Sharma, until recently with the Law School of the University of New South Wales, Sydney, Australia, for his invaluable insights, and editorial and sub- stantive help. He has been a close friend since we shared office space as fellow graduate students at the Harvard Law School in the late 1960s. File: JACOB.331.GALLEY(5).doc Created on: 9/16/2003 9:00 AM Last Printed: 12/18/2003 11:43 AM 182 Stetson Law Review [Vol. XXXIII C. Expansion of the Sixth Amendment in Federal Courts...................................................... 191 D. The Betts v. Brady Decision ................................. 193 E. Incorporation of the Bill of Rights into the Fourteenth Amendment and the Right to Counsel............................................. 197 III. SYNOPSIS OF THE FIRST GIDEON TRIAL ................200 A. Denial of Counsel: Did the Judge Comply with the “Special Circumstances” Test? .............. 200 B. Why Did Gideon Insist upon Court-Appointed Counsel?................................................................ 205 C. The Trial Judge’s Assistance to Gideon in Conducting His Case............................................ 206 IV. PETITIONS TO HIGHER COURTS...............................212 A. Habeas Corpus before the Florida Supreme Court ..................................................... 212 B. Certiorari in the United States Supreme Court and My Involvement with the Case. Also, Why Did Gideon Not Allege Any Special Circumstances? .............. 214 C. Work on Florida’s Brief, Abe Fortas’ Appointment for Gideon, and Filing of the Brief............................................................ 221 V. PRINCIPAL ARGUMENTS IN THE BRIEFS................229 A. Brief for Petitioner ............................................... 229 B. Brief for the State of Florida................................ 230 1. Confession of Error? ....................................... 230 2. A Summation of Arguments........................... 232 3. Some Possible Alternatives............................ 233 4. Was Right to Counsel a Fundamental Right?....................................... 236 5. Closing the Lid on Pandora’s Box: Retroactively versus Prospectively ................ 237 VI. THE ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT .......................................... 239 A. Journey to Washington and My Initial Impressions .......................................................... 239 B. Fortas’ Argument: Some Reminiscences.............. 241 C. My Oral Argument............................................... 243 D. Mentz’s Argument................................................ 249 File: JACOB.331.GALLEY(5).doc Created on: 9/16/2003 9:00 AM Last Printed: 12/18/2003 11:43 AM 2003] Gideon v. Wainwright 183 VII. THE SUPREME COURT DECISION AND ITS IMPLICATIONS ....................................................... 251 VIII. RETRIAL OF GIDEON ................................................... 257 A. Appointment of the Trial Lawyer ........................ 257 B. Jury Selection and Testimony of Prosecution Witnesses.............................................................. 259 C. Gideon’s Testimony and Defense Counsel’s Impeachment of the Prosecution’s Key Witness.......................................................... 265 IX. LEGACY OF GIDEON: SOME FREQUENTLY ASKED QUESTIONS...................................................... 268 A. Was Gideon Innocent?.......................................... 268 B. Did the Book and the Movie, Gideon’s Trumpet, Accurately Describe the Gideon Case? ................271 C. How Could You in Good Conscience Take the Position You Took in Gideon? .............................. 276 D. How Could Gideon’s Zealous Appellate Prosecutor Switch Sides and Represent Criminal Defendants?......................... 278 E. Have the Courts Implemented Gideon as You Expected?.............................................................. 280 X. CONCLUDING OBSERVATIONS.................................. 288 A. The Gideon Decision’s Impact.............................. 288 B. A Memorable Legacy: Vivant Gideon! ................. 294 I. INTRODUCTION During the summer of 1957, after completing my first semes- ter of law school, I worked in Panama City, Florida, on a Dr. Pep- per truck, selling soft drinks. The driver of the truck and I stopped at every grocery store, gas station, motel, hotel, restau- rant, bar, and “juke joint”1 in that area, including a place called the Bay Harbor Poolroom. The poolroom was named for the small community in which it was located, just a few miles east of the center of Panama City. The Panama City area was dominated by a huge paper mill located at Bay Harbor. The paper manufacturing process caused a smell that was pervasive for miles in every direction; no one in 1. This term is used to refer to places that have “juke boxes.” File: JACOB.331.GALLEY(5).doc Created on: 9/16/2003 9:00 AM Last Printed: 12/18/2003 11:43 AM 184 Stetson Law Review [Vol. XXXIII Panama City or in its environs could escape the caustic odor that stung and burned the eyes, the throat, and the face. Anthony Lewis, in Gideon’s Trumpet,2 described the paper mill and the ad- jacent area in the following words: Just outside the city limits, twenty minutes from the motels and restaurants and Post Office that make “downtown,” is a gigantic International Paper Company plant, its tall chimneys spewing out sulphurous smoke. Huddled near the plant fence, within sight and smell of the chemical fumes, is the community of Bay Harbor. Community is too grandiose a word for it; Bay Harbor is a bitter, decayed parody of a movie set for a frontier town. It is just a few dilapidated buildings separated by dirt roads and alleys and weed-filled empty lots: a bar, a two-story “hotel,” a grocery and the Bay Harbor Poolroom. One who hap- pened onto that dark street would be eager to drive back through the dank countryside to the highway and its neon. Gideon had no illusions about Bay Harbor; he called it “To- bacco Road.”3 It was the place where some of the mill workers lived and spent their free hours. During my summer of selling soft drinks, I did not like going to Bay Harbor. It reminded me not of a movie set for a frontier