The Man Who Lost the Gideon Case: An Interview with Bruce R. Jacob

Clarence Earl Gideon

Eighty year olds are usually retired and enjoying life at their own leisure and pace; the frantic tempo of workday life is a thing of the past for them. Yet Bruce R. Jacob, who turned 80 in late March of this year, is not a typical 80 year old person.

He is the Dean Emeritus and Professor of Law at the Stetson University College of Law in Florida and teaches courses in administrative, constitutional, and criminal law at the university. This lawyer, whose resume is 18 pages long, has the following titles behind his name: B.A., Florida State University; J.D., Stetson University; LL. M., (Criminal Law), Northwestern University; LL. M. (Taxation), University of Florida, and S.J.D., Harvard University. However, the narrative of events of history, perhaps unjustifiably, frequently link a person with a sole event and such is the case with Jacob.

While working as a lawyer for the Office of the Attorney General of the State of Florida, he was appointed to represent the state in the 1963 Supreme Court of the United States case of Gideon v. Wainwright. He lost the case and ever since, every person who finds him or herself in court is entitled to an attorney even if he or she cannot afford an attorney. Jacob never met or spoke with Clarence Gideon, the main character of the case. History News Network (HNN) interviewed Jacob about the case, and other related matters. Both questions and answers have been edited for clarity.

Does it ever bother you that in the annals of history you are known but for one case? Granted, Gideon v. Wainwright is one of the pivotal U.S. Supreme Court cases of the second part of the 20th century, but it seems possible that considering how varied your law career has been, that this would occasionally cause you some frustration.

The fact that in the annals of history I am known for only one case does not cause me any frustration. I did not seek the case. It was assigned to me by Judge Reeves Bowen, my superior in the Criminal Appeals section of the Florida Attorney General’s Office. I did not seek the case and did not expect to become known for anything but my role in the case…Therefore I am not frustrated by the fact that I am not better known in the annual annals of history. I would have ended up in a career other than the obscure field of teaching.

What do you guess is the reason, or reasons, why you were assigned the Gideon case?

The reason, I am fairly certain, is that my superior in the Criminal Appeals section, Judge Reeves Bowen, and I had worked together on law review articles for the Attorney General.

Could you explain, to our HNN readers, how you prepared to argue before the Supreme Court of the U.S., in the case of Gideon v. Wainwright?

For my preparation in the Gideon case I studied, studied, and studied some more as to be as familiar as possible with the cases that were relevant. Also I talked with Judge Bowen and with lawyers at Holland, Bevis, and Smith (a Florida law firm) about the case, in order to be prepared for oral argument. I had terrific mentors at the Holland firm and learned a great deal from being able to talk with them about the case. One of my mentors was Chesterfield Smith, later President of the Florida Bar Association and the American Bar Association. Another was Warren Hall, who has been General Counsel of the Teamsters Union and the lawyer for (Teamsters leader) Jimmy Hoffa. Another was Steve Grimes, later a Justice and Chief Justice of the Florida Supreme Court. Also, there was Bill Henry, who later became President of the Florida Bar.

When you lecture to your law students at Stetson University, or to any group of young people anywhere studying to be lawyers, do you ALWAYS recommend that they base their legal arguments SOLELY on legal precedents? Why or why not?

I based my argument in the Gideon case on [the U.S. Supreme Court case of] Betts v. Brady (1942), because the Court expressly asked, in granting certiorari, that the lawyers in the case brief and argue the issue of whether the holding in Betts v. Brady should be “reconsidered.” In talking with students, I urge them to use more than legal precedents in arguing in any case. I tell them to not forget plain common sense. They should come up with ideas of their own that may help convince a court or jury to rule in their behalf.

Did you begin to have feelings of doubt that you may not win the Gideon case when you found out that Justice Felix Frankfurter, who was a strong supporter of the High Court’s ruling on Betts v. Brady, announced that he was going to retire from the Court? Why or why not?

We thought that he might be a Justice who would rule on the side of the State of Florida, so we realized that his retirement would make it less likely that the Court would decide in behalf of the State of Florida.

The Justices quickly fired a number of questions at you after you argued, for the State of Florida, in the High Court on January 15, 1963. In looking back, what one question from them most surprised you and why did it? Do you remember which Justice asked this particular question?

One of the questions was what was the population of Dade County, the County where the City of Miami is located. I do not remember who asked this question. I think my answer was fairly accurate.

You said to the New York Times reporter Anthony Lewis, who covered the case for the newspaper and later wrote the book Gideon’s Trumpet about it, that “It’s easy to think of them [guilty Florida prison inmates] as heroes but after you’ve worked in the [Florida] Attorney General’s Office, you know they’re not. They’re liars, they’re terrible.” Do you regret this statement at all, especially keeping in mind that you were the Chairman of the Legal Aid Clinic at law school?

I do not remember this statement. When was it made? ... Certainly there are inmates, plenty of them that fit that description, but I have never been dumb enough to believe that all are like that. As Assistant Attorney General of Florida, I once helped an inmate who wrote a letter claiming that he was being held in custody longer than he should have. He said his sentence should have ended but correctional officers told him his sentence was not over. I did research and discovered that he was right. We notified the correctional officials that he should be released immediately and saw to it that they complied. In years, since leaving the Attorney General’s Office, many of my best friends have been inmates or former inmates.

Although you two obviously represented two different states, how closely did you work with George D. Mentz, the Assistant Attorney General of Alabama, who spoke after you at the High Court, arguing the federalist side of the issue ?

Mentz and I worked independently of each other. I’m sure we sent our briefs to each other, but did not talk with each other very much by phone before the Supreme Court. We met in Washington D.C. My reason for asking other states to file amicus briefs was to make sure that all states knew that the Gideon case was about to be heard and decided, and that it would affect all of them. I wanted to make sure that all of them would be able to speak up and make their views known to the Court. I greatly appreciate the assistance that George Mentz provided to us.

What were your immediate feelings and reactions when you found out that you and Mentz had lost your cases before the U.S. Supreme Court on the matter?

I was most surprised by how little time the Court took to decide the case. It took only two months for them to write their opinion. I also was surprised how brief the opinion was. Also, it did not deal with the issues in the case. There were many different issues involved, not just the question of whether or not Betts v. Brady should be overruled. One issue was whether or not the new rule should apply to misdemeanors. Another was whether or not the new rule should operate prospectively or retroactively. Another issue that was not decided by the Court was which provision of the 14th Amendment was the basis for their decision. Was it the Due Process Clause? Was it the Equal Protection Clause? The Court merely said that the Gideon decision was required by the 14th Amendment.

What one or two things would you have done differently, in your preparation and argument before the High Court, of the Gideon case?

If I were to do it again, I would do some empirical research and provide the results of my research to the Court in my brief. I would have sat in on court proceedings in several trial courts to learn how judges were implementing the Betts v. Brady decision. I think this information would have been helpful to the Court. In 1965 and 1966, I was a graduate student at Northwestern Law School and I did just that. I sat in on court proceedings in the Cook County Criminal Court and took notes on how the judges were going about assigning counsel.

Upon reflection, are you happy that you lost the Gideon case?

I am glad that the Supreme Court established the principle that every defendant in a serious criminal case, whether rich or poor, should have the right to counsel for his/her defense. However, I am not happy about the failure of society to fulfill the promise of Gideon, in the 50 years since that case was decided. See “Justice Denied: America’s continuing Neglect of Our Constitutional Right to Counsel,” April 14, 2009, Report of the Constitution Project, Washington, D.C. ( I was a member of  the Committee that drafted the Report.)

Did you hope at the time you argued the case that you would lose?

At the time, I did not hope that I would lose the case. I don’t think any lawyer likes to “lose” a case he or she is handling. If I had wanted to lose, I would have withdrawn from the case.

But I think your question assumes that there was only one issue to be answered and that was whether counsel should be appointed for indigent defendants. If that were the only question to be dealt with the answer was yes. But to me the Gideon case was much more complex than that. What about the practical problems involved? Were there enough lawyers available at that time to take on such a task? Could the criminal justice process be redesigned in some way, through experimentation by the states, to make defense counsel unnecessary, at least in certain kinds of cases? Was counsel necessary in minor criminal cases? What legal basis should be used by the Court if it were to decide to require appointment of counsel for indigents? Should it be the Due Process Clause? Should it be the Equal Protection Clause? Could any new ruling by the Court be established prospectively, so as to not require the immediate release of inmates from our prisons? Who should make the decision whether to impose an absolute right to counsel? Should it be the federal government? Should it be the states? Should the decision be made through the judicial process? Should it instead be made through the legislative process?

These are a few of the issues that I thought the Court should consider in reaching a decision in the case. I did not hope I would “lose” the case, but I did hope that these issues and others would be fully considered by the Court to reach the best possible decision for our criminal justice system.

What were, and what are your opinions about the U.S. Supreme Court case of Strickland v. Washington (1984), the ruling of which made it difficult for poor defendants to prove that their court-appointed attorney were either ineffective or, in some cases, simply incompetent?

Strickland v. Washington is one of the worst cases ever decided by the Supreme Court. It makes it virtually impossible for a defendant who has received very poor representation from getting a court to set aside the conviction or sentence. It is virtually impossible for a convicted defendant to meet the requirements of the second prong of the Strickland test, the prejudice prong.