Professor Bruce Jacob discusses presenting historic Gideon v. Wainwright case
The June 2012 Special Commemorative Edition of Champion magazine includes an interview with and article by Stetson Law professor Bruce Jacob, who presented the historic Gideon v. Wainwright case before the U.S. Supreme Court. Read the article, “Remembering Gideon’s Lawyers,” by Bruce R. Jacob. The text of the interview with Jacob follows, with special permission from the NACDL.
A Conversation With Bruce R. Jacob
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Bruce Jacob, who represented Florida before the U.S. Supreme Court in Gideon v. Wainwright, has handled countless pro bono cases during his career. In addition to writing a profile of Clarence Gideon’s lawyers, he agreed to answer a few questions about the case and about the state of indigent defense.
The Champion: When you argued Gideon v. Wainwright in the Supreme Court, did it appear to be a legendary case — one that people would be talking about 50 years later?
Bruce Jacob (BJ): Those of us in the Criminal Appeals Division of the Florida Attorney General’s Office knew that Gideon would be a legendary case, a great case. It involved critical issues in addition to the main question of whether there should be an automatic right to counsel in every noncapital felony case. For example, should such a decision be based on the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment?
Would the concept and meaning of the Due Process Clause have to be changed in order for the Court to reach such a result? Should the decision extend to misdemeanors? Should it be retroactive?
The Champion: How do you view your role in Gideon?
BJ: It has always been my view that although a criminal defense attorney should be a zealous advocate for the client, within the bounds of ethical constraints, a prosecutor’s position is different. He or she represents all of the people of the state, and this includes defendants in criminal cases. A prosecutor should be extremely fair to defendants, appellants, and petitioners. In Gideon, my job was to try to provide the Court with what it needed, in the way of information and argument, to enable it to make the best decision for our legal system. I was not just a pure advocate trying to win a case.
The Champion: What was the atmosphere like that day at the Supreme Court?
BJ: The atmosphere in the Court on the day of argument in Gideon was extremely intense. Based on the transcript, there were 92 questions or interruptions of me during my argument, and most came during the first half hour. A justice would ask a question and, before I could complete an answer, a second justice would ask a question or make a comment. Then, as I was trying to complete my answer to the first question and prepare to answer the second question, a third member of the Court would break in and ask a question.
The Champion: You’ve handled pro bono cases since Gideon?
BJ: After the Gideon decision, in 1963, the Florida Legislature enacted a statewide public defender law that, among other things, allowed a private lawyer (which I was at the time) to sign up with the trial court to become an unpaid, volunteer public defender. On the day that law took effect I signed up, and during the next couple of years the court appointed me to several cases. In 1965-68, while teaching at Emory Law School, I started the Legal Assistance for Inmates Program for inmates of the U.S. Penitentiary in Atlanta. I was the supervisor and 53 students volunteered to help. During the first two weeks 750 inmates made requests for legal help, and most involved post conviction questions. I taught two clinical courses at Ohio State College of Law, where we represented indigents on a pro bono basis. Since going into law school administration and traditional classroom teaching, I have continued to handle pro bono cases of all kinds. I receive many requests from inmates. I review the trial transcript and other papers and advise on whether the inmate has a meritorious case. Often I tell the inmate that the case does not have merit. There are times when I prepare a petition for the inmate to file. Sometimes I merely send the inmate the results of my research, and other times I become counsel of record. I try to get students involved as much as possible in this work.
The Champion: Has the challenging economic climate made today’s law students less interested in public interest jobs?
BJ: Students today do not have as many choices as they had in the past. Some go straight into public service work. Others go into another area with the idea that eventually they may be able to move into public interest law.
The Champion: Are we close to fulfilling the promise of Gideon?
BJ: The answer is a definite “no.” Read the Constitution Project’s 2009 Justice Denied report. Public defenders often have caseloads so large that it is impossible for them to provide effective representation. In some ways the present situation is worse than it was around the time of Gideon. Before Gideon, courts reviewing what had occurred at the trial level asked whether the defendant had received a “fair trial” and were generous in overturning convictions and sentences in cases in which it was not clear whether the defendant had been treated fairly. I wrote an article in the Mercer Law Review in 1965 in which I found that during a previous one year period, Georgia appellate courts had reversed convictions in something like 43 percent of cases coming before them. That figure, I am sure, would be unheard of today in any jurisdiction. Appellate courts now are much less likely to overturn convictions and sentences, and I believe there are two reasons for this. First, criminal procedure was simpler in those days. Today it is extremely complex, and the complexity always seems to favor the government, not the defendant. Secondly, courts on review seem to take the position today that since every defendant has been represented by counsel at the trial level, they can assume that each defendant has received a fair trial. Of course, we know that this is not always true.
Post date: Aug. 22, 2012
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