January/February 2003, Page 18

The Vindication of Hugo Black
By

If the landmark case of Gideon v. Wainwright stands for anything, it stands for the right of a criminal accused to a vigorous defense. Too often we assume we delivered on the “right to counsel” by just giving the defendant a lawyer — any lawyer — to stand or sleep at his side and whisper some assurances in his ear before he pleads guilty. That’s not the “right to counsel” that Justice Hugo Black had in mind when he wrote the Gideon opinion. What he really had in mind were the lessons learned in two earlier cases, the only precedents he relied upon in his Gideon opinion.

Powell v. Alabama,1 the famous “Scottsboro Boys” case, was well known to Hugo Black. He was representing the state of Alabama in the United States Senate throughout the infamous trial. In Powell, a very conservative Supreme Court reversed the death judgments of nine young black men convicted of raping two white girls. Although the trial court had appointed counsel for the defendants, the Supreme Court concluded they “did not have the aid of counsel in any real sense,” because the court appointed “all the members of the bar” to represent them at their arraignment. None of these lawyers took any responsibility to investigate the case, and the defense at trial was perfunctory at best. Closing arguments were waived.

Five years later, Senator Hugo Black was Franklin Roosevelt’s first appointment to the U.S. Supreme Court. Civil libertarians were deeply suspicious of the Alabama Senator. Norman Thomas of the Socialist Party asked the Senate Judiciary Committee to question Black about his reaction to the Scottsboro case. Throughout the trials and appeals, Senator Black had maintained a discreet silence. The questions were never asked, and after Black’s quick confirmation, a storm of controversy arose after the revelation he had been a card-carrying member of the Ku Klux Klan. A national poll showed 59 percent of Americans thought he should resign immediately. After a dramatic radio address by Justice Black, only 44 percent thought so. Not until Clarence Thomas 54 years later would a Supreme Court Justice come onto the Court with such a dark cloud over his head. It didn’t take long for Justice Black to reveal where he stood on Powell v. Alabama, however.

One of the first opinions authored by the newly-appointed Justice Black was Johnson v. Zerbst.2 It is a remarkable ruling, holding that one cannot convene a “court” in a federal criminal case unless you have a judge, a prosecutor and a defense lawyer, and a “waiver” of counsel cannot be presumed from a silent record. Justice Black quoted at length from the opinion in Powell v. Alabama and his opinion drew dissents from the same two justices who dissented in Powell v. Alabama: Pierce Butler and James McReynolds. Five years later, when the Court in Betts v. Brady3 refused to apply the reasoning of Johnson v. Zerbst to state courts, Justice Black wrote a strong dissent, arguing “whether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant’s case was adequately presented.”4

When Betts was finally overruled 21 years later in Gideon v. Wainwright, Justice Black did not gloat. He wrote a very restrained opinion, relying upon Powell v. Alabama and Johnson v. Zerbst. “In returning to these old precedents,” he said, “sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice.”5

Justice Black’s real vindication came on remand, when Gideon was retried for the poolhall burglary that sent him to prison. Application of the Betts “totality of circumstances” test would have led to the conclusion that a lawyer couldn’t have made any difference in Gideon’s case. The evidence was overwhelming. But Justice Black, a superb trial lawyer himself, knew that even in the most hopeless-seeming case, a vigorous investigation and defense can change the result. At his retrial, Gideon was acquitted.n
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Gerald F. Uelmen is Professor of Law, Santa Clara University School of Law, Santa Clara, CA. (408) 554-4361

Notes
1. 287 U.S. 45 (1932).
2. 304 U.S. 458 (1938).
3. 316 U.S. 455 (1942).
4. Id. at 41.
5. 372 U.S. 335, 344 (1963). n


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