Gideon's Trumpet by Anthony Lewis

federally-insured bank in Illinois and then had been tried and convicted in the Illinois courts for the same robbery. The Supreme Court had agreed to hear his claim that the successive prosecutions amounted to a kind of double jeopardy barred by the due-process clause of the Fourteenth Amendment. Mr. Fisher wrote a brief, argued the case and lost by a tie vote of four to four, Justice Brennan not sitting. (An equal division results in what is called an affirmance by necessity of the lower-court’s decision.) Mr. Fisher petitioned for rehearing, asking Justice Brennan to sit, and the Court granted the petition. The next term Mr. Fisher wrote a new brief, argued the case again—and lost, five to four. He filed a further petition for rehearing, which was denied. But he did not consider his obligation to Bartkus or to the law ended. He asked the Illinois legislature to take action against what he still considered an injustice, and in 1959 the legislature enacted his proposal: a bill barring state prosecution of any person for a criminal act which had previously been the subject of a federal prosecution.That legislation, however, did not affect Bartkus, who remained in prison under a life sentence. Mr. Fisher filed a clemency petition, wrote letters, pleaded with the authorities. On January 3, 1961, just short of four years after Mr. Fisher’s appointment by the Supreme Court, Bartkus’s sentence was commuted to time served. Mr. Fisher found Alfonse Bartkus a job and made an arrangement for him to receive continuing guidance.
    As a formality, the poor man whose case is to be heard by the Supreme Court must ask for a lawyer. The chief deputy clerk of the Court, Edmund P. Cullinan, sees to it that he does ask. A distinguished gray-haired gentleman who joined the Clerk’s Office while still a student at Georgetown Law School in 1930, and who has become an authority on how to proceed before the Court, Cullinan has the recurrent nightmare that some prisoner will want to argue his own case. (A statue allows anyone—rich or poor, lawyer or layman—to present his own case in any Federal court.) To forestall that possibility he writes promptly to every prisoner whose petition the Court grants. He wrote Gideon the day the Court granted certiorari in his case, June 4. (An assistant clerk, Eugene T. Lyddane, on the same day sent the text of the Court’s order to Gideon and the Attorney General of Florida.) Cullinan’s letter to Gideon said: “I assume that you desire the Court to appoint a competent attorney to represent you in this Court. It will therefore be necessary for you to forward immediately a handwritten motion requesting the Court to appoint counsel to represent you.”
    Gideon was duly consistent in wanting a lawyer. On June 18th his answer arrived at the Court, again written in pencil on the lined prison form and stamped “censored.” Gideon said: “I do desire the Court to appoint a competent attorneyto represent me in this Court. Because I do not know the procedure nor do I have the ability to do so. I make this formal request to the Supreme Court of the United States to appoint me a attorney.”
    Like other matters decided by the Supreme Court, the choice of a lawyer for an indigent petitioner is entirely in the bosom of the justices. They have never laid out any rules for the selection process, doubtless desiring to retain a broad discretion. In the process, Justice Frankfurter once said, “intrinsic professional competence alone matters.” The Court naturally tends to pick men known to one or more of the justices personally or by reputation. Mr. Fisher, for example, was an old friend of Justice Frankfurter’s, and it is a fair guess that the justice suggested his name. (But friendship is no assurance of a vote; Justice Frankfurter wrote the opinion of the Court rejecting Mr. Fisher’s argument on behalf of Alfonse Bartkus.)
    Former law clerks to the justices are often appointed. So are law professors and