Lawyers Journal

Through the skill of a local lawyer, Massachusetts is part of Gideon's legacy

Florida prisoner Clarence Earl Gideon wrote in pencil the words that gave birth to the Supreme Court's landmark right-to-counsel decision.

But the penultimate phrase in the pivotal Gideon v. Wainwright decision of March 18, 1963, came from a Massachusetts lawyer as his wife grudgingly typed his words.

Gideon's persistence that fairness and justice required both state and federal courts to provide legal assistance to the poor placed the issue in the lap of the Supreme Court. He wrote the Court while sitting in prison following his felony conviction during a trial in which the judge refused him counsel - a decision the Florida Supreme Court affirmed.

Growing discomfort among the national legal community regarding the treatment of the poor in the criminal justice system gave further credence to Gideon's cause. Some states at that time provided counsel to the poor for all felonies, while others, including Florida, stuck to the holding of the 1942 Supreme Court decision of Betts v. Brady, which refused to find unconstitutional the denial of counsel to prisoners like Gideon.

But it was because of Gerald A. Berlin that the Bay State played a historical role in advocating for change.

As first chief of the Division of Civil Rights and Civil Liberties under then Attorney General Edward McCormack Jr., Berlin led an army of the nation's top prosecutors to urge the Supreme Court to overrule the Betts decision.

Berlin drafted an amici curiae brief, endorsed by nearly two dozen attorneys general, that pushed for a guaranteed right to counsel under the Constitution.

And it was Berlin's words in that brief that caught the eye of Supreme Court Justice Hugo Black as he wrote the unanimous and poignant decision overruling Betts v. Brady.
"Twenty-two states, as friends of the Court, argue that Betts was 'an anachronism when handed down' and that it should now be overruled," wrote Black citing Berlin's brief in his closing lines. "We agree."

With those words, the Supreme Court forever changed how the court system deals with the poor.

As lawyers and judges prepare to mark the 40th anniversary this month of the Gideon v. Wainwright decision, Berlin, 83, recently shared how he became involved with the landmark case.

Now serving as of counsel to the Rowe's Wharf firm Rubin and Rudman, Berlin's pride in his role in the Gideon case is as evident as his broad smile when he talks about how it all began.

"I am not a great litigator or author, but at least I got quoted in arguing one of the most seminal constitutional cases of the 20th century," says Berlin. "I'll settle for that for a career high."

The Gideon case was one of many of the myriad civil rights and liberties causes Berlin championed - he led a legal team that cleared the way for the production of "Hair" in Boston without threat of criminal prosecution after officials sought to prevent the musical from showing controversial scenes at the Wilbur Theater.

But his role in the Gideon case almost never came to be.

Sitting in his office in the summer of 1962, Berlin was reading mail that came to him at the State House. He began reading a letter from the Florida Attorney General's Office announcing to him that, unless Florida's law with respect to right to counsel was upheld, states would surrender control of their own criminal justice systems.

He found the letter interesting, but nonetheless filed it away.

A week or two later, Berlin read another letter that had arrived - this one from then Minnesota Attorney General Walter Mondale urging the states to oppose Florida by entering a brief on behalf of Gideon. And again, though he found the letter interesting, he filed it away with the one from Florida.

Soon he packed up his family for a long weekend on Martha's Vineyard. And during his vacation, he went to a cocktail party where he encountered Anthony Lewis, then a New York Times correspondent, who would later write the book "Gideon's Trumpet" detailing the case.

Lewis, who was aware of the letters going back and forth among the attorneys general, asked Berlin if he was doing anything about it.

"I felt like a criminal in the dark. In fact I hadn't done anything about it," says Berlin. "But I said, 'Well, I don't know. I'm going to get right in the middle.'"

And with that, Berlin decided to write the amici brief. He called McCormack, who told him he would back his efforts and help him garner support among the other attorneys general.

"There's no question about it. A chance meeting at this cocktail party with Tony Lewis kicked the whole thing off," Berlin said.

When he returned to Boston, Berlin began girding up for the brief. He didn't have much time, but was still able to gather constitutional law experts and other academics to help him.

When it was first created, the Division of Civil Rights and Civil Liberties was a part-time office for Berlin. He spent the other half of his day as a successful trusts, estates and divorce attorney.

But one hallmark of Berlin's Division of Civil Rights and Civil Liberties was the advisory panel he convened. Together, some of Boston's best intellects - deans from Boston College Law School, Boston University School of Law and Harvard Law School, as well as Harvard Law professors, newspaper editors and presidents of the Massachusetts AFL-CIO, NAACP and Boston Jewish Community Council - would gather monthly to talk about important issues.

So serious was the panel in its work that Berlin says he often felt like he was taking the bar exam all over again each time they reviewed a proposal he wrote.

It became only natural then for Berlin to consult this group when he was presented with the opportunity to write the Gideon amici brief. The group was ready for the challenge. Several constitutional scholars assisted in researching legal issues and gave Berlin feedback.

"But in the end, it was mine and I had to get it done," Berlin says.

Berlin says he wrestled with several issues in writing the brief, including if the Supreme Court overruled the Betts v. Brady decision whether courts throughout the country should allow unrepresented defendants already convicted appeal for new trials. In the end, Berlin says he settled on advocating a prospective application because he was concerned that the worry about "wholesale jail delivery" would quash the potential for any change.

And the challenge didn't end with formulating arguments for overruling the precedent case. Berlin and McCormack also had the challenge of convincing attorneys general throughout the country to sign on.

Top prosecutors from as far away as Alaska and as near as Maine became among the 23 states that agreed with Berlin's arguments (New Jersey was one of the 23, but it signed after the brief was filed).

Berlin credits McCormack's enthusiasm and connections across the country with helping gain momentum for the brief. Even still, there were some surprises among attorneys general who refused to place their states on the list. Neighboring New Hampshire and Vermont did not sign on to the brief, and New York and California refused.

Still, though they got nearly half of the states to support the brief, Berlin regrets that he intentionally did not call some southern states. He believed at the time it would be a waste of time because he thought they would side with Florida. As it turned out, only Alabama and North Carolina joined Florida in its brief to the high court.

"That was a big mistake," Berlin says, "because though I got about half of the attorneys general, I didn't solicit all of them."

But even drafting the brief was not free of challenges.

Berlin's secretary refused to type the brief for him after Berlin asked her to draft a letter to two priest friends of Berlin's by their first names. The secretary said doing so would go against her religious convictions.

So Berlin took the brief home. His wife, Mimi, agreed to type the brief as he dictated it. But trouble struck as he read his conclusion to her: "Betts v. Brady, already an anachronism when handed down, has spawned twenty years of bad law."

Berlin's wife flatly told him his words were a bit archaic.

"She (said) 'I'm not going to get into this 19th century rhetoric. You've got to learn a certain amount of restraint in your expression' and so forth … and we were going jaw to jaw, which came to be the closest thing in about a half century of marriage to a real marital spat."

So when asked who won the marital debate, Berlin smiles and traces the closing lines of Black's opinion with his finger: "Twenty-two states, as friends of the Court, argue that Betts was 'an anachronism when handed down' and that it should now be overruled. We agree."

His words were left intact. But he wouldn't come to know their impact until a few months after he had filed the brief. He was riding on the subway and caught of a glimpse of the New York Times.

"On the front page was a picture of Hugo Black and the front page article on the Times was on the right to counsel, and the court coming down on the right to counsel, and the subtype under it referred to the earlier case as an anachronism that spawned 20 years of bad law (or something like that) … the very phrase we were fighting over turns out to be a part of the headline," Berlin says.

Berlin today remains proud of his brief and the role Massachusetts played in advocating for the sweeping change that would result in criminal justice systems across the country.

And he says the lessons of Gideon should not be forgotten, particularly today, as the country struggles with the balancing of civil liberties in times of crisis.

The same sentiment was echoed in January by a new generation advocating for the right to counsel.

When Michael S. Hussey, head of the Worcester office of the Committee for Public Counsel Services, was presented with the MBA's Defender Award at the association's 2003 Access to Justice Awards Luncheon, he said it was particularly gratifying to receive the honor in the year marking Gideon's 40th anniversary.

Hussey said the most important facet of Gideon is its appeal to Americans sense of fairness.

"As much as politicians and the public seem eager to pass new laws and criminalize this or that, demonizing people accused of crimes, I think it can be generally and fairly said the average American believes everyone deserves an adequate, competent and zealous defense," says Hussey. "And this is the case that is seen as the epitome of that sense of fairness."

Hussey is proud that Massachusetts' public defender program came before the Gideon decision. And he says states across the country continue to resist providing adequate counsel to defendants.

"Gideon has become so ingrained in the sense of what people expect in the American system of criminal justice," Hussey says. "This has really stood out in front as to what we consider the proper standards for adjudicating guilt or innocence."

©2017 Massachusetts Bar Association