Win by Losing, this Lawyer Did

As a young lawyer, Bruce Jacob represented the state of Florida in the case now known to the world as Gideon v. Wainwright. Decided unanimously by the justices on March 18, 1963, 50 years ago next Monday, the Gideon decision established a universal right to counsel in criminal cases. You’ve heard about this a million times on television: “You have the right to an attorney if you cannot afford one.”

The case came about because the Court accepted the argument made by a middle-aged drifter named Clarence Earl Gideon, who had been convicted and sentenced to five years in state prison for breaking into a pool room. At his trial, Gideon had asked to have a lawyer appointed to represent him. The Constitution required it, Gideon said. The trial judge declined. The trial judge was wrong, said all nine justices in Washington.

To this day, Jacob doesn’t know exactly why he was selected to handle the case. He was the youngest and newest member of the criminal appeals section of the attorney general’s office. Maybe that was it. Unlike his colleagues, he had not yet argued a case before the high court. Maybe that was it. Florida seemed destined to lose the case, he recalled many years later, but he’s never considered himself the sacrificial lamb.

Before the case was heard, Jacob graciously asked the attorneys general of other states if they wanted to join the case on Florida’s side — that is, arguing for a limited right to counsel. Dozens of those state lawyers did choose to get involved — but on Gideon’s side. “I was neither thinking in terms of a ‘strategy’ not was I trying to ‘win’ the case,” Jacob said. “My goal was to make sure the other states knew that was happening and what was at stake in Gideon.”

The Supreme Court appointed Abe Fortas, one of the best lawyers in the country, to represent Gideon. As if the skill and reputation of opposing counsel weren’t daunting enough, during oral argument at the Supreme Court, the nervous young attorney was peppered by questions from the justices of the Warren Court, itching to recognize broader Sixth Amendment rights to a fair trial. Jacob counted 92 such questions in a half hour.

And then, to no one’s surprise, Jacob and Florida lost. Writing for the Court, Justice Hugo Black declared that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a layer, cannot be assured a fair trial unless counsel is provided to him." What did the state attorney do next? He immediately helped the state’s poorest criminal defendants. Jacob wrote:

                       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.

And he’s still going strong. Today, after a career in which he taught 20 different law school courses, Jacob is dean emeritus and a professor of law at Stetson University in Gulfport, Florida, where he continues to talk publicly about the right to counsel—and how disappointed he is that over the past 50 years, America has failed to fulfill the Court’s promise in Gideon of providing competent counsel to all who need it.

Here is a state lawyer, an assistant attorney general, who for decades dedicated his time to helping indigent criminal defendants. Here is a lawyer who argued nobly, who lost graciously, who took nothing personally, and who put the law ahead of everything else. Bruce Jacob, you could say, is the other winner of the case of his lifetime.

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