The duty to defend.

Author:Babcock, Barbara Allen
Position:On Democratic Ground: New Perspectives on John Hart Ely


In the summer of 1962, John Ely and I were law clerks at Arnold, Fortas & Porter. This was a very hot ticket, and we were proud to win it because the firm was the model for doing good while doing well. The principals were major New Dealers, now corporate lawyers and Washington insiders, who also represented poor criminal defendants and the politically oppressed. (1)

Notably, they had taken on the cause of accused communists, clients many lawyers turned away as the Cold War raged on. And Abe Fortas had been the lawyer for Monte Durham, the indigent defendant whose case established the modern insanity defense. (2) Firm members often told about the big business executive (and potential client) who asked Paul Porter whether the firm in fact represented the likes of communists and rapists. "That's right, we do," Porter responded. "What can we do for you?" (3)

That summer, the firm was engaged in the most significant pro bono case of all time--Gideon v. Wainwright, which would hold that there is a constitutional right to counsel in serious criminal cases. (4) John Ely worked on the brief in Gideon, and the story became one of his favorites. It is the first entry in the criminal procedure section of his collected essays, On Constitutional Ground. (5)

In that section he also reprinted his only law review piece on a criminal subject, a blistering attack on a specific case, titled Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority. (6) John accounted for the tone of Anxious Observations by saying it was his "'last lick' in reaction to a particularly bitter defeat I suffered in the Ninth Circuit" and citing the case of Martin v. United States. (7)

Why particularly bitter? I wondered after reading the case. Defeat is the daily bread of defenders--and on the surface there is nothing special about the Martin case. It was a routine charge of drugs found on the defendant at a border search. So I located John's briefs in a remote government archive. In these pages, which no one had looked at for more than thirty years, I discovered the magnitude of the loss and how personally involved he was in the case.

Reading about John Ely and Billy Joe Martin led in turn to some reflections on the role and obligation of defense lawyers, particularly about the perils of putting the defendant on the stand. The subtexts are the interest and satisfaction (not to say the joy and passion) of the work. Gideon is the framing story, especially appropriate because John said that when he represented Martin, he was doing "my bit to help follow up on the promise that was made in Gideon." (8)

My words are also a memorial to John Ely in one of his best moments. If they partake as well of personal manifesto, I think John would approve. As he once said himself, most tributes are also "about the tributor." (9)


    In his classic study of the case, Anthony Lewis wrote,

    The case of Gideon v. Wainwright is in part a testament to a single human being. Against all the odds of inertia and ignorance and fear of state power, Clarence Earl Gideon insisted that he had a right to a lawyer and kept on insisting all the way to the Supreme Court of the United States. (10) There for the first time in his entire life, the four-time loser got really lucky. The Court appointed Abe Fortas to follow up on the handwritten pro se petition that Gideon had filed. It did not take a weatherman to see which way the wind was blowing, as we used to sing at the time, when the Warren Court chose Fortas to be Gideon's lawyer. They were preparing to overrule Betts v. Brady, the twenty-year-old precedent that required lawyers in serious state criminal cases only when there were "special circumstances" justifying their appointment. (11)

    Gideon was not a slam-dunk case, however. The criminal justice system was still reeling from Mapp v. Ohio, which applied the Fourth Amendment and its exclusionary rule to the states. (12) All the arguments about federal interference with local procedure that Mapp had stirred up only one year earlier applied in spades to overruling Betts. A new rule would affect the practice in every courthouse in the country, from the smallest hamlet to the New York metropolis. In light of the situation, Fortas decided not only that he must win Gideon, but also that he needed "'as much unanimity as possible'" to make the new doctrine acceptable. (13)

    Fortas acted as the general of a litigation force, designating a younger partner, Abe Krash, as field commander and John Ely as one of the troops on the ground. (14) John spent his whole summer on the Gideon brief, producing a series of memoranda on subjects related to the right to counsel. In a wonderful passage, Lewis describes

    the extraordinary process by which a large law firm digests a legal problem. Bright young men [sic: this was the early 1960s] break it down into tiny components and write treatises on every conceivable issue--they probe, imagine, cover every exit. Then, from this jumble of material, a skilled lawyer creates a legal work of art, choosing a coherent form for his argument and ruthlessly eliminating all that is extraneous to that form. (15) Before returning to law school, John stopped writing memoranda and tried his hand at drafting the brief itself. "Krash and Fortas liked it, but they wanted something more finished and more pointed," wrote Lewis, describing the remarkable preparation of the final product. (16) While Krash crafted a second draft, "Fortas soaked himself in the right-to-counsel issue by sitting in the firm library for a week reading cases and commentary." (17) Then he holed up in a hotel room for two days, "blocking out the brief he wanted." (18) From these notes and hours more of consultation, Krash did a fresh and final brief and filed it in the Supreme Court. Altogether a stunning investment of time and high-level effort for a pro bono case. (19)

    Though John was disappointed that little of his prose made it into the final product, he was gratified by a footnote (unprecedented and as prominent as a note can be) acknowledging the "valuable assistance of ... John Hart Ely, a third-year student at the Yale Law School, New Haven, Connecticut." (20) The client was the most pleased of all. From his Florida prison cell Gideon wrote this to Abe Fortas: "Everone [sic] and myself thinks it is a very wonderful and brilliant document. I do not know how you have enticed the general public to take such a interest in this cause. But I must say it makes me feel very good." (21)

    The decision in Gideon v. Wainwright came down in March 1963. (22) Justice Black, who had dissented in Betts v. Brady, announced the opinion from the bench. From the lawyers' perspective, the outcome was a total triumph. The Court was unanimous in holding that in all serious cases the states must provide counsel to those who could not afford it. (23) On the same day that it announced Gideon, the Court also provided counsel for criminal appeals (24) and eased the procedural path for habeas corpus petitioners. (25)

    The Yale Law School Class of 1963 was only weeks from graduation, and the revolution had officially begun. I had forgotten, until I started writing this piece, how dramatic it all seemed at the time, especially for me. From a tender age, I had planned to be a criminal defense lawyer, and now the United States Supreme Court was opening many paths to my goal. In a sense, for purposes of this story, I had been present at the creation.

    In the summer of 1962, while John worked on Gideon with Abe Fortas, I worked on an administrative law case with Paul Porter. I, too, drafted an entire appellate submission, and mine was filed in the D.C. Circuit, verbatim as I wrote it. It was an appeal from the FCC's denial of a TV license renewal, with a record thousands of pages long. Though Porter took me out to a fancy lunch to thank me for my efforts, they don't lend themselves to a good story or even an instructive tale.

    Working on that case while following John's adventures on the Gideon brief did, however, reinforce my desire to do criminal defense. I practiced for almost a decade, ending as the first director of the Public Defender Service in the District of Columbia, a model agency designed to meet the demands of Gideon in the nation's capital. In 1972, I left to teach at Stanford, and in the 1980s John and I were together again, when he joined the faculty as dean of the law school.

    As I knew John over forty-plus years, he was not the kind of intellectual who loved to discuss ideas or debate theories or even press a little doctrine. At least it was not his preferred mode. What John liked was telling stories: He often reminisced about "the best summer job ever," (26) usually complaining about the inaccuracy of his portrayal in the movie Gideon's Trumpet. (He does come off as somewhat obsequious, which, for the record, John never was, not even a little.)

    In his Gideon story, John reveled in the contrast between the grandeur of the principles involved and the pettiness of the case. Clarence Earl Gideon was twice tried for a two-bit burglary of a seedy poolroom where he regularly hung out. (27) Over the years, John embellished the tale with new adventures. Thus, in the early 1990s, he wrote to Lewis under the epitaph "Sed sic transit gloria mundi":

    Last November, for reasons that are currently obscure, I found myself driving from Key West to New Orleans along the gulf coast, and consequently passed through Panama City. Assuming that the Bay Harbor Poolroom ... must have been made a shrine of some sort, I naturally...

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