The Duty to Defend

Article excerpt

CONTENTS

INTRODUCTION
I.   JOHN HART ELY AND CLARENCE EARL GIDEON
II.  JOHN HART ELY AND BILLY JOE MARTIN
     A. The Backstory of the Bitter Loss in Martin
     B. The Appeal in Martin

III. JOHN HART ELY AND VIVEN HARRIS: THE "LAST LICK"
IV.  TAKING THE STAND: NO "RIGHT TO COMMIT PERJURY"
V.   "How CAN YOU DEFEND THOSE PEOPLE?"

INTRODUCTION

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)

I. JOHN HART ELY AND CLARENCE EARL GIDEON

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. …