Trial Advocacy Part 7

By February 12, 2017 No Comments

For a while Justice William Douglas wrote furiously, then licked a number of envelopes…shut and then pounded them on the bench. I later learned from Anthony Louis who wrote the book “Gideon’s trumpet” that Justice Douglas wrote letters to his friends during court sessions.
All of this changed the next day, when oral arguments began. The court became very business-like. There was one case before ours. The White Motor company case versus United States, the government’s lawyer was Archibal Cocks who was the solicitor general of the United States. He later became special con, one of the special prosecutors in the Water Gate case. There are backup or ready tables behind the tables of the lawyers arguing the case. I was seated at the backup table on the left as we faced the bench and I was behind Gearhard Gazel; the lawyer for the White motor company. He later became a federal judge. Both he and Cocks were wearing morning coats and Kales. I was running a dark blue suit because I had phoned the clerk’s office and they had told me that dark suit would be, would be appropriate.

Gazel had a great sense of humor. He kept leaning back, on his chair toward me, and making humorous comments during the arguments. At one point he said, “Watch me! I’m going have to make a jury argument” that’s what lawyers say when law is not on their side and they have to make an impassionate, emotional argument in order to win. Whereas surprising is that despite that comment, he won the case. No one was seated at the very table to my right. But as the White case ended Abe Fortas appeared. He must have made arrangements with the clerk to phone him just before it was time for beginning of our argument and Gideon versus Cockerens case. He was wearing a brown suit. He was a middle height dapper looking and he had a slowed deep deliberate voice. Soon after it began talking, the noon hour arrived and the court recessed for lunch. Fortas and I were lead down the stairs one floor below the courtroom for lunch. We introduced ourselves and we settled that we had wrote letters corresponding but we hadn’t met before. We introduced ourselves; we sat at a small table in the middle of the room facing each other.

We were the only people in the room other than the waiter who wasn’t there all of the, the time. He was there only part of the time. Fortas began by apologizing. He and his wife had sent an invitation to my wife and me to come to their home for dinner, on the previous Sunday evening with, together with lawyers and the companion’s cases, companion cases to the Gideon. Douglas versus California, draper versus Washington and Lain versus Brown. The invitation had going to Tallahassee because now I was now in Barto couple hundred miles South of Tallahassee. We had not received the invitation. When we returned from lunch Abe Fortas resumed his argument. By this time the, the spectator section of the Supreme Court was empty except for one person, my wife Ann. It seemed strange that for a case of this importance there was only one person in the audience. In the movie Gideon’s trumpet, the court room is packed, but that wasn’t true. One other non-lawyer was present in the court room and that was Anthony Louis who, who was the reporter at that time for the New York Times. Of course he later wrote the book “Gideon’s trumpet” he was allowed to sit with his portable typewrite inside the bar with members of the Supreme Court bar.

By the way Anthony Louis died just recently 2 months ago. It was an enormous loss. He was a great writer and also a wonderful human being. When Fortas finished it was my turn to argue. I stepped before the podium and in my first impression I’ve learned it was same impression of others who argued there. My first was that I was down in a pit. The justices seemed to be sitting much much higher above me than the judges in Florida pellet courts. Also the speaker’s podium seemed closer to the bench than was the case in Florida pellet courts. The podium had lights on, it was a green light, yellow light and a red light for one the speaker was supposed to stop. Here’s a picture of me at that time. I’m always amazed when I see this, at how little I’ve changed in 50 years. [Audience laughs] Whenever I say it everyone laughs and not quite sure why. I began to make my prepared argument. At the moment I began with that were questions. The intensity level was high. The justices were animated and took a much more active part, in the questioning than the judges in the Florida pellet courts.

A few years ago I read the transcript of the argument and counted 92 questions or interruptions during my argument and almost all of them came in first half hour. Every justice except Douglas asked at least one question or interrupted at least once. Questions in the comment from the justices came so fast that I had great difficulty keeping up. One justice would ask a question. I would begin to answer and then another justice would ask a question. I would try to remember that question as I try to finish first question. Then as I was doing that a 3rd justice would make a comment. Remembering which member of the court had asked, asked the question remembering what the question was , remembering which order the questions had been asked was big problem for me. An answer to question about Johnson versus Zerbs which was the 1938 case that had required the automatic appointment of counseling a federal criminal cases I argued that decision was based not only on 6th amendment but also at least did a part on the extra power that the supreme court had through its supervisory jurisdiction authority over the law of federal courts. When I said this justice Black got angry. Became red on the face, he was the justice who would have written out opinion. I still believe that what I said was correct.

At another point when I was arguing that perhaps in minor criminal cases we could have judge alone decide the case without a lawyer on the either side. Justice Harlan who was probably justice most favorably inclined to our position helped out by saying,” careful now don’t go too far” he must have known that his colleagues would never go that far. This is the picture of Justice Harlan. Douglas airport had just been built. Some of the road leading there have just been paved you can believe that. On the trip back to Florida the Ann and I entered the huge main terminal at Dallas; we were the only 2 passengers, there were people behind there by the counters, but we were the only 2 customers or passengers in that huge room. That was how I knew Dallas was at that time. Since we didn’t had Xerox thing in that time I had, I had not been able to Xerox copy of the court opinions that I needed for my argument. So therefore I had taken large number of books maybe 50 law books with us in big suitcases. In those days luggage was weighed.

We were way overweighed and we had to pay a 50 dollar charge, the 50 dollar that was probably, probably like 500 or 600 dollars today in terms of purchasing power. After the case had been argued HG Cockeren stepped down as the director of the state division of Correction and Lui Wainwright became the director. I wrote the court and informed them of this change, they never wrote back. I never got a return letter but the when the pendent was released in March 1963 and the name of the case had been changed to Gideon versus Wainwright. There was a newspaper strake on at the time and Anthony Louis phoned and asked for interview me. We met at a motel near the Tamp Airport. He told to see the side the write book Gideon’s Trumpet and said he had nothing to do at the strike. We supplied him with copies of documents for our files for his use in writing the book. Several years later Abe Fortas was appointed to the Supreme Court.

At that time I was teaching at Emry law school in Atlanta. Our dean invited him to be our law day speaker telling him that I was on the faculty force accepted and therefore I had another opportunity to talk with him. Wally was literally justice on a supreme court I was appointed by the court to represent a federal inmate and called coffin versus United States and I had the privilege of arguing before him. I believe that he was a great lawyer, an outstanding Supreme Court justice and a very good person. The decision on Gideon was announced on March 18 1963, 18…1963. Best versus Brady was overruled.

Francisco Hernandez

Author Francisco Hernandez

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