Secondly, under the constitution as of 1962, the states were allowed to develop their own rules of criminal procedure. We argued that the state should be free to experiment, with regard to criminal procedure. 3rd; due process in those days was a, considered to be a very flexible concept based upon fairness, based upon the facts and circumstances of each case. The court on that said that you have to examine the facts of each case to determine whether counsel is necessary in that particular case and we argued that a flat rule requiring appointment in every case involving indigent would be inconsistent with the meaning of due process, at least which was understood in those, in those days.
4th; the right to the appointment of counsel had not yet reached to the level of fundamental right. There were still 13 states that were not providing counsel automatically to the indigence and non-capital felony cases.
5th; to incorporate the 6th amendment into the 14th would mean that logically the states would have to provide counseling misdemeanor cases and civil cases because due process protects against the taking of life, liberty or property and, and therefore logically the rule would have to extend to all cases, not just the felonies. And we argued that this is practical matter the states just didn’t have enough lawyers or enough financial resources to provide free counsel at state expense and all of these different kinds of cases.
6th; vehicle protection clause of 14th amendment were used to overrule bets. The states would have to provide counsel for indigence and kinds of, of legal proceedings; Post conviction proceedings, appeals and other proceedings in which a person of means could hire counsels. And this again would, would create practical problems, financial problems, for the, for the state.
Ahh 7th; if bets were overrule, this would just lead to claims by convicted defendants that they have received ineffective assistance counsel and of course that has happened in the years since Gideon. Then finally we argued that if bets should be overruled, we hoped that the court would make the due decision prospective in a fact not retroactive. We just didn’t want thousands of inmates to be released all at the same time. People sometimes ask me whether I thought the state should win in the Supreme Court in Gideon. My personal belief was that every defendant in the non-capital criminal case should have an attorney. Non capital felony case should have an attorney. And I was happy with the result in Gideon on that issue.
But that wasn’t the only issue that had to be resolved in that case. One question was whether the state should make a decision through legislation or ,or through court rule or rather than having the supreme court of United States make that decision for the states. Of course that was back at a time when I had lot more confidence in legislatures than I have now that I’m older.
Another issue for example was whether a decision overruling Bets versus Brady should be prospect or retroactive and a fact. Still another was, which part of constitution be, be used to overturn bets versus Brady. Should it be the equal protection clause? Should it be the due process clause? If someone had said to me which side of the case would you preferred to argue? I would have said I’d prefer to represent Gideon. But lawyers are trained to take either side of the case.