Hugo L. Black’s Dissents: From Betts to Gideon

Abstract

Hugo L. Black’s Dissents: From Betts to Gideon MELVIN I. UROFSKY A dissent in an appellate court, especially the Supreme Court, is more than a statement of disagreement with the majority decision. While most dissents—and many majority opinions—are soon and rightfully forgotten, there are some that have a life of their own, sometimes outlasting the life of their authors. These dissents fit the description penned by Charles Evans Hughes: “A dissent in a court oflast resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissentingjudge believes the court to have been betrayed. Nor is this appeal always in vain.”' All dissents are part of a constitutional dialogue, one that takes place primarily among members ofthe high courtbut also between the Court and the other branches of government, the states, and the citizenry. The dissents that are important, described by some scholars as “prophetic dissents,” are those that essen­ tially will not go away. Their logic, their style, their argument is so strong that eventually the Court—often years later—will come around to theirpoint ofview. The first Justice Harlan’s dissents in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896) seemed to have been forgotten until they emerged triumphant in Brown v. BoardofEducation (1954) and the subsequent civil rights decisions ofthe Warren Court.2 The dissents by Oliver Wendell Holmes, Jr., and Louis D. Brandeis in the speech cases of the 1920s were eventually adopted in Brandenburg v. Ohio (1969).3 One of these prophetic dissents was written by Hugo L. Black in 1942, and, unlike Harlan, Holmes, and Brandeis, he lived to see his dissent become the law of the land. The Betts Case In May 1939, Smith Betts, an unem­ ployed farm worker, found himself in the Circuit Court of Carroll County, Maryland, about an hour northwest of Baltimore. Fortythree years old and on relief, he was charged with the armed robbery of a country store on Christmas Eve, 1938. When arraigned before HUGO L. BLACK’S DISSENTS: FROM BETTS TO GIDEON 91 Judge William H. Forsythe, Jr., he said he could not hire an attorney, and he requested that the court appoint a lawyer to represent him. Judge Forsythe said this could not be done, as the practice in Carroll County was to appoint counsel for indigent defendants only in prosecutions for murder and rape. No stranger to the court system—in 1935, he had been sentenced to three years in prison after a larceny conviction—Betts did not waive his right to counsel, pleaded not guilty, and asked to be tried without ajury. He gave the court a list of witnesses he wanted called in his behalf, cross-examined the State’s witnesses, and examined his own witnesses in trying to show he had an alibi. Betts did not, however, take the stand in his own behalf, because his prior conviction could then have been entered into testimony. After hearing the evidence, the judge found Betts guilty and sentenced him to eight years in prison. While serving his sentence, Betts filed a petition with the Circuit Court for Wash­ ington County for a writ of habeas corpus, claiming he had been denied the right of counsel guaranteed to him by the Fourteenth Amendment. The circuit court heard Betts’s arguments and rejected them. Returned to jail, he now filed another petition for habeas corpus with the Chief Judge of the Maryland Court of Appeals, Carroll T. Bond. Because the state’s highest court recognized the importance ofthe issue, it directed an attorney to help Betts with the appeal. At the hearing, both sides agreed on a formal statement of facts incorporating the trial record, and, although Judge Bond issued the writ, he nonetheless denied Betts reliefand remanded him to prison. In his opinion, Judge Bond said that the trial had been simple and routine, and “in this case it must be said there was little for counsel to do on either side.” Betts had been able “to take care of his own interests.” Subsequent examination of the case reveals that...