As asst. AG, represented State of Florida in Gideon v. Wainwright. Jacob recalls his extensive preparation for the case assisted by his wife, and the “brutal” oral argument in front of the Supreme Court.
Oral history details
|Date of interview:||Jul 9, 1993|
|Where relates to:||Florida|
|Topics:||Gideon v. Wainwright|
Full text of transcriptDownload PDF: Transcript
Bruce Jacob argued the case on behalf of the State of Florida as a young Assistant Attorney General. In the oral history interview, Jacob recalled his extensive preparation for the case. Assisted by his wife, Jacob worked in the County law library until late at night, copying thousands of excerpts from cases on 4×6 cards. Jacobs also recalled the “brutal” oral argument in front of the Supreme Court. Reflecting on the case, and its profound impact on his life and career, he said that “Gideon was necessary.” After Florida adopted a public defender system following the Supreme Court decision, Jacobs volunteered and served as a special assistant public defender.
National Equal Justice Library
Oral History Collection
Interview with Bruce Jacob
Conducted by Victor Geminiani
July 9, 1993
Victor Geminiani: This is an interview of Dean Bruce Jacob, the interviewer is Victor Geminiani. The primary focus of the interview will be Dean Jacob’s substantial involvement in the historic case of Gideon v. Wainwright decided by the United States Supreme Court in 1962
Bruce Jacob: 1963.
Victor Geminiani: 1963 thank you. Today’s date is July 9, 1993 and the interview is being conducted on the campus of Stetson University School of Law in St. Petersburg, Florida where Dean Jacob is the Dean. Good morning Dean.
Bruce Jacob: Good morning Victor.
Victor Geminiani: I want to thank you on behalf of the National Equal Justice Library for spending some time with us this morning talking about your major involvement in the development of the case of Gideon v. Wainwright. Could you tell us a little bit about your background before you became involved in the case.
Bruce Jacob: How far back do you want me to go?
Victor Geminiani: Back to birth. You were born where?
Bruce Jacob: I was born in Chicago and I grew up in Chicago and Hinsdale, Illinois. Hinsdale is a suburb of Chicago. I went to Hinsdale High School. My family moved to Sarasota, Florida in 1952 when I was a junior in high school. I graduated from Sarasota High School. I went to Principia College in Elsah, Illinois, it was a Christian Science school. I was there for one year and then transferred to Florida State University in Tallahassee, Florida. I finished at Florida State in January of 1957 and then immediately entered Stetson University College of Law and graduated here at Stetson in 1959. Then I went to the Army for their six months program as a private and went through basic training and so on, came back and worked in Tallahassee for the State Attorney General’s office in Tallahassee. That’s where I was when the Gideon case began.
Victor Geminiani: Could you tell me a little bit about the case. What was it about?
Bruce Jacob: Gideon had been convicted in Panama City, Florida which is up in the panhandle. He had been convicted of burglarizing a pool hall, I think it was the Bay Harbor Pool Room in right near Panama City. There was a cigarette machine and a couple of vending machines that had been broken into. Someone had broken into the pool room about 5:30 in the morning and had broken a couple of the vending machines, taken the coins out of the vending machines, had also taken some wine and then left the pool room. He had been convicted of that and given a five-year sentence for breaking and entering with intent to commit a misdemeanor. It was a misdemeanor because I assume they didn’t know the exact amount of the value of the goods and money that had been taken. He was given a five-year sentence because he had had some prior convictions in other states. He had also been tried for a I can’t remember what he had been convicted of but he was tried for a crime in the federal courts at one time, so he had some prior convictions and that’s why he was given five years for this offense.
Victor Geminiani: What happened after his trial? Did he appeal?
Bruce Jacob: He did not take an appeal. He was tried without counsel in Panama City and did not appeal. In Florida at that time you could file a habeas corpus petition for any circuit judge, any court of appeals judge or any member of the Supreme Court or before any of those courts. What most of the inmates were doing at that time when they wanted post-conviction relief was to send a petition directly to the Florida Supreme Court and that is what he did, he just sent a, he just mailed a handwritten petition directly to the Florida Supreme Court if you sent it to the court the entire court would review it and make a decision on that on the basis of that petition.
Victor Geminiani: What did they do when they received the petition? Do you remember
Bruce Jacob: It was just denied without any argument, without any consideration other than just review of the petition itself. In the petition, the thing that made his petition different from other petitions, there had been a long history of petitions being filed in the Florida Supreme Court by inmates complaining that they had not had the benefit of counsel at their trials or when they had pled guilty and at that time the rule was that you had counsel appointed for you if you were indigent you had counsel appointed for you in a capital case but in a non-capital case the appointment of counsel was not automatic. Betts v. Brady, the Supreme Court decision of 1942 was the Supreme Court rule that applied and under that decision you were only entitled to have counsel appointed for you if there was some special circumstance present such as the fact that the defendant was illiterate, was extremely ignorant, extremely young, if the defendant had mental problems or something of that nature then counsel had to be appointed under the rule of Betts v. Brady. A lot of Florida courts were appointing counsel whether there were special circumstances present or not but they were not appointing counsel whenever a person pled guilty and some of course were not appointing counsel when the defendant pled not guilty and went to trial. So he did not have counsel and did not take an appeal and filed his habeas petition in the Florida Supreme Court and he did not, the difference between his petition and other petitions that had been filed by inmates at the time regarding the right to counsel the denial of right to counsel was that in his petition he did not allege any special circumstances. In all the other petitions that were coming to the Florida Supreme Court the inmate was alleging some special circumstance, the fact that he was extremely young or ignorant or illiterate or something of that nature. Gideon’s petition did not allege any special circumstances at all. And that’s why the Florida Supreme Court denied relief and that’s why the Supreme Court of the United States took such an interest in that case because this was the first case that directly raised the issue of whether or not Betts v. Brady should be overturned.
Victor Geminiani: You talked a little bit about Betts v. Brady. Could you elaborate a little more on the state of law at the time that his occurred late 1950s early 1960s.
Bruce Jacob: Well the rule Powell v. Alabama was the case that had held in 1932-33 that counsel had to be appointed in all capital cases. Johnson v. Zerbst was the Supreme Court case that applied to federal courts. That case held that counsel had to be provided in all cases in federal courts whether defendant if the defendant didn’t have money he had to have counsel appointed for him. And the rule in non-capital cases in state courts was Betts v. Brady and that’s the case that said you were not automatically entitled to have counsel appointed for you if you couldn’t afford counsel, you were only entitled if you could show something special circumstance was present which required that counsel be appointed. Some special circumstances that showed that you were not able to represent yourself such as being extremely young or uneducated, illiterate or inexperienced or having mental problems or something of that nature.
Victor Geminiani: You were a young assistant attorney general when the case was accepted the habeas was accepted by the Supreme Court. How did you first become involved in this case?
Bruce Jacob: I was working in the criminal appeals division of the attorney general’s office in Tallahassee and there were four of us handling almost all the criminal appeals for the state of Florida at the time. The other four had all been to the United States Supreme Court. I was the newest member of the office and I was the only one who had not been to the United States Supreme Court and so when the case came in when the Supreme Court of the United States said they wanted briefs filed and they wanted to have oral argument in this case, the head of the office, Reeves Bowen came to me and asked me if I would be interested because I had not been in the Supreme Court before, that’s the reason I got the case. There could be another reason. I had worked with Reeves Bowen the previous summer I think it was, the summer of 1961 I believe it was, doing some law review articles together. And he knew that I liked legal research. He knew that I put a lot of time into legal research. He knew that I loved legal history and that could have also been part of the reason why he gave me the case. He knew that this case would require a lot more time than other cases that our office handled and he knew that I was willing to put in that kind of time and he knew that I really enjoyed researching and that I enjoyed legal history and so on, so I think that might be part of the reason why he gave me the case.
Victor Geminiani: Were you aware and your department aware of the critical importance of this case?
Bruce Jacob: Yes, yes we knew immediately that this would probably be the case that would be used to overturn Betts v. Brady because, as I said, Gideon did not allege any special circumstances. Whenever a prison inmate alleged special circumstance if the case went to the United States, ended up in the Supreme Court the Supreme Court could go ahead and reverse the case and send it back for a new trial under the rule of Betts v. Brady. But Gideon by not alleging any special circumstances by doing this he put the Supreme Court in the position in order to rule with him they would have to overturn Betts v. Brady so we knew that this was probably the case that the Supreme Court would use to reverse overrule Betts v. Brady.
Victor Geminiani: I find it fascinating that there wasn’t competition among the other three and your supervisor, was it Reeves Bowen, given the importance of this case to given the ego of lawyers
Bruce Jacob: Reeves Bowen had been to the Supreme Court a number of times. He didn’t really care about going back to the Supreme Court he had been there a number of times. And the others in the office I think had been there several times each so I don’t think they really cared. Also maybe they realized that whoever went this time would be kind of the sacrificial lamb but that didn’t matter to me. I wanted to argue in the Supreme Court and well I just thought it would be really exciting to be involved in a case of this caliber.
Victor Geminiani: Do you remember the way your initial legal theory was developed what you were going to rely upon?
Bruce Jacob: I don’t think I sat down and thought was is my legal theory going to be. I think what I did was just dig in and begin researching it and writing down every possible argument that could be made by both sides. I think what I did was sit down and start a list of possible arguments that could be made on both sides and just started researching each issue and then some of that research led to other possible issues and I just kept adding new issues and eliminating issues and going at it that way. I don’t think sat down right from the start and said this is going to be my argument, this is going to be our strategy. I don’t usually start that way. I usually just dig in and start researching and finding issues and eliminating issues as I go through my research.
Victor Geminiani: As you went through that process can you remember what you finally settled on as the primary arguments you were going to make.
Bruce Jacob: There were about seven in our brief, I think we had about seven different arguments. One of the main, the main thing that I was looking at at least at the start was the nature of due process. Back at that time there was still a debate going on about what is due process. Is due process a vague concept that kind of cloudy vague nebulous kind of concept or is it a very clear cut kind of concept that consists of very sharply defined rules. This debate was going on in the Supreme Court at the time. Justice Harlan was probably the leader at that time of the group that believed it was kind of a vague nebulous concept that could grow, expand and didn’t consist of sharply defined rules. Whereas Justice Black probably was the leader of the other side who believe that the rules were sharply defined and were very literal and the exact wording of the Bill of Rights was the what due process consisted of and when it said you have a right to counsel that was you had a right to counsel period, that was his view. Our position was more like Justice Harlan’s position in that what is the nature of due process, what does due process consist of. When does counsel become a part of that and to what extent does it become a part of that. So I looked at the history of the right to counsel going back into the English law and the early colonial law to find out what people felt during those periods, what did the right to counsel consist of and then of course what did the framers of the 14th amendment feel, if anything, what was their view of what due process for the 14th amendment should mean and then what had it evolved to be during the years since the Civil War. So that was kind of the heart at least at the beginning of my research that was the kind of heart of my research trying to figure out what due process meant and under what circumstances should a new right be absorbed into the concept of due process.
Victor Geminiani: You used the term in the beginning of that response “our brief,” “our brief” emphasized, could you tell me who was included in our brief. What kind of system did you get
Bruce Jacob: . . . of course the Attorney General was Richard W. Ervin and his name was the lead name on the brief and then my name was on the brief and also A.G. Spicola who was another assistant attorney general, A.G. Spicola was a good friend of mine, in fact he was in my wedding, a good friend of mine. A.G. proofread the brief. When the brief was finished we sent it up to Tallahassee to be printed. It was printed at Rose Printing Company in Tallahassee which had the contract with the state for printing briefs and of course at that time I finished the brief I was working at Bartow which is about 250 miles away so I sent everything up to Tallahassee and A.G. did the proofreading at the printing company and so his name was also on the brief so I did the writing of the brief and most of the work but of course the attorney general himself has to be on every brief that left the attorney general’s office and A.G. Spicola also helped me.
Victor Geminiani: There is a period of time when you were working on this case that you were no longer employed as a direct employee of the A.G’s office, you were working on a contract basis. And I understand that from the Tony Lewis book that your wife helped you substantially in writing down some of the quotes that you were going to be needing for your arguments and your brief from the research that you were doing. Tell me a little bit about your work on the case after you left the A.G.’s office but were on contract to complete the work.
Bruce Jacob: I did not finish it on a contract basis. I wasn’t paid for it. I left the attorney general’s office in I guess it was September of 1962, got married, went on my honeymoon and then moved to Bartow, Florida to join a law firm, Holland, Bevis and Smith firm was called at the time, now it’s Holland and Knight. I got permission from the attorney general to continue handling the case. I just wanted to continue handling the case and he gave me that permission. Also the Holland, Bevis and Smith firm gave me their permission although I told them I would not work on it during working hours, I would only work at night or weekend and I wouldn’t use office any of the secretarial help of the office. I don’t think they would have required that but I wanted it that way but it was not a contract
Victor Geminiani: It was pro bono.
Bruce Jacob: Pro well it was, I just did it because I wanted to do it. My wife was my helper, my wife Anne. We had bought an old typewriter from Holland and Knight, one that they were discarding, we bought it for $25 or something like that. It was an electric typewriter but it was a very old one. We took that home with us and that was the typewriter that she used and I got lots of note cards, 3 x 5 or I guess 4 x 6 cards and every night we would go down to the either the law firm and use their library but that was a fairly small library so we would sometimes go to the County Law Library in Bartow and the librarian was a good friend who would let me use the key so we would go there at night and work late at night. I would read the cases and point out parts that needed to be copied and my wife would copy these down on note cards. We didn’t have Xerox back in those days.
Victor Geminiani: I forgot that until I read Tony Lewis’s book we did not have Xerox machines back then, it was a totally different practice.
Bruce Jacob: That’s right. And then on weekends we would come to Stetson Law School to the library and do the same thing here. Or we would go up to the state library in Tallahassee. The library in the Supreme Court of Florida. That was a particularly good library because they had a lot of old English material so we quite often went to the Supreme Court library in Tallahassee on weekends and worked in the basement where all the old materials were located. The librarian there was also a good friend who gave me the key to that library so we could come as we wanted. We used the basement and I can remember late at nights sometimes on Saturday nights 11:00 o’clock or so at night working in that basement, I would read the books and then pointing out things that needed to be copied and Anne would copy these onto notes cads and she knew speed writing, whatever it’s a speed writing which allowed her to write much faster so she copied thousands and thousands of excerpts from cases and statues and old law books. And then in writing the brief I used all these note cards, I would shuffle them and organize them and began writing the sections of the brief in longhand and she would type a rough draft. I would edit and she would type another draft and we just went through several drafts that way. That’s the way we did the brief.
Victor Geminiani: In juxtaposition with Clarence . . . assistance of Abe Fortas all the resources I’m sure Abe Fortas used to represent
Bruce Jacob: Anthony Lewis pointed this out the contrast between the trial level, the defendant was represented by counsel the state had all the forces of the state gets disposal and then in the Supreme Court he pointed out that Gideon had one of the great law firms in the country with lots of people working on the case, whereas the state had this lone young former assistant attorney general working at home with his wife, wasn’t quite that bad but Anthony Lewis thought there was a sharp contrast between the two.
Victor Geminiani: Can you remember how other states lined up in terms of support for the state of Florida for Clarence Gideon?
Bruce Jacob: We were concerned about notifying all the other state attorneys general about this case. We knew that probably the Supreme Court of the United States would overturn Betts v. Brady and we knew that the Court might make the new decision retroactive. We know that the Supreme Court might expand and require counsel on appeals in misdemeanors and maybe even in civil cases because logically it’s pretty hard to draw the line once you begin imposing an absolute fixed rule requiring the right to counsel. So we wanted to be sure the other states knew about it and could participate if they wanted to through an amicus brief or in any other way. We just wanted to make sure they knew about the case. One of the reasons we felt this was because a couple of years earlier our office had argued a case in the Supreme Court and I can’t remember the nature of the case but after the case had been won or lost, I don’t know what happened in the case, but after the case was over, an attorney general of another state had criticized our office for not letting him know that that issue was before the Court. He would have wanted to get involved if he had known about the existence of this particular issue. So because that had happened our office wanted to be sure that we let all the other attorneys general know about the Gideon case. And so we sent a letter out letting them know this issue was before the Court and also inviting them to submit an amicus brief on our behalf if they wished. Later on when Anthony Lewis interviewed me he said wasn’t this a terrible strategy mistake. And I said no it wasn’t at all. The issue before the Court was so important I just don’t think when an issue this important is before the Supreme Court that you ought to be thinking in terms of strategy or how I could outwit the other side. It seems to me that’s the last thing you ought to be thinking about. The only think you should be thinking about is what’s best for the country, what should be done in this case and it was my job to it was our job to present the strongest arguments we could possibly muster on the side of the state of Florida. It was Fortas’s job to produce the strongest possible arguments on the side of Gideon and when you had the strongest arguments on both side the Supreme Court only if they had the best arguments on both sides could it reach the right result. And that seemed to me that was what should be done. It wasn’t a case of trying t outwit the other side or try to maneuver or anything of that nature. And it’s not a strategy mistake because we really wanted to other attorneys general to know that this issue was coming before the Court. We wanted them to be able to get involved if they wanted to and three states did join us. Only three states joined our position, Alabama, Georgia, . . . assistant attorney general of Alabama wrote an amicus brief and he was joined by a couple of other states. North Carolina was one of them. Other attorneys general including the attorney general of Minnesota, Walter Mondale, at the time, of course learned through our letter that we were that the issue was before the Court and that we were looking for some help in the way of amicus brief. He I think it was Walter Mondale but he was one of them, a group of them joined together and filed a brief against us. It could be 23 states that filed a brief against us, which was all right since again I don’t think of this being a strategy mistake because I don’t think when an issue this important is before the Court you should be thinking in terms of strategy. The Court ought to get the views of everybody who has a position and only in that way can the Court reach the correct result.
Victor Geminiani: Do you remember your preparation for the oral argument in front of the Supreme Court? How you felt, how you prepared?
Bruce Jacob: Well the way I prepared was to almost to when I went to the Supreme Court I took a number of books, probably 50 books because we didn’t have Xeroxing in those days so I took all the cases the leading cases with me in a suitcase. I had all those with me. I had my brief, of course, I had all my notes and started with my brief but realized at oral argument you don’t just oral argument is not just for the purpose of rehashing your brief so I tried to come up with tried to think what questions the Court would ask and try to frame my argument around the kinds of questions that they might have. Responded to portions of the brief of Fortas and tried to get the main points in our argument and try to refute the arguments in Fortas brief and try to anticipate the kinds of questions the Court might have. And I put that together in an outline and I kept working on it even the night before. I kept going over, I kept also re-reading the cases to make sure that if they asked questions make sure that if they asked questions about a particular case, what were the facts or what was the theory that I would be able to answer any of those kinds of questions.
Victor Geminiani: Do you remember how the oral argument went?
Bruce Jacob: It was pretty brutal. I had this prepared argument and I had been used to arguing cases in the Florida Supreme Court and Florida courts of appeals where there weren’t many questions asked and questions in most courts usually were about cases does this case mean this or does it mean that and how do you reconcile this case and that case. I was surprised by the intensity of the questions, by the number of questions and by the kind of questions. The minute I opened my mouth there was a question and for a full hour, I argued for about an hour, I had an hour and I think I used just about all my time, from the time I opened my mouth until the hour was over all I did was answer questions. And the problem was there was usually more than one question at a time. I got a question from this justice and that justice and I felt like I was caught in a crossfire and often it was difficult to know which judge to answer first. Two justices would ask questions and I would try to answer one question and remember what the other justice had asked it was just so many questions coming all at once from different sides. It was difficult to keep them straight and try to answer them. I was surprised by the intensity of the questioning, by the numbers, as I said, and by the kinds of questions. This Court was not concerned about precedent and other courts I had been in had always been concerned about precedent. This Court my impression was they didn’t really care. They were willing to examine the legal system down to its very foundations and to question they were willing to brush aside any prior precedent and just start from the beginning and I had never experienced this kind of questioning before and it was something that I really hadn’t anticipated. I thought they might ask me to comment about this case as opposed to that case and differentiate what the courts said here from what it said in this other case but that wasn’t the kind of questions that they asked. They were looking at, as I said they were willing to examine the entire legal system from the foundation up and as I said it was something new for me, I had not experienced that kind of questioning before.
Victor Geminiani: What were your feelings right after it was over?
Bruce Jacob: I felt pretty low. I felt I had done a terrible job because the questioning had been so brutal and it had been so difficult to answer all the questions, so I did not feel good about what had happened. It was a rough hour, very difficult hour for me.
Victor Geminiani: Relived many times since?
Bruce Jacob: Yes I can still remember the feelings I had as the questions were asked. I was going to say I felt better afterwards. I ran into the Abe Fortas outside the courtroom and he apologized well I had lunch with him during the argument we had lunch together and so I got to know him that way and he had apologized because he had invited me and lawyers . . . there were several right to counsel cases, Douglas v. California all being argued at the same time. He had invited all the lawyers of these all rights to counsel cases to his home the night before and I had somehow the note had not gotten to me so I had not been able to come to his home so he apologized for that during the lunch and then after the arguments he met me outside the courtroom and he could see that I felt pretty badly about the arguments, I just felt the argument had not gone well, and he made me feel better by shaking my hand and saying you know you have a wonderful way before the Court and made me feel a lot better.
Victor Geminiani: You witnessed or you observed his argument obviously. Can you tell me a little about his argument and the justices’ reaction to it.
Bruce Jacob: He didn’t dwell much on the law. It was I remember he stood up and he said something like this, Your honor in this day and time how can we allow a person who is being charged with a crime and faces prison to be able to require to defend himself. It was a very emotional kind of argument, an argument based on basic fairness to require someone to defend himself. And it as certainly a tremendous argument. I can remember him arguing, I can remember what he looked like, what he was wearing, a brown suit and although of course I was listening to what he said, taking notes about he said so I could respond to what he said and I assume I tried to respond to what he had said but the questioning by the Court made it difficult to stick to my prepared remarks.
Victor Geminiani: Did you state that the two of you had lunch between his argument and your argument.
Bruce Jacob: At the Supreme Court when noon arrives, members of the Court stand up and walk out and then the lawyers are taken downstairs to a lunch counter. George Mentz was arguing with me, George Mentz who did the amicus brief on our behalf was there in Washington, D.C., the assistant attorney of Alabama, he was sitting at counsel table with me. He told me that he before the court session began the staff members from the Court came to us and asked us if we were going to have lunch there because they knew our argument was starting at something like 11:30 and they knew that the Court would take a break for lunch in the middle of our argument so they asked us if we wanted to have lunch and I think they even asked us what we wanted. They showed us a menu and had us write down what we wanted for lunch. George Mentz wanted to go on some sort of an errand at lunch hour so he said he did not want to stay for lunch. But I did want to each lunch there, so I filled out the little piece of paper that told them what I wanted to eat I guess and then at noon when the Court broke for lunch I was led downstairs to this huge as I remember it being very, very large lunch room with Abe Fortas and we were placed at table right in the middle of this huge room. We were the only people in this entire room and we were waited on by someone who brought us our food, so we had a conversation for 45 minutes or so.
Victor Geminiani: Anything you feel free to repeat or share with us?
NJ: The one thing I remember is or the two things I remember are that he apologized for because I did not receive the invitation to him home the night before and then he also talked about Justice Black the main subject of conversation was Justice Black. He just worshiped Justice Black, thought Justice Black was a tremendous person and talked about what a great justice he was and he also talked about the case in Texas I assume he was representing Lyndon Johnson and he said he had gone to Justice Black for an order, told me what had happened in that case. So the discussion I remember a lot of the discussion centering on Justice Black.
Victor Geminiani: When the decision was announced it was unanimous against the position that Florida had been espousing in favor of . . . Gideon’s position. Were you surprised either by the decision or the unanimity of it?
Bruce Jacob: I wasn’t surprised by the decision. Our office really had expected that Betts v. Brady would be overruled. We had hoped that the Court might not make the new decision retroactive. That was our main certainly one of our goals, probably our main goal to try to keep it from being retroactive because we were afraid that a lot of inmates in the Florida prison in fact we did a study in the summer before the case was argued and found that there were about 4,300 inmates who now had about 8,000 in the state prison system who had not had the benefit of counsel. I think all but about 500 of those had no 4,500 about 4,000 of them had pled guilty without the benefit of counsel and about had gone to trial pled not guilty and gone to trial without counsel. So we knew that about 4,500 could be released all at one time if the new decision were to come in retroactive so we were hoping that the Court would not make the decision retroactive. That disappointed us and also I think I was surprised that it was unanimous because we had thought that at least Justice Harlan and perhaps Justice Clark, Justice White perhaps, there were several justices we thought might rule with the state of Florida. We did not anticipate that the case would be unanimous. So that surprised us also.
Victor Geminiani: Do you have any thoughts as you reflect back on the impact the case has had on our criminal justice system as it exists today.
Bruce Jacob: At the time as I was doing the case, as I was working on the case I thought that I was hoping the Court would reach a decision that would not make without the retroactive and I guess at one point I got pretty enthusiastic about our position and even thought that we should win, not because I didn’t think counsel should be provided because I did, I thought counsel should be provided, but I felt that the state should be allowed to provide counsel in their own way, states should be allowed a lot of flexibility to experiment with ways of providing counsel and should be able to develop means of providing counsel, the way of doing it and how to do it and what kinds of cases, the state should be allowed to experiment in doing their own way and the rule should not be forced on them by the Supreme Court. Of course at that time I was very young and had not seen how the political system works as well as I have now at my present age. Looking back I realize the state of Florida and the other states that weren’t providing counsel at the time probably never would have done so if the Supreme Court hadn’t forced them to do this through the Gideon case. So I realize now that Gideon was necessary. At the time I thought the state would do it in their own and in their own way and would be better to leave it to the states to do it in their own way but now I realize they wouldn’t have done it and I realize that Gideon case had to be decided the way it was and it was a very good thing for the country. It was the right decision. I’m not sure that answered your question.
Victor Geminiani: Perfectly. Finally do you have any strong memories of anything or final thoughts to share with us about that period of your life and the impact that the case had on you, as you think back on that period really just comes out as you as a strong memory an occurrence or conclusion?
Bruce Jacob: Tough question. I have a pretty vivid memory anyway. I have some very vivid memories of what it was like to handle a case. I remember feeling a tremendous weight of responsibility on my shoulders, I don’t know thinking that it was really important to do a good job, it was very, very important for me to work very, very hard, read every single case, everything that had ever been written on the right to counsel because I felt a tremendous responsibility to make sure that the Supreme Court had everything before it that there was nothing left out. I was afraid that I might overlook something important, I just wanted to be sure that I found everything that pertained to this issue. I remember feeling just a tremendous weight on my shoulder that I had to do a good job, had to because this was such an important issue the Supreme Court needed to have everything before it in order to reach the right results. And I wasn’t really that concerned about the result as much concerned about the result as I was about the process of making sure that the Court had everything so the Court could be in a position to reach the best result. I knew that the Court didn’t have all the information before it it would be difficult to reach the right result. So I remember that and I also remember when Fortas was first appointed I didn’t realize what a great lawyer he was. I had never heard of him and it was kind of surprising now looking back realizing I didn’t even know who he was at the time but of course as things turned out he became a Supreme Court justice and he was a great, great lawyer, I just fully appreciate that at the time. As soon as the case had been decided Florida adopted a public defender system, they set up a defender office in each circuit in the state. They also provided for volunteers to become what they called special assistant public defenders. I was think probably the first volunteer to be a special assistant public defender at no pay. This was a volunteer kind of thing and handled some cases in that position. And then went into teaching at Emory Law School and as I said I was defender office for inmates at the Atlanta penitentiary and after that went to Harvard Law School for graduate work and established a prison program for inmates in Massachusetts and then went to teach at Ohio State and had a defender clinic and spent it’s strange that most of my life has been spent representing poor people. I represented many, many poor people and defense in criminal cases who were unable to obtain counsel. Most of my life has been spent doing that. It’s strange to look back and realize I’m probably best known for arguing the state’s position in Gideon v. Wainwright whereas most of my life has been on the other side of the fence, it’s kind of strange that I’ll be known for my position in Gideon v. Wainwright not for everything else I’ve done in life. If I could have argued either side there was no question I would have taken the other side of Gideon v. Wainwright, that certainly would have been the side I preferred but I’ve always felt under our adversary system that both sides need to be both sides of the issue the best way to reach the right result is to have the full briefs and good arguments on both sides in a case such as Gideon before the public court.
Victor Geminiani: Dean Jacob I want to thank you on behalf of the National Equal Justice Library and spending this time with us this morning. You are a prime participant in the historic case Gideon v. Wainwright which determined the right to counsel for indigents. It has been a real privilege meeting you and a real privilege of participating with you in this interview and I want to thank you very, very much for your time and memories.
Bruce Jacob: Thank you very much.