counsel, but many states that did actually filed amicus briefs in Gideon’s behalf. Gideon did allow the
court to supervise police behavior, though, because with counsel guaranteed in every case, the chances of
a miscarriage of justice would substantially decrease.
On the same day as Gideon was decided the court also issued the “trilogy” of habeas cases to
supervise further both “frontline” criminal procedure by the police and the legal processes of state level
adjudication. The changes to habeas doctrine in these three cases are certainly important, for they altered
significantly even the modest (though controversial) changes of the past few decades. However, I argue
that we need to understand the court’s – and especially William Brennan’s -- historiographical approach
in arriving at these decisions as the most important part of these habeas cases, a point that is further
indicative of the court’s larger criminal procedure revolution generally. Specifically in Fay, Brennan’s
reading of the historical “development” of the “Great Writ of Liberty” not only neglects embedded
notions of federalism that were identifiable as political realities, but also the actual doctrinal development
of the writ itself, including the historical justifications both for and against its use. Without taking into
consideration these political and historical factors, the court’s criminal procedure revolution, in many
ways, moved too soon with respect to the simultaneous development of federalism and racial concerns.
Fay represents an unprecedented expansion of habeas. It not only confirms, but moves past, the
developments in Brown v. Allen discussed earlier. In Brown, prisoners still were barred from raising
issues in their federal habeas appeals if those issues had not been fully litigated in the original state court.
In Fay, though, Brennan ruled that the prisoner had only to exhaust remedies still available to him. If the
state appellate process had changed procedures since the original sentence, as the state of New York did
in this case, the defendant was not barred from proceeding with successive habeas petitions based on the
new procedures. Fay also significantly altered the “independent and adequate state grounds” rule. The
independent and adequate state grounds rule suggests that federal courts have no jurisdiction to review
state judgments that are decided on wholly state grounds with state-created procedures. However, now
state prisoners, who never even raised federal constitutional questions through their entire state appellate
process, had the ability to raise them de novo in federal habeas petitions. Brennan admitted that normally
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