DRAPER v. WASHINGTON

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Argument of Charles F. Luce

Chief Justice Earl Warren: Number 201, Robert Draper and Raymond Lorentzen, Petitioners, versus Washington, et al., Mr. Luce.

Mr. Charles F. Luce: Mr. Chief Justice, members of the Court.

This case is here on certiorari to the Supreme Court of Washington reviewing a judgment which in effect denied the petitioners, Mr. Draper and Mr. Lorentzen, a right of appeal because they lack the funds to purchase a transcript at the trial of proceeding.

Petitioners are presently incarcerated in the penitentiary at Walla Walla, Washington under maximum sentences which totaled 40 years.

They are admittedly without funds.

The issue in this case as petitioners see it is whether consistent with equal protection of law and due process of law, the State of Washington may deny the right to appeal to indigents but not to others.

Whenever the trial court finds that the asserted grounds of appeal are frivolous involved in a determination of this case or the rules of the Supreme Court of Washington -- the counsel, the preceding counsel taken part of my record away here --

Chief Justice Earl Warren: Well, would you --

Mr. Charles F. Luce: -- in fact, they've taken the whole thing.

Chief Justice Earl Warren: Well, would the marshal -- where are the marshals?

Officer, would you go out and ask the lawyer to --

Mr. Charles F. Luce: You have the record early as well --

Chief Justice Earl Warren: Yes.

Mr. Charles F. Luce: I assume there was no complicity on part of the State on what happened.

The general principles which apply to this case are, I think quite clear, they'd been laid down in two cases to this Court.

First of all, Griffin against Illinois, decided in 1956, wherein the Court said or at least the opinion of the majority of the judges -- thank you -- that destitute defendants must be afforded as adequate and appellate review as defendants who have money enough to buy transcripts.

And secondly, the principle laid down in a subsequent case out of the same state, State of Washington.

The fact that the conclusion of the trial judge that there was no reversible error cannot be a substitute for the right to full appellate review, and I emphasize that, full appellate review, available to all defendants who can afford the expense of transcript.

In the Eskridge case, the trial judge upon being requested by the indigent defendant who was convicted I think in that case of a murder had given life sentence in prison, the trial judge upon passing on the request of that particular defendant for free transcript ruled that there was no substantial ground for the appeal and that justice would not be promoted by granting transcript, hence, it was not granted.

This Court when the case finally got back up here many years later held that that determination by the trial court was not an adequate substitute for the full appellate review that a defendant with funds could obtain under the rules of the State of Washington and that in effect and I might add, now in effect.

Let's take a look at the facts of this particular case, involving Mr. Draper and Mr. Lorentzen as applied to the principles laid down in the Griffin case and in the Eskridge case.

The State of Washington still, as I mentioned gives a full right of review to those who can pay for it.

If you have the necessary funds to purchase a transcript, you may do so, and all that you have to do then is to have that transcript certified by the trial judge, file a brief with the Supreme Court of the State of Washington and you are given a full scale review.

You do not have, at any stage, to convince the trial judge of the merits of your appeal.

Indeed under our procedure in the State of Washington, the trial judge never gets an opportunity in the criminal case to state what he thinks of the merits of the appeal, a matter never comes before him and there's no procedure by which he can indicate his opinion to the Supreme Court.

Now in this particular case, the defendants having been convicted on two counts of robbery after a jury trial appeal.

At the trial being without funds, they've been represented by Court appointed counsel, the same Court appointed counsel represented them upon the -- their request for a free transcript in order that they might appeal.

Now, in considering the procedures followed in this case, the Court should have in mind the rules laid down by the State of Washington following the Eskridge case wherein the -- this Court held that the procedures previously followed by the State of Washington did not meet the constitutional test of due process.

Following the Eskridge case, our Court laid down rules which I have set forth in full on our brief at pages 3 and 4.

In order to get the facts of this particular case straight, I would like to read these rules and then refer to the record to show wherein and how they were complied with in this case.

The Supreme Court of Washington says that an indigent defendant desiring to appeal shall file an affidavit in which he set forth the fact of his indigency, among other things that an affidavit is in the record at pages 10 and 11.

Justice Arthur J. Goldberg: Would you mind indicating (Inaudible) in arguing which of these elements do you think that should mean (Inaudible)

Mr. Charles F. Luce: Yes, I will do that, sir.

The rule next requires that the indigent seeking a free transcript shall specify and I quote the rule, these are quoted on page 3 of the petitioner's brief, “Shall specify the errors which he claims were committed.”

And if it is claimed that the evidence is insufficient to justify the verdict, this will specify what particularity in what respect he believes the evidence is lacking.

Now at the record, in the record on pages 10 and 11, the petitioners have set forth some 12 or 13 errors which they alleged were committed.

I won't refer to all of them, but the ones which seemed to me to be the principal ones, they alleged that evidence was admitted, that is testimony was admitted over objection improperly.

They alleged that exhibits were improperly admitted over objection, they alleged the trial judge with prejudice against them, and they alleged in effect that the evidence did not sustain the verdict.

I might say that the list of claimed errors appears to have been drawn in the penitentiary at Walla Walla.

I don't think a lawyer drew that list, but nevertheless, the list does cover the four points which I mentioned and some others which are slightly redundant, so that the petitioners in this case complied with the rules of the State of Washington insofar as they were able to do so, not having a transcript, well of course.

The rules go on to say that if the State is at the opinion that the errors alleged can properly be presented on appeal without a transcript of all the testimony, it may make a showing of what portion of the transcript will suffice, or if it believes that a narrative statement will be adequate, it shall so state and shall inform the Court that the narrative statement will be available to the indigent defendant who wants to appeal.

Now in this instance, the State did neither of these things, rather, as it appears on page 21 of the record, beginning actually on page 19, it recited in a lengthy affidavit filed by the Deputy Prosecutor who tried the case that the evidence was overwhelming of the guilt of these petitioners now before the Court, but he did not alleged that they could obtain an appellate review with something less than the full transcript or with a narrative statement.

It is simply that the prosecutor just didn't touch on it (Voice Overlap)

Justice Byron R. White: (Inaudible)

Mr. Charles F. Luce: To defend, Mr. Justice White, on what the point was.

Justice Byron R. White: (Inaudible) had the evidence, and the Court said it's a frivolous point.

Mr. Charles F. Luce: Yes, my contention would be this, and I think it's consistent with the decision of this Court.

But since an appellant with funds has the right to order a full transcript no matter what the trial judge thinks to the merits of appeal and put their transcript before the Supreme Court of Washington and let the Sup --

Justice Byron R. White: (Inaudible) failure to comply with the rule of Washington (Inaudible)

Mr. Charles F. Luce: Yes, that -- well -- but I understood your question to be whether I would contend that in such a case, the man would be entitled to a transcript.

Justice Byron R. White: But in that case (Inaudible)

Mr. Charles F. Luce: Oh, that's correct.

Yes, yes.

That's the -- that I think is the vice of the rules.

The State had a few comments in its affidavit answering and resisting the request for a free transcript on the alleged grounds of appeal but those comments were very general.

For instance on page 21 of the record, the prosecutor swears in his affidavit in response to the argument that the trial judge was prejudiced, he says that he -- the prosecutor denies that there was any perjury committed or that the trial judge was in anywise prejudiced against any of these defendants.

Well, that's simply a general denial.

Similarly with regard to the petitioners' allegation that errors had been committed in admitting testimony and exhibits, that all the prosecutor did, as appears on page 22 of the record, was to enter a general denial to that.

He says, in his affidavit, that no exhibit or testimony was improperly admitted in evidence but he does not go into the particular questions that had been objected to nor the particular exhibits that had been admitted over objection.

And nowhere, nowhere in the record that is before this Court, or that was before the Supreme Court of Washington is there a transcript of the questions that were asked objected to and testimony that was admitted over objection similarly with regard to exist.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Charles F. Luce: That's correct.

That's correct.

He couldn't have -- he couldn't in that case have done much more.

On the other hand, I don't know how you would demonstrate prejudice of a trial judge without a full transcript.

Justice Arthur J. Goldberg: In other words, do you say that the relevance is a one way to (Inaudible) the generality of the charge that a denial was (Inaudible)

Mr. Charles F. Luce: That is correct.

That is correct.

The same thing would be true if the contention of the evidence failed to sustain the verdict.

The rules of Washington go on to say, as to what the trial court does in this proceeding where the indigent is seeking a free transcript, that the trial court in disposing of an indigent motion were statement of facts that county expense shall enter findings of fact upon the following the matters: (a) the defendants indigency where there's no issue on that and it's admitted on all sides and the Court so stated that he would have been, defendants are indigent, (b) the trial court shall enter findings of fact on which of the errors, if any are frivolous and the reasons why they are frivolous.

Now what did the trial court do about that?

On page 27 of the record we have findings at the trial court on which of the errors are frivolous.

And again, all that the trial court did was to enter what amounts to general denial or general statements that the allegations of error have any merit.

For example, with regard to the contention that evidence was improperly admitted, the trial judge says on page 27 -- or finds on page 27 of the record, near the bottom of Page F as to assignment of error number 7, the Court finds that the evidence offered by the State against these defendants -- well, that is not the -- that has to do with the sufficiency of the evidence.

The finding with reference to the admission of exhibits, is B on page 27 as to assignments of error, 2 and 8, relating to identification on the list of exhibits, each exhibit would properly identify at the trial the material and relevant to the issues, and that the objection of Exhibit 2, the gun identified by the accomplice Robert Jennings, as one used in the holdup as well as the objections to the remaining exhibits offered go to the weight the jury should place upon the exhibits rather than their admissibility.

But there's absolutely nothing in these findings of fact that advised the Supreme Court of Washington what was before the trial judge at the time he made these rulings which he says in his finding of fact were correct rulings.

The trial judge did not comply with that part of the rules of the State of Washington which say that he shall find what portion of the stenographic transcript shall be necessary to effectuate the indigents' appeals.

They simply overlooked that particular section or he construed the rules in this manner apparently that if he concluded that the trial judge concluded that the appeal had no merit then here -- it wasn't up to him to specify which part of the record would be necessary to effectuate the appeals.

Petitioners contend that this procedure on its face does not give an indigent defendant in the State of Washington the same full appellate review, if indeed it gives them any appellate review before the Supreme Court of Washington as compared with what a defendant who have some money to buy the record can get.

Justice Potter Stewart: Now he -- it certainly gives the indigent a lot more than the federal statute gives in Section 1915 of Title 28 of United States Code, doesn't it?

Mr. Charles F. Luce: I don't have that performing --

Justice Potter Stewart: Well, I'd read it to you.

Mr. Charles F. Luce: -- Mr. Justice Stewart.

Justice Potter Stewart: It simply says with the statutory language, “An appeal --” this is part of 1915 (a) -- only a part of -- “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it has not taken in good faith and there's no requirement for a hearing or finding or for representation by counsel before the trial court.”

Mr. Charles F. Luce: Well, yes, but this Court has construed that statute --

Justice Potter Stewart: I know that.

Mr. Charles F. Luce: -- in Coppedge case in such a way that I don't know how, how the statute could be complied with unless a district -- Federal District Court gave a transcript to the indigents who have filed his motion for an appeal in forma pauperis.

In fact, as I recall or which the concurring opinion, I believe it was by you that indicated that that flat rule should be announced because that was the result that would be reached under the interpretation that the Chief Justice's opinion placed upon the statute to which you refer.

Justice Potter Stewart: And of course there is (Inaudible) in the other cases but I -- the statutory language is all I was referring to.

Mr. Charles F. Luce: Yes, so far as the statutory language is concerned, I don't think that without the embroidery that this Court has placed on it goes quite as far as our rule.

Justice Potter Stewart: And do you think that was constitutionally required embroidery?

I guess you're answer has to be yes, I gather.

Mr. Charles F. Luce: Well, yes.

I think the Court would have power under its supervisory powers to require it whether that was constitutionally required or not, but I think that the wording of the opinion is cast somewhat in due process, terms right to counsel.

Unknown Speaker: And?

Mr. Charles F. Luce: Right to appeal, yes.

Justice John M. Harlan: Do you conceive of this question as being basically a due process question or an equal protection question?

Mr. Charles F. Luce: Well, the Griffin case and the Eskridge case talked jointly of due process and equal protection.

I think the better clause to handle it under as the due process question because -- or the Due Process Clause because it's broader and encompasses more.

It encompasses, for example, the question of whether the provision of a record on appeal is adequate either for indigents or nonindigents where as the Equal Protection Clause simply looks at how do you treat the nonindigent as compared to the indigent.

Justice John M. Harlan: Well, I suppose broader and narrower because if you look at this as an equal protection question why -- why wouldn't it apply equally to civil cases as well as criminal?

That equal protection question?

Mr. Charles F. Luce: Well, I suppose it wouldn't because this Court would hold this (Inaudible)

Justice John M. Harlan: Well, I know but what's the rationale in it?

Mr. Charles F. Luce: Well, I think -- I think that we're dealing with liberty, where we're dealing with life as we are in criminal cases, that the courts are more concerned with assuring that litigants have the fullest rights than were as in a typical civil case, we were dealing only with property.

Justice John M. Harlan: The equal protection is the constitutional concept certainly is not limited to criminal cases.

Mr. Charles F. Luce: That's correct.

Justice John M. Harlan: It covers property rights.

It covers every conceivable kind of a right --

Mr. Charles F. Luce: That's correct.

Justice John M. Harlan: -- where equal protection is denied.

Mr. Charles F. Luce: Same is true with due process.

Justice John M. Harlan: Not necessarily.

Mr. Charles F. Luce: I would be willing if the case be decided on either grounds.

But I feel that the Due Process Clause probably fits the case better and I noticed in the arguments yesterday that the -- Mr. Fortas felt the same way with regard to the grounds upon which the right to counsel that the trials have been placed.

But I think it could be well decided on a equal protection ground of this case.

Unknown Speaker: Well --

Justice Tom C. Clark: If you have no due process questions, (Inaudible) if the State didn't grant an appeal, if any.

Mr. Charles F. Luce: Not under the decisions of this Court since there is no constitutional right to an appeal, that's right.

Justice Tom C. Clark: Well, then it comes down to a discrimination within the system if the State -- whether that explanation is fair enough to violate due process.

Mr. Charles F. Luce: Yes, that's correct.

But I feel --

Justice Tom C. Clark: On equal protection.

Mr. Charles F. Luce: That in the concept of due process, there's such a consideration of fairness that in -- it imports characteristics of equal protection also but I think you can say it's so unfair.

Justice Tom C. Clark: And it so held in the judgment of the Tenth Amendment -- the Due Process Clause of the Fifth Amendment and the Fifth Amendment has no Equal Protection Clause or whether the -- it (Inaudible) into (Inaudible) -- into the problem of your due process (Inaudible) in equal protection.

Mr. Charles F. Luce: Well, I noticed the Court have put them together and possibly that's the reason.

I would like to reserve my remaining five minutes.

Chief Justice Earl Warren: You may, Mr. Luce.

Mr. Lally.

Argument of John J. Lally

Mr. John J. Lally: Mr. -- may it -- Mr. Chief Justice Warren, may it please the Court.

In 1959, the Supreme Court of the State of Washington bearing in mind the decision of this Court in Griffin versus Illinois and in Eskridge versus the Board of Prison Terms and Paroles for the State of Washington came out with this decision which my Brother counsel has referred to, which is In Re Woods versus Rhay appearing in 54 Washington 2d, page 36.

And in it, our Supreme Court was trying to do two things; one is to set up a procedure for the providing of free transcripts to indigents that would comply with the standards this Court set out in the Griffin and Eskridge cases.

And two, to provide a means within constitutional standards that would eliminate the granting of free transcripts if the request was a frivolous one.

Members of the Court, I would like to just add this in reference to what counsel has stated on this formula that appears in that case.

The formula goes on and then states this, after the trial judge has done these indicated items that counsel mentioned, a stenographic court recorder's report of that hearing should have been made, must be made, that shall be forwarded to our Supreme Court if the indigent defendant is not satisfied because the trial court did.

In this particular case which --

Justice Arthur J. Goldberg: Of the hearing on the application --

Mr. John J. Lally: Of the hearing --

Justice Arthur J. Goldberg: -- for a defense.

Mr. John J. Lally: On the application.

Justice Arthur J. Goldberg: Not of the trial?

Mr. John J. Lally: Not of the trial.

Now, this case and what happened in it, I think typically exemplifies how our trial courts work under this formula.

In this case, the indigent was not satisfied when he was turned down, his application for the free transcript of the robbery trial itself.

So, the rule provides that if the man is represented by counsel who was appointed, which was the situation in this case, that counsel shall be retained and continue to represent that indigent man throughout this process.

It provides in this case -- pardon me, what happened then in this case, the stenographic report of the hearing held before the trial judge for the free statement of facts or transcript was forwarded to our Supreme Court.

The affidavit and motion of the petitioners in this case where they asked for the free transcript was forwarded into our Supreme Court, a lengthy affidavit, counter affidavit, pardon me, filed by the deputy prosecuting attorney who tried this case in which appears beginning on page 19 of the record before this Court was sent to our Supreme Court.

And in that respect, members of the Court, there is no question raised by the petitioners to what the facts set out in the Johnson counter affidavit are true.

And they summarized in essence in a narrative form, all the testimony that occurred at the robbery trial.

Justice John M. Harlan: Where is that affidavit?

Mr. John J. Lally: That appears on page 9 -- (Inaudible) I believe its on page 19, it begins --

Justice John M. Harlan: (Inaudible)

Mr. John J. Lally: -- of the record before this Court.

In addition to that, of course, there were submitted to our Court, the briefs of counsel and the oral argument of counsel which occurred.

A transcription of the oral argument that heard -- that was heard before the trial judge and then further oral argument heard before our appellate court.

That in essence is the procedure which this formula calls for.

Now, as counsel pointed out, there were two items under this formula which were not followed by the trial judge.

And it wasn't an omission by accident but it occurred unsatisfied without accident.

It was the State's physician in this case that there hadn't been anything raised -- there hadn't been anything raised by the petitioners which required any kind of a transcript or statement of facts from the trial itself.

Justice Byron R. White: (Inaudible)

Mr. John J. Lally: That's right and I believe I can show Mr. Justice White in a moment that our Supreme Court from the record that was before us was able to answer every single contention that was raised.

Justice Arthur J. Goldberg: But Mr. Lally, a litigant who could afford the transcript would not be in their position before your Supreme Court, would he?

Having the Court faced upon the argument made on the motions make the ultimate determination without a transcript of whether the evidence justify the judgment.

Mr. John J. Lally: That is correct.

Justice Arthur J. Goldberg: How do we meet therefore the basic contention of this case that having afforded a right of appeal, then you must in connection with the appeal give equal consideration to every litigant, rich or poor, that does not increase under your premise, does it?

Mr. John J. Lally: I think it can.

I think it can and I'll state why.In this situation -- I better back up on this.

Under the rules of evidence in effect in Washington, our Supreme Court will review nothing that has not been brought to the attention of the trial court at the time of the trial.

In other words, a nonindigent who forwards to our Supreme Court a full statement of facts that may have 10 errors in it, if there was no record made before the trial court at the time the error occurred, our Supreme Court will not reverse.

Justice Potter Stewart: If -- that is if there was no objection made or --

Mr. John J. Lally: If there was no objection made and on the proper ground.

Justice Potter Stewart: Right.

Mr. John J. Lally: Our Supreme Court will not reverse.

Justice Arthur J. Goldberg: How do we know that in this case since there is no stenographic record?

Mr. John J. Lally: Because if -- what happened in this case, and it shows up on -- beginning on page 77 of this trial record is the opinion of our Supreme Court that this matter it was decided by our Supreme Court under the title of State versus Law.

Now in that for example, here's what happened.

Just for illustration, I try to boil it down.

Under contention for illustration number six, the petitioners here alleged 13 grounds of error.

In actual fact, there are 12, but the 13th was the request for the free transcript.

On number six, for example, was this --

Justice Hugo L. Black: Where is number six of it?

Mr. John J. Lally: That appears, Mr. Justice Black, on page 12 of the record.

Number six for illustration is that the trial judge was prejudiced against the defendant throughout the entire trial.

Now with reference to that, in its findings of fact, the trial judge denied that, but the important fact is this and here's how our Supreme Court could answer it.

Even and -- though the answer would have been identically the same and had there been a full statement of fact of the robbery trial itself.

Our Supreme Court said this and it appears in the opinion which begins on page 77.

In assign -- “In assignment number six, the defendant states that the trial judge was prejudiced against them throughout the trial.”

Justice Potter Stewart: It's found on page 80, I think, of the record.

Mr. John J. Lally: The judge denies this allegation, under our rules of pleading, practice and procedure of the right to disqualify a trial judge because of prejudice must be by affidavit, made prior to the judges entering upon the trial of the matters, citing the statute.

Justice Arthur J. Goldberg: Now, let's just -- assuming that (Inaudible)

Mr. John J. Lally: The seventh assignment?

Justice Arthur J. Goldberg: Yes.

Mr. John J. Lally: Very well.

The seventh assignment --

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: The seventh assignment alleged where that the trial judge should have dismissed the case as the defendants are not guilty as charged.

You'll recall, may it please the Court, that in the record on page 1920 and 1921 appears the uncontradicted affidavit of Johnson, the trial deputy prosecutor who summarized all the evidence.

And there's no question raised that the evidence he sets out in his affidavit is not correct.

The trial judge then in his findings of fact, which appear on -- in the record on 24, 25, 26 and 27 found similarly the facts to be as they appeared in the uncontradicted affidavit of Johnson.

Our Supreme Court then, in dealing with seven, said this.

And it appears in the 58 Washington 2d on pages 833 and 834, “In the seventh assignment of error, the Defendant State that the judge should have dismissed the case because they are not guilty.

We will assume without deciding that this assignment raises the question of whether there is sufficient evidence to sustain a conviction.

The evidence outlined above which the jury was entitled to believe was sufficient proof in support of the convictions.”

Justice Arthur J. Goldberg: Now this is the evidence outlined by the files as it said.

Mr. John J. Lally: By -- in the findings of fact of the trial judge and the uncontradicted affidavit of Johnson which summarized the evidence given with reference to the robbery.

Justice Byron R. White: So, Mr. Lally isn't that -- I think what you're really saying is that the Supreme Court of Washington gave full appellate review on the merits to this assignment error.

Mr. John J. Lally: In this particular case Mr. Justice White --

Justice Byron R. White: And did not hold that -- that it was a frivolous ground at all.

Mr. John J. Lally: They found, Mr. Justice White, that the --

Justice Byron R. White: Well, I thought in the Rhay case, in your Woods against Rhay case, that the Supreme Court of Washington said that the Supreme Court of the United States had held that an appeal could not be denied on the grounds that the point was frivolous, whether the defendants contention was that the evidence was insufficiently sustained the conviction.

And in its own -- in its own words, the Washington court in dealing with a contention but there was insufficient evidence certainly wasn't just making a preliminary determination as to whether there was frivolous point raised but was giving full review on the merits but without a transcript.

Mr. John J. Lally: In this case it is our position, Mr. Justice White that the Supreme Court of Washington was able to review this in the same manner as if they have had a statement of stenographic report of the trial.

Justice Byron R. White: So, you say this -- that this whole appellate procedure that was going through in this particular case really is equivalent to a full appellate review in a fair way.

And a -- and not significantly discriminatory review as compared with what would happen if there had been a transcript.

Mr. John J. Lally: I think we can state that the result would --

Justice William O. Douglas: Aren't you --

Mr. John J. Lally: (Inaudible) be either way.

Justice William O. Douglas: Aren't you in difficulty on that when you come to errors number eight and nine?

Mr. John J. Lally: Number eight?

Justice William O. Douglas: Numbers eight and nine of what the Court which discusses on page 81, because without the presence of a transcript, they were unable to specify what those errors were with --

Mr. John J. Lally: Well --

Justice William O. Douglas: -- sufficient precision to satisfy the Court?

Mr. John J. Lally: With reference --

Justice William O. Douglas: Isn't that -- aren't those errors eight and nine illustrative of the utility and the need for a transcript in preparing an appeal?

Mr. John J. Lally: Well, here is how our Supreme Court handled number eight, Mr. Justice.

Number eight was the exhibits rendered over objection that should not have been allowed to be entered and shouldn't but should not have been allowed to be entered.

Our Supreme Court stated on page 835 of the Volume 58, Washington 2d, in assignment of errors number eight and nine -- nine, of course, is the one the testimony with a lot of our objections and should have not been allowed.

In assignments of errors eight and nine, it is alleged that exhibits which should have been excluded were admitted over objection.

And testimony was improperly allowed in spite of objections, thereto manifestly, these allegations are too broad and indefinite to indicate what specific erroneous rulings of the Court the defendants had in mind and they have not been made more definite by the briefs before this Court.

Justice William O. Douglas: And how could you without a transcript, unless you have a remarkable memory?

Mr. John J. Lally: Well, in this particular case -- in the first place, the lawyer who handled all of it was selected by the indigents and then paid compensated by the State.

He represented them at the trial itself that the motion for a new trial at the hearing for the free statement of facts and in the Supreme Court that he was familiar with the case from the beginning.

Justice Arthur J. Goldberg: But isn't there a (Inaudible) there is no requirement that you can buy a transcript in order to raise the point that you insist (Inaudible)

Mr. John J. Lally: That is correct.

Justice Arthur J. Goldberg: Isn't that correct?

Mr. John J. Lally: That is certainly correct.

In other words --

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: One is what, sir?

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: I certainly would agree that this method of review in many instances, our Court could not review by this method in many cases but -- and if they applied the formula wrong and of course, that there would be difficulties.

And it isn't -- it isn't incumbent that the free statement of stenographic facts of the trial certainly be granted in many instances.

And it's only our position that in this case for example, they applied it properly and a review was possible by certiorari which this method has occurred, which in substance resulted in the same and as had it been reviewed by appeal.

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: Not solely, not solely.

You see before the Supreme Court or the stenographic reports of the full argument that happened at the hearing, at which time the petitioner Draper got up and told the judge all the things he had on his mind.

And they appeared therein, all the argument of his counsel that was given at the time for that hearing were there and the pleadings itself were forwarded to our Supreme Court at the time of review on certiorari.

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: That's right, sir.

However, for illustration, this trial is in the record reflects was a three day trial.

The record reflects an experienced criminal lawyer represented the petitioners and -- well, this is not mentioned in the record.

I think we may reasonably assume if any errors that occurred during the trial to which he objected and made a record which could be reviewed by our appellate court, he was certainly aware of it.

Justice Hugo L. Black: In fact, what you're saying inst it, that this attorney could've filed another affidavit and would've switched along with the affidavit with the State's attorney whether the man is a -- was in a -- equivalent of a bystander's bill of exception, is that the effect of what you're saying?

Mr. John J. Lally: I sort of think it is, Mr. Justice Black.

In other words, I would agree in this situation if the facts were in dispute.

We would very like to have a different problem.

In other words --

Justice Potter Stewart: Then it would -- then it would very likely be error at least under the state law not to grant a free transcript.

Mr. John J. Lally: Yes.

If the facts were in dispute, I think our appellate court would have a very difficult time to try and review this (Voice Overlap) --

Justice Potter Stewart: Whether or not in the Constitution it would be error under state law not to grant a free transcript if there was dispute about as -- about what the record shows.

Mr. John J. Lally: I think our Court would have to grant a free transcript if the facts had been in dispute.

Justice Potter Stewart: But if -- since they're not going to bystander's bill of exceptions or something equivalent thereto you say its sufficient under -- both under the state law and constitutionally.

Mr. John J. Lally: Yes sir.

Justice Hugo L. Black: Do you have a bill of exceptions still in that State?

Mr. John J. Lally: Well, I'm not too sure, Mr. Justice Black.

I know what exactly you have in mind by bill of exceptions.

Justice Hugo L. Black: Preparation of the proceed -- what took place at the trial including the -- either the stenographic transcript or summary of what took place, together with the precise objections that were made along in the trial, or how does the Court review --

Mr. John J. Lally: Oh well --

Justice Hugo L. Black: -- a case of this kind?

Mr. John J. Lally: In Wash -- in the State of Washington, a review by our appellate court had happened and occurred either in some instances without any statement of facts at all if it's a legal question applying to the pleadings.

It can occur by an agreed statement of facts upon which counsel agree upon.

It can occur by a full stenographic report of the entire trial being forwarded to our appellate court, or it can occur by a portion of the entire record being sent to our appellate court or by our Court recorder certified by our judge if the question is restricted for example just to a portion of the record itself.

Justice Hugo L. Black: And I supposed the party hadn't bought a transcript and carried it up with the way you say, brought it up to the Court, could the State then have brought in this affidavit by the District Attorney to refute what was in the transcript?

Mr. John J. Lally: Oh no -- oh -- no, Mr. Justice Black, no, (Inaudible).

Justice Hugo L. Black: How would it have been tried then by the court -- the appellate court?

How would you determine the issue, whether you've looked at it and said we looked at this record and dismissed it as frivolous?

Mr. John J. Lally: If this had gone to our appellate court by a --

Justice Hugo L. Black: By a full transcript.

Mr. John J. Lally: -- by a full transcript.

The appellate court presumably would have read the transcripts through and it is our position in this case, Mr. Justice Black, that after reading it through, they would have come up with the same answers they came up to as set out in their decision beginning on page 77 with relation to every point that --

Justice Hugo L. Black: With that argument?

Mr. John J. Lally: Oh no, there would be argument just as there was.

There was argument, of course, in this instance going up this way.

See, in the first place of the 12 grounds that this petitioner alleged, in seven of them, there had been, the record shows that seven of them, there had been no objection made at any time during the trial.

So, under the procedure --

Justice Hugo L. Black: How did that appear if it -- without a transcript?

Mr. John J. Lally: That appears from the findings of fact that the trial judge made and it's not contested the factual correctness of the trial judge findings of fact.

No one contends there an error factually.

Justice Hugo L. Black: Well, what was the occasion for his finding of facts that there were no objections?

I can understand that findings of fact --

Mr. John J. Lally: Well --

Justice Hugo L. Black: -- in defiance of guilty but what were the issues before the trial judge when he made this finding of fact?

Mr. John J. Lally: The issues were before him at that time was Mr. Draper, this petitioner and his codefendant, Mr. Lorentzen and their counsel.

And Mr. Draper wanted to address the Court himself in depth, so the judge as it appears in this record here went down with Mr. Draper, these 12 points that he raised.

Justice Hugo L. Black: And in Court?

Mr. John J. Lally: He said -- in Court at the time --

Justice Hugo L. Black: And what was the issue at that moment?

Mr. John J. Lally: The issue at that time was whether or not a free transcript of the robbery trial which had already occurred would be granted or if in fact the request was frivolous and should be denied.

Justice Hugo L. Black: And under your rules the district -- trial judge passes on that first?

Mr. John J. Lally: He passes first and automatically this formula provides if the indigent is not satisfied, it must be reviewed by certiorari by our appellate court.

Justice Hugo L. Black: And it was in this kind of a hearing that this -- finds it -- his findings were made to which you refer -- on which you rely?

Mr. John J. Lally: That is right, sir.

Justice Hugo L. Black: Both of them were entitled to offer evidence?

Mr. John J. Lally: Yes.

As a matter fact, the trial judge had quite a time.

One of the contentions was in point number -- one of the points here was that in the trial itself, the exclusionary witness rule had been invoked.

And the trial judge said, as you would see in this record here, he said to the petitioner, Mr. Draper, he said, “I recall no witnesses being in this courtroom after I invoked the rule.”

And Mr. Draper said, “Well, there were two.”

And the judge said, “Well, what evidence do you have at this?”

Mr. Draper said, “I have witnesses.”

The trial judge said, “Who are the witnesses?”

Mr. Draper said, “I don't have to tell you and I won't tell you who my witnesses are to that fact.”

Now -- and that went a little farther in the conversation and the conversation went on most to the points but that was the way the trial judge -- a part of the hearing covered that as he went down each point was Mr. Draper who wanted to speak in addition to having his counsel speak.

Chief Justice Earl Warren: Is there no appeal as of right from the decision of the trial court holding this to be frivolous and therefore denying a transcript?

Mr. John J. Lally: I'm sorry, I have a cold, and little hard of hearing.

Chief Justice Earl Warren: Is there no appeal as of right from the decision of the trial court holding that the appeal would be frivolous and that therefore not entitled to an appeal?

Mr. John J. Lally: There is.

The formula itself states, Mr. Chief Justice, that anyone who is not satisfied and the indigent who is not satisfied of what the trial judge does has an automatic right on certiorari and without cost and with counsel to have it reviewed by our appellate court.

Chief Justice Earl Warren: Well --

Justice Byron R. White: (Inaudible) help him make his motion in the trial court but is the practice to have the counsel continue on appeal?

Mr. John J. Lally: Yes, Mr. Justice White and (Voice Overlap) --

Chief Justice Earl Warren: It is a --

Mr. John J. Lally: In fact in this case, the same counsel functioned throughout the entire proceeding and that's our general practice.

Chief Justice Earl Warren: Well is he -- is the Washington Supreme Court obliged to hear the appeal or may it, in his discretion as we do here on certiorari, it declines to hear it?

Mr. John J. Lally: It is obliged to hear it because --

Chief Justice Earl Warren: I beg your pardon?

Mr. John J. Lally: It is obliged to hear it.

Chief Justice Earl Warren: Obliged to hear it, well that's --

Mr. John J. Lally: He is obliged to hear it.

Chief Justice Earl Warren: That's all I wanted --

Mr. John J. Lally: Yes.

Chief Justice Earl Warren: No -- yes.

Mr. John J. Lally: Yes.

Justice Arthur J. Goldberg: Is the issue (Inaudible)

Mr. John J. Lally: The issue is --

Justice Arthur J. Goldberg: From that reference.

Mr. John J. Lally: Yes.

It just happened, sir, that in this case, the trial judge -- pardon me, our appellate court was able to review the thing as it did and hit every single point.

And I would concede if it hadn't been able to do that, it is better to take the position that the indigent had better be given a free statement of facts.

And I think our Court is well aware of this Court's views because Eskridge came from Spokane.

Thank you.

Chief Justice Earl Warren: Mr. Luce.

Rebuttal of Charles F. Luce

Mr. Charles F. Luce: Mr. Chief Justice.

In my remaining five minutes, I would like to point out first that the contention that the petitioners here have somehow admitted the accuracy of the prosecutor's affidavit is not justified in the record.

The preceding in which that affidavit was filed was a proceeding for the purpose of determining whether the petitioners were entitled to a free transcript.

And the rules in Woods against Rhay, which I quoted from extensively in my opening argument, do not provide that either the applicant for a free transcript or the State shall file such an affidavit as the prosecutor filed in this case.

And certainly the rules do not require that the defendants seeking of free transcript file a counter affidavit and say in effect that the State's affidavit reciting the facts is incorrect.

There's just nothing in the rules that requires that to be done.

Justice Hugo L. Black: What kind of hearing is required at that time?

Mr. Charles F. Luce: At that time, Mr. Justice Black, the hearing which is required is a hearing to determine whether or not the alleged grounds of appeal set out by the applicant for a free transcript are frivolous or not.

Justice Hugo L. Black: What evidence is admissible on the part of each project on that issue?

Mr. Charles F. Luce: The rules are silent on that point, but the -- as a practical matter, what happened here in the evidence such as it was, was simply the recollection of the attorney who represented the defendants at the trial, the recollection of one of the defendants himself, the recollection of the deputy prosecutor who had tried the case, and the recollection of the trial judge.

That -- that's -- there was no evidence taken.

It was simply an oral argument in which each got up and in turn stated how he remembered it happened.

Justice Potter Stewart: There was apparently a full hearing at which the trial court gave the lawyer full opportunity to say whatever he wants to say apparently, and in addition to that, gave these -- the defendants themselves since they want to do -- dispensing the services of the lawyer gave them a full opportunity --

Mr. Charles F. Luce: One of them.

Justice Potter Stewart: -- to state what they want to say.

As far as I can see, I'm just looking through the record.

Mr. Charles F. Luce: That's correct, but none of the -- neither of the defendants nor their counsel had the benefit of a transcript with the testimony to refresh his recollection of what these errors were.

Now, for instance, there was an error alleged in here that a gun had been improperly admitted which it was contended by the State it had been used in pursuant to the robbers.

That gun was apparently, you can find here in the record, it was found in a corridor of the same hotel in which two of the -- or one of the petitioners were staying and an argument ensued is to whether the gun had been properly identified as the gun used in these alleged robberies.

This record does not have before it, or does not have in it any of the foundation that was laid by the State as an identification through that gun.

The same thing is true of a jacket that was offered in evidence.

The Supreme Court of Washington just doesn't have -- didn't have before it the foundation that was laid identifying that jacket which it was alleged belong to one of the defendants and in which some money was found in the pocket, which allegedly had been stolen in the course of these robbery.

Now, the point that the petitioners make here is if that they had the money to buy a transcript, they would have been able to bring before the Supreme Court of Washington the whole course of events, all of the happenings at the trial and if there had been an error in the admission of this gun, if the foundation has not been properly laid, they would have had an opportunity to show that to the Supreme Court of Washington.

But, under the procedure here adapted, they simply did not have that opportunity.

Justice Tom C. Clark: What about the (Inaudible)

Mr. Charles F. Luce: I'm sorry, I can't hear you.

Justice Tom C. Clark: (Inaudible) number eleven, the judges findings on page 28 sets out, if I would think so of the assignments of error, I suppose you'd call them, that these people raised that were not presented to him at any stage of the trial or judgment and sentence, --

Mr. Charles F. Luce: Yes, (Voice Overlap) --

Justice Tom C. Clark: -- he takes up each one of this seriatim, were those in -- within those numbers (Voice Overlap)?

Mr. Charles F. Luce: No, the -- there is no question in this record that the two exhibits that I have referred to, the gun and the jacket, were not in these -- in these numbers.

There's no question in the record about what these items were objected to.

And the objection was overruled, the court -- in the trial court holding that the objection went to the weight of the evidence rather than to the admissibility of the evidence, which may or may not be the case depending of course on the foundation of --

Justice William O. Douglas: If you're -- if you are right in this, your position is adopted to this case, would this Court be faced with the problem of assigning counsel with indigents for the preparation of petitions for certiorari?

Mr. Charles F. Luce: Well this -- you mean in the state courts?

Justice William O. Douglas: In this Court, I said with this Court.

Mr. Charles F. Luce: Well, in this -- our case, of course, do not present that question because the Court did appoint the counsel.

I don't think it necessarily follows that because an indigent defendant is entitled to a free transcript where a full transcript is given to a moneyed appellant that the counsel in a petition for certiorari must therefore be granted.

I don't think that it was.

Justice Potter Stewart: (Inaudible)

Mr. Charles F. Luce: I didn't hear you sir.

Justice Potter Stewart: (Inaudible) that both counsel that turned the transcript are necessary to make the appeal meaningful?

Mr. Charles F. Luce: Well, I didn't come here to argue the right to counsel on appeal because it wasn't in this case.

Justice Potter Stewart: Well, you had it -- you had counsel on appeal, (Voice Overlap) --

Mr. Charles F. Luce: Yes that's right, though the issue just isn't in this case but I would certainly contend that --

Justice Byron R. White: (Inaudible) the transcripts as well as the counsel, is that --

Mr. Charles F. Luce: And so I argue that the transcript is necessary, yes.

And I would be willing to go forward if the question were in the case and further argue that counsel is necessary on the appeal.

Justice Byron R. White: Yes, but whether -- whether counsel was necessary or not a transcript -- whether a counsel is present or not, a transcript is necessary.

Mr. Charles F. Luce: Yes, I certainly would argue that and it maybe noted in the California case that just proceeded this year that is approximately the procedure they used.

They give free transcripts to everybody.

Unknown Speaker: (Inaudible)

Mr. Charles F. Luce: And incidentally, California is not bankrupt as a result.

Justice Byron R. White: They don't give the lawyers.

Mr. Charles F. Luce: Well, apparently not.

Justice John M. Harlan: You have in the record I gather, don't you, that the -- there was no Court opinion in Griffin that the two -- the prevailing things, both were things to recognize, things to say that transcripts were not automatically necessary in all cases.

And Eskridge, it was (Inaudible) to reiterate the same thing so that in all of the cases that you were relying on here, you have the majority of the Court subscribing to those opinions all agreeing that there is no automatic rule involved that requires a furnishing of a transcript in every case.

And therefore, the question that is involved here surely must be whether in the circumstances of this case, something more than what was called the bystander's bill of these affidavits or something more than the state procedure was required in order to give this man a fair break on whether he should've had a hearing on this appeal, isn't that the issue?

Mr. Charles F. Luce: On -- I wouldn't see the issue quite that way.

I think the issue is whether the State giving a full review to a man who can afford to buy a transcript.

The full scale appellate review doesn't have to give that same full review on a transcript --

Justice John M. Harlan: But do you rely onto that in many of these cases?

Mr. Charles F. Luce: Well, I think that it is implicit in these cases that the same full appellate review shall be given (Voice Overlap) --

Justice John M. Harlan: But here's -- here's what I'm referring to --

Mr. Charles F. Luce: -- to an indigent.

Justice John M. Harlan: -- in my Brother Black's opinion in Griffin and it's repeated in Justice Frankfurter's concurring opinion, his opinion was necessary to make the Court in that case and it's repeated unless my recollection serves me in the per curiam opinion in Eskridge.

And it says -- Justice Black says in his opinion, “We do not hold however that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it.”

Now, a so-called rich defendant or rich appellant can of course, always buy one.

And therefore the statement would seem to indicate, that there is a margin of difference, that a Constitution may be recognized in what a State has to do in affording a so-called indigent a fair right of appeal.

And the opinion goes on the Supreme Court, that is referring to the Illinois Supreme Court may find other means of affording adequate and effective appellate review to indigent individuals, individual -- indigent defendants.

And then it was said as an example of bystander's bill and so forth and so on.

So, I submit to you that the question -- unless you're arguing that it is a matter of law in every instance, in every instance an indigent in order to be put on an equal footing in constitution with a so-called rich defendant is entitled to the transcript unless you're arguing that I submit that the -- you've got to meet this case on the basis of what actually happened here under the Washington proceeding.

Mr. Charles F. Luce: I think we have that under that procedure, Mr. Justice Harlan, but I certainly feel also that it would be advisable if the broader would be stated.

Justice John M. Harlan: But you do have to make a broader rule to sustain your position on the broader front?

Mr. Charles F. Luce: I don't construe the Griffin case and the Eskridge case that way.

I think that what they were saying was this, that if an appellant who had money would not reasonably require a transcript.

For instance here, we're just attacking -- attacking the constitutionality of the statute under which he were convicted or for instance, if his objection to his conviction was something that happened outside the courtroom tampering with the jury or something of that nature, that he wouldn't have to, the indigent then wouldn't have to be given a full transcript because a moneyed appellant wouldn't want one either.

Justice John M. Harlan: Oh, I suggest to you that the language I read to you doesn't bear that interpretation because it (Inaudible) to say refer to a bystander's will -- bill which obviously presupposes a situation in which more than questions of law are involved, where evidence is involved.

Justice Potter Stewart: Now, I have question of fact (Inaudible) -- the affidavit which is on page 19 of the record, you don't -- I just want to ask you whether that was filed before the hearing, I presume it was, wasn't it?

Mr. Charles F. Luce: Yes, it was.

Justice Potter Stewart: In the trial court before the --

Mr. Charles F. Luce: Filed before the hearing.

Justice Potter Stewart: And there's no showing that there was no opportunity to take exceptions, factual exceptions to that either orally or in writing.

Mr. Charles F. Luce: Well, I think that there was no opportunity in this sense that the rules didn't contemplate that kind of an affidavit be filed in the first place nor did it contemplate -- that they contemplate that the affidavit to be answered.

Justice Potter Stewart: Well, it -- it was there.

Mr. Charles F. Luce: But there was time -- there was time.

Justice Potter Stewart: Is that the time --

Mr. Charles F. Luce: There was a time (Voice Overlap) --

Justice Potter Stewart: There was opportunity, wasn't there?

Mr. Charles F. Luce: Well, it -- that affidavit was just extraneous to any issue that was before the -- that was before the --

Unknown Speaker: (Inaudible)

Mr. Charles F. Luce: -- trial court in its passing on the application for a free transcript under the rules and once again for any --

Justice Potter Stewart: What are the issues where there's sufficiency of the evidence?

One of the exceptions?

It wasn't stated that way.

It was stated in a form, “We're not guilty.”

Mr. Charles F. Luce: Yes, that's correct.

That's correct.

Justice Potter Stewart: And, its certainly relevant to (Inaudible)

It couldn't be more so, could it?

Mr. Charles F. Luce: Well, I would have to agree that it was relevant to that, yes.

Justice Potter Stewart: And that there was opportunity to contradict anything.

Mr. Charles F. Luce: Well, I think that the record shows a contradiction that these people contend in their request for a free transcript that the evidence does not show they're guilty and whether they then would have had to file another affidavit and say that we don't think we're guilty for the following reasons.

I don't think is contemplated by our rules.

At least the rule is not clear that that's required.

Justice Potter Stewart: Alright.

Thank you.

Chief Justice Earl Warren: Mr. Luce, I know the Court would have me express our appreciation to you for taking this long trip and doing the work you have done to represent this indigent petitioner at the request of the Court.

We're always appreciative of the acts of counsel in doing that.

And Mr. Lally, we're appreciative of the fair and diligent manner in which you have presented your State, also those both sides must be represented in the same disparity.