LANE v. BROWN

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Argument of Nathan Levy

Chief Justice Earl Warren: Number 283, Warden Lane -- Ward Lane, Warden, Petitioner, versus George Robert Brown.

Mr. Nathan Levy: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Levy.

Mr. Nathan Levy: May it please the Court.

I knew the admission of the Assistant Attorney General of Indiana, William D. Ruckelshaus and I think a (Inaudible) Latin, pro hac vice.

Chief Justice Earl Warren: Yes.

Motion is granted.

Argument of William D. Ruckelshaus

Mr. William D. Ruckelshaus: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Ruckelshaus.

Mr. William D. Ruckelshaus: -- may it please the Court.

I would like to express my appreciation at the Court allowing me to appear on behalf of the State of Indiana in this case.

This case involves somewhat the same consideration as were involved in the previous case and to put those into a factual context, I will give a brief statement of the facts in this case.

George Robert Brown, the respondent in this case is and was an indigent.

He was convicted in the Lake County Criminal Court in Lake County, Indiana of murder in the perpetration of a robbery in December, 1957.

He was sentenced to die on the electric chair.

This decision was affirmed by the Supreme Court of Indiana in December 1958.

George Robert Brown was provided with counsel and with a transcript on that appeal as all indigents are in Indiana on appeal from the original conviction.

He filed certiorari in this Court and it was denied in March, 1959 without prejudice to his right to file a writ of habeas corpus.

He then filed his writ of habeas corpus in the District Court of the Northern District of Indiana.

This writ was denied in February, 1964 his failure to exhaust state remedy.

He then in went -- went back into the state court in Lake County, Indiana in the Criminal Court and filed a Writ of Error Coram Nobis.

This was in May of 1960.

In this Writ of Error Coram Nobis, he alleged that several deprivations of constitutional right and other rights, the main contention that he alleged whether he was -- his confession was coerced and that he was inadequately represented by counsel at his trial.

The Public Defender in Indiana represented the George Robert Brown at this hearing.

In June 1960, the Lake County Criminal Court denied his petition for Writ of Coram Nobis.

He then sought by a writ of mandate in that court or prior to that he asked the Public Defender to represent him on an appeal.

The Public Defender in a letter sent to George Robert Brown and reprinted in the record on pages 40 and 41, said that he could find no merit on his appeal and therefore had it declined to represent him in this appeal.

George Robert Brown then filed a petition for mandate in the Lake County Criminal Court seeking to have that Court appoint him counsel and also to provide him with the record for appeal.

This petition was denied.

He then saw the petition for writ of mandate in the Supreme Court of Indiana seeking the same thing, in other words to have a counsel appointed and also to have a transcript provided so that he might perfect an appeal.

This petition was denied by the Indiana Supreme Court.

He again saw the writ of certiorari in this Court which again was denied in February, 1960 or in June, 1961, and again without prejudice to his right to bring a writ of habeas corpus.

He filed the -- another writ of habeas corpus in the District Court for the Northern District of Indiana on June -- this was on July, in July of 1961.

On July 26th, the judge of the District Court of the Northern District of Indiana ordered the Supreme Court of Indiana to grant George Robert Brown an appeal from his denial of his Writ of Error Coram Nobis on the grounds that he had been denied equal protection.

This order gave the Supreme Court of Indiana 90 days.

The Supreme Court of Indiana took no action on this case and in November of 1961 a show-cause order was issued to the State of Indiana as to why George Robert Brown should not be released.

After hearing on the show-cause order, he was ordered release but remanded back to the custody of the warden of state prison pending his appeal to pending the appeal of the State to the Seventh Circuit Court of Appeals.

Now the Seventh Circuit Court of Appeals, last May, affirmed the decision of the District Court of the Northern District of Indiana.

It is from this affirmance that the State has sought certiorari to the Seventh Circuit and it was granted by this Court last October.

As I have said before, George Robert Brown is an indigent.

It is conceded by the State that before he can appeal in a belated proceeding such as the Writ of Error Coram Nobis or a writ of habeas corpus, he must seek the aid of the Public Defender.

This is so because of the statutes and the interpretations of the statutes by the Supreme Court of Indiana in Indiana.

The statute is set down in our briefs states that the Public Defender -- the only method by which an indigent can obtain a transcript is if he is represented by the Public Defender.

Now, the Supreme Court of Indiana has stated that the Public Defender need not represent an indigent if he finds that there's no merit to his appeal.

It is necessary for an indigent under Rule 240 of the Indiana Supreme Court to file a transcript in order to properly present any errors that he might claim on the Writ of Error Coram Nobis.

Justice John M. Harlan: The statute seems to (Inaudible) that proceeding -- state collateral proceedings.

Do you have a Public Defender statute that covers representation of indigents in the trial court?

Mr. William D. Ruckelshaus: Your Honor, there is a Public Defender statute which provides for the representation of indigents in certain counties in Indiana, in the more populous counties.

However, in Indiana, if a man seeks an appeal the -- from an original conviction, the Court automatically appoints him counsel and if counsel can then get a transcript, this is all at the county's expense.

Justice John M. Harlan: Public Defender didn't represent this man at the original trial?

Mr. William D. Ruckelshaus: No, he did not, Your Honor.

Justice John M. Harlan: I see.

Justice Potter Stewart: But he was represented by counsel at the trial and on the appeal?

Mr. William D. Ruckelshaus: That's right, Your Honor.

Justice Potter Stewart: And this is a matter of universal protection --

Mr. William D. Ruckelshaus: Yes, there has been --

Justice Potter Stewart: -- in Indiana, is it not?

Mr. William D. Ruckelshaus: As pointed out on our brief there has been one distinction recently made in Willoughby against State and it's pointed out in the brief of Brown, there was a distinction made in Macon against Orange County Circuit Court, wherein if the court appointed counsel and the counsel decided that there was no merit to his appeal in the original conviction, then the Court need not have to appoint another counsel, if this counsel's determination was sufficient.

Justice Potter Stewart: Well I -- as to your state, I've -- I'm remembering what Mr. Justice Black wrote in dissenting Betts against Brady, quoting an opinion of the Indiana Supreme Court dating way back, I think, it was -- at the civil war time.

Mr. William D. Ruckelshaus: In 1851, I remember it was.

Justice Potter Stewart: Yes, before as to the right of counsel on a criminal trial in your state and then Judge Traynor in California dissenting in the Brown case referred to your State as one of two in the whole country that guaranteed counsel on appeal in a criminal case (Voice Overlap) --

Mr. William D. Ruckelshaus: That's correct and that is -- its my understanding that that is true and Indiana does provide for counsel on appeal with these exceptions (Voice Overlap) --

Justice Potter Stewart: And that was given in this case.

And that was given in this case.

Mr. William D. Ruckelshaus: That's right, Your Honor, it was.

Now, it is this process relating to belated appeals and the appointment of the Public Defender that the two courts below in this process is peculiar to Indiana which the District Court and the Seventh Circuit Court of Appeals below has found denied equal protection to George Robert Brown.

I have divided my argument into three phases.

The first phase is a discussion of the Court's opinions below as to their finding of equal protection.

I think it is significant that the basis of both of the decisions below was the Equal Protection Clause and the Fourteenth Amendment.

At the second part of my argument is a discussion of this case as it relates to the Due Process Clause.

And the third phase is a discussion of this case as it relates to the federal process of providing indigents' appeals as outlined by this Court in the Coppage case.

As to the first argument, as I stated before I think it is significant that both of the lower court base their decision on the Equal Protection Clause.

Indiana has classified for the purposes of belated appeals indigents and nonindigents.

If this classification in and of itself is a denial of equal protection, then most assuredly Indiana has violated the Equal Protection Clause.

However, I would submit that the mere fact that a classification is made between indigents and nonindigents does not in and of itself deny a man equal protection.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William D. Ruckelshaus: That's correct, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William D. Ruckelshaus: Unless the Public Defender finds that there is some merit to his appeal.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William D. Ruckelshaus: That's correct, Your Honor, he could have --

Justice Arthur J. Goldberg: (Inaudible)

Mr. William D. Ruckelshaus: That's correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William D. Ruckelshaus: That is the difference.

As I see it this difference in and of itself is not in denial of equal protection because there is a rational state policy behind this classification and that rational policy is the -- of the State is to protect the State against frivolous appeals taken at the State's expense.

And that this rational policy takes the classification out of the proscription of the Equal Protection Clause which is against invidious discrimination.

I would say that this case is distinguishable from the Griffin against Illinois, and from Smith against Bennett, and from Burns against Ohio, which this Court found was a denial of equal protection.

In that in every one of those cases the only thing that kept the indigent from taking an appeal or in the case of Smith against Bennett filing a writ of habeas corpus was the fact that he was an indigent.

There was no attempt made on the part of the States involved to inculcate into this process the idea that there was no merit to the appeal.

Justice Potter Stewart: You're saying is that the mere fact that a rich man has a right to throw his money away doesn't give the poor man a constitutional right to throw the State's money away, is that it?

Mr. William D. Ruckelshaus: Mr. Justice Stewart, I -- that is what I am saying in essence.

I am saying this simply because the rich man is treated differently than a poor man by the State does not that mean that these differences are protected under the Equal Protection Clause.

There are several ways that a rich man is treated differently from a poor man but there must be this invidious discrimination and no rational state policy behind the distinction made before it falls within the proscription of the Equal Protection Clause.

Justice Potter Stewart: But by -- you're presuming, your hypothesis is that this appeal as a matter of fact is a frivolous appeal?

Mr. William D. Ruckelshaus: I think that -- Your Honor, that brings up a point that we're forced to assume that because in Griffin and in Smith against Bennett, and Burns against Ohio they were talking -- that this Court was talking about a whole system of law which they said, this law cannot operate to give equal protection to indigents because it bases it strictly on the fact this man is indigent, that he can't -- indigency that he can't appeal.

But here, we're not talking about that.

We're not basing it strictly on his indigency.

We're basing it on his indigency plus the fact that he lacks merit.

Now -- so, you cannot declare this whole system of law in Indiana unconstitutional.

But then if you're declaring a particular application of that law unconstitutional and in this case if the Public Defender's decision had been an error and had it -- and there was merit in the indigent's appeal then if there had been a showing of this and he could've said that I've been denied equal protection.

Unknown Speaker: How could there be the showing if he didn't have a transcript?

Mr. William D. Ruckelshaus: Well, that the showing that he would -- that he would have to make would -- I think that he could show it in another coram nobis proceeding.

For instance, if he said, I was not -- the Public Defender's decision was an error as to my not having any merit on this appeal or he might show it in a habeas corpus proceeding in the federal court by saying, the Public Defender's deci -- denied me equal protection because there was merit in my appeal.

Justice Potter Stewart: Is the transcript in fact available of the coram nobis hearing?

Mr. William D. Ruckelshaus: It is not available unless the Public Defender provides him -- says that he will represent him on appeal.

Justice Potter Stewart: I know it's not available for the purpose of appealing the coram nobis of hearing unless the Public Defender agrees.

Mr. William D. Ruckelshaus: Yes.

Justice Potter Stewart: That's what -- that's the issue in this case but what I mean to say is, is the transcript made of every coram nobis (Voice Overlap) --

Mr. William D. Ruckelshaus: Well, there has been a transcript made of this particular year.

Justice Potter Stewart: -- or (Inaudible) note?

Mr. William D. Ruckelshaus: There is a transcript in existence of this particular coram nobis proceeding.

Justice Potter Stewart: And you're saying that in a another kind of review --

Mr. William D. Ruckelshaus: I don't -- he couldn't get the transcript.

Justice Potter Stewart: He could not get the transcript.

Mr. William D. Ruckelshaus: He could not get the transcript.

Now, there have been times as we pointed out on our brief when the Supreme Court of Indiana has issued a show-cause order to the Public Defender at least twice.

And asked him the -- asked the Public Defender to say, why he thought there was no merit in a particular appeal?

When George Robert Brown filed his petition for mandate in the Supreme Court of Indiana, he made no allegation that there had been a dereliction on the duty of the Public Defender that he hadn't properly said that there was no merit in his appeal.

Justice John M. Harlan: That's why there is a (Inaudible) Court procedures is of -- is the way of reviewing the discretion so to speak of the --

Mr. William D. Ruckelshaus: It's the --

Justice John M. Harlan: -- of the Public Defender, isn't it?

Mr. William D. Ruckelshaus: It seems to me, Mr. Justice Harlan, that that is a process whereby Indiana -- the Supreme Court sort of keeps watch over their Public Defender.

They don't order a show-cause in every case they didn't in this case and there's no set standards --

Justice John M. Harlan: And did he ask for one in this case?

Mr. William D. Ruckelshaus: He did not ask for a show-cause order, he asked for a writ of mandate providing that other counsel and for the -- a transcrtipt.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: Excuse me.

There is no plain -- except implicitly, is there that there -- that there is any manner in this appeal?

Mr. William D. Ruckelshaus: That the claim is that -- it has been presented in the -- at least I think implicitly in the petition for habeas corpus in the court below because he's alleged the same thing.

Justice Potter Stewart: The fact that he wants to appeal is in of course an implicit --

Mr. William D. Ruckelshaus: Yes.

Justice Potter Stewart: -- claim that there might be merit.

Mr. William D. Ruckelshaus: I think he has alleged the exact same constitutional deprivation in his habeas corpus petition as he -- as alleged in the coram nobis petition.

So at least inferentially he's saying that the Public Defender was in error and not appealing.

Justice Arthur J. Goldberg: On the show about (Inaudible)

Mr. William D. Ruckelshaus: The Court has before it just a report of the Public Defender.

There is no transcript of the proceeding below before Dakota.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William D. Ruckelshaus: That's -- that's essentially the process, Your Honor.

Justice William J. Brennan: Has there been an instance where the Supreme Court said, well, do you think perhaps your judgment is not fit to this case?

Mr. William D. Ruckelshaus: No, there has not been such an instance, Mr. Justice Brennan.

There has been only two instances when the Supreme Court has issued a show-cause order, one was on remand from this Court in the McCrary case and another was on a petition for rehearing in a belated appeal.

And in both of those cases they issue a show-cause order and neither one of them did they find that the Public Defender was there.

Justice William J. Brennan: And was that show-cause sua sponte?

Mr. William D. Ruckelshaus: It was so on behalf of the Court, yes, it was sua sponte.

I think that for the reasons that I have stated before that the equal protection argument does not hold up in this Court because the State of Indiana has made a classification but it is imbued with a rationality that takes it out of the proscription of the Equal Protection Clause.

Justice William J. Brennan: Well, (Inaudible) the difference in the Smith case, the Iowa case on the transcript on appeal (Inaudible) the only difference from Smith here is the Public Defender, a public officer is said the appeal is without merit.

Mr. William D. Ruckelshaus: That is one difference, Your Honor.

There's -- the difference is that in Smith the -- it was he didn't even -- it wasn't even allowed to file a habeas corpus writ.

Yet, it have a $4 filing fee before a $20 filing fee before he can even file.

In this case, the man is always allowed to file his coram nobis or habeas corpus writ proceeds if he can't get counsel, and many times he's not represented in the coram nobis proceeding by the Public Defender.

He simply goes in there by himself.

Now there's no filing fee as to the filing of this and I can see a distinction between the thing that either attaches to the writ of habeas corpus or the similar writ in Indiana coram nobis.

And it seems to me a less of sanctity that attaches to a man's right to appeal from the denial of one of these writs.

In the Eskridge case which was discussed in the previous argument, I would submit that what this Court was really speaking of was due process.

And that on the grounds of due process that Eskridge is distinguishable from the case in Indiana.

As we've stated in our brief I don't think that it's fair to cope the trial judge but who passes on demands -- in one writ says the man has no right to a new trial and the next writ says that he can't -- he has no merit to his appeal.

I think this is a far different process with a very natural inclination that judges have against being reversed.

It's a different process in putting this onus on the part of the man who defended the indigent in the trial court and saying that he should initiate the appellate process.

He's interested going to light, it seems to me logically in seeing that if there are any error did occur in the trial below that this would be reversed on the appeal.

I think there was a good analogy drawn yesterday in the Gideon case when it was brought out that it probably wasn't a good idea to have the judge wear two hats and in one sense be the judge, in the other sense defend the man before him and in the same -- I would draw the same analogy to hear this case that it is not a good idea to have the judge adjudicate the case and then initiate the appellate process.

Chief Justice Earl Warren: How does your Public Defender obtain his office?

Is it elective office?

Is he appointed by --

Mr. William D. Ruckelshaus: He is appointed by the Supreme Court of Indiana --

Chief Justice Earl Warren: By the courts?

Mr. William D. Ruckelshaus: -- Mr. Chief Justice, and he is -- his salary is set by the Supreme Court of Indiana.

I would now turn to the second part of my argument which is directed to the due process argument.

It does seem to me that what this Court has really been saying in the Eskridge and in the Coppage case is that it is not fair to deny the indigent his right to appeal in exactly the same way that the nonindigent is given this right.

I would just ask this one question, what is unfair about this proceeding?

Brown had an attorney at the coram nobis hearing.

His attorney said, “There was no merit to your appeal and I'm just not going to take it.

I can't make a travesty of my office as a Supreme Court of Indiana have said and prosecute a frivolous appeal.

This would be a violation of my legal ethics.”

So far the Public Defender or the indigent is in no different position than a man with money who went into the coram nobis petition and his lawyer represented him to the entire hearing and said there's no merit to your appeal and I'm going to drop out.

At this point the difference does change but I would submit that it does not change in such a manner as to render the process unfair to the indigent.

The rich man can buy a transcript and take it up himself if he can't get an attorney.

And I would say in answer to Mr. Justice Stewart's question that we do assume that the Public Defender's decision was right for the purposes of his appeal.

There's been no showing to the contrary.

Justice Potter Stewart: That's the part of your argument that frankly has caused me a little difficulty because it's so difficult for me to see in something as subjective.

So in exact as the -- as our profession is, how you can -- how it's possible to state as a factual hypothesis an appeal is completely without merit, completely frivolous, how it's possible to assume that if you -- a rich man consulted a thousand lawyers, they'd all tell them the same thing --

Mr. William D. Ruckelshaus: Well, Your Honor, I don't -- I don't think that that obviously if a man had enough money he could get a lawyer one time or another to represent him on appeal.

Justice Potter Stewart: I'm assuming ethical lawyers who and lawyers who -- there are some who would just do it to for the fee maybe but --

Mr. William D. Ruckelshaus: It seems to me that when this Court is calling into contention and state law that is there -- that somebody has declared to be unconstitutional in this case the two lower courts, if you're talking about a system of laws which if they worked would operate not to deny anyone constitutionality that -- unless there is a showing if they don't work, you must assume that they do work because if they do work, then the Public Defender's decision was right then there wasn't any merit to his appeal.

Now, if you assume that they don't work then you can -- in that instance I would submit to declare almost any law unconstitutional where anybody is set up and given any discretion to say if he abused a discretion, he might deny some one equal protection or due process.

I think this is possible under any set of law.

Justice Hugo L. Black: I'm bothered by the same point that Justice Stewart suggested with this that makes the statement of the Public Defender findings so far as his (Inaudible) bars him from having a review.

Now, if he could assume infallibility, that would be would what -- or even for more.

I would say if I've read, you tried many cases, you'd see that sometimes you win them on points you -- you wouldn't thought some (Inaudible) about and sometimes you lose them on points if you thought a lot of that.

And how can we know that -- why isn't it inevitable that frequently a lawyer will make a mistake about that that the man who has the money and goes on well (Inaudible)?

Mr. William D. Ruckelshaus: Well, Your Honor, I would -- Mr. Justice Black, I would submit that there is undoubtedly merit in your contention that no man is infallible and that his decision as to their being known no merit to the appeal is -- it's obviously not an infallible decision.

But that the -- before this decision should be reversed and thereby reversing the whole process of laws that Indiana has set up providing for a screening process for frivolous appeals taken at State's expense there should be some showing in each individual case that this decision was in error.

Justice John M. Harlan: I suppose you would say (Inaudible)

Mr. William D. Ruckelshaus: Well, I would think that was correct, Mr. Justice Harlan.

Justice Tom C. Clark: What about the show-cause orders you've mentioned, is that -- is that sua sponte or is that on application?

Mr. William D. Ruckelshaus: That sua sponte at least to date, Mr. Justice Clark there has been no application to my knowledge made that the Supreme Court of Indiana issue a show-cause order to the Public Defender.

Justice Tom C. Clark: Is there about anything in their rules which prohibits the filing of an application for a show-cause order?

Mr. William D. Ruckelshaus: There is nothing in the Supreme Court rules that provides that they cannot issue a petition for a show-cause order but I think in fairness the Supreme Court of Indiana has in recent decisions two of which are now on writ of certiorari to this Court that if an indigent from a denial of a Writ of Error Coram Nobis files a mandate seeking to order the court below to provide them with a transcript and also counsels so that he can appeal as the Supreme Court interprets its rules to say that when you submit a writ of mandate, you have to have a transcript of the court below in order to provide a sufficient record so we can decide whether to provide you with a writ of mandate.

And they have said since there is no transcript filed, we will not mandate the lower court to provide you with a transcript which, of course, I don't know that the same reasoning would be applied if a man petitioned for a show-cause order.

Justice William J. Brennan: Well, apart in any event where the sua sponte on application, the show-cause order, the writ mandate accomplished that all those things (Inaudible)

Was in this very case wasn't there an application to the Supreme Court for writ of mandate?

Mr. William D. Ruckelshaus: That's correct, Mr. Justice Brennan.

Justice William J. Brennan: On the ground that the Public Defender had wrongly refused --

Mr. William D. Ruckelshaus: That particular ground was not in the writ of mandate.

The writ of mandate simply said that either was he wanted the Supreme Court of Indiana to provide him with the transcript and with counsel.

Mr. Brown did not allege in his writ of mandate that the Public Defender had been in error.

I would suppose that a simplicity in it that he has been in error.

Justice William J. Brennan: I would also -- but that was -- that would seem to be more orderly so to remedy it, the writ upon propriety --

Mr. William D. Ruckelshaus: This would be in view of the recent decisions I must in candor say of the Supreme Court of Indiana probably is not available.

Justice William J. Brennan: Oh, is not , I see.

Mr. William D. Ruckelshaus: Because they have been denying these writs of mandates on the grounds that he doesn't have the transcript up there and it's needed to be there before they can decide the writ of mandate.

Justice William J. Brennan: Oh, I didn't understand that.

Justice Hugo L. Black: That was the thing it bothered me about your answer to my question.

You replied (Inaudible) well, you shouldn't pick out a case that had -- might have been not known before.

Now, that issue which was in the case before us, as I understand it, is not in your case, isn't it?

Mr. William D. Ruckelshaus: There has been no showing that this is not.

Justice Hugo L. Black: In a case before, they insisted that the State had shown that there was no merit.

But you don't insist that (Inaudible).

You -- I understand you're going on the basis that the decision of the -- at least such (Inaudible) as of today, that the decision of the Public Defender that the cases without merit ends it, there's no other remedy that has to be accepted right or wrong.

Mr. William D. Ruckelshaus: Well, I don't --

Justice Hugo L. Black: So far as the free transcript is concerned.

Mr. William D. Ruckelshaus: I would then -- that is the way the process in Indiana works, Mr. Justice Black, that I would say that there have been in the cases that I have cited when they show-cause order have been issued.

There has never been a direct statement as to why they would give a show-cause order to the Public Defender or if a man properly presented before the Supreme Court of Indiana a case showing a dereliction of the duty or an abuse of discretion of the Public Defender that they wouldn't be given a transcript.

I submit this has never been really decided by the Supreme Court of Indiana.

Justice Hugo L. Black: Well then, I would judge the facts, the arguments you're making if that would be a good reason, a natural thing and proper thing to do in your case, if one accepted that or either a mandate to your Court to find out whether or not that is the ground.

So far as I think we have to accept it.

I had understood (Inaudible)

We have to accept that the holding by your Court, the decision of the Public Defender is final, that ends it, we cannot get a free transcript and there's no remedy in the State of Indiana.

Mr. William D. Ruckelshaus: Up to this date that is the decision of the Supreme Court of Indiana and I cannot anymore than on a certain dicta -- in other cases say that they would react any different and in view of the decisions that they have made in this recent mandate cases which are here on petition for certiorari to this Court.

The chances are they would not review the decision of the Public Defender unless --

Justice Hugo L. Black: (Voice Overlap)

Mr. William D. Ruckelshaus: -- there were some good cause shown aside from the writ of mandate file.

Justice Hugo L. Black: You are not suggesting then as representing an Attorney General but we can go on the basis that Indiana may provide such a remedy and may not consider the Public Defender's decision as final and irrevocable?

Mr. William D. Ruckelshaus: That is not my position, Mr. Justice Black.

I cannot say whether Indiana will or not.

I don't have enough authority from the cases to really say whether they would or not.

The Court hasn't really spoken clearly enough on that for me to make that statement.

Justice Byron R. White: The basic question is judged in a couple of times (Inaudible)

Mr. William D. Ruckelshaus: That's right.

Justice Byron R. White: And but have never (Inaudible)

Mr. William D. Ruckelshaus: They have never have said it.

I don't know that we can really say they questioned the judgment.

They issued him a show-cause order.

Justice Byron R. White: Well, if you -- if you uphold a habeas corpus decision in the federal court, I guess you didn't enunciate, or would you oppose a habeas corpus issue in the federal court on the ground that he had not exhausted his state remedy?

Mr. William D. Ruckelshaus: We did not, Your Honor.

Justice Byron R. White: Once he had gone through the trial court with a coram nobis?

Mr. William D. Ruckelshaus: We did not and we have not in this case in the record on page 40 and 41, the Public Defender so advised Brown that the Attorney General's Office would not question his right to file habeas corpus on the ground he hadn't exhausted his state remedy.

And we do not make a practice or so do we.

Justice William J. Brennan: I'm just interested -- and I suppose you don't really know why in the two cases where it was done, the Supreme Court did ask the Public Defender to show-cause at that time?

Mr. William D. Ruckelshaus: I don't know why, Your Honor, other than to speculate why and --

Justice William J. Brennan: As for one of them we sent back and (Voice Overlap) --

Mr. William D. Ruckelshaus: On remand that they were more or less --

Justice William J. Brennan: (Inaudible)

Mr. William D. Ruckelshaus: -- forced to do it there.

Justice William J. Brennan: (Inaudible) information I gather, yes.

Mr. William D. Ruckelshaus: The second case that was decided on petition for rehearing on this show-cause order was the Willoughby case which was decided after the order in the District Court was issued.

There is some language in there that would intimate that there was an attempt to answer this District Court's opinion but I -- just a speculation, (Inaudible).

In reaching my third argument I would just say that it seems to me that the procedure in Indiana is extremely close to the procedure that is used in the federal system is outlined in the Coppage Case.

That procedure, as I understand it, is outlined in the Coppage case is that the District Court makes the determination and that there's a lack of good faith.

The convicted man appeals himself usually to the Circuit Court of Appeals.

The standard there is if the proceed pleadings of that man are not clearly frivolous then they will grant him an appeal if a transcript is needed in that court to properly present the errors alleged and the transcript is provided and an attorney is appointed.

There must be an attempt by that attorney -- by the attorney according to the Coppage case to show the Court that the certificate of the lack of good faith is an error.

Now, I would submit to this Court that supposing the attorney has a transcript from the lower court, it has a quite voluminous transcript and he checks through this transcript and in his opinion there is no error in the case.

And he then goes into the Federal Circuit Court of Appeals and says in my opinion there is no error in this case.

As I read that case, that's the end of it.

And it's this attorney's opinion that ends it.

I submit that in Indiana that attorney already exist and he is -- have been in a very real sense already appointed by the Supreme Court of Indiana and he is actually appointed on the statute and paid by that court.

And then when he makes this determination, he is making that same determination that the attorney is in the Coppage case.

Now, there is this distinction that the incomplete transcript is in the Circuit Court of Appeals but I don't know that it is really fair to assume that in the case of a voluminous transcript, an attorney comes in and says, “There is no error in this transcript”, that the Court will then search that transcript to find error themselves.

I submit that these procedures are so close together as to there to be very little difference between the federal procedure and the state procedure, and that given this slight distinction between the two, which I do not believe, would deny an indigent in Indiana due process of law.

It seems to me that this Court should take a long look at the Indiana procedure in juxtaposition with their own procedure before they should overrule it.

Chief Justice Earl Warren: Mr. Levy.

Rebuttal of Nathan Levy

Mr. Nathan Levy: Mr. Chief Justice, may it please the Court.

The attention has been called to the case of Indiana cited in the dissent, I believe, in Betts against Brady which was an 1854 case, and which contains language concerning the necessity for counsel.

It is a language from the Indiana Supreme Court.

It is hardly believable to me that a hundred years later, the same court should utter an opinion such as it was written in the McCrary case after remand of that case to it.

Indeed, I would hardly have expected to read such an opinion a hundred years earlier.

Justice Potter Stewart: I just -- so I can be sure I'm right about what your State does, Mr. Levy.

This defendant had counsel at his trial --

Mr. Nathan Levy: Oh, yes.

Justice Potter Stewart: -- and your State provides everybody with counsel --

Mr. Nathan Levy: Counsel at trial.

Justice Potter Stewart: At the trial.

He took an appeal and he had the advise and help of the lawyer on the appeal --

Mr. Nathan Levy: That is correct.

Justice Potter Stewart: -- and your State provides everybody with a lawyer on appeal, in a felony cases, isn't that right?

Mr. Nathan Levy: This is not questionable based on the Macon case but up to that time it was thought to be the ruling.

Justice Potter Stewart: And this, in many event, this man --

Mr. Nathan Levy: This man (Inaudible)

Justice Potter Stewart: -- had counsel on his appeal.

Mr. Nathan Levy: That's correct.

Justice Potter Stewart: And it's still -- it was thought to be the rule that everybody, in a felony case, has -- automatically gets the help of counsel --

Mr. Nathan Levy: That is correct.

Justice Potter Stewart: -- on the appeal.

This man had a lawyer at the postconviction proceedings and the habeas -- in the coram nobis --

Mr. Nathan Levy: Coram nobis proceedings.

Justice Potter Stewart: -- provided by the State.

Mr. Nathan Levy: Right.

And at that point, the situation of this case, in Brown situation, became precisely the same as the situation in Mr. McCrary's case that came to this Court.

And it seems to me that this is a proper place for us to begin.

There is one or two difficulties now in Indiana that it seems to me ought to be pointed out as well.

For the Willoughby case, apparently, that's something to change the rule in the McCrary case.

And subsequent to the Willoughby case, there was the Macon case which we got just before our brief went off to be printed and we put in as a footnote case.

Since that time and since our arrival here in Washington, we understand that there have been at least three other decisions by the Supreme Court of Indiana which were ordered not published and from which certiorari has been asked into this Court, all of which apparently affect the situation of indigents, their representation, and their appeals in Indiana.

We are not prepared, of course, to speak with respect to these later cases now before this Court and about which we did not know until we came here.

The Attorney General is bound to take the position that the McCrary case fulfills all the requirements of Griffin and the cases following it.

That is to say, the requirements of the Fourteenth Amendment whether it'd be conceived of as ground to the -- in due process or grounded in the Equal Protection Clause.

There seems to be however, a colloquy, an argument going on between the Attorney General, between his adherence and reliance upon McCrary and the adherence and reliance of the Supreme Court of Indiana on a chain situation in Willoughby, which of it becomes important I will go into it later on.

But I think that we can start with George Robert Brown's case at the same place that we can start with Mr. McCrary after he came to this Court.

He came to this Court and this Court reversed or set aside a dismissal of his action and remanded the case.

In the remand, this Court pointed out that Mr. McCrary had made certain allegations which this Court felt that the Supreme Court of Indiana may not have education to look into in light of the Griffin case.

So the case went back to Indiana and there the Indiana Supreme Court undertook to prepare a decision on that case on the remand.

This Court indicated that McCrary's allegations were, first, that he could not get a transcript, and second that he could not have an appeal without a transcript, and that he could not receive the aid of the Public Defender, and therefore, he could get no transcript, and that he was indigent.

His indigence was admitted.

Now, he appears -- his case appeared before the Supreme Court of Indiana on remand.

The Supreme Court of Indiana first says that the Griffin case does not apply and it uses distinctions later set aside by this Court in the Smith against Bennett case.

So that those distinctions, it seems to me, are no longer worthy of hearing but the allegations that he made in this Court are proved to be the truth.

He said in this Court, without a transcript, he could have no appeal.

He said in this Court if he could not get the aid of the Public Defender, he could not get the transcript.

Now the Supreme Court of Indiana, having made the distinctions of which I have mentioned, having indicated that Griffin against Illinois was not applicable then proceeds to set out in its decision the precise truth of the allegations that McCrary made in this Court.

First, that he indicated that he was there as a pro se appellant subject to all of the rules of the Supreme Court of Indiana.

The rules of the Supreme Court of Indiana leaving out Rule 26 with respect to bill of exceptions of sticking just with the transcript, says that, “You must have a transcript and this is a formal document signed by the court below or by the clerk below in vacation time.

Without that, you are not here in this Court.

And they justified the conduct of the Public Defender saying that he must not give a transcript to anyone he does not represent.

And it was shown that the Public Defender decided not to represent McCrary.

Now, there's -- there is this hearing.

Well, this affidavit which I will speak in a moment about what happened to McCrary was this; he was not really in Court at the time that case was being considered upon remand.

He was standing in the (Inaudible) some place.

And the Court was considering whether he would come in, and they said the papers, not the appeal, the papers that you've filed do not fulfill the rules and you are out of this Court.

They then undertook this process which -- to which my friend from Indiana has referred.

They issued a rule to show-cause upon the Public Defender.

He files an affidavit attaches to it apparently, the affidavit of trial counsel in the original trial of McCrary.

I'm not quite sure I understand even the ethics of this kind of an affidavit.

This kind of a revelation by trial counsel without at least McCrary's permission but this document is then filed in the Supreme Court of Indiana with McCrary still securely locked away in the state prison, same kind of a hearing he's had.

At the end of which without any chance on McCrary's part --

Justice Hugo L. Black: Getting a way -- getting a way in the Supreme Court?

Mr. Nathan Levy: In the Supreme Court.

Chief Justice Earl Warren: We'll recess now, Mr. Levy.

Print this transcript Transcript: 

Argument of Nathan Levy

Chief Justice Earl Warren: -- Ward Lane, Warden, petitioner, versus George Robert Brown.

Mr. Levy, you may continue your argument.

Mr. Nathan Levy: Mr. Chief Justice, may it please the Court.

At the Court's recess yesterday, we had proceeded with the respondent's argument to the point of examining the Law of Indiana as expressed in the McCrary case.

And to resume that argument, I would like first simply to say that from the McCrary case, it is clearly established that the presence of a transcript is necessary to an appeal in the Supreme Court of Indiana and by transcript, we mean, the full blown transcript in its formal aspect.

It is also established in the Law of Indiana by the McCrary case that an indigent convicted prisoner goes to the Public Defender, and if the Public Defender refuses to accept his case, refuses to represent him, that prisoner is unable to obtain a transcript.

Justice Potter Stewart: The scope of this rule is limited to an appeal from denial of a coram nobis remedy, is it not?

Mr. Nathan Levy: To the extent that it is expressed in the McCrary case, yes, Your Honor.

Justice Potter Stewart: And how about the statute?

Mr. Nathan Levy: This -- the statute refers to belated appeals and apparently could be broaden to include the direct appeal as well.

Justice Potter Stewart: But it’s a post conviction and --

Mr. Nathan Levy: This is a post conviction --

Justice Potter Stewart: It's limited to a post conviction, an appeal from the denial of a post conviction remedy.

Mr. Nathan Levy: Yes, sir.

Justice Potter Stewart: May I ask you this while --

Mr. Nathan Levy: Yes, sir.

Justice Potter Stewart: -- I've interrupted you.

Is there an absolute right to counsel in the trial court in a post conviction remedy?

In this case, the Public Defender did represent the petitioner in the trial court, in a coram nobis hearing.

Was that an absolute right under Indiana law?

Mr. Nathan Levy: I would say that it is an absolute right taking the older cases.

I do not believe the question has been raised in recent years at least.

Now, from the McCrary case, it may also be gathered that there is some form of review.

It was used in the McCrary case and then after the Brown case was repeated in -- with slight changes in the Willoughby case.

But it seems to us unnecessary to examine into that review at the present time unless the Court desires to hear upon it because it was not available to Brown and he, by admission of the State, had exhausted all state remedies available to him prior to the time that the Willoughby case was decided.

Now when we turn to Brown's own case, we have a slightly different treatment both by this Court and by the court below.

When Brown first sought a writ of habeas corpus, it was denied him on the ground that he had failed to exhaust the state remedies.

Then, Brown proceeded through the various steps that McCrary proceeded through, and finally came before this Court with a petition for writ of certiorari upon the denial by the Supreme Court of Indiana of a writ of mandate to the Lake Criminal Court to provide him counsel and a transcript and permit him to appeal from the denied petition for writ of error coram nobis.

In this Court, instead of setting aside the dismissal of his action and remanding as had been done in the McCrary case, the Court denied certiorari without prejudice to Brown's right to bring habeas corpus in the appropriate Federal District Court.

Now Brown did go into the Federal District Court for the Northern District of Indiana --

Justice Potter Stewart: Do you take the denial of the petition for certiorari without prejudice to mean as distinguished from a mere denial of certiorari?

Mr. Nathan Levy: It seems to me that one of the great problems involved in this case is, as has been discussed in some of the preceding cases, the question of federalism and the abrasive, corrosive relationship with respect to the States.

The procedures, as I will attempt to show in my understanding of the Brown case, follow precisely the recommendations of the conference of Chief Justices with respect to such matters in the use of federal habeas corpus.

So that when Brown's case was in the Federal District Court of the Northern District of Indiana, the question arose as to whether or not his constitutional rights have been denied.

We -- I think he filed on July 19th, 1961.

We were assigned to represent him on July 20th, 1961 and in the interval between the 20th and the 26th, when the order of the District Court was entered, two hearings were held, one, the original hearing and then at the request of the State of Indiana, another hearing.

Now the Federal District Judge, having heard the case, wrote an opinion which is a part of the transcript, finding that Brown had been denied his constitutional rights.

And the Federal District Judge, following the recommendations and rules of this Court, as established in an earlier Indiana case by chance, granted the State of Indiana time in which to correct the defect with respect to the constitutional rights of George Robert Brown.

Justice John M. Harlan: You're talking about Irvin against Dowd?

Mr. Nathan Levy: No, Your Honor, it was Cook against Dowd, another similar case in which this Court -- Cook's papers were destroyed each time that he prepared them and they were never sent up to the Court.

And when the Court decided that his rights have been taken away from him, this Court directed the Federal District Court from the Northern District of Indiana, South Bend Division, another judge city, to give the State of Indiana some time in which to permit him to have his appeal rather than to release him at once, so that the Federal District Court below in the Brown case followed very meticulously this rule, granted 90 days to the State of Indiana to attempt to correct this constitutional defect, the deprivation of the constitutional rights of George Robert Brown.

I must also call the Court's attention that in the order, the court below indicated that additional time would be granted if desired by the State of Indiana.

Thus --

Justice John M. Harlan: What is this argument directed to, jurisdiction?

Mr. Nathan Levy: No, sir.

No, I am trying to indicate that in every respect of the -- in the case of George Robert Brown, all that it can possibly be done with respect to the relationship of this Court and the state judiciaries -- the state judiciary of Indiana has been done.

Justice William J. Brennan: Well, what you're saying --

Justice Byron R. White: [Inaudible]

Justice William J. Brennan: -- as to the Federal District Court bent over backwards to give the state judiciary an opportunity to deal with the merits under the fact on the conviction, is that it?

Mr. Nathan Levy: Yes, Mr. Justice Brennan.

Justice William J. Brennan: Tell me this neither, in the Federal District Court nor in the court -- Court of Appeals, is there any revelation of what the grounds are upon which he attacks the conviction itself, is there?

Mr. Nathan Levy: The -- yes, I believe that in the petition for the writ of habeas corpus, the original one having been granted by what is known at the prison as the Writ Department, the grounds are stated.

Justice William J. Brennan: Was known at the prison as the Writ Department?

Mr. Nathan Levy: Yes, the Writ Department of the Indiana State Prison.

Justice William J. Brennan: [Inaudible]

Mr. Nathan Levy: -- is a -- it's a sort of a -- what the -- Justice Schaefer of the Supreme Court of Illinois, once called it the Prison Therapy Department.

There are no lawyers in the Writ Department, but they draft all these petitions and papers and they -- they (Voice Overlap) --

Justice William J. Brennan: Well briefly, can you tell me what the -- what claims are addressed to the conviction itself.

Mr. Nathan Levy: The statement of them appears in the transcript of record beginning at page 20 and is a very, very long statement, as is true of the Writ Department, that he was denied a fair and impartial trial because the appointed attorney neglected to enforce his constitutional rights and --

Justice William J. Brennan: For what -- a coerced confessions or --

Mr. Nathan Levy: There was a question of a confession involved in the case, that the confession was improperly admitted --

Justice William J. Brennan: So you never suggested to the District Court that these circumstances, the Court might have dealt with those constitutional claims rather than the one the one of denial of transcript, did you?

Mr. Nathan Levy: No, Your Honor, we did not.

As a matter of fact, to be fully frank, we felt at the time that we were assigned and having examined what record we could that the -- that the denial of what we argued then was equal protection of the law whether it is equal protection or due process is a different question, was so startling an error and so complete the deprivation of the rights of this man as measured by the Griffin case and the ones following that there was little need to go into any other of the questions raised.

And it was -- the other questions are --

Justice William J. Brennan: Well, what it comes down to is that the -- if the Court of Appeals is sustained, he is ordered to discharge not because of any constitutional defect or a conviction of a (Inaudible) --

Mr. Nathan Levy: That's correct.

Justice William J. Brennan: -- but only because he's not been given an opportunity to appeal from the conviction.

Mr. Nathan Levy: Yes, Your Honor.

Well, it is our feeling that this constitutional right follows him both in the trial stage and the direct appeal and in any post convictional appeal.

And if denied and the denial persisted against the opportunity to correct, he must be given the benefit, the advantage of that constitutional right as well as any other person.

Justice Byron R. White: Well, are there grounds alleged in the petition which would qualify for coram nobis under Indiana law, but might not be a federal ground.

Mr. Nathan Levy: Yes, I -- I -- I'm convinced that there are Your Honor, in the -- through the length of the --

Justice Byron R. White: So that there are grounds alleged in the petition which the fed -- which it would do him no good whatsoever to go into federal habeas (Inaudible) --

Mr. Nathan Levy: Yes.

That is true.

Justice Byron R. White: And consequently, people who couldn't pay for lawyers can have those grounds reviewed in the Indiana courts on appeal --

Mr. Nathan Levy: That's correct.

Justice Byron R. White: -- whereas ones without them -- without lawyers, or without an appeal just don't have those grounds reviewed.

The trial is the end of it.

Mr. Nathan Levy: Mr. Justice White, we -- we thought of arguing the question of lack of counsel and in our brief in the Court of Appeals, we mentioned the point, but we did not argue it in our oral argument there.

The problem of arguing counsel in our case is extremely peculiar.

What good would counsel do him without the transcript?

The transcript is the key to the appeal.

Justice Byron R. White: Well, there's a -- in the previous argument, you noticed that if you have a lawyer, it would be a substitute for a transcript.

Mr. Nathan Levy: Not in Indiana, not in the face of the -- of the clear cut statement of rule in the McCrary as repeated in Willoughby.

There is -- we actually felt that we should argue the question of counsel particularly when this case was set on the calendar following the other three.

Justice Byron R. White: But if there was only -- if there was only a federal ground alleged in the petition, you really would have no particular exception of this whole procedure, would you, because you could go right on the federal habeas after the trial?

Mr. Nathan Levy: Yes.

It is a slightly -- a slightly different towards that you are expressing sir, but --

Justice Byron R. White: But you do give up one chance then?

Mr. Nathan Levy: Yes.

We have the feeling that what Brown was asked to go back to Indiana to do, to exhaust state remedies was itself wrong.

There are no state remedies in Indiana.

Justice Byron R. White: That's right.

Mr. Nathan Levy: Once the Public Defender has said, “I will not give you a transcript --”

Justice Byron R. White: That's right, but isn't -- isn't that the end of it then?

Doesn't the State admit then that state remedies are exhausted and you could go right into federal habeas?

Mr. Nathan Levy: I'm not sure that the state will admit that.

Justice Byron R. White: Isn't that what the State said?

Mr. Nathan Levy: I'm not sure that the -- that the State of Indiana will admit that.

What McCrary was put through and what Brown was put through was --

Justice Byron R. White: I thought I asked that yesterday of the State's counsel and they thought --

Mr. Nathan Levy: We thought that -- that State's counsel had gone further in response to your question than the State had gone in any other time in our working in this case, but I -- I do not believe it could be so.

Justice John M. Harlan: [Inaudible] that the State said in its letter to your client, the Public Defender said that he'd taken the matter up with the Attorney General and the Attorney General will concede that you've exhausted your state remedies.

Mr. Nathan Levy: That is correct, but nevertheless in each of the instances, the convicted criminal appearing pro se went through the effort in the trial court which denied the petition for writ of error coram nobis to get counsel and transcript upon the -- upon refusal attempted by writ of mandate in the Supreme Court to get counsel and transcript by mandate to that court.

I do not believe that those can be classified as State remedies available.

They represent lawyers or Writ Department's efforts to find remedies.

They are not established as remedies.

Justice Byron R. White: So, in this case [Inaudible]?

Mr. Nathan Levy: We believe that they have been exhausted.

Justice Byron R. White: And that [Inaudible]?

Mr. Nathan Levy: No, and under those circumstances where there are only federal questions to be raised, we would not be, but the questions raised are a mass of problems.

The one question that we believe stands out above all others is the question of the denial of his constitutional rights.

Now, it seems so clear, so obvious, that the State of Indiana, under the system and I will discuss the actual system itself (Inaudible) --

Justice Byron R. White: [Inaudible]

Mr. Nathan Levy: That's correct.

Yes --

Justice Potter Stewart: Well, they have been reviewed once on direct appeal from the conviction, where he was represented by counsel --

Mr. Nathan Levy: Yes, and (Voice Overlap) -- they have been reviewed on direct appeal and the conviction was sustained.

Now --

Justice Potter Stewart: And he's represented by a counsel?

Mr. Nathan Levy: Yes, sir.

Justice Potter Stewart: And there was a petition for writ of certiorari here.

Mr. Nathan Levy: Yes, sir.

Justice Potter Stewart: It was denied.

Mr. Nathan Levy: Denied.

Justice Potter Stewart: So there was a complete review of -- in which he had the advice of a lawyer all the way.

Mr. Nathan Levy: That is correct.

Now Indiana has created a post --

Justice Byron R. White: [Inaudible]

Mr. Nathan Levy: They are res judicata but coram nobis, if the allegations with respect to petition --

Justice Byron R. White: [Inaudible]

Mr. Nathan Levy: Yes.

At least you can raise in coram nobis in Indiana which is somewhat like a state habeas corpus proceeding, those questions that -- of which the convicted prisoner can say, “Had you known this at that time you would not have convicted me” and this could be any kind of a question --

Justice William J. Brennan: What does Indiana [Inaudible]?

Mr. Nathan Levy: Yes, I would say that this is -- this is the rule, this is a court interpreted rule.

I'm not sure that it's --

Justice William J. Brennan: In this petition if all he alleged was state grounds on that which could not [Inaudible]

Mr. Nathan Levy: I cannot answer that, Your Honor, because we have not seen the transcript, we have not seen the record.

There is no way for us to know.

Justice Potter Stewart: There was an opinion of the Indiana Supreme Court, wasn't it, the first time?

Mr. Nathan Levy: Yes.

Justice Potter Stewart: In affirming the conviction?

Mr. Nathan Levy: Yes.

Justice Potter Stewart: You can gather from that, I suppose, but --

Mr. Nathan Levy: Well, if you gather from that, then the allegations at least contain other grounds.

The --

Justice Arthur J. Goldberg: Isn't the substance of the argument [Inaudible]?

Mr. Nathan Levy: That is correct.

Justice Arthur J. Goldberg: And that absence [Inaudible] --

Mr. Nathan Levy: That --

Justice Arthur J. Goldberg: -- anybody who is not [Inaudible].

Mr. Nathan Levy: Has the record, can respond to the questions and can go to the Supreme Court of Indiana and yet its judgment expressed upon even the very question that has been proposed to me by the Court.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Nathan Levy: Well, I can -- I will address myself to that right now because this is the situation as we have it.

We have sort of three categories of people.

We have non-indigents who can afford their transcripts.

We have indigents who receive the assistance of the Public Defender which means representation and transcript.

And then we have the category into which George Robert Brown falls, an indigent convicted prisoner whom the Public Defender refuses to represent and who therefore cannot have his transcript, and therefore cannot have any kind of review.

Justice William J. Brennan: Mr. Levy, which facts [Inaudible]?

I gather on direct appeal [Inaudible]?

Mr. Nathan Levy: That is correct.

Justice William J. Brennan: [Inaudible]

Mr. Nathan Levy: Oh yes.

Justice William J. Brennan: Now the record is [Inaudible]

Mr. Nathan Levy: Has the transcript.

Justice William J. Brennan: [Inaudible]

Mr. Nathan Levy: Agree, yes.

Justice William J. Brennan: The state court has no jurisdiction [Inaudible]

Mr. Nathan Levy: That is correct.

Justice William J. Brennan: That is claimed in the appeal, the denial for [Inaudible]

Mr. Nathan Levy: Yes.

The -- the Supreme Court in the McCrary case says specifically that without the transcript, it has no jurisdiction.

The transcript is jurisdictional to it.

Justice Byron R. White: Were the added post to that [Inaudible] -- whether or not what the grounds were in a coram nobis procedure at this [Inaudible]?

Mr. Nathan Levy: That could be but --

Justice Byron R. White: And there's a real question [Inaudible] isn't the question here is whether or not [Inaudible]?

Mr. Nathan Levy: Mr. Justice White, it would seem to me that regardless of what the coram nobis record would show, that is a matter for the State and the State's jurisdiction.

That should not be a matter tried or heard in the federal court.

He was denied his constitutional rights the moment he was denied the right to appeal.

That happens in Indiana to take the form of the denial of the transcript.

Justice John M. Harlan: So your point is that so far as these grounds were state grounds of appeal, the federal court is without jurisdiction to review those on federal habeas corpus --

Justice Byron R. White: [Inaudible]

Justice John M. Harlan: -- but you can only get those in --

Justice Byron R. White: [Inaudible]

Justice John M. Harlan: -- state court, that's your point?

Mr. Nathan Levy: It could be that they were foreclosed, and possibly they were not foreclosed but the question of whether --

Justice Byron R. White: [Inaudible]

Mr. Nathan Levy: You can't tell unless you have the record and the question of whether they are or are not foreclosed is a question that should be decided by the Supreme Court of Indiana and not by a court in the federal judicial system.

Justice Potter Stewart: Well, Mr. Levy, assume this case, assume that as here, there was a trial and a conviction with the defendant represented by a lawyer and there was an appeal with the appellant represented by a lawyer and the conviction was affirmed.

The petition for certiorari to this Court had been denied and then a coram nobis procedure was initiated in which the identical ground, the identical grounds were asserted as had been asserted originally on the appeal and this was made clear.

Now do you think that the State of Indiana is constitutionally required to furnish at its expense a process of another appeal on the identical grounds under which had already been decided?

In other words, I'm just testing as to whether or not there might not be some relevance as to what was alleged in this coram nobis.

Mr. Nathan Levy: Your Honor, it makes the test the most difficult single kind of case.

May I respond to that by saying this?

Indiana tests this kind of a problem with respect to the non-indigent prisoner by having his transcript go into the Supreme Court and having the Supreme Court of Indiana say, “You are simply re-alleging the very same things that we have examined before and there's nothing new in it,” we deny this appeal.

Now the --

Justice Potter Stewart: So this means that a rich man who wants to do it has a constitutional right to pour his money down a sewer, but the question is whether an indigent has the right to compel the State to pour its money down a sewer?

Mr. Nathan Levy: The indigent certainly has no right to compel the State to pour its money down the sewer, but the State, as a matter of equal protection of the laws or due process which are -- however you wish to think about it that the cases say equal protection of the law, certainly does not have the right to say, and this is in response to your question, sir, and the question of Mr. Justice Goldberg as well.

Here is a lawyer available to you, our indigent friend, who's called the Public Defender, you go to him.

The Public Defender sees this man, listens to his tale, examines what he can of the record and of his own notes in this instance of what occurred in the Court and says to him, “There is no merit in your case.”

Now the State of Indiana has sent the prisoner to the Public Defender as lawyer and then by interpretation and rule of law, the man who has visited the Public Defender as lawyer suddenly finds out this was the judge, this was the man who decided this case.

He went to him for assistance as a lawyer and that man, by the interpretation of the laws of Indiana, is given the power, the equivalent power of the judgment of the Supreme Court of Indiana.

Justice John M. Harlan: Suppose that Indiana in a case (Inaudible) in forma pauperis appeal have said -- had established a Commission of the Board of three judges or quasi judges and then provided that any indigent who wanted to appeal should submit his points to this Board and its determination was to be final as to whether he had a frivolous or non-frivolous appeal and the determination of the Board was un-reviewable, would that be unconstitutional?

Mr. Nathan Levy: Mr. Justice Harlan, I -- I can only speculate in this way.

To me, it would seem to be unconstitutional.

Justice John M. Harlan: What you're arguing in effect is that an indigent as a matter of right, in all circumstances he's got a right to get a record, get a transcript to find out whether he's got any asset -- to any legitimate points of appeal.

Mr. Nathan Levy: In -- earlier, in one of the cases that you Your Honor asked, a similar question.

Under the peculiar situation in Indiana, he has an absolute right to get a transcript because that's jurisdictional to anything that he gets.

I do not believe that the language of Griffin or the succeeding cases which say that a State is free to workout other methods is meaningless language.

The State of Indiana maybe able to workout other methods so that instead of the formal document called a complete transcript, what Your Honor referred to as a bystander's transcript, something of that kind could be used, but where the State itself says, “You must either have this document or we have no jurisdiction,” how else can the indigent react?

How else can the Constitution protect the indigent?

There must be --

Justice John M. Harlan: All the State has said you have that at public expense if you showed you've got a non-frivolous appeal?

Mr. Nathan Levy: Well, you -- the State has established a Public Defender and this, I think is an answer now to questions asked by a number of the members of the Court, has established a Public Defender.

He is a lawyer.

He acts as lawyer to the indigent.

With respect to the questions of lack of merit in the appeal of a non -- of an indigent person, his judgment is accepted as infallible.

That ends the rights of the non-indigent -- of the indigent person in Indiana.

Well, this is quite of a responsibility for a lawyer.

This is outside the province of a lawyer and there can be differences of opinion among lawyers.

As Mr. Justice Stewart indicated in an earlier case, the non-indigent might try a thousand different ways until he found one who believed he had a point by which he could appeal.

Now, let us look at the Public Defender the other way.

The Public Defender in none -- in cases in which he finds a lack of merit has the final word, but when he thinks there is merit, the State of Indiana itself does not give him the final word.

When he finds there is merit, he becomes just another lawyer like the rest of us who provides the transcript and takes that question up to the Supreme Court of Indiana.

Justice John M. Harlan: Now what you're arguing in effect is, if I'm wrong I wish you'd tell me, that in a case where the State conditions a right of appeal upon a furnishing of a transcript to the record, an indigent in all circumstances is entitled to get a copy of the record.

Mr. Nathan Levy: If the non-indigent --

Justice John M. Harlan: Isn't that right?

Mr. Nathan Levy: Yes sir, Your Honor.

If the non-indigent --

Justice John M. Harlan: A State cannot protect itself, could not draw any lines, and take any measures to protect itself from having to furnish at public expense a transcript of the record.

Mr. Nathan Levy: It would seem to me, Your Honor, that -- that the State would have a right to protect itself.

For example, if they were to say, “It is unnecessary to bring out the full transcript,” you can use the narrative statement.

There are --

Justice John M. Harlan: No, you're avoiding my question.

Mr. Nathan Levy: No, sir.

Justice John M. Harlan: I may say so.

I'm postulating a question, a situation which you have here that the State says, “You got to have a proper bill of exceptions or proper transcript.”

Mr. Nathan Levy: Under those circumstances, my answer to your question is yes, they must provide --

Justice John M. Harlan: Must do it in and the State can't take any measures to protect itself having a better condition to appeal.

Mr. Nathan Levy: It would seem to me that that's true.

It may -- makes his own condition.

Justice Arthur J. Goldberg: You have to go that far don't you [Inaudible] to stop at this point.

As you've said, the State may protect itself against [Inaudible], isn't that the rule?

Mr. Nathan Levy: Yes.

Justice Arthur J. Goldberg: Isn't that the key?

Mr. Nathan Levy: Yes.

Well, the -- as long as Indiana makes the full transcript, the only way to open the door to the Supreme Court, you have one question.

If the State of Indiana would create a system by which frivolous appeals of, let me say the indigent and non-indigent both could be sifted and looked into so that they were all treated alike and the transcript were not the -- the one key for opening the door to the Supreme Court a thousand, maybe a hundred thousand different possible combinations would be open.

But in response to Mr. Justice Harlan's question, the State of Indiana in this case, its requirements with respect to the transcript, there seems to us no way out except to say, the indigent must be given the transcript and the public expense.

Justice Hugo L. Black: Suppose instead of having a statute they have -- I want to ask in connection with your justification -- discussion a moment ago, had a statute which says all indigents were unable to pay for the cost of the appeal or to obtain a transcript, shall be granted a transcript free by the State, provided, however, that the -- if the indigent shows the questions that are to be raised so that the Court, the Supreme Court of the State can pass upon them as a Supreme Court rather than as a Public Defender pass on it and determine clearly that the points are frivolous, no one of them has merit, would you be saying what you're saying now?

Mr. Nathan Levy: No, if that system were made available and may I add some -- one other thing to it, enough of the record itself, not an affidavit or so --

Justice Hugo L. Black: So that they could tell from the --

Mr. Nathan Levy: Could tell.

Justice Hugo L. Black: They could tell and they could pass on it.

You would not be challenging it --

Mr. Nathan Levy: This would seem to be --

Justice Hugo L. Black: What you are saying now is as I understand it, that they have turned over the responsibility to determine whether a man has points that are not frivolous to a Public Defender, not the Supreme Court and that the people who are able to go to the Supreme Court and get their records don't have to depend on the final decision of the Public Defender but can go to the Supreme Court itself.

Mr. Nathan Levy: That's correct.

To put it in this way, we, in order to uphold the Indiana system, we must say that the judgment and the opinion of the Public Defender is the Constitutional equivalent of the judgment and opinion of the Highest Court in the State.

Justice William J. Brennan: Mr. Levy, suppose either by statute or rule, it was the requirement applicable to rich and poor litigants alike, that as a condition to an appeal, the attorney who tried this case must certify that the grounds of appeal are not frivolous.

Is there anything wrong with that, applicable to rich litigants and poor litigants alike?

Mr. Nathan Levy: If it were applicable to a rich and poor alike and had to do with an appeal which the State could or create upon any terms that it wished, that would a be constitutional procedure.

Justice William J. Brennan: So under those circumstances that the Public Defender represented a poor litigant and he refused to make that certification, you wouldn't be here?

Mr. Nathan Levy: That's correct, we couldn't be here.

Justice William J. Brennan: Yes.

Mr. Nathan Levy: Now, I would like to indicate just one more thing.

The defect in the State of Indiana, the crux of the problem is this transcript.

We wanted to argue the counsel question.

I would hate to have to be without counsel on appeal in Indiana, as with all of the -- all of the words that the Court has heard concerning counsel at the trial level and believing them all, and coming from the State which branches attorneys at the trial level, if I were accused of crime and were not a lawyer but could remember what I'd known as being a lawyer and had to choose in Indiana between having counsel at the trial or counsel for an appeal, I would choose to have counsel on the appeal.

Justice Potter Stewart: Well, by hypothesis, you've already lost a trial or you wouldn't be on appeal?

Mr. Nathan Levy: Well, that is correct but the odds it seems to me that chances are greater in Indiana, that you would need the assistance of the attorney on -- at the appeal level than you would at the trial level.

And in this case, we have a Writ Department at the prison that turns out these papers and if you examine the transcript, you have seen some of the work that they do, but there are policies in some prisons that do not permit this.

There are prisons where the prisoners have a higher degree of illiteracy, less sophistication and if this kind of a situation can exist in the State of Indiana, the -- the equivalent in other states is at least as great and possibly worst.

It seems to us that there is time -- the time has come to enunciate some kind of a rule that will prevent this kind of a situation as rules in the case of George Robert Brown or in the case of McCrary.

Justice William J. Brennan: But it doesn't [Inaudible] for a trial judge in Brown's case.

Mr. Nathan Levy: There was a hearing, Your Honor, of --

Justice William J. Brennan: I mean a hearing of hours long or day's long, or --

Mr. Nathan Levy: I do not -- there was a hearing and it was denied.

I -- George Robert Brown was not present in --

Justice William J. Brennan: Was there a lawyer representing him (Inaudible)?

Mr. Nathan Levy: The Public Defender.

Justice William J. Brennan: Oh yes.

Mr. Nathan Levy: He was represented at that trial and the -- the Public Defender -- we cannot furnish any statistical data, neither the State nor the respondent's counsel, concerning the number of cases that the Public Defender handles of any -- finds have merit on any -- he finds do not have merit because of the small staff and small office staff that he's unable to keep records and statistics and so reported to us.

Justice Potter Stewart: Mr. Levy, if you're right, to what relief do you think your client is entitled to at this stage?

Mr. Nathan Levy: He is entitled to be released, Your Honor.

Justice Potter Stewart: Be released.

Now, here's a man who has been tried and convicted, represented by a counsel and took an appeal, represented by a counsel and his conviction was affirmed, and certiorari was denied here, and then he had a coram nobis proceeding in which he was represented by counsel.

And the Public Defender has found that there is absolutely no merit whatsoever in his appeal, do you think he's entitled to be released?

Mr. Nathan Levy: Yes, he can be held and retried on this charge or he can be arrested at the gate and an article in the newspaper one the portions of the State indicated that he would be arrested at the gate, but with respect to this first -- this present situation, he is entitled to be released.

Justice Potter Stewart: Well now, all he's been denied even if you are right is the right to an appeal from the denial of his coram nobis and that's all he's entitled to, isn't it?

If -- even if you're completely right.

Mr. Nathan Levy: If -- if we are -- if we are right, he has been denied the right of appeal from his denied petition for writ of coram nobis.

Justice Potter Stewart: Yes.

Mr. Nathan Levy: There is no way that he can have that appeal.

Justice Potter Stewart: Well, Indiana said so, but if we -- but if you're right, then we would hold it and Indiana must provide a way.

If Indiana provides a way, that's all he's entitled to, isn't it?

Mr. Nathan Levy: May I say this with respect to that.

The District Court below indicated that the responsibility of Indiana was to provide George Robert Brown with the full appellate review from the denial of his petition for writ of error coram nobis --

Justice Potter Stewart: Yes.

Mr. Nathan Levy: -- that the non-indigent prisoner was entitled to get.

The State of Indiana had 90 days and as much additional time was -- would be wanted, they did not ask for them, 90 days in which to do that.

Now, this denial is the denial of a constitutional right.

We are concerned about that and I am sure, as has been indicated in arguments on the other cases, with the improper withholding of constitutional rights and in the doing of that, improperly depriving a person of life and liberty.

He has -- he has been a resident of death row for a long time.

And in every respect, the right of the State, the opportunity for the State to give him this full review has been protected and held out and offered.

The State of Indiana has of its own volition, determined it would not do so.

Time is -- has been long and it has run a long time.

Justice William J. Brennan: But Mr. Levy, do you suggest that he might be retried, that is the difficulty.

In these circumstances, why wouldn't his prior conviction be a perfect double jeopardy defense if they try to retry him on the same --

Mr. Nathan Levy: Well, if -- I have not gone into this.

I am -- some -- in some instances, it is held that one who receives his freedom on a writ of habeas corpus is not permitted to plea double jeopardy.

I don't -- the State has given no indication of that, but an article appeared in one of the newspapers stating that the State was ready upon the moment of release to arrest him on another crime and I am advised that at the time he appeared once in the Court, the Federal District Court at our first argument, the sheriff was present with a warrant (Voice Overlap) --

Justice William J. Brennan: Mr. Levy, in those cases, the result of habeas corpus has been to invalidate the conviction.

Here, as I understand it --

Mr. Nathan Levy: The conviction (Inaudible) --

Justice William J. Brennan: -- there's no invalidation of the conviction it's because there has been no right of appeal from that conviction afforded, that the Court of Appeals said he's entitled to be released but how can he be tried --

Mr. Nathan Levy: Under those --

Justice William J. Brennan: -- while that conviction stands?

Mr. Nathan Levy: Under those circumstances, I would agree that he could not be retried, but this would not change the position that he must be released.

May I say this?

Justice Potter Stewart: [Inaudible] prevail in this Court and Indiana then says, “Oh, yes.

Now we'll -- the Supreme Court has told us we -- we've got to offer this fellow an appeal with the transcript and a lawyer, and if Indiana proceeds to do it, then you gotten everything that you say you're entitled to under the Constitution", isn't that correct?

Mr. Nathan Levy: If -- yes.

Justice Potter Stewart: This man was convicted of what, killing several and raping --

Mr. Nathan Levy: He was -- well, he was convicted of (Voice Overlap) --

Justice Potter Stewart: -- several teenage girls, burying their bodies in the sand up there.

Mr. Nathan Levy: Yes, he would do (Inaudible) -- in this case of murder and a perpetuation of a robbery which resulted in the death of a woman and I think [Inaudible]

Justice John M. Harlan: [Inaudible]

Justice Potter Stewart: Yes.

Mr. Nathan Levy: I beg your pardon.

Justice John M. Harlan: Is he under a death sentence?

Mr. Nathan Levy: He's under the death sentence.

Justice Potter Stewart: And there are several other alleged victims of these activities.

Mr. Nathan Levy: The -- I am told that his -- that his confession includes the confession of another murder.

Justice Arthur J. Goldberg: Mr. Levy, why -- you moved the appropriate [Inaudible]?

Mr. Nathan Levy: Well, the -- the State of Indiana -- let me start out by saying -- by quoting Lord Seldon's general approach to the problem.

Lord Seldon said, “With the writ of habeas corpus, we deliberately take a social risk that there will be a few extra slashed throats”, and he used those words.

This is not a proceeding to measure the worth of George Robert Brown.

This is a proceeding to measure the worth of a constitutional protection.

The State of Indiana has held him in prison after having had full opportunity to offer him what the justices now indicate, and once again would be indicated to Indiana.

And one of the reasons that I started to describe the procedure with respect to the George Robert Brown case so carefully was that we -- that the federal courts in this instance have the final responsibility with respect to the constitutional question under the Fourteenth Amendment.

And the federal courts in this instance have followed out every possible suggestion with respect to the maintenance of good relations with the state judicial system.

The Court followed the recommendations of the conference of Chief Justices.

The lower court did precisely what is now suggested shall be done.

Now if the constitutional right has a real value despite the danger to the -- to individuals in our society, how long they may had -- be withheld.

Justice Potter Stewart: Well, hasn't the -- hasn't it been stayed pending the proceedings?

Mr. Nathan Levy: Oh, yes but in addition to --

Justice Potter Stewart: As well as the execution of the petitioner about the respondent (Voice Overlap) --

Mr. Nathan Levy: In addition to the right not to have to go to the electric chair, the Constitution, under these circumstances, would restore him his liberty.

Justice Arthur J. Goldberg: Yes, but asserting -- you're asserting a constitutional right of a person who at certain type of appeal would be denied a right of the State to consider its right to appeal to this Court?

Mr. Nathan Levy: None at all.

Justice Arthur J. Goldberg: Well, that's really what you're arguing.

Mr. Nathan Levy: No.

Justice Arthur J. Goldberg: You're saying because the State pursued his right to come up here, challenged a judgment of the District Court and the Court of Appeals, that the State should be penalized [Inaudible]

Mr. Nathan Levy: Well, Mr. Justice Goldberg, the argument on that point was one that I indicated in the last sentence of my brief in opposition and I doubt seriously, the Court would wish made now.

It seems to me that a very strong case can be made out, that the position of the State of Indiana with respect to this case and its appeal to the Court of Appeals and its seeking certiorari here was as frivolous as anything, that it is charged the indigent prisoners with -- back in the State of Indiana.

Justice Arthur J. Goldberg: In any event, that's [Inaudible]?

Mr. Nathan Levy: That is correct.

Justice William J. Brennan: [Inaudible] -- this jurisdictional ground that the Supreme Court of Indiana could not obtain the appeal without a transcript, is that a matter of statute?

Mr. Nathan Levy: It was a matter of the rules of the Supreme Court and that --

Justice William J. Brennan: But if they'd -- they might be -- if there is a defect that is correctible by the Court itself without legislative action?

Mr. Nathan Levy: Well, the -- there is some doubt in Indiana, but there is no doubt in the mind of the Supreme Court of Indiana that they can change their rules by their own force and power and when you read the McCrary case, the Rule 240 which also appears in our brief is the rule which -- which requires the transcript.

And the McCrary case says that in just so many words, that transcript is jurisdictional.

We felt that the Supreme Court of Indiana would vary at the time that the District Court entered its order.

Justice William J. Brennan: Because if they may vary, it's hard to see how it's jurisdictional, isn't it?

Mr. Nathan Levy: I don't know what they would -- what they could do.

We feel this.

We feel that the Supreme Court of Indiana has the power if it wished to order a transcript brought to it and to review in the case of this kind, and I believe that the District Court gave the 90-day period and indicated a longer time if necessary feeling that the Court would do that.

Chief Justice Earl Warren: Mr. Levy did I understand you to say that you're assigned by the court below to represent this defendant?

Mr. Nathan Levy: Yes, Your Honor.

Chief Justice Earl Warren: On those circumstances I know the Court would have me express its appreciation to you for having accepted this burdensome task.

That we're always comforted to know that indigent defendants may get good representation in this Court from lawyers doing a public service and --

Mr. Nathan Levy: Thank you.

Chief Justice Earl Warren: -- we thank you and your associate for your representation here and Mr. Attorney General, we appreciate the table and energetic manner in which you have represented the interest of your State, too.

Argument of William D. Ruckelshaus

Mr. William D. Ruckelshaus: Thank you, sir.

Chief Justice Earl Warren: You have some time left, should you want to respond?

Mr. William D. Ruckelshaus: Mr. Chief Justice, may it please the Court.

I would just like to respond shortly to a few of the questions that arose during the argument of respondent's counsel.

First of all, an answer to a question from Mr. Justice Stewart, I think in fairness, we should state that it is not an absolute right in Indiana to be provided counsel at a coram nobis proceeding.

As a matter of policy, the Public Defender does represent the prisoners in the capital case always, but they must --

Justice Potter Stewart: Did so in this case?

Mr. William D. Ruckelshaus: -- and he did so in this case, but they must ask him if they want his --

Justice Potter Stewart: I see.

Mr. William D. Ruckelshaus: -- representation and often he does not represent.

Justice William O. Douglas: In that connection, on page 21 of your brief, you cite the McCrary case, the Willoughby case, and the -- and this case on the petition for a mandate.

The (Inaudible) -- to review the decision of the Public Defender not to proceed and you cite those cases from the point that the decision of the Public Defender not to proceed, or in other words, his decision at the appeal would be -- present frivolous matter is reviewable.

And my question is, reading those three decisions indicates that technically your statement is correct but actually the Supreme Court of Indiana affords its own relief, does it?

Mr. William D. Ruckelshaus: Mr. Justice --

Justice William O. Douglas: Has it ever -- has it ever reversed the Public Defender?

Has it ever --

Mr. William D. Ruckelshaus: It has --

Justice William O. Douglas: -- appointed a new Public Defender?

Mr. William D. Ruckelshaus: As to this particular point, Mr. Justice Douglas, that we have not cited that to say that the State of Indiana will provide a review.

We have shown that just to show that in certain instances it has provided review.

They have never stated the criteria by which they will or will not --

Justice William O. Douglas: Well, as I read those --

Mr. William D. Ruckelshaus: -- grant a review.

Justice William O. Douglas: -- those opinions, the opinions read as if the discretion of the Public Defender is non-reviewable actually, I mean they entertain the petition; they write an opinion and say petition denied.

Mr. William D. Ruckelshaus: As I understand these decisions, there has never been a question except implicitly in saying that they should be provided with other counsel.

There has never been stated in the petition that the Public Defender did abuse its discretion or there was a dereliction of his duty.

What the position of the Supreme Court of Indiana would be if there were such an allegation made, I can't say.

In answer to Mr. Justice White's question as to whether the same grounds that have been raised in the coram nobis petition could be raised in the habeas corpus petition.

I would state that the record on page 13 shows, in his petition for habeas corpus, just what was alleged in the coram nobis proceeding.

It said that that were later or thereafter on May 10th, 1965 in the Lake Criminal Court have verified petition for writ of error coram nobis wherein he presented the questions noted as one and two, that's in paragraph F on page 13, and one are -- And two in the Court's order is cited on page 12 on the record, show that he was -- well, what he alleged was that he had inadequate representation by counsel and that the confession was coerced.

Now both of those are federal grounds which he could raise in the habeas corpus petition.

That same argument was made by the State of Iowa in Smith against Bennett and this Court dismissed this argument by saying --

Justice Byron R. White: [Inaudible]

Mr. William D. Ruckelshaus: That is what it says right here in his habeas corpus petition in the record, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William D. Ruckelshaus: These are other -- the only two -- what he is saying is the only two grounds that were considered in the -- in the coram nobis petition were these first two grounds, they were also a federal grounds.

The other grounds that he raised were grounds that were raisable on appeal from his original conviction and therefore are not properly raised in the coram nobis proceeding.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William D. Ruckelshaus: That's correct, Your Honor.

Justice Potter Stewart: Am I not right in recalling that inadequate representation and coerced confession are both raised on direct appeal.

I have a dim recollection of this case when it came here in the 1959 term on a petition for certiorari from the affirmance of the conviction by the Indiana Supreme Court.

And there were, as I recall, claims of a coerced confession, inadequate representation by counsel and the admission of several very lurid photographs of --

Mr. William D. Ruckelshaus: These (Voice Overlap) --

Justice Potter Stewart: -- corpses of the victims and who had been buried in the (Voice Overlap) --

Mr. William D. Ruckelshaus: Your Honor --

Justice Potter Stewart: -- in the sand.

Mr. William D. Ruckelshaus: Brown's position in the coram nobis hearing was that he had some new evidence regarding the coerced confession in that this was -- this was not discovered by him until the time for appealing this had expired and therefore, this was a ground outside of the ground for appeal.

Justice Potter Stewart: I see.

Mr. William D. Ruckelshaus: And this was what the hearing was mainly about.

Justice Potter Stewart: I see.

Justice Byron R. White: [Inaudible]

Mr. William D. Ruckelshaus: Well, the inadequate counsel had not been considered on direct appeal, but it wasn't urged very strongly in the coram nobis proceeding.

Justice Byron R. White: But the confession was --

Mr. William D. Ruckelshaus: The confession was, yes, Your Honor.

Justice Byron R. White: On the other grounds?

Mr. William D. Ruckelshaus: The other grounds were not considered because they could have been raised on appeal.

And as a matter of fact, were raised on appeal.

Justice Byron R. White: [Inaudible]

Mr. William D. Ruckelshaus: Yes, they were Your Honor, the other two grounds.

Justice Byron R. White: [Inaudible] the only ground is what you considered on the direct appeal and this ground saying that you have [Inaudible] based on new evidence --

Mr. William D. Ruckelshaus: And --

Justice Byron R. White: -- outside the record.

Mr. William D. Ruckelshaus: No, that the -- the coerced confession was based on new evidence.

There wasn't -- it was urged of inadequate counsel but this was never really considered by the Supreme Court of Indiana on its direct appeal.

Justice Byron R. White: When was it raised?

Mr. William D. Ruckelshaus: Well, it was -- it was not in -- it was not considered in the opinion now whether it was raised --

Justice Byron R. White: But it --

Mr. William D. Ruckelshaus: -- in the brief, I don't know.

Justice Byron R. White: But it could have been.

Mr. William D. Ruckelshaus: It could have been, yes.

Justice Byron R. White: But the confession in evidence that he alleged was -- was demanded.

Mr. William D. Ruckelshaus: That's -- that was his contention, Your Honor.

Justice William J. Brennan: Are you suggesting that the -- this case might've been disposed off by the Federal District Court by finding that there'd been an exhaustion of state remedy and then deciding on the merits, the federal claims both the alleged coerced confession and the alleged inadequacy of counsel?

Mr. William D. Ruckelshaus: That's precisely our position, Mr. Justice Brennan.

That is an answer to your question why they didn't' consider this.

We requested Judge Grant and the court below to consider these questions so that we would have the whole thing and his position, as I understood it, was that you don't reach these questions because as a matter of fact, Indiana under the Equal Protection Clause must give this man an appeal from his denial of writ of error coram nobis and therefore Indiana hasn't exhausted its state remedy, and that you don't reach these other grounds.

Justice William J. Brennan: Well, I take it whether there has been exhaustion as a federal question (Inaudible).

Mr. William D. Ruckelshaus: That's correct, Your Honor.

This was his determination that it had -- just in --

Justice Arthur J. Goldberg: [Inaudible] -- just in a coram nobis [Inaudible]

Mr. William D. Ruckelshaus: Well, this could not be determined on appeal without transcript, that's correct because it's a question of the sufficiency of the evidence and obviously, they would need a transcript.

However, I would submit that in the very nature of these coram nobis proceeding, it's not such a difficult thing as it is in a regular criminal conviction for an attorney to say there's no merit on appeal.

The burden of proof is on the petitioner, in this case Brown.

The hearing has had before a judge.

There were actually few points brought up in this particular proceeding and it's in the very nature of these proceedings they're using are brought on one or two points and that it's not impossible for an attorney to look at the question and say, “Well, it's just a question of fact and there's no chance for us to overturn it and therefore I won't appeal it.”

Just to make once again, it's clear as I can the position of the State in this proceeding.

Our position is that the Public Defender's office as it presently functions in Indiana, does not operate to deny an indigent due process of law or equal protection of law under the Fourteenth Amendment.

We went into the discussion yesterday of the show-cause order just to buttress the idea that the screening process that has been set up by Indiana does not make this denial of his transcript fall within the proscription of the Equal Protection or the Due Process Clause.

Justice Hugo L. Black: But do you think your case would be stronger or weaker, have any effect on it at all if the statute had provided that the Court should make its own investigation to determine whether there was the ground for frivolous and the action has been taken under that rather than leaving that power to the Public Defender?

Mr. William D. Ruckelshaus: Your Honor, under the decisions of this Court, certainly in copies that would probably be more amenable to this Court, but I would submit that the process of Indiana has devised in these post conviction writs is a -- as reasonable a process and provides as adequate a substitute for appeal as would the Supreme Court of Indiana reviewing these petitions themselves or reviewing the request of the indigents to appeal themselves.

Justice Hugo L. Black: Would you think that your situation in the statute would be any different if the statute has provided that in all cases there is an appeal whether by person who's able to buy transcripts or not, the Public Defender could pass on the -- whether the grounds were frivolous, and let him dispose of it rather the Supreme Court?

Mr. William D. Ruckelshaus: This would be the position of the courts below, Mr. Justice Black, but it seems to me that if you are saying the State has a rational policy against frivolous appeals taken at the State's expense that this would only apply to screening those appeals taken from indigents because those are the ones that are taken at State's expense and not the screening of appeals for non-indigents.

Chief Justice Earl Warren: Well General, don't -- don't you think the -- an appeal taken by a frivolous moneyed defendant who is entitled to go through the entire procedure of an appeal where the time of the Court, or the Supreme Court is occupied, all of the employees of the Court are -- their time has taken, do you not think that they are there handling an appeal with a frivolous appeal at the expense of the State?

Mr. William D. Ruckelshaus: They are handling it to a certain extent.

Chief Justice Earl Warren: Well, isn't -- isn't that expense much greater than the expense of a transcript?

Mr. William D. Ruckelshaus: I --

Chief Justice Earl Warren: How many Supreme Court Justices have you got?

Mr. William D. Ruckelshaus: Five.

Chief Justice Earl Warren: Five of them do you not think that the combined salaries of those justices and all of their clerks and marshals and everybody in the courtroom to hear a frivolous appeal by a moneyed defendant is more expensive to the State than the mere filings of a transcript?

Mr. William D. Ruckelshaus: I do -- I would not have those figures, Mr. Chief Justice, but the way you see it --

Justice Potter Stewart: The appeal is really frivolous and if there are competent judges it's not going to take them much time, isn't it?

Mr. William D. Ruckelshaus: I would -- I wouldn't assume that it would taken as much time as it would to --

Chief Justice Earl Warren: But here, we're talking about an appeal that's supposed to be frivolous and you're taking -- we're taking the time of all of this Court to determine and I suppose you can do the same thing in your Supreme Court if -- if a man has the money to do it?

Mr. William D. Ruckelshaus: I would -- in answer to your question, Mr. Chief Justice, I don't think that because that a man who has money and under the particular -- peculiar procedure of Indiana where he can buy a transcript and take it before the Supreme Court with a non-meritorious appeal that this is a right that should be also granted to an indigent under the Equal Protection Clause, it would -- he is not being treated equally but I would submit that this is not an equality that is protected under the Equal Protection Clause.

Chief Justice Earl Warren: Very well.

Justice Hugo L. Black: This case cannot be dismissed I gather without [Inaudible] action by the Supreme Court.

Mr. William D. Ruckelshaus: The appeal of the rich man --

Justice Hugo L. Black: A man who has the money.

Mr. William D. Ruckelshaus: No, it cannot, Your Honor.

Justice Hugo L. Black: That's the difference, one, the Public Defender, one, the court.

Mr. William D. Ruckelshaus: That -- that is the difference.

Justice William J. Brennan: Let me see if I understand you correctly, you're suggesting or I thought you didn't answer my last question that we don't really have to reach that question here, if indeed what the District Court should have done, while to give him a hearing on the merits of his federal claims addressed through the conviction itself, treating everything else that happened merely as an exhaustion of state remedy, state proceeding that they were exhausted under these circumstances.

And therefore, that there was no state remedy available to him and he's entitled to a federal court disposition under federal habeas of his federal claim.

Mr. William D. Ruckelshaus: This was our position in the court below.

Justice William J. Brennan: Well, is that your position now?

Mr. William D. Ruckelshaus: The position now must be that in attempting to fight the decision that Indiana has denied an equal protection in not giving him an appeal.

We say that his rights have been protected by the Public Defender's decision and that the federal court below should review these questions and as to their merit and that should be the end of it.

Justice Hugo L. Black: But you'd have done it without a transcript.

Mr. William D. Ruckelshaus: These -- these questions would be raised anew in the federal court below.

Justice Hugo L. Black: Is it -- do you think the federal court could pass on them without a transcript?

Mr. William D. Ruckelshaus: Well, everything that was in the transcript at the coram nobis proceeding would -- the same things presumably would be in the -- the hearing before the Sup --

Justice Hugo L. Black: [Inaudible] about a transcript of the hearing, the trial?

Mr. William D. Ruckelshaus: I don't think they would be reviewing that decision, Mr. Justice Black.

This would be a new determination by them based on a new record on a hearing on the same allegations as in the coram nobis.

Justice William J. Brennan: No, but the District Court I take it, would have available, certainly the transcript of the trial itself if it were a regular trial.

Mr. William D. Ruckelshaus: Yes, of the regular trial.

Justice William J. Brennan: The only -- the only transcript that we've been talking about is whatever this transcript is of the coram nobis proceeding.

Mr. William D. Ruckelshaus: Yes.

Justice William J. Brennan: Is that it?

Mr. William D. Ruckelshaus: That's why he -- he has the transcript for the regular trial.

That's provided to every indigent in Indiana.

Justice Byron R. White: So you did answer yesterday that your position is that it has been in this case, this man has exhausted his state remedies.

Mr. William D. Ruckelshaus: Yes, that is correct.

Justice Byron R. White: And you also went a little farther I take it, and said that the Indiana -- the rule would consider an indigent to have exhausted his remedies when the Public Defender refuses to represent him.

Mr. William D. Ruckelshaus: Well, that has been our position, there are -- a fact situation --

Justice Byron R. White: And that he (Voice Overlap) --

Mr. William D. Ruckelshaus: -- that could have rise or we (Voice Overlap) --

Justice Byron R. White: That he did not have to go on for a writ of mandate in the --

Mr. William D. Ruckelshaus: No, the writ of mandate, we claim is not available to him because under the state law, he can't get a transcript if the Public Defender (Voice Overlap) --

Justice William J. Brennan: But don't you agree that this would be a very different case, if the only questions he had which had not been reviewed were state law questions?

Mr. William D. Ruckelshaus: I think that it would be a different case as far as the question in which Mr. Justice White holds.

However, I would still contend that the Public Defender's system has it had -- it is -- has arisen does not deny him --

Justice William J. Brennan: Well, my point is, you have to defend then the present system as were nothing but state law questions involved, but because it's attack on the merits of his conviction involved only two federal law questions.

Your position is we don't have to reach the constitutional questions raised as to the Public Defender's certification, because the District Court ought to reach the merits of the federal claims, is that it?

Mr. William D. Ruckelshaus: That is our position, Your Honor, however, the question has been decided below and it's certainly before this Court, I would say.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William D. Ruckelshaus: That is a deprivation, Your Honor, and certainly under Griffin and under Smith against Bennett, Burns against Ohio, those are -- that's a denial of equal protection or due process.

We say that's not what's happened here.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William D. Ruckelshaus: Under the decision of this Court, I would say yes, they have.

Justice Potter Stewart: Mr. Ruckelshaus, if the respondent is right in this case, to what relief do you think he's entitled to?

Mr. William D. Ruckelshaus: I think it is clear that the only right to which he is entitled is a right to an appeal.

The difficulty, it seems to me that the counsel for the respondent got into is the conceptual difficulty of bringing up on habeas corpus.

A man's deprivation of constitutional rights as regard to his -- regard to his appeal from a post conviction remedy that the only ultimate authority that the Court has under habeas corpus is to --

Justice Potter Stewart: To release --

Mr. William D. Ruckelshaus: -- let the man go free --

Justice Potter Stewart: Is to release but you can release conditionally.

You can release (Voice Overlap) --

Mr. William D. Ruckelshaus: And that's what the Court has been doing over and over again in these habeas corpus cases is giving the Courts or the States time to correct the wrongs and then if the State doesn't act, ultimately, all you can do is to let him go free.

Justice Potter Stewart: But certainly it can be conditions that (Voice Overlap) --

Mr. William D. Ruckelshaus: I wouldn't say so, certainly, that that is not what the Court has to do now and it's not what they've done in the past.

Justice William J. Brennan: Well, suppose you are right that the District Court should have reached the merits of the federal claims, I don't know whether they're relevant or not, could the proceedings on coram nobis even though not made available for purposes of appeal in the Supreme Court, could they be made available to the Federal District Court?

Mr. William D. Ruckelshaus: Under the law as it now stands in Indiana and if this -- I -- if the rational policy against providing appeals, frivolous appeals at public expense is to have any basis, I would say that the transcript would not be --

Justice William J. Brennan: Well, I know but Indiana would be a party, that it is a party to the litigation, isn't it, in the District Court?

Mr. William D. Ruckelshaus: In the habeas, yes.

Yes, that's right Your Honor.

Justice William J. Brennan: Yes.

Well, now what is -- what is a federal habeas, is it civil or criminal proceeding?

Mr. William D. Ruckelshaus: Civil proceeding.

Justice William J. Brennan: What about the federal rules of civil discovery and civil proceedings?

Mr. William D. Ruckelshaus: Well, I had to consider that, Your Honor, if he wanted to try and discover these things.

Justice William J. Brennan: Well --

Mr. William D. Ruckelshaus: I can't say whether we would contest that now or not.

I haven't thought about them.

Justice William J. Brennan: I wonder what grounds it was contested?

Justice Byron R. White: But certainly, if you thought the [Inaudible] that hearing was relevant, you won't have those hearings [Inaudible]

Mr. William D. Ruckelshaus: I think that's right, Your Honor, we would.