Cases by Issue - Transcript

United States v. Maccollom - Oral Argument

Thu, 23 Aug 2012 18:28:15 +0000

Case:

United States v. Maccollom

Media File:

74-1487_19760329-argument.mp3

Related Transcript:

74-1487_19760329-argument

Transcript:

Argument of Frank Easterbrook

Chief Justice Warren E. Burger: We will hear arguments next in United States against MacCOLLOM.

Mr. Easterbrook.

Mr. Frank Easterbrook: Mr. Chief Justice and may it please the Court.

The issue in this case is whether an indigent prisoner, who did not appeal his conviction, has, under the constitution, an unconditional right to obtain a transcript of his trial for perusal in the hope that the transcript will disclose errors, the nature of which he does yet know.

Put another way, the question is whether Congress overstepped its constitutional powers, when it required indigent prisoners to show that they had some need of a transcript to support a non-frivolous claim for relief.

The facts of this case are not complicated.

Respondent was convicted in 1970 of uttering forged currency, and sentenced to 10 years imprisonment.

He did not appeal that conviction.

Counsel for respondent has represented that the reason he did not appeal was in order to avail himself of a more prompt motion in the District Court for reduction of sentence.

The District Court denied that motion.

In March 1972, respondent filed pro se a motion for transcript in forma pauperis.

The Chief Judge of the District Court instructed the clerk of the court to return that motion to respondent, instructing him that he should file instead, a motion for collateral relief, pursuant to 28 U.S.C. 2255. In June of 1972, respondent filed a complaint for declaratory and injunctive relief, which the District Court allowed to be filed as a civil action.

This complaint alleged that respondent desired collateral relief, that he believed that his counsel at trial had been inadequate, and that he believed that the evidence was insufficient to support his conviction.

The complaint also alleged that respondent's memory and trial notes were inadequate and that without a transcript, he would be unable to frame his arguments for fair and effective relief.

The prayer for relief --

Justice Potter Stewart: Did the District Court consider this underlying pleading as one filed under 2255 of Title 28?

Mr. Frank Easterbrook: The District Court did not state how it was considering the complaint.

It dismissed it for failure to state a claim upon which relief could be granted.

We believe that the best interpretation of this is that it considered it as complaint under 2255 and the request for a transcript is ancillary to that complaint and then dismissed it accordingly.

Justice Potter Stewart: Court never explicitly --

Mr. Frank Easterbrook: Court never explicitly --

Justice Potter Stewart: -- set out those grounds?

Mr. Frank Easterbrook: -- set out those grounds.

Justice Harry A. Blackmun: Mr. Easterbrook, is the respondent on parole now?

Mr. Frank Easterbrook: Yes, he is.

Justice Harry A. Blackmun: Is he working?

Mr. Frank Easterbrook: I do not know, Your Honor.

Justice Harry A. Blackmun: Maybe I should ask your opposition whether he is still indigent?

Do you think the case has become moot at all?

Mr. Frank Easterbrook: We do not believe that it has become moot.

He is still in custody for purposes of collateral relief, so long as he is on parole and his parole runs through 1980.

If he is no longer indigent, this case might become moot, but we have no reason to believe that that is so.

Justice Harry A. Blackmun: Well, if he is employed, it might not be.

Mr. Frank Easterbrook: That is correct.

Justice Harry A. Blackmun: At least, we are not brought up to date.

Mr. Frank Easterbrook: We are not up to date.

The record in this case closed as of 1973 and we have no further information as to his indigence after that date.

Justice Harry A. Blackmun: (Inaudible) transcript would cost, how likely it would be?

Mr. Frank Easterbrook: The transcript is a transcript of a two-day trial, Your Honor.

It would probably cost in the nature of $400, although we have not obtained an exact estimate.

Justice William J. Brennan: The stenographic minutes are still available?

Mr. Frank Easterbrook: The stenographic minutes are still available, although they have not been transcribed.

The prayer for relief asked the District Court to declare that respondent has “an absolute constitutional right” to a verbatim transcript of his criminal trial, supplied at government expense to aid him in preparing a motion for collateral relief.

The complaint is in essence, simply an assertion of respondent’s good faith.

It asserts that respondent believes that his trial notes are inadequate, and that he believes that he is entitled to relief, but it sets forth none of the grounds upon which those beliefs are based.

The District Court appointed counsel for respondent in order to investigate the claims because the files and records of the case did not fully disclose whether he was entitled to the transcript he sought.

The investigation, with the aid of counsel, disclosed no grounds upon which a transcript was needed, other than as respondent’s counsel candidly admitted to the Court of Appeals, to peruse in the hope that some error, the nature of which could not yet be determined, might show up.

The District Court ultimately dismissed the complaint for failure to state a claim.

The Court of Appeals reversed, holding that a transcript must be provided upon request to search for error.

We believe that the starting point for an inquiry into an indigent’s right to a trail transcript is 28 U.S.C. 753 (f).

That Section provides that a trial transcript can be furnished, without charge to an indigent prisoner, proceeding in a motion for collateral relief, under Section 2255, and I quote “If the Trial Judge or a Circuit Judge certifies that the suit or appeal is not frivolous, and that the transcript is needed to decide the issue presented.”

In other words, an indigent prisoner, far from being cut-off on account of poverty, from evidence that may be important to some collateral claims, is entitled by statute, to a trial transcript, if he can show first that the transcript is necessary to support certain factual allegations and second, those allegations, if proved by the transcript, would amount to a non-frivolous claim for collateral relief.

There can be no doubt that the Congress meant to impose upon applicants the burden of demonstrating need and lack of frivolity.

The Court of Appeals so held, and that portion of its opinion is reproduced at pages 8A to 10A of our petition for certiorari.

The legislative history of Section 753 (f) shows that it was amended in 1965 to extend to proceedings under Section 2255, the same right to a transcript without cost, that previously had been available in habeas corpus.

The 1965 Amendment adopted verbatim, a 1961 proposal of the judicial conference, and that proposal was drafted to incorporate the almost universal rule of both state and federal courts.

A rule that had prevailed in collateral cases until the decision below.

A rule that a prisoner must show more than a subjective desire for a transcript in a collateral proceeding in order to be entitled to it.

We believe that this legislative history and the almost universal rule in habeas corpus proceedings also disposes of respondent’s argument at Section 753 (f) as worded and as construed by the Court of Appeals, suspends the privilege of the writ of habeas corpus.

Far from suspending the privilege of the writ of habeas corpus.

Section 753 (f) makes access to a transcript identical, under both habeas corpus and under Section 2255, there is no suspension.

Justice Potter Stewart: There is no statute explicitly dealing with this subject in Federal habeas corpus, in Federal habeas corpus, you say it is a case law?

Mr. Frank Easterbrook: Section 753 (f) says that you can obtain a transcript without charge in habeas corpus cases.

The case law is and was, in 1965 and was before then, that you must make the same showing that Section 753 (f) requires in 2255 cases, but it is a case law requirement rather than a explicit statutory requirement.

Justice Potter Stewart: As far as the statute goes, it just says that you can obtain it?

Mr. Frank Easterbrook: That is right.

Section 753 (f), we think, does no more than enacting to law, the observations of this Court in many of the cases, beginning in 1956 in Griffin against California, agianst Illinois, excuse me, dealing with a right to a transcript.

This Court has observed many times that a transcript is not necessary in every case and that in many cases, less than all of the transcript will suffice and the legislature can take steps to effect those rules.

Section 753 (f) is such a step.

The question here, therefore, is whether the device Congress has chosen is unconstitutional.

The burden of my argument is that Congress has provided indigents with multiple opportunities to review their criminal convictions, and multiple opportunities to obtain a transcript that would facilitate such review.

Congress, therefore, has not cut-off review on account of a person’s poverty.

It has simply structured and confined the methods by which such review can be obtained.

Congress has provided the fair opportunity for review that this Court has held is required.

It is true of course, that the provisions of 753 (f), requiring an indigent person to show need and lack of frivolity, do not apply to a person who can pay for his own transcript and in that sense, the destitute and the wealthy are not treated identically.

The Court of Appeals thought this to be fatal, but this Court has held that absolute equality is not required, and the fact that a particular tool might be of use to some defendants and applicants for collateral relief, it does not mean that the constitution requires its provision.

The constitution requires a practical opportunity for effective review, and we believe that Congress has provided that opportunity.

Chief Justice Warren E. Burger: (Inaudible) direct appeal, none under the Criminal Justice Act, he would have gotten a complete transcript --

Mr. Frank Easterbrook: Exactly, Your Honor.

That is --

Chief Justice Warren E. Burger: -- or as much as was necessary?

Mr. Frank Easterbrook: -- as much as was necessary, that is the very first way.

Every defendant, convicted in a federal criminal case, has a right to appeal and we believe that is also true in every state, with respect to serious crimes.

On appeal, under the Criminal Justice Act, an indigent defendant has a statutory right to a transcript or a record of sufficient completeness to allow him to present all of his claims on appeal.

In almost every case, a full transcript is prepared or an agreed statement of facts is reached.

In all cases, in which a new counsel was appointed on appeal, the Criminal Justice Act requires a full transcript to be prepared, and this Court is so held in Hardy against the United States.

An indigent defendant who seeks collateral relief --

Justice Potter Stewart: Before you proceed, the same rule would be constitutionally required in any state appeal?

Mr. Frank Easterbrook: This Court has held that it is required in state appeals.

Justice Potter Stewart: I do not know that there is a decision analogous to the Hardy case in state courts, but a roughly equivalent --

Mr. Frank Easterbrook: Yes, roughly equivalent.

At least, there would be a requirement of a record of sufficient completeness to allow you to present your claim for a more complete record.

Justice Potter Stewart: (Voice Overlap) and its progeny?

Mr. Frank Easterbrook: I think so Your Honor.

An indigent defendant for whom such a transcript or a record has been prepared and who later seeks collateral relief, is entitled, without charge, to a copy of that transcript, and therefore, every indigent defendant has an adequate opportunity, both to obtain a transcript, and to obtain full review of his claims, without charge, and without making a particular showing of need, simply by appealing.

He needs to resort to the standards under 753, only if he elects not to appeal.

That is to say, no defendant in the federal system is denied a transcript on account of his indigence.

Respondent’s current difficulties stems from his decision not to appeal and not from the federal statutes that govern provisions of transcripts.

Then too, we think there are sound reasons for the decision of Congress to create a different standard when a prisoner seeks a transcript for use in preparing a motion for collateral relief.

The difference acts as a channeling device, encouraging appeals, rather than delayed collateral attacks.

Congress was entitled to conclude that this was desirable because it enables and indeed encourages errors in trial to be detected and corrected more quickly.

Chief Justice Warren E. Burger: Under the Court of Appeals' opinion would not make any difference, whether the post-conviction relief sought was 2 years, 5 years or 10 years -- (Voice Overlap)

Mr. Frank Easterbrook: Not at all, Your Honor, not at all, as long as the person was still in custody for purposes of 2255, in Court of Appeals' view would require the preparation of the transcript.

That might be difficult in some cases, if the original stenographic tapes have been destroyed or lost.

Usually, it is much less likely that that would happen, if the transcript had been transcribed.

Justice Potter Stewart: Well, except, you concede that the statute provides it, that even if it is 5 years, 10 years, 15 years, 18 years, 23 years, that if he shows a need, then he is entitled to the transcript?

Mr. Frank Easterbrook: That is correct, Your Honor, but there would be some difficulties, we think, under the Court of Appeals rule, if the transcript could not be prepared and there were no established need for it.

In that event, the remedy might be a collateral relief for want of a transcript, even though there would be no need for the transcript.

That problem would not arise, if the transcript had to be furnished only upon the showing of Section 753 (f).

Chief Justice Warren E. Burger: The Court of Appeals (Inaudible) whether it is 2 years or 20 years or 30, they need show no reason for the need?

Mr. Frank Easterbrook: No.

No reason whatever, Your Honor.

Chief Justice Warren E. Burger: No demonstration at all?

Mr. Frank Easterbrook: That is correct, no demonstration at all is required.

Justice William H. Rehnquist: Is there an implicit limitation in the Court of Appeals holding, at least reserving the question of whether if the reporter had died, his notes were unavailable and a transcript simply could not be prepared.

I did not read the Court of Appeals opinion to suggest the man would simply be out on the street for that reason?

Mr. Frank Easterbrook: The Court of Appeals did not specifically address that question, Your Honor, as indeed it did not have to because a transcript could be prepared in this case if that is necessary and I think that question is still fairly open to litigation in the Ninth Circuit.

I do not want to indicate that the court has decided that, one way or the other.

Justice John Paul Stevens: Mr. Easterbrook, supposing in his motion, he had alleged that his trial counsel was ineffective in that he had failed to make objections to the admissibility of evidence from time to time during the trial, that competent counsel would normally make, would he be entitled to a transcript?

Mr. Frank Easterbrook: It is our position that under those circumstances, that would probably not state a claim for relief, even if supported by the transcript.

That would so for two reasons: One, because under most circumstances, that would not make out inadequate assistance of counsel, and the second because that is the kind of claim of inadequate assistance of counsel that could be raised effectively on appeal.

It is type of trial tactics and trial decisions that can be reviewed very effectively on appeal and unless the allegations of ineffective assistance of counsel were coupled, Mr. Justice Stevens, with a contention that counsel was also ineffective in failing to advise of his right to appeal and failing to pursue an appeal, we believe that those kinds of claims should be raised on direct appeal, and not on collateral attack.

Justice John Paul Stevens: But if the only error goes to the confidence of counsel, perhaps, I should change the example to make it a little stronger, that he did not make projections which any trained lawyer would make, you know, the standard is framed differently in different circuits, but assuming you have met in conclusionary terms the standard, how can you charge him with a failure to appeal, if he relies exclusively on the advice of the man he now says is incompetent, but did not realize at the time his was incompetent?

Mr. Frank Easterbrook: There might be some reason to inquire whether part of the incompetence dealt with failure to pursue the appeal.

Assuming, however, that part of the incompetence dealt with advising him accurately of what would be good grounds for appeal and whether they were prospects, if there were a detailed showing, and if the claim was of such pervasive error throughout the trial, that no reasonably effective counsel would have engaged in this course of conduct.

That might be the kind of claim that would require the preparation of a full trial transcript.

Justice John Paul Stevens: And I take that that would not be sufficient, if it were merely stated as a conclusion?

Mr. Frank Easterbrook: If it were just simply stated as the conclusion here, that is my counsel was ineffective, it truly would not be sufficient.

There would be varying degrees of sufficiency, of adequacy of the claim.

Justice John Paul Stevens: In theory he alleges that he was so ineffective that the defendant’s Sixth Amendment right was violated?

Mr. Frank Easterbrook: If that is the only conclusion that is no adequate to require a trial transcript.

Not only because of the reservations I have expressed and answered to your early questions, but also because there are many ways in which trial counsel could be inadequate, that simply would not show up in a transcript and an adjudication of the adequacy of counsel could take place without a transcript, but with extrinsic material, or with portions of the transcript, or if a greater specificity could be provided, it could be determined that there was no merit to the claim, even if proved to the last particular.

They are many stopping points along the way, between the claim and the adjudication and not all of those stopping points are going to require a transcript to determine where it is.

That is, I think, a very sound reason why Congress was entitled to require the applicants to state the nature of his claim, so that it could be determined whether this was one of those cases in which a transcript was needed, or whether it was not.

There are a number of differences between direct appeal and collateral attack, that we think support the decision of Congress to impose different standards upon access to a transcript under them.

I have discussed some of them in answer to Mr. Justice Stevens' questions.

They stem primarily from the fact that a collateral attack is not a substitute for direct appeal and that most of the grounds upon which ordinary collateral attacks would be based, for example, the double jeopardy clause or the unconstitutionality of the statute underlying conviction, simply do not you the transcript at all.

Conversely, most of the errors that would show up in a transcript do not provide grounds for collateral attack.

Ordinary, evidentiary rulings of the trial or incorrect or inadequate framing of the charge to the jury, are not grounds that would support a collateral attack.

The question of the sufficiency of the evidence is not a ground that would support a collateral attack.

On collateral attack, the only claim open is that there was no evidence, and that the absence of evidence could be refuted by many materials other than the provision of any part of the transcript.

Justice Thurgood Marshall: How do you get around the possibility that the jailhouse lawyers' use automatically ask for the transcript for appeal purposes?

Mr. Frank Easterbrook: That may well --

Justice Thurgood Marshall: (Voice Overlap)

Mr. Frank Easterbrook: It may be that that is what would happen.

We certainly can not exclude that possibility, but if that occurs, it is a result of the system of incentives created by Congress and we think that Congress was entitled to and indeed it may have been excellent idea to create those incentives because of the desirability of resolving promptly any claims of error, so that innocent men can actually released more promptly and so that if there are errors that require a new trial, the new trial can be had more promptly before memories are faded and evidence dissipated.

It would be probably be a good idea to have claims of this sort resolve promptly on appeal, rather than in this case, 6 or 7 years later on collateral attack.

Justice Thurgood Marshall: (Inaudible) I said he would ask for the transcript and then would not go through with the appeal?

Mr. Frank Easterbrook: In that event, he must face the consequent claim of deliberate bypass.

Not only, as in this case, a bypass of his own question right to a transcript on appeal, but a deliberate bypass of his appellant remedies, sufficient to cut off later claims on collateral review.

The jailhouse lawyer, I am afraid, would have to take that possibility into consideration.

Justice Potter Stewart: As suggested by the colloquy with my brother Marshall, there is a time limitation on appeal and there is none in collateral attacks, save only that the applicant must still be in custody?

Mr. Frank Easterbrook: Yes, I agree.

I think that the major consequence of Section 753 (f) and the particularized need and lack of frivolity requirements is simply to require individual applicants to show that they fall within the exception to the rule that normally a transcript is unnecessary to prosecute a collateral attack and indeed, in light of the burden of someone who seeks to overturn his conviction, and to prove that he was not justly convicted, to show that he is in fact, entitled any relief at all.

Only by exercising, and using a screening device of this sort, can Congress exercise the power of which this Court has said that it has, to determine that there are some cases in which transcripts are unnecessary and some in which less than all of the transcript is necessary.

Screening device serves other purposes as well.

There are more than 15,000 federal defendants in criminal cases every year who elect not to appeal.

There are large numbers of defendants in state criminal cases who elect not to appeal.

If the decision of the Court of Appeals is upheld, there will be, at least for a period of time, a rather crushing burden upon court stenographers and reporters to produce large numbers of transcripts.

It is a burden that might well slow down the process of production of transcripts, for those for whom there is a real and demonstrable need.

Moreover, the requirements Congress has used create at least rough equality between the destitute defendant and the prisoner --

Justice John Paul Stevens: Let me just interrupt for a second.

Do you concede that our holding in this case will necessarily determine the state practice as well as the federal practice?

Mr. Frank Easterbrook: Insofar as it rests upon the constitution Your Honor, it would necessarily determine the state practice as well.

Justice John Paul Stevens: Do you think a holding against you would necessarily rests on the constitution, which is what I probably should have asked?

Mr. Frank Easterbrook: In light of the explicit provision of Congress in Section 753 (f), that there should be a showing of need and lack of frivolity, I think the decision by this Court would have to rest on the constitution.

Justice Potter Stewart: We have to hold that that statue is pro tato constitutionally invalid?

Mr. Frank Easterbrook: That is correct, to the extent that it places those two requirements upon an applicant for collateral relief.

Justice William J. Brennan: But it did not have reach the constitutional question?

What is the ground do you percieve n the Court of Appeals' opinion?

Mr. Frank Easterbrook: Court of Appeals said in a footnote that it was addressing a deficit not filled by the statute.

We do not perceive on what grounds it could require Congress to expend moneys and to provide the transcript to indigents when it has elected, by statute, not to provide such a transcript, unless the constitution requires that.

It was the constitution that Court of Appeals thought that required it to fill the deficit.

Justice William J. Brennan: Even though it says it did not have to reach the constitutional question in fact, it was saying that was constitutionally required?

Mr. Frank Easterbrook: That is correct.

I think that is the only reasonable interpretation of what the court did.

Justice John Paul Stevens: Id it possible Mr. Easterbrook to hold that an adequate showing of need, within the meaning of the statute, is made by an allegation that the petitioner was not afforded effective assistance of the counsel as required by the Sixth Amendment?

Mr. Frank Easterbrook: Without more?

Justice John Paul Stevens: Without more! Would not that be, at least, a theoretically permissible way of deciding the case without reaching the constitution --

Mr. Frank Easterbrook: I believe that would be a theoretically permissible way to decide the case.

Although, in that event, there will be some tension between the outcome of this case and the Court’s resolution in Coppedge against United States, in which the Court said that the standard for assessing frivolity of a motion for leave to appeal in formo pauperis, is an objective standard.

That is, it depends upon demonstrable facts and not upon the feelings or beliefs of the person who is asking to appear in formo pauperis.

If it were sufficient, simply to make a claim that I believe that I was not given the adequate assistance of counsel, that would be an entirely subjective standard and would amount to that extent, we think, to a change of the standard that was established by Coppedge.

Justice Potter Stewart: Because here the statutory condition is not that the suit be not frivilous and that the transcript is needed to decide the issue presented by the suit or appeal, but it really, by a trial judge’s or a circuit judge’s certificate?

Mr. Frank Easterbrook: That is correct.

Justice Potter Stewart: Whatever the facts may be?

Mr. Frank Easterbrook: That is right.

And if --

Justice William J. Brennan: (Inaudible) on an allegation such as my brother Stevens suggested?

Mr. Frank Easterbrook: To the best of my knowledge that has never been litigated.

We have never sought through review such a certificate.

There is no express prevision in the statute or in the criminal (Voice Overlap)

Justice William J. Brennan: Do you think it could be reviewed?

Mr. Frank Easterbrook: I would not like to foreclose our opportunity to test that, but I would say that we have never sought to review them and that ordinarily, if a trial judge or an appellant judge makes a certificate that is quite sufficient for the government.

Justice Potter Stewart: What happens in case the district judge simply refused the request for a transcript?

Mr. Frank Easterbrook: That is correct.

Justice Potter Stewart: Wihtout --

Mr. Frank Easterbrook: He dismissed -- he dismissed the claim --

Justice Potter Stewart: Without certifying anything?

Mr. Frank Easterbrook: -- without certifying anything.

The respondent then could have sought leave from a judge of Court of Appeals.

He could have sought the certificate from the Chief Justice --

Justice Potter Stewart: An individual judge, right?

Mr. Frank Easterbrook: -- from any judge.

Justice Potter Stewart: Any judge at that?

Mr. Frank Easterbrook: He did not do that because it was his intention to establish the principle that he had an automatic right to a transfer and so he appealed the --

Justice Potter Stewart: He appealed the dismissal?

Mr. Frank Easterbrook: Yes, Your Honor.

Justice Potter Stewart: And that was part of the case in the Court of Appeals.

Mr. Frank Easterbrook: Court of Appeals decided --

Justice Potter Stewart: There is no allegation of any seperate charge?

Mr. Frank Easterbrook: None to any circuit judge.

The Court of Appeals decided that he had unqualified right.

Justice John Paul Stevens: Mr. Easterbrook, it is to my understanding that there are federal districts, at least there have been, in which as a matter of routine, the United States attorney automatically orders a transcript in all cases in order that they will expedite the preparation of record and shorten the period required for appeal, for disposition of the appeal.

Do you know the extent to which that practice is followed in the federal system?

Mr. Frank Easterbrook: I know that that practice is followed in a number of districts, but I think in great number of less than the majority of districts.

We do not have an exact figure on the number of districts in which that is true, and it is also true as we discussed with the Court in Hardy against United States, that there are a number of districts in which when there is a request for a transcript, the transcript will be prepared as less expensive and less burdensome than litigating the question of access to the transcript, but of course the parameters of such preparation are set in large measured by the statutory requirements and the constitutional demands, so that the United States’ attorneys will know when it is that they should order such a transcript to be prepared.

Justice Thurgood Marshall: But assuming a transcript was prepared, you would not have an objection to give it to him?

Mr. Frank Easterbrook: None at all, Your Honor and we believe that the 28 U.S.C. Section 2250 would require it to be given.

Justice William H. Rehnquist: Mr. Easterbrook, you used the word parameters, what do you mean by that word?

Mr. Frank Easterbrook: The contex, the legal context in which the decision is made in not to resist the claim for a transcript depends upon statutes and the constitutional decisions of this Court and the decisions --

Justice William H. Rehnquist: Just interchangeably with perimeters?

Mr. Frank Easterbrook: No, I did not.

Justice William J. Brennan: Boundaries might have --

Mr. Frank Easterbrook: Boundaries might have been even a better term, Your Honor.

Justice Harry A. Blackmun: (Inaudible) dictionary for the meaning you have just given?

Mr. Frank Easterbrook: I am afraid it is a corruption of a perfectly good scientific term.

Going to the language perhaps is one of these weeds of language that crops up far too often.

Chief Justice Warren E. Burger: Mr. Strait.

Argument of John Strait

Mr. John Strait: Mr. Chief Justice and members of the Court.

My name is John Strait.

I am the attorney representing the respondent in this case, who is the petitioner and the appellant in the District Court and the Court of Appeals below.

I will try to address some differences of opinion which the respondent has with the petitioner here in his position regarding the issues before this Court.

The issue presented by this case is considerably narrower than that as stated by the petitioner here.

The issue is far closer than what you have implied, Mr. Justice Stevens, by your questions and that is not simply on a general allegation of demand for a transcript, thus an indigent federal petitioner subject to pursuing his rights, under Section 2255, become entitled to a transcript, but rather where there is an allegation of specific constitutional error, in this case, the violation of the defendant in the original case as the petitioner's rights to Sixth Amendment effective assistance of counsel and Fifth Amendment due process rights for lack insufficiency of the evidence, where that specific allegation is made, and made in good faith, but cannot be supported by specific references to the record, because the record does not exist, with which to support those allegations.

Justice Thurgood Marshall: Do you mean anytime a man says it is insufficient evidence, he gets a transcript?

Mr. John Strait: Basically; that is the respondents’ position herein.

Justice Thurgood Marshall: Have you seen one that did not have it in there?

Mr. John Strait: Yes, Mr. Justice Marshall, I have seen several.

The difference between my position here and the Solicitor General's is that I represent a lot of people in post conviction proceedings and one of the roles of the counsel in trying to (Voice Overlap)

Justice Thurgood Marshall: You do not use to put in insufficient evidence?

Mr. John Strait: No, not normally, not unless I am very certain that there is some basis to support that.

Justice Thurgood Marshall: (Voice Overlap) insuffcient error?

Mr. John Strait: I am saying that at least that combined with the Sixth Amendment, which is the case before the Court --

Justice Thurgood Marshall: What was the exact language you pleaded on the Sixth Amendment?

Mr. John Strait: You will find that in the appendix at page 11 thru 13, the court's appendix.

Justice Thurgood Marshall: What is the exact language?

Mr. John Strait: It is at the bottom of page 11.

Petitioner in good faith believes the transcript will show that and then at the top of page 12, a petitioner who was not afforded an effective assistance of the counsel as required by the Sixth Amendment of the United States Constitution, and immediately below that, sub B, there was insufficient evidence to support --

Justice Thurgood Marshall: Is it possible that you can have a broader one in “he denied effective assistance of the counsel as required by the Sixth Amendment?

Mr. John Strait: No, I do not believe so.

The problem that was confronting the petitioner --

Justice Thurgood Marshall: Let me ask you again.

You think if anybody from now on makes (Inaudible) these two, he gets the transcript?

Mr. John Strait: Well, the problem is –

Justice Thurgood Marshall: Yes or no?

Mr. John Strait: The answer is yes.

The problem with that, if I understand your reluctance to accept that position, is that these are constitutional claims.

They are in fact constitutional claims which require a transcript in order to be asserted and reviewed by the court and indeed for the trial counsel, that is the counsel that is representing the individual at the trial court level on the post-conviction relief proceeding, to have it available to him to review solely, so he can tell whether they are meritorious to raise and that is the problem that has been recurrent in the pleadings here and the misquoting of the statement taken by respondent herein at the Court of Appeals below.

Justice Potter Stewart: I understood Mr. Easterbrooks’ position to be that insufficiency of the evidence was not a ground upon to support collateral relief.

The total absence of any evidence would clearly be, under Thompson against Louisville.

Mr. John Strait: That is correct.

Justice Potter Stewart: But, insufficiency of the evidence is something available on appeal, but not on collateral attack.

Is it that not Mr. Easterbrook‘s position?

Mr. John Strait: I would have a caveat to that position.

That is his position, yes.

I would have a caveat to that position to the degree that the difference between a total lack of evidence in the record for the Fifth Amendment or Fourteenth Amendment purposes versus the insufficiency of the evidence is not an apparent difference in standard.

As in my experience with appellant courts, the issues are treated exactly the same.

Justice Potter Stewart: As far as this Court's jurisprudence goes, one is a constitutional violation, the other is not?

Mr. John Strait: Well, I would agree with that, Mr. Justice Stewart, but the position that I am asserting is that the constitutional implications or the standard that is actually employed in reviewing the record in order to determine whether there was an insufficiency of the evidence, and the standards that are employed in order to determine the lack of evidence under the Fifth Amendment, in my experience, had been co-extensive, and so the problem is essentially partially a semantic one in that the necessity of the transcript to raise either issue is exactly the same, and whether one could raise one only on appeal, and the other properly in either appeal or post-conviction relief.

Justice Byron R. White: Is it a statutory standard or does the statute provide for the standard for review on direct appeal of the evidence, or is it a rule?

Mr. John Strait: No, I believe it would be case law.

There is no statutory standard.

Justice Byron R. White: But on collateral relief in the federal court with respect to a federal prisoner, cannot you make an allegation that the evidence was not sufficient to satisfy a statute or rule?

Mr. John Strait: Yes, but again I think the standard that the petitioner would bare would be exactly the same, whether you rephrase it in the constitutional or the statutory sense.

He would have to show there was no evidence in the record to support that the statutory element that he was arguing was not sufficiently reflected.

Justice Byron R. White: Would not this situation here arise only where or mostly where the issue involved was not raisable on appeal?

Mr. John Strait: No, I do not think it necessary would.

It could in fact, be raised on the appeal.

The effective assistance of the counsel issue might, for practical reasons, not be available on appeal because of the difficulty of the individual involved, knowing that he would suffer from ineffective assistance of counsel.

Justice Byron R. White: If there had been appeal, there would have been a transcript, I take it?

Mr. John Strait: Yes, that would be correct, for all practical purposes.

The Solicitor General’s office is not conceding that you are entitled to a transcript as of right and appeal without a showing of some need.

Presumably they are trying to adhere the position, the narrowest reading of Hardy versus United States which says at least, where there is a new counsel on appeal, there is an absolute right of the trial testimony transcription, but they are holding open the question of whether there is original appointed counsel or original trial counsel on appeal.

Justice Byron R. White: As a practical matter, this problem would arise only when there has not been an appeal then?

Mr. John Strait: That is correct, and that is exactly the reason why the government’s position herein does not address the problem which MacCOLLOM faces, which is this is his only remedy.

As I pointed out in my answer in brief, there can be no allegation and intentional bypass, the record does not support that.

The very problem raised by the Sixth Amendment effective assistance of counsel as implied by your question is that the individual who is subject to the ineffective assistance of the counsel will also have his appeal rights affected by that.

Justice Byron R. White: It sounds as though it would hardly ever arise if it were in the case of a state prisoner?

Mr. John Strait: It would be extremely unlikely (Voice Overlap)

Justice Byron R. White: Because he would have exhausted his state remedies which would include an appeal?

Mr. John Strait: Normally that is correct.

Justice John Paul Stevens: Which would involve a transcript?

Mr. John Strait: That is correct; under the virtually unanimous rules of the states, which I am familiar.

Justice William H. Rehnquist: But how about not of a claim of ineffective assistance of counsel relating to the explanation of the right to appeal, but simply a claim limited to ineffective assistance of counsel at trial?

You say that is the kind of thing that would never be raisable --

Mr. John Strait: No, that would certainly be raisable in most state court appeal proceedings.

Justice William H. Rehnquist: In the federal court too?

Mr. John Strait: And in a subsequent federal court proceeding.

Justice William H. Rehnquist: I mean a direct appeal on the federal system?

Mr. John Strait: Yes.

Justice William H. Rehnquist: Are you suggesting Mr. Strait that the Court of Appeals' statement of its holding is broader than it was necessary?

Mr. John Strait: Very substantially, Justice Rehnquist.

What I am suggesting specifically is that the actual language, which the government bases virtually the entirety of its position upon is not the holding in the cases exclusively dicta, because in this particular case, the indigent petitioner under Section 2255 did allege constitutional error.

He did allege a good faith belief that it existed.

He did show that there was no adequate alternative to a transcript with which to present the material to the court and the functioning of Section 2255 left him with no alternative, but to follow this procedure.

Justice William H. Rehnquist: Well, you say then where the Court of Appeals in the last sentence says, we hold, that is really dicta, which it may well be?

Mr. John Strait: That is exactly what I am asserting, yes.

I am saying that if the court wishes to breach the broader issue, that is, the issue which has been framed by the solicitor -- his representative here, is where there is an absolute right to a transcript for any indigent federal prisoner proceeding ancillary to a 2255 proceeding, that issue is not really before this Court, and ought not to be reached.

Justice William J. Brennan: (Inaudible) that the Court of Appeals decided that there had been compliance with 753 (f)?

Mr. John Strait: I think what the Court of Appeals confronted was the problem of other courts' interpretations of the demands of 753 (f), with particular reference to specific claims like of the Sixth Amendment ineffective assistance of the counsel, and found that that was the most compliance that could be provided.

Justice William J. Brennan: Well, can it be compliance with 753 (f), except as an application for and the certificate rendered either by a trial judge or a circuit judge?

Mr. John Strait: No, there would have to been a certificate and that issue (Voice Overlap)

Justice William J. Brennan: So at the very least, the Court of Appeals decision does not rest upon a holding of compliance with 753 (f)?

Mr. John Strait: No, I believe that is correct.

What the Court of Appeals' decision rests upon is its reading of the interrelationship between Section 1915, the general forma pauperis provision, and 753 (f) and the apparent inconsistency in relation to habeas corpus 2255, and in Forma Pauperis generally and said, in view of the unclear statutory nature that now the Solicitor General is asserting, that is quite clear to him based on his prior reading of the cases, but certainly there is some room for disagreement about that.

And I believe Mr. Justice Blackmun has addressed some of the ambiguities here in an article in 43 federal rules decision, which addresses the at least the nominal nature of the problem.

And what I am suggesting is that the Court of Appeals attempted to fashion a remedy, given that situation, ought not to be disturbed, since there is no particular reason, given the nature of the holding here to do so, that is the actual holding of the case.

Unknown Speaker: (Inaudible) holding?

Mr. John Strait: I think that there are constitutional principles which led the Court of Appeals to adopt that particular statutory reading.

I do not believe that the actual literal holding that the Court of Appeals reached, in their mind, was a constitutional holding.

Justice Byron R. White: I think they held that it is requied by the constitution?

Mr. John Strait: I think that if they had felt they could not have interpreted the statutes that way, the way that they did, they would have been forced to strike them constitutionally, which of course, is the position that we assert here insofar as it applies to MacCOLLOM's particular case.

Justice Potter Stewart: The dissenting judge in the Court of Appeals certainly viewed the court's decision as a constitutional decision, did he not, Judge Taylor?

Mr. John Strait: Yes, Judge Taylor did and I would, in that regard, to be candid, I would say that I do not believe that unless the constitution places some pressure upon reading the statutes that way, that would be, in fact, the way that you would interpret the statutes.

Yes.

Chief Justice Warren E. Burger: What if the five or six, whatever the number were of judges who voted for rehearing en banc view of that question?

Mr. John Strait: They exclusively viewed it as a constitutional question, simply saying that there was no reason to depart from the statutory interpretations adopted by other circuits and in the initial hearing of Wade v. Wilson which was ultimately reversed and remanded on other grounds by this Court.

No reason in the Ninth Circuit, no reason to adopt a different interpretation, unless there was a constitutional reason to do so, and they were of the opinion that the Cour's decision, this Court's decision as to --

Unknown Speaker: (Inaudible) panel?

Mr. John Strait: The position of the panel was that Wade did not reach the issue, specifically and that Wade had been cast in further doubt to the degree that its dictum did, by the subsequent court decisions across in North Carolina versus Britt.

Justice Byron R. White: Currently, the majority of the active judges that believe that Wade bound neither or they would have grant a hearing?

Mr. John Strait: That is correct, and I might add that as the litigant there, I was so much surprised that they did not; I expected them to do so.

The position that we assert, has not, I think been accurately presented to the Court, not too surprisingly by the Solicitor General in regards to Article 1, Section 9, clause 2.

Since this is the only forum that the petitioner below, the respondent herein has, in which to assert his Sixth Amendment and Fifth Amendment deprivations of which he complains, the question of his right to transcript becomes one of access, not simply a nice tool to help him, once he gets in because of the way that the Section 2255 operates.

And I would refer you to the extensive discussion of 2255 and its procedures in the Hayman case, which this Court decided, and also, in the Socol article, which is cited in my brief.

You might also refer to the University of Kansas Law Review article in volume 20, student note, which talks about the dilemma which is presented to the petitioner, who asserts claims, such as MacCOLLOM's.

Specifically, what happens is, in order to assert his constitutional claims of Fifth and Sixth Amendment depravations of right to counsel and sufficiency of the evidence, the problem then becomes one of him having to identify as a prerequisite, to even having his 2255 application accepted, and then getting his transcript.

He has to identify to the record in a procedure very similar to that, struck down by this Court in Gardner versus California.

He has to identify the basis for his claimed allegations of error.

Justice William H. Rehnquist: Mr. Strait, you previously suggested that ineffective assistance of counsel claims were virtually impossible to raise on appeal or at least very, very difficult, but certainly insufficiency of evidence claims are not difficult to raise on appeal?

Mr. John Strait: No, that is correct.(Voice Overlap)

Justice William H. Rehnquist: I guess the traditional form to raise them?

Mr. John Strait: I agree.

The problem is that there is no constitutional guarantee to the opportunity to do so, and the bypass argument essentially which, the Solicitor General relies upon to emphasize this policy choice of Congress to emphasize appeal over post-conviction relief, stands the constitutional relationship between post-conviction relief and appeal on their head.

Justice William H. Rehnquist: But why do you need a constitutional right to do so when you got a statutory right?

Mr. John Strait: You do not, but MacCOLLOM would, because in MacCOLLOM’s situation, he had both the problems; Sixth Amendment and ineffective assistance of the counsel, Fifth Amendment, pardon me, insufficiency.

He was not able to raise by appeal because he did not do so, and if (Voice Overlap)

Justice William H. Rehnquist: You say he was not able to because he did not do so.

Are you saying that had he chosen to appeal, there would have been some impediment to his raising it?

Mr. John Strait: No, what I am saying is that the very process of the choice to appeal was affected by the very ineffective assistance of the counsel, which he asserts.

Secondly, if the government is to say that there has been a essentially an intestinal bypass of the right to a transcript, not the right to post-conviction relief, which they can not argue, because of Article 1, Section 9, Clause 2, then the problem is that nowhere was MacCOLLOM advised, and I am certain of this, that the record will reflect it, nowhere was MacCOLLOM advised that if he did not exercise his right of appeal now, he would not get a transcript.

It would stand the concept of waiver on its head. Of course he was never advised of that, and that is not in fact --

Justice William H. Rehnquist: You say, of course he was never advised that, but he does not allege that, does he?

Mr. John Strait: No, he cannot at this time until he gets the transcript.

Justice William H. Rehnquist: Well, had he gone ahead and appealed, he would have had a transcript, and perhaps could have made that allegation?

Mr. John Strait: But the problem is, I understand your position.

The problem is that he would have to know that he should appeal in order to get a transcript before he can knowingly make any decision to bypass that right, if you follow me.

Justice William H. Rehnquist: Yes, but your man does not allege in his petition that he was not advised of his right to appeal?

Mr. John Strait: No, he does not allege that he was not advised to his right to appeal by the court.

The allegation that he would make specifically when this matter is returned to the District Court for further proceedings would be that, his attorney did not advise him of what would happen if he did not appeal.

Justice William H. Rehnquist: Well, we do not know what he would and what e would not allege (Voice Overlap)

Justice Thurgood Marshall: Why did he allege that?

Mr. John Strait: Well, the problem is that most of the material that is involved in that issue was also connected to the Sixth Amendment question because there was a colloquy he believes, and I, as the attorney, entered the case afterwards, I have no way of knowing whether this is accurate or not until I see the transcript, he alleges that there was a colloquy between him and the attorney on the record --

Unknown Speaker: (Inaudible)

Mr. John Strait: No, it is not, but the point I am raising is that the only way it will ever get before anyone is if he has a transcript.

Justice Thurgood Marshall: (Voice Overlap)

Justice William H. Rehnquist: (Voice Overlap) allege the transcript?

Mr. John Strait: I am sorry.

Justice William H. Rehnquist: Why cannot he put in the application or petition he filed?

Mr. John Strait: He probably would have been willing to do so.

The attorney who was representing him at that time felt that there was some question as to whether that would in fact turn out to be the case, and wanted to see the transcript first before he took up the court's time in allegation, that he thought very likely, could be, in fact, frivolous, which raises a number of issues that I wish to discuss briefly with the Court.

And these would have to do with the policy questions before the Court that are presented by the broader issue, which if the court reaches, I think it should consider, and we submit it should consider.

The governments’ position is virtually exclusively that there is a burden on court reporters services and that there is a financial interest in reducing the availability of transcripts in situations such as MacCOLLOM's.

This Court has never found that monetary considerations alone justify the depravation of right to a transcript or availability to a transcript in an original proceeding.

Secondly, as I believe Justice Marshall pointed out by his question, there are likely to be an increased number of requests for transcripts, so that there will be proportionately less monetary saving, if any.

Thirdly, as the counsel for --

Justice William H. Rehnquist: You suggest that the whole thing is kind of a balancing process, but certainly in cases such as Ross against Moffitt, where we held there was no right to counsel on a discretionary appeal.

That is not in terms of balancing the financial harm of the state against the benefit to the indigent.

It is just a question of saying the indigent's rights goes so far and no further?

Mr. John Strait: I agree.

I think Ross supports the position that MacCOLLOM takes here, which is that since the discretionary appeal is being exercised, as the Court points out with a series of factors, including the availability of a transcript, the prior assistance to counsel, presumably the availability of counsel prior to the time he withdraws from the discretionary appeal application, etc.

Justice William H. Rehnquist: Well, you may be right, but the analysis is in terms of access, not in terms of what burdens that then would place on the government?

Mr. John Strait: I agree, and that is why I have been emphasizing that it is a question of access here, not simply a question of expense, but there are policy considerations which the Solicitor General has raised regarding expense and availability of resources for doing things like this, and I felt it was appropriate to address those.

Our position really is that the very policy of post-conviction relief and the efficient functioning of the lower courts requires that MacCOLLOM’s position be, in fact, adopted and my premise is that the screening function, performed both by counsel where counsel exists.

In the day of legal services and prison legal services projects that is not as uncommon for indigents as it used to be without the capacity to retain counsel and secondly, the function of the Court itself in reviewing 2255 applications will be greatly enhanced, and minimize ultimately the judicial time expended.

For exactly the same reason that those District Court and federal attorneys have adopted the policy in some areas in the country, and not resisting transcript applications because of the litigation cost and time involved in litigating whether the persons entitled to them or not, the court will be spared that amount of time, when the record by the pro se applicant comes into him, with or without the assistance of the counsel at some point, the record will reflect clearly the existence or non-existence of the claimed errors, which will allow the reviewing judge, consider with greater freedom to screen the cases and get rid of them, if they are in fact, frivolous.

Lastly, the dilemma that I was addressing to you Mr. Justice Rehnquist of the trial lawyer's ability to try to find out if there is a merit to what its client says is greatly enhanced, where the lawyer in fact exists and that, in my experience, is one way of minimizing some impact on the courts for frivolous claims.

Chief Justice Warren E. Burger: (Inaudible) the impact on courts in all cases except where the plan is ineffective assistance of counsel, and that is for District Court to require the trial lawyer to prepare the appeal?

Mr. John Strait: That may work.

There are a number --

Chief Justice Warren E. Burger: How many trial lawyers who try a case for 2 or 3 days need a full transcript?

Mr. John Strait: Well, it depends.

Speaking as a trial lawyer Mr. Justice, I found that I almost always need one because the things that I am focusing on is an advocate in court to a jury are very different than the kinds of things I review the record for to be addressed in appellant court or in a post-conviction relief proceeding.

Chief Justice Warren E. Burger: Does that mean you need the entire transcript to make an evaluation of an appellant problem?

Mr. John Strait: Very often not, but what I do is I.

Chief Justice Warren E. Burger: (Inaudible)

Mr. John Strait: Not in my experience Mr. Chief Justice.

Chief Justice Warren E. Burger: Do not you keep notes when you try a case?

Mr. John Strait: Yes, but the notes very rarely reflect, for example, on the basis of the courts rulings on issues and evidence which --

Chief Justice Warren E. Burger: We will resume there at 1 o'clock.

Mr. John Strait: Thank you very much.

Chief Justice Warren E. Burger: Mr. Strait, you may continue.

Mr. John Strait: Mr. Chief Justice, I am not sure -- I believe my time has expired so I will conclude with these remarks.

The problem is presented for the particular indigent 2255 petitioner in MacCOLLOM situation is that where he is raising Sixth Amendment and Fifth Amendment issues as he has, the transcript itself becomes the access issue under the scheme of 2255.

Without the transcript, he cannot frame his issues properly to be reviewed by the District Court for the initial screening, and once the District Court has screened them, cannot review the issues properly as to frivolity without the transcript to tell whether those issues are properly set forth in the record.

Given that situation, the statutory scheme would present Article 1, Section 9, Clause 2, suspension of the writ problems, as I have stated in my brief, if the Court were to reject the position taken by the Ninth Circuit, as to the narrow category of petitioners represented by MacCOLLOM, the respondent before this Court.

Chief Justice Warren E. Burger: (Voice Overlap) represented by him?

Those who have a claim that includes, whatever else it has, that includes the claim of ineffective assistance of the counsel is --

Mr. John Strait: And, in addition, those that have shown by their affidavit no adequate alternative to a transcript from which to get that information, and also those who had counsel appointed, which was the case for MacCOLLOM, by the initial trial court; all three of those distinguishing factors.

Excuse me, I take it that I do have more time, thank you.

The primary problem that is presented by the government’s approach to habeas corpus is that it presumes that there is some necessary incentive available through the appellant scheme which undercuts habeas corpus.

That obviously could not be a proper congressional purpose.

While there may be, in fact, values to be emphasized by encouraging early appeal in criminal cases.

The simple fact remains is central to the government's bounding was the concept of habeas corpus, which means that there never will be a concept of finality in criminal law, the same as there would be in a civil case.

For that very reason, most of the government's arguments concerning the advantages which Congress has created by discouraging habeas corpus, simply do not address the constitutional question which is raised by MacCOLLOM situation.

Justice William H. Rehnquist: Well, you suggest that Congress would have had to enact the habeas corpus act of 1867?

For 80, 90 years, there was no collateral review even of federal convictions?

Mr. John Strait: That is a very tough question Mr. Justice Rehnquist.

My position is that today, there would have to be some implementation, or an interpretation by the courts that the Habeas Corpus Act was self-implementing, and that we have never had to confront the question with the judiciary act alone.

If it were none, it would not present some jurisdictional basis for habeas corpus.

Chief Justice Warren E. Burger: (Inaudible) Next week, next session repealed the 2255, the Habeas Corpus Act, so that there was no stated post-conviction remedy, what then?

Mr. John Strait: My position is that Article 1, Section 9, Clause 2 would become self-effectuating, and the courts would have to entertain such motions, presumably, such proceedings, presumably, this court.(Voice Overlap)

Justice William H. Rehnquist: Even though no one thought for the first 80 years of the Republic that it had that effect.

Mr. John Strait: Well I believe that there was, the Judiciary Act of 1789, if I am not --.

That is correct (Voice Overlap) Yes, I understand that.

Justice William H. Rehnquist: Did the 1867 Act not bracket federal prisoners or the pre-1867 litigation cover federal prisoners the way the 1867 Act covered state prisoners?

Mr. John Strait: I do not know.

Justice William J. Brennan: The Judicary Act of (Inaudible) had a provision that covered fereral prosioners?

Mr. John Strait: Yes, it does, there is no question, the Judiciary Act of 1917 --

Justice William J. Brennan: (Inaudible) extended federal habeas relief to the state prisoners?

Mr. John Strait: That is right and this Court had not been confronted with a position prior to the Fourteenth Amendment's enactment of whether the habeas corpus right would have to implemented directly by the states and prior to the time that could have confronted under the Fourteenth Amendment as a right made applicable.

The problem has been resolved by the legislation to which you referred.

The position that the government takes with regards to the Equal Protection issue raised by a respondent below, I believe misstates the position which both the Ninth Circuit adopted in its opinion and that asserted to here by a respondent.

Specifically, the Equal Protection position taken is not that the wealthy person’s standards are to be met by the state or the federal government in aiding indigent prisoners.

Quite the contrary, the issue is one of adequate access, and the language which the lower court relied upon, which I submit is appropriate and meets MacCOLLOM’s requirements in this case, is a language of this Court in Ross v. Moffitt, specifically, that the duty of the system is to assure the individual, the indigent defendant, an adequate opportunity to present his claims fairly, and at least where Sixth Amendment claims and the Fifth Amendment claims as asserted by MacCOLLOM or raised, that required transcript in the post-conviction relief context of habeas corpus.

I do not believe that the government can assert to the contrary that the language we relied upon below is any different.

That is the standard.

It is the standard used by this Court in Equal Protection cases in right to transcript and right to counsel, and that is, I believe, the only standard adopted by the lower court decision.

Justice Harry A. Blackmun: Mr. Strait, I want to catch you before you sit down.

Is your client on parole?

Mr. John Strait: It is an awkward question to answer, Mr. Justice Blackmun.

My client’s position right now is that he was revoked recently and is presently incarcerated in the King County Jail for Seattle, Washington, pending a federal detainer hearing, a federal review hearing of his parole status, which I have been advised, he will be returning to federal custody, presumably at McNeil island, and whether he will be transferred again to Leavenworth, Kansas, I do not know.

Justice Harry A. Blackmun: He remains indigent?

Mr. John Strait: He remains now an indigent, but in custody and indigent.

He is, if you will pardon the expression, disgustingly indigent.

Justice Harry A. Blackmun: Was he working in the mean time?

Mr. John Strait: I beg your pardon?

Justice Harry A. Blackmun: Was he working in the mean time?

Mr. John Strait: I meant to call Your Honor's attention to the affidavit in forma pauperis, which is part of this Court's records.

He submitted a new affidavit as of the filing of the proceeding, the petition for a review by this, by the Sloictor General.

Justice Harry A. Blackmun: (Inaudible)

Mr. John Strait: Yes, and at that time, he had been employed for, I believe, a total gross income of $1000 in the previous nine months, all of which was expended at that time and he has not been employed since, which I assume is one of the reasons he got into trouble with his parole status.

Chief Justice Warren E. Burger: Even if awkward in certain respects, except as it relates to the possible aspect of mootness, it has nothing to do with the issues of the case?

Mr. John Strait: I agree and for the purposes of custody for 2255 proceedings, the fact that he was either actively on parole or in custody would be sufficient.

The indigent --

Justice Harry A. Blackmun: My inquiry is directed toward mootness and I think that has a great deal to do in the case?

Mr. John Strait: Yes, I think --

Chief Justice Warren E. Burger: (Inaudible) have nothing to do with the merits?

Mr. John Strait: To clarify that matter, I can assert with certainty that the individual is still indigent at this time, and is not, at anytime, during the pendency of his proceedings been other than indigent within the prior definitions of indigency, by case law.

Thank you, very much.

Chief Justice Warren E. Burger: You have two minutes left, Mr. Easterbrook.

Do you have anything further?

Rebuttal of Frank Easterbrook

Mr. Frank Easterbrook: I have nothing further unless the Court has questions.

Chief Justice Warren E. Burger: They are none?

Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Mayer v. City Of Chicago - Oral Argument

Thu, 23 Aug 2012 18:18:33 +0000

Case:

Mayer v. City Of Chicago

Media File:

70-5040_19711014-argument.mp3

Related Transcript:

70-5040_19711014-argument

Transcript:

Argument of Henry F. Field

Chief Justice Warren E. Burger: In number 5040, Mayer against City of Chicago.

Mr. Field.

Mr. Henry F. Field: Mr. Chief Justice and may it please the Court.

This case raises once again the issue first raised and decided by this Court 15 years ago in Griffin versus Illinois of whether the Fourteenth Amendment requires that a State which provides appeals of right and reporters who transcribe trials provide a poor person who is unable to pay for that transcript and who needs that transcript to demonstrate crucial trial errors so that he may have an adequate and effective review and may adequately exercise his right of appeal.

This case today arises under Illinois Supreme Court rule 607 which at the time of trial and until very recently provided that only defendants in felony cases had, indigent defendants, had a right to apply for free transcript from the State of Illinois.

As of July 1st of this year that rule has been amended so that it now provides that any defendant who at the time of trial faced a penalty greater than six months in jail could apply to Illinois for a transcript.

Justice William J. Brennan: That rule applied in this case?

Mr. Henry F. Field: Pardon me?

Justice William J. Brennan: That new rule has applied to this case?

Mr. Henry F. Field: No.

Your Honor.

It did not?

Unknown Speaker: But (Inaudible) they word it?

Mr. Henry F. Field: No, I do not believe it affects the case in anyway.

Justice Byron R. White: What was the possible penalty?

Mr. Henry F. Field: Here the possible penalty at the time of trial was $1000.00 fine and no jail term at least initially.

Chief Justice Warren E. Burger: I am not sure I follow about that means initially.

Mr. Henry F. Field: Well, Illinois does-

Chief Justice Warren E. Burger: An alternative if he did not pay the fine?

Mr. Henry F. Field: Yes.

Chief Justice Warren E. Burger: And how much?

Mr. Henry F. Field: Illinois provides that a defendant has to pay off, work off the fine of $5.00 a day and that is the contingency in a case which leaves a possible jail sanction, but after this Court's decision in Tate versus Short of last year, this question is perhaps removed from the case although still, there are still some uncertainty I believe in the construction of that case.

Chief Justice Warren E. Burger: Or would it be removed from case automatically or with just the $5.00 a day, the under question?

Mr. Henry F. Field: Well, the effect of Tate versus Short, were it applied to this case, would be as I understand the case that the defendant here could not be put in jail at the rate of $5.00 a day, if he did not pay the fine, was not able to pay the fine that he was sentenced to.

Chief Justice Warren E. Burger: That your new rule does not reach anything measured by the amount of the fine?

Mr. Henry F. Field: No.

Chief Justice Warren E. Burger: Only the fine?

Mr. Henry F. Field: Only if the defendants at the time of trial faced a penalty of greater than six months in jail and does not include the contingency of six months worked off through fine.

Unknown Speaker: You are suggesting maybe this case is a true so called petty offense rather than one that might have avoided 6 months jail?

Mr. Henry F. Field: I do not believe that even at the $5.00 rate this defendant would be in jail for more that six months.

So that the point would not be raised, Yes.

Chief Justice Warren E. Burger: So that the $5 rate could it be 200 days, would it not, if my arithmetic is correct?

Mr. Henry F. Field: He was sentenced at trial for $500.00 fine.

He faced a thousand and sentenced to 500 and I believe that he could not be put be in jail then in Illinois in rate of more than a 100 days.

I would not belabor the Court with any kind of discussion of, lengthy discussion of the rule law in this case as you all are familiar with Griffin that established the principle that the destitute defendant must be afforded as adequate appellate review as persons who can afford transcripts.

Just last year in Williams versus Oklahoma City this Court decided a drunk driving case where the defendant faced 90 days in jail and in unanimous per curiam opinion had no trouble applying Griffin to the facts.

Rule 607 of the Illinois Supreme Court --

Justice Harry A. Blackmun: Mr. Field where is Mr. --Doctor Mayer, where is he now?

Mr. Henry F. Field: He is now in California.

I cannot fully posses the circumstances but he has moved from New York where he originally was.

Justice Harry A. Blackmun: I am just curious.

Is he practicing medicine now?

Mr. Henry F. Field: I prefer not to make representations about his apparent status because I am really not to fully informed.

The record has nothing in it concerning his present circumstances and I have not made myself to aware of those.

Justice Harry A. Blackmun: Do you know whether he is indigent today?

Mr. Henry F. Field: As my belief that he is Your Honor, indigent today.

Justice Harry A. Blackmun: Even though he has an MD degree?

Mr. Henry F. Field: Yes.

He has that -- I do have some information concerning him and that information to my knowledge has not changed his indigency status.

He still cannot pay for the transcript.

He is not a leaving at anything about necessaries, but as I want emphasis I am not fully informed on that fact, on that point.

Justice Byron R. White: But I suppose there are active file and no certifications here?

Mr. Henry F. Field: Yes.

After the trial the petitioner filed an affidavit and there was full hearing on this question of his indigency where the City was represented and attacked it and the acting Chief Judge of the Circuit Court of Cook County found that he was indeed indigent and unable to pay for the $300.00 transcript.

Justice Byron R. White: I suppose that leads you to a trial to be here, is it possible?

Mr. Henry F. Field: Yes.

The Rule 607 of Illinois Supreme Court wholly denies a transcript to this appellant who faced a $1000.00 fine and regardless of his need for it and he needs that transcript as I will demonstrate in order to raise the really central point of this trial and Rule 607 also wholly denies an opportunity to the all indigent persons to show and demonstrate to Illinois that they need a transcript in order to raise points at evidence and the kind and possibly unconstitutional conduct of their trials and it completely insulates trials of indigents from the review in cases involving less than six months in jail.

It's appellant’s contention that this blanket prohibition of all indigent now under six months and under appeals violates the Fourteenth Amendment in several respects.

First Illinois has chosen to draw an invidious line between rich and poor in violation of this Court's clear mandate in Griffin and Williams and many cases elaborating those principles.

Secondly, it hides and insulates from any appellate correction unconstitutional errors, in this case the denial of fair trial.

The facts of the case necessarily skimpy, can be briefly stated.

Chief Justice Warren E. Burger: Mr. Field before you go on, I am not sure how important it is, but I am a little surprised that you seem the think that the present status of the petitioner, his financial status, it is not relevant, that it must stand on his status at the time the case arose.

What if hypothetically if he had a million dollars between now and then and that is demonstrable and was demonstrated.

Mr. Henry F. Field: Well, That is of-course —-

Chief Justice Warren E. Burger: Well, it does not have something to do whether this Court should be devoting its time to the case on the grounds of indigency?

Mr. Henry F. Field: That could be true Your Honor and that's not of course a situation.

Chief Justice Warren E. Burger: Oh!

No it is not.

Would it not be rather remarkable to think of a young man, a relatively young man who has degree of doctor medicine today in the United States being indigent?

Mr. Henry F. Field: Well, my understanding that he had tremendous debts and that I just feel very strongly that this case had gone through the full hearing of Indigency and that this situation basically has not changed and I know nothing that would change that and --

Chief Justice Warren E. Burger: I do not mean to suggest that we would hold you to knowing at the present instance his financial situation.

I do not mean that at all.

Mr. Henry F. Field: If the Court would leave.

Chief Justice Warren E. Burger: Do I understand that you either be suggesting that if that situation is irrelevant to this case?

Mr. Henry F. Field: Well, were he a millionaire, I could conceive how it could be irrelevant because of the method that Illinois has chosen to completely deny transcripts to indigents in nine to six months cases.

Chief Justice Warren E. Burger: Well, would we be concerned about what they are doing in other cases or --

Mr. Henry F. Field: Yes, I think it, well --

Chief Justice Warren E. Burger: -- what they are doing in this case?

Mr. Henry F. Field: Well, I think this case of-course is important and his ability to pay now might indeed change the Court's whole posture on the situation.

However, this Court has a record before it which I believe is complete and Illinois by hesitating can frustrate this Court's enforcement of Fourteenth Amendment by -- as it has in this case, forcing defendants to appeal and because time is always money, raise in any indigent case a question as to it his ability to pay for a transcript.

Justice William J. Brennan: Well, I understood that the last affidavit is the one that is in pages 26 that apparently was sworn to on the third day of February 1970.

At that time he was not -- I do not understand, he was a physician, but a medical student.

Mr. Henry F. Field: That is true.

Justice William J. Brennan: Is he now a physician or?

Mr. Henry F. Field: Frankly, Your Honor I am not certain what a physician is since he has to my understanding graduated.

Justice William J. Brennan: Had graduated from the Medical School?

And you think it might well I suppose he is having an internship.

Mr. Henry F. Field: This I believe it was a summer and he is been working in a Hospital for several months.

Unknown Speaker: Internship as an intern?

Mr. Henry F. Field: Yes.

I suppose that is correct.

Unknown Speaker: (Inaudible)

Mr. Henry F. Field: I do not know what he is getting.

I have no knowledge of it.

Unknown Speaker: (Inaudible)

Mr. Henry F. Field: No.

He is only been working very, very briefly.

Basically what happened was that this defendant was a participant as a Medical apprentice while he was in the Medical School, first aid assistance at the scene of a demonstration in Chicago, march and rally, which was sponsored by STS and various other anti war at that time groups and he came upon a injured victim and interacted with the police under circumstances which were the subject of a two-day jury trial.

Justice Potter Stewart: He interacted with the police, for that's a (Inaudible) what?

What did he -- what happened?

Mr. Henry F. Field: Well, that of course is the transcript which is not present in the case and what happened --

Justice Potter Stewart: What was he charged with?

Mr. Henry F. Field: He is charged with two City Chicago Municipal offenses.

Justice Potter Stewart: Like the (Voice Overlap)

Mr. Henry F. Field: Disorderly conduct and interfering with the police and he was sentenced to $500 and I represented this defendant at trial.

After the trial --

Justice Potter Stewart: The $500 fine and no imprisonment?

Mr. Henry F. Field: No jail, no jail was possible except as we discussed extensively.

Justice Potter Stewart: Right.

Mr. Henry F. Field: After the trial he filed a post trial motion which raised several substantial contentions, attacking the legitimacy of the verdict and a judgment of a case.

His basic point was that he has convicted on insufficient evidence compounded of grossly prejudicial prosecutorial misconduct, he was denied in the fair trial and the cumulative effect was to override, wholly override the evidence in the case.

As stated in affidavit of counsel at the -- in the post trial motion and before the -- and the motion in Illinois Supreme Court, it was our feeling that the defendant was convicted not for what he did, but for sins of STS and for unreal -- wholly unrelated, but contemporaneous injury to one Richard Elroy (ph) who vaulted, who was them an obscure city lawyer in a prosecutor's office and vaulted in the front page of Chicago papers all during the preliminary portion this trial and the time between his arrest and trial and proceeded from the front pages of Chicago papers to elective officers, now Sheriff of Cook County.

After this motion was denied and we learned the cost of a transcript is well beyond his means, we moved in the Circuit Court of Cook County for three things, appointment of counsel, production of a transcript and a waiver filing fees.

After lengthy hearing this, the Court found that he was indigent and unable to pay, but refused to grant him access to the transcript on ground that Rule 607 applies only to felony cases.

The order is -- order that the motion of a defendant for relief proceed as poor person.

He and it's hereby denied on the grounds that defendant was found guilty of ordinance violations and that Rule 607 of the Supreme Court applies to felony cases.

We renewed the motion in the Illinois Supreme Court and urged the unconstitutionality, the approach taken by Illinois Rule 607.

The motion, after due consideration, for counsel and transcript was denied and filing fees were waived.

Unknown Speaker: Mr. Field, the rule that provide any alternative methods of recording the proceedings?

Mr. Henry F. Field: Yes, that is provided in other Sections of the Illinois Supreme Court rules and there are two basic methods for proceeding.

The first method is to get an agreed statement and the second method is to get a -- if you cannot agree to get a settled statement, agree with the prosecution and I suppose the Court.

Unknown Speaker: Well did was as what – well these are methods pursued by --?

Mr. Henry F. Field: Neither method was pursued in this case and the reason goes to the heart of the contention here.

It is the position of the defendant and appellant here that very clearly on the face of his contentions, neither alternatives are adequate, neither alternatives adequate.

The two contentions; one of insufficiency in the evidence and one of grossly prejudicial misconduct, both require the kind of detailed survey of the facts of the case.

The words used, the question supposed, the answers and responses which only a transcript could provide and which no one connected to the case, having total recall, could possibly reconstruct.

Chief Justice Warren E. Burger: How long did the case take to trial?

Mr. Henry F. Field: My best recollection is it was two days, but there was possibly some spill over to a third day for --

Chief Justice Warren E. Burger: Would you suggest a hypothesis as to how appeals were thoroughly conducted years ago when there was no recorder and there was no transcript that the bill of exceptions or by whatever name it was called the claims of error were reproduced for the appellate court by counsel relying on there recollection with or without total recall.

Mr. Henry F. Field: There would be no way to adequately present an appeal on these contentions in that circumstance.

Chief Justice Warren E. Burger: I mean for 115 years, we were in this country processing all appeals inadequately, including appeals for a rich man?

Mr. Henry F. Field: Well, if there were scribes at trial or to people helping Attorneys who could take down the detailed testimony that could have not been true, but in this case the problem was that he was poor and he had only his counsel and—

Chief Justice Warren E. Burger: Are you representing that in a two-day trial a trained lawyer cannot reproduce, two trained lawyers cannot reproduce the substance and the essence of the testimony that's given in the trial.

Is that your suggestion?

Mr. Henry F. Field: That maybe possible I think in most cases, but that not certainly not the case here because the nature --

Unknown Speaker: Did you do it, did you take notes, careful notes?

Mr. Henry F. Field: No, I did not take care for notes.

I took some notes and I -- but I was conducting the cross examination and I knew that the transcript was either reporter was present and that --

Chief Justice Warren E. Burger: Did you have an associate with you?

Mr. Henry F. Field: No.

There was no one from the case and I think that the nature of the contention, the key to why a transcript is required to this case because the contention on introduction of the evidence was that the police, some certain police testimony which the purport of which was to show this man, the defendant to be violent man, was inherently incredible and was demonstrated to be such by other testimony at the trial and by the cross examination by myself, lengthy cross examination of the police witnesses.

Chief Justice Warren E. Burger: Are you -- do you represent that the day after or the week after you could not sit down yourself to make a synopsis of the testimony of each witness of that trial?

Mr. Henry F. Field: That is absolutely true as to this two contentions, Your Honor.

Chief Justice Warren E. Burger: That you could not do it?

Mr. Henry F. Field: I could do, I could make synopsis of much of the testimony.

There is no doubt that I can recall a great deal that went on, but there is no way that I can recall the kind detailed questioning and the words used that precise words used that go to show the nature of the prejudicial attack of the prosecutor as intensive systematic effort to hang this defendant, not for the facts of what happened with his interaction with the police, but for -- on wholly related matters and sins of others and injury to Mr. Richard Elroy which was the really prime focus of the persecution.

I believe that I can show that with a transcript.

I could that the first witness in the case is put on solely for the reason of interjecting into this trial, the name, well known to everyone of Richard Elroy.

Justice Potter Stewart: Who is Richard Elroy?

Mr. Henry F. Field: Richard Elroy is now the Sheriff of Cook County.

Justice Potter Stewart: Oh!

Yes.

Mr. Henry F. Field: At the time of incident here, out of which this case arises, he was an obscure city lawyer in the Corporation Counsel’s office, a prosecutor for the City of Chicago.

That he was -- this appears from the affidavit, these facts appear on affidavit of counsel in brief at 12.

He vaulted from obscurity into the front pages and into elective office on the basis of his injury which occurred during this same anti war demonstration.

Two rules of Illinois law also combine to make overwhelming the impossibility of this defendant reconstructing the nature, the words used, inadequate, a minimally adequate factual predicate for presenting these two contentions.

First of all under Illinois law the defendant, if there is any disagreement as to the facts, must prove desperation of the facts.

At a hearing on effect under rule, Illinois Supreme Court Rule 323, I believe which is a settled statement rule and in this situation there is no way that I could or anyone could prove the detailed and intensive prejudicial conduct of the prosecutor.

The words used, how could I prove, how could anyone prove something they cannot recall?

The second rule of law creating a hurdle to an adequate review, inadequate alternative is that the appellate Courts of Illinois presumed the facts against the defendant, if inadequate record is not provided for at least to support the contentions on appeal and there is no way that this defendant can create minimally adequate factual predicate for these two contentions.

He could create to settled and agreed statement on many other facts in the case but there is now way he can proceed.

Justice William J. Brennan: You are not arguing that if it were possible to pursue one of these alternatives facts if it were, you say it did not, if it were, you do not argue that nevertheless constitutionally he is entitled to proper transcript, do you?

Mr. Henry F. Field: No I do not argue that Your Honor in this case.

Justice William J. Brennan: Well, what are we to do with the facts as I understand it, you did not pursue, made no attempt to pursue one of the alternative methods?

Mr. Henry F. Field: That point is made by the state attorney in capacity as amicus and I think the answer to that there has to be a clear recognition that based on the affidavit and others facts of record --

Justice William J. Brennan: That the affidavit to make out a case?

Mr. Henry F. Field: They may got a very clear case.

Justice William J. Brennan: (Voice Overlap) from attempting either the alternative methods?

Mr. Henry F. Field: That they show, they demonstrate.

Justice William J. Brennan: Is that your position?

Mr. Henry F. Field: That is my position.

I would change the words slightly.

They demonstrate that is impossible for -- that this was impossible for this defendant to proceed without being caught in that fine of either submitting a settled or agreed statement which was he knew to be wholly inadequate which could not start to create the minimum factual predicate for these two points and if it is agreed upon, if the prosecutor and if I where the prosecutor I would think it very smart to agree to the statement, knowing full well that's inadequate.

What if he creates -- leaves --

Chief Justice Warren E. Burger: How can you say inadequate, if you never tried to do it.

Mr. Henry F. Field: Well, I have to -- the counsel and the defendant have to create the factual statement and there is no way without total recall that I can demonstrate and create a factual record on these two points.

They require close attention to the words used and the questions posed on cross examination and direct examination --

Justice William J. Brennan: What you are trying to say in the Illinois Court why it was you had not pursued the alternative method?

Mr. Henry F. Field: Pardon, Mr. Justice Brennan?

Justice William J. Brennan: You requested in the Supreme Court?

Mr. Henry F. Field: No.

Justice William J. Brennan: Where did you go, besides the Supreme Court, only to (Inaudible)?

Mr. Henry F. Field: Well, we had the hearing and the denial in the Circuit Court and then in the Supreme Court.

Justice William J. Brennan: Well, did you argue in the Circuit Court you had to have a transcript because the alternative method could be inadequate?

Mr. Henry F. Field: I do not have a transcript and I frankly have forgotten what I argued, but I was totally foreclosed from seeking of transcript because of the Judge's legal ruling that I could not regardless of my need for it and the nature of contentions that were raised, get one under Rule 607.

Justice William J. Brennan: Because the rule did not apply for this?

Mr. Henry F. Field: Because the rule applied only to felony cases.

Justice William J. Brennan: Did you argue this all in the Supreme Court?

Mr. Henry F. Field: No.

This was submitted on papers.

Justice William J. Brennan: And what you submitted, did it make any effort to say why you had to have the transcript (Voice Overlap)

Mr. Henry F. Field: Yes, in the Supreme Court, this was -- in Illinois Supreme Court this was fully briefed, this point and demonstrated why.

Justice William J. Brennan: The matter of alternative was fully briefed?

Mr. Henry F. Field: Oh!

Yes.

This was and in fact the -- except from the affidavit of counsel appears in the brief, as to why it is impossible.

Chief Justice Warren E. Burger: Would you say that your presentation to the Supreme Court of Illinois was substantially the presentation which you had made to us here?

Mr. Henry F. Field: I believe so Your Honor, that the course of trial as to the prejudicial conduct of prosecution was denied in fair trial.

The course of trial was, has to be examined.

Illinois requires that in order to judge the impact of a prejudicial conduct or large, you must survey the whole record.

There is now way that I could or anyone could reconstruct the record, although they could as you point out reconstruct many things in the record.

There is no way that he can reconstruct this point and the point of insufficiency of evidence inherent from credibility of certain police testimony which would permit him to be acquitted on appeal.

Justice Harry A. Blackmun: Mr. Field, how far do you carry your argument?

Would you take it down to any kind of a proceeding, including in the traffic offense?

Mr. Henry F. Field: I think that Williams versus Oklahoma City indicates that wherever an appeal is granted to all defendants that the appeal may not be denied in effect poor defendants because of inability to buy a transcript.

Now, of course your hypothetical doesn't, isn't this case.

Justice Harry A. Blackmun: No, but I am asking you because this is what we have to struggle with?

Mr. Henry F. Field: Yes, I realize that.

Justice Harry A. Blackmun: I am asking you where you draw the line, if you draw any line?

Mr. Henry F. Field: Yes, I think that you have to examine the real life impact on the defendant in a particular case and at some point the question your -- the point your question raises is that at some point certain offenses are so trivial and unimportant that even the Fourteenth Amendment should not be applied to require a transcript and that I would not be able say hypothetically without an examination of a real case and I just want sit on that case and listen to the --

Justice Harry A. Blackmun: So you draw between offenses for which imprisonment is possible and those for which it did not, I take it you would not draw that?

Mr. Henry F. Field: No, I definitely would not Your Honor.

I think that this case demonstrates the crudity and injustice of that rule, that is --

Justice Harry A. Blackmun: Would you draw out between the monitory figures, above $50 or below $50?

Mr. Henry F. Field: I think that I would look at the realities of the detriment.

That is if it is a fishing license case, take a hypothetical, it might well be that fishing license -- fishing without a license in a certain area of the world is the next heinous, most heinous sin to murder and in that situation I would think that a transcript would be required although a small fine perhaps was involved.

I would look at the particular impact on a particular defendant in cases that arise.

Justice Thurgood Marshall: Mr. Field, is it true that in traffic court you do not have scenario, do have one in --

Mr. Henry F. Field: Yes.

Justice Thurgood Marshall: -- in Chicago?

Mr. Henry F. Field: Yes.

Justice Thurgood Marshall: Did you have the scenarios in the traffic court?

Mr. Henry F. Field: Yes.

The appendix to the reply brief does have a brief synopsis of what I believe to be the situation in regard to reporting of trial generally.

Justice Thurgood Marshall: You mean, not throughout the country, that's my problem?

Mr. Henry F. Field: Yes, no throughout country, at least in the states we surveyed.

It is my understanding that in many jurisdictions there are no -- there is no stenographicaly transcribed --

Justice Thurgood Marshall: That is what I mean.

Mr. Henry F. Field: -- at trial, but in those jurisdictions you have de novo review the Circuit Court and the Court of general jurisdiction where you can be retried and universally in those cases, there is stenographic --

Justice Thurgood Marshall: As I understand, your opposition is that if you do not have a transcript, but you do have de novo, that is okay?

Mr. Henry F. Field: Well, if you had a trial de novo --

Justice Thurgood Marshall: You get a transcript.

Mr. Henry F. Field: You get a transcript and I do not think that there would be a problem.

Justice Thurgood Marshall: Well, that's what I understand you --

Mr. Henry F. Field: The important thing in examining the impact on this defendant here is an alternative if that he needs to wipe his slate clean and as the briefs examined his future and I believe that is real mistake.

Chief Justice Warren E. Burger: Thank you Mr. Field.

Mr. Henry F. Field: Thank you.

Chief Justice Warren E. Burger: Mr. Curry.

Argument of Richard L. Curry

Mr. Richard L. Curry: Mr. Chief Justice and may it please the Court.

The issues as the City of Chicago sees them in this case are two.

First, should rule of Griffin versus Illinois and Williams versus Oklahoma City be extended to afford free transcripts to indigent for appealing cases involving convictions of what are generally recognized as merely of petty offenses and secondly, does the classification between serious and petty violate the Fourteenth Amendment in a fashion which this Court has considered in the past in another cases to be invidious.

We believe that both these questions ought to be answer in the negative.

This Court in Boddie versus Connecticut has recently noted that Griffin rule has had a sturdy growth and I submit that the growth was noticed greatly by the fact that each subsequent application of the rule in Griffin has been based upon a fact situation which found; one, personal liberty of the petitioner in jeopardy and or upon two; the invidious exclusionary consequences of the particular appellate practice as it was applied to an indigent.

Neither of these threshold conditions exists in this case.

Appellant here is not faced with the prospect of incarceration because he was charged with an ordinance violation for which the only sanction was a fine.

And secondly the appellant himself has cavalierly ignored alternate available avenues to perfect his appeal.

Mayer's Illinois Supreme Court appeal of the lower Court jury conviction has been docketed and is awaiting to disposition of this question in this Court.

He is not therefore in the posture of Williams versus Oklahoma City and your decision in that case ought not to be considered as controlling.

Justice William J. Brennan: On this point (Inaudible) on what record does the Supreme Court of -- is it in the Supreme Court of Illinois?

Mr. Richard L. Curry: It is in the Supreme Court of Illinois just --

Justice William J. Brennan: On what record will the appeal be concentrated?

Mr. Richard L. Curry: It is hoped quite frankly Your Honor, that the verdict in this case will require that Mr. Field use his considerable talent as was exhibited in his post trial motion of 14 pages and reconstruct a settled statement so that the matter can be brought to the attention of the Court as I hope an expectation that the rule of Griffin will not be expanded by this bench.

Justice William J. Brennan: As federal statement -- does that require agreements between the plaintiffs?

Mr. Richard L. Curry: Yes, sir.

It requires agreement similar to the agreement I submit that are necessary to have instructions to a jury.

Justice William J. Brennan: If there is disagreement?

Mr. Richard L. Curry: It is a binding instruction I submit.

Justice William J. Brennan: If there is disagreement, who settles the statement?

Mr. Richard L. Curry: The Judge would settle the disagreement between the parties in a settled statement under the Rules of Illinois.

Justice William J. Brennan: And that may still be done even if this (Voice Overlap)?

Mr. Richard L. Curry: That would have to be done in order to go forward with the Illinois Supreme Court of Appeal.

Justice William J. Brennan: How long was this trial?

Mr. Richard L. Curry: This trial was October 11, 1969.

Justice William J. Brennan: That probably does the -- will the trial Judge, if you follow that method and you and Mr. Field could not agree on the settled statement and the trial Judge had to instruct it, would he have available the transcript for that purpose?

Mr. Richard L. Curry: The transcript is not available in this case and there in the (Voice Overlap)

Justice William J. Brennan: Well my question Mr. Curry was would the trial Judge, that if it made available to the trial Judge so that he could resolve the dispute between you and Mr. Field, and (Inaudible) settled statement --

Mr. Richard L. Curry: I really do not know that Your Honor.

Chief Justice Warren E. Burger: Couldn't he order in and ask a reporter (Voice Overlap)

Mr. Richard L. Curry: I was going suggest, thank you Mr. Chief Justice, that avenue of reviewing the un-transcribed portion of the reporter’s notes is also an avenue which is available to the appellant in this case.

I direct your attention to the --

Chief Justice Warren E. Burger: That means -- some of that, yes we are both interested in that.

Could he, I may put a specific question, could Mr. Field or someone representing the petitioner here require the Court reporter to read his notes?

Mr. Richard L. Curry: I submit that it would be his obligation to point out to the Court that he had tried that and that avenue was not available, that he was in fact affectively foreclosed from the reasonable avenues to go forward with his matter and try to present an alternative to the Court.

Justice Thurgood Marshall: Mr. Curry, I am troubled with the fact that the Circuit Court has said frankly I do not care what you do, you are not untitled for it?

The rule says you cannot get it.

He didn't mention anything about any alternative.

He made a rule on -- his ruling was based on the rule of the Court and that is what we have before us, am I right?

Mr. Richard L. Curry: The rule of the Court spoken in terms of a felony at that time Mr. Justice Marshall.

Justice Thurgood Marshall: And was it not that where it was in Circuit Court?

When the ruling in this case was made the Judge was not interested in any other thing, am I my right or wrong?

Mr. Richard L. Curry: You are right at the lower level Your Honor.

He do not want to --

Justice Thurgood Marshall: Do you agree -- do you think he was right or do you think it was in error?

Mr. Richard L. Curry: He then went to the Supreme Court the --

Justice Thurgood Marshall: Do you think he was in error?

Mr. Richard L. Curry: I think he was correct with his ruling.

Justice Thurgood Marshall: Do you think he is correct now?

Mr. Richard L. Curry: I do Sir.

Justice Thurgood Marshall: Why, because of the rule?

Mr. Richard L. Curry: No, not because he ruled because there is in the Supreme Court of Illinois ruled three to agree, clear and unmistakable a language which finds that as a derivation of the case of Duncan versus Louisiana where alternates are specifically suggested as ways that a state can allow an indigent to proceed other than by a full verbatim transcript.

Unknown Speaker: (Inaudible)

Mr. Richard L. Curry: The Circuit Judge denied his motion for a free transcript, you are right, on the basis I submit though Your Honor that an extensive post trial motion running 14 pages here indicating the depth of perception that Mr. Field exhibited at that time.

Justice Thurgood Marshall: I am afraid I haven't made that clear.

I take it you are arguing about the Supreme Court, the difference between the ruling of the Circuit Court and the Supreme Court and as I understand it, there is not too much disagreement between you and Mr. Field on Supreme Court obviously because the page after page of arguing this point and that I understand that there is no disagreement.

I would just think that the original ruling I think was wrong.

Now, the Court, the Supreme Court’s ruling I take is is different matter that is my only point.

Mr. Richard L. Curry: I submit Your Honor that it's my contention that at the lower level it was one question that is he indigent and the Court found at the lower level that he was not qualified to apply for a free transcript under the rule because he wasn't a felony.

When this question was brought to the attention of the Illinois Supreme Court, the Illinois Supreme Court Your Honor found that for the purposes of fees and filing fees they would waive because the expenses of the administrator of the Court clerks, they are for the state to incur, but the State Supreme Court in my interpretation of what they have done has said we ought not in this case provide at the expense of the State of Illinois a transcript when the petitioner has not shown any attempt to avail himself of the other alternatives available.

Unknown Speaker: (Inaudible)

Mr. Richard L. Curry: We say that the petitioner in this case is not in the posture of Williams versus Oklahoma City and your decision in that case ought not to be controlling because Williams was locked out of his Supreme Court by reason of the unavailability of a verbatim transcript and had faced a 90-day jail sentence.

In that case the trial Court made specific findings that Williams argument had merits, that his appeal could not be properly prepared without a transcript, that neither Williams nor his Attorney could make up an inadequate record from memory, that the transcript was in fact in existence and available.

None of these condition exists in the present case, although a complete verbatim transcript has been denied, Mayer makes no attempt whatsoever to avail himself of the alternate methods available to present a record to the Illinois Supreme Court.

The Illinois Supreme Court Rule 323 (c) and (d) is in clear and unmistakable harmony with this Court’s observations in Draper versus Washington.

Justice William J. Brennan: May I ask this Mr. Curry.

Are you suggesting in connection with the pending appeal in the Supreme Court, it's still open to Mayer to demonstrate that the alternative methods are inadequate, is that still open in connection with that appeal in the Supreme Court?

Mr. Richard L. Curry: I would believe he would not be foreclosed to making that point.

Justice William J. Brennan: And now -- and if the succeeded in persuading the Supreme Court that the alternative method will not be adequate to present his appeal, would it fallow that the Supreme Court would then order a transcript?

Mr. Richard L. Curry: I believe that would be the --

Justice William J. Brennan: Notwithstanding the language of the rule that limits the transcript to felony cases?

Mr. Richard L. Curry: The language is now been reduced Your Honor to 90-days, though the change is not to remain to this case.

Justice William J. Brennan: But I am thinking of this case, Mr. Field with connection with a pending appeal, demonstrates that an alternative method would be inadequate, would the Supreme Court require that he'd be furnished the transcript?

Mr. Richard L. Curry: I believe they would sir, yes sir.

Justice Byron R. White: Why was that?

Mr. Richard L. Curry: Because I believe Justice White -

Justice Byron R. White: Because that the new rule wouldn't reach this case on the basis I take it that Illinois does not take transcript to require to any case (Inaudible)?

Mr. Richard L. Curry: I believe Illinois would be influenced greatly by the -- what transpired in William versus Oklahoma and be very cautious Your Honor to see the doors to the appellate court --

Justice Byron R. White: If it where found at --

Mr. Richard L. Curry: -- were not foreclosed.

Justice Byron R. White: If it were found that a verbatim transcript was necessary for each appeal, you think that your Supreme Court would think Williams requires it?

Mr. Richard L. Curry: I certainly do believe that.

Chief Justice Warren E. Burger: Are you suggesting that the Supreme Court of Illinois would have among other powers, the power to order a transcript under each supervisory jurisdiction overall lesser courts in the State?

Mr. Richard L. Curry: Certainly.

Chief Justice Warren E. Burger: Independent of whatever the rule it has defined it.

Mr. Richard L. Curry: Exactly.

The rule is not an absolute and to the extent that the Supreme Court then would be in an impossible position that it would recognize that a meaningful appeal could not be brought, but its hands would then be effectively tied to allow such an appeal to come forward.

I do not believe that's a tenable situation.

I don't think Illinois Supreme Court would so interpret their own rule.

Petitioner here, I submit, rejects out of hand what Draper suggests and it is not a hand to help the Court understand why the alternative courses are found wanting?

Instead he asks this Court to expand Griffin beyond the clear and meaningful limit to that rule and its successors beyond the bounds of logic and beyond what I submit to be the capabilities of the appellate processes as in Illinois and perhaps throughout the nation.

The troubled journey which Griffin and its successors seek to alleviate for the indigent criminal defendant as he struggles to maintain his liberty cannot abide, I submit, his purpose for meandering off the path.

The record must clearly disclose the inadequacies or unavailability of multiple remedies.

Appellate makes no attempt in this regard and I submit that counsel errs in his brief at page 37 when he suggests that California requires no such showing.

The California Rule as to a free transcript in misdemeanor cases is set forth in the 1970 case of Joe Z. versus Superior Court reported at 3 California 3rd, page 54.

When the Court in that case held that before an indigent misdemeanor is entitled to a free transcript on appeal, he must first attempt to reach an agreement upon a settled statement.

The transcript would be provided only of the parties cannot agree or for settle statement would be inadequate.

The misdemeanor then Court quotes, “Must show in a reasonably particularized presentation the reason why he cannot inform the reviewing court by a settled statement of the claimed inadequacies and error.”

I submit to you it is impossible to determine whether the parties cannot agree or whether a settled statement would be inadequate unless there has first been a real attempt at an agreement.

It is the burden of indigency that the cases seek to relieve.

Mayer in this case would champion that cause into a calculated disregard for alternate methods of presenting an appeal which this Court has previously approved of them both Griffin and Draper and which the Illinois Supreme Court has by rule subsequently adopted.

If a full stenographer's transcript must be produced as matter of right or as a matter of simple preference unrelated to cost, unrelated to convenience or necessity or even unrelated to rule of Court then the alternatives to the extravagance suggested in Draper must be overruled.

Justice Potter Stewart: I did not understand that the claim in these cases unrelated to a particular arise need in this case.

As I understood the petitioner, his claim is that because of the two claimed endeavors in this case, sufficiently of the evidence, insufficiency of the evidence in prosecutorial misconduct.

This happens to be one of those rare cases if you will where a settled statement of the facts would be inadequate.

Mr. Richard L. Curry: These two points were brought to the Illinois Supreme Court --

Justice Potter Stewart: Yes.

Mr. Richard L. Curry: -- on motion not on brief Your Honor and the extensive fashion in which they were discussed in brief in this Court was not, I submit, brought to the attention to the Court to that extent.

The alleged prosecutorial error and prejudicial treatment in the manner that charges to the Jury were given in the broadest terms, in the same terms at least raise them in this Court.

Justice Potter Stewart: I did not realize there were claims about the instructions to the Jury. I thought the questions were sufficiency of the evidence in prosecutorial misconduct.

Mr. Richard L. Curry: Right and they are sufficiency of the evidence.

Justice Potter Stewart: And that I further understood appellate's basic claim to be that while in perhaps ninety-nine-and-half percent of the cases of this type an adequate and fair view could be had on a agreed statement of facts or a settled statement.

There do exist some rare cases where that is insufficient and therefore the rule of the Illinois Supreme Court which just is a blanket rule thing that in no case can there be a transcript that that violates the Fourteenth Amendment.

It's a little bit analogous to a case we have that term Groppi against Wisconsin, involving a rule of Wisconsin law that it said, that in no misdemeanor case, in no misdemeanor case could there ever be a change of venue and the claim was made that in 999 out of a 1000 or perhaps more misdemeanor cases there would not need to be a change of venue in order to a Court for fair trial.

But there could the rare case where only a change of venue could satisfy the Fourteenth Amendment and provide a fair trial and that as I understood, it was the appellant, the petitioner’s claim here.

He is attacking the blanket rule of the Supreme Court of Illinois.

Mr. Richard L. Curry: But he has never tried --

Justice Potter Stewart: Do I understand this to be his argument?

Mr. Richard L. Curry: I believe that he overstated --

Justice Potter Stewart: Do you understand the state than I do?

Mr. Richard L. Curry: He is overstating his argument.

Justice Potter Stewart: I was -- maybe I am overstating the argument on this case's argument, that is what I understood?

Mr. Richard L. Curry: No, Sir, Justice Stewart.

The point -- the point that I think is important and I think the meaningful reasons for the alternatives in the US -- in the Illinois Supreme Court rule is that it is incumbent upon those to whom a transcript is not available either because of their Indigency or because of their unwillingness to pay for it from their own funds, it is incumbent upon them before they ask the state to show the Illinois Supreme Court why they cannot bring the record to the Court in one of these alternate fashions.

He did not do this in this case and --

Justice Potter Stewart: How about his affidavit a part of which appears on the petitioners brief on page 12 that was brought before the Supreme Court of Illinois, was it not?

Mr. Richard L. Curry: I am lost, I am in the abstract, the US abstract.

Justice Potter Stewart: No.

I am on --

Mr. Richard L. Curry: Sorry.

Justice Potter Stewart: -- the brief for the appellant on page 12, petitioner's appeal, the appellant on page 12.

Is it not that part of an affidavit that was submitted to the Supreme Court of Illinois?

Mr. Richard L. Curry: I believe it was, yes sir.

Justice Potter Stewart: So far as that?

Mr. Richard L. Curry: But it is conclusionary in --

Justice Potter Stewart: Well, were they having --

Mr. Richard L. Curry: I would have him point out, would have inquired of the prosecutor as the prosecutor’s willingness to be engaged in a settlement, a possible settled statement before the Court.

Justice Potter Stewart: I do not suppose most prosecutors would agree that they engaged in misconduct.

Mr. Richard L. Curry: I do not suppose they would but I believe Your Honor that we should have an hearing of that issue for the benefit of the rule so that the Supreme Court would know that its rule was not flagrantly been disregarded, but there was an attempt to adhere to the rule.

If he was able come forward and say that the prosecutor who handle this case was unavailable or unwilling participate in a negotiated settlement I would say that would be meaningful information for Illinois Supreme Court to hear.

Justice Potter Stewart: But --

Mr. Richard L. Curry: If he said that he had gone to the trial judge and asked the trial Judge what his minutes book showed as to notes of what his recollection was I would say that those would be meaningful comments that the Illinois Supreme Court would utilize in determining then the appropriateness or the true meaningfulness of his application for a free transcript, that he really would not be before them in any meaningful fashion unless he was able to have one or the other.

I do not believe that the persecutor would be able to foreclose the appeal by denying.

If the prosecutor denied it then I think the Illinois Supreme Court would remedy that by granting him the free transcript.

Justice Potter Stewart: That you would -- I would for a moment as I understand the colloquy you indicated that this rule does not mean what it says?

Mr. Richard L. Curry: I mean it is not as absolute as it's read.

I mean that in the application of the rule the Court would clearly require an exhaustion first of alternates and then recognize that the mere filing would not give the person present before them.

Justice Potter Stewart: In what?

Mr. Richard L. Curry: It would be important before --

Justice Potter Stewart: What authority you got that say that the rule of the Supreme Court of Illinois did not mean what it seems to say?

Mr. Richard L. Curry: The authority would be on the basis of that Court’s close attention to the language of this Court’s decision in Griffin and --

Justice Potter Stewart: Yes and do you know of any case where --?

Mr. Richard L. Curry: No, sir there is no case that I know of.

Justice Potter Stewart: Or if you got any direction or authority from the Supreme Court of Illinois to make this representation?

Mr. Richard L. Curry: No, I have none at the Illinois Supreme Court level Justice Stewart.

What I know clearly though is that at the lower level, in the trial level there are number of instances where despite the fact that there are alternatives available and despite the fact the rule calls for no transcripts over 90 days that the trial level in many instances in my experience as corporation counsel does grant a transcript to the indigent.

Chief Justice Warren E. Burger: In other words, this is a matter of discretion on the part of --

Mr. Richard L. Curry: It is utilized as a matter of discretion and not brought into challenge by in any case that I am aware of in Illinois.

Chief Justice Warren E. Burger: I suppose your argument would mean that if the trial Court has -- in fact level has that discussion, Supreme Court of Illinois it has it within its supervisory power?

Mr. Richard L. Curry: I really believe that the weight and the import of the Williams case would be so profound on the Illinois Supreme Court to justify belief that they would effectively render this petitioner's appeal meaningless by denying him all avenues if he were to effectively show them that the two alternatives that they suggest are meaningless than I do believe that they would remedy the incongruity that exists there and require a free transcript be provided.

Justice Potter Stewart: And then, in other words, you are saying that rule as written is unconstitutional?

Mr. Richard L. Curry: I do not believe I am saying that at all sir. I am obviously reading into it more than the usual language is there, but I do not believe the rule is unconstitutional.

Justice Potter Stewart: Well, I thought you said that under the Williams against Oklahoma if the rule as written is unconstitutional that if there is a showing that anything short of a written transcript of the evidence will not give a meaningful appeal than there has to be a written transcript and this rule as written doesn't provide for that.

Mr. Richard L. Curry: There has to be such showing.

Justice Potter Stewart: Yes.

Mr. Richard L. Curry: I submit that there is nothing like that in the state.

Justice Potter Stewart: The rule does not make any exception for a written transcript or there is any such showing, does it?

Mr. Richard L. Curry: It does not sir.

Justice Potter Stewart: So the rule is unconstitutional as I understand.

Mr. Richard L. Curry: The rules follows very closely the language in Duncan where alternatives were suggested by this Court as the means that the State may utilize to avoid the impact of extravagance, frivolous appeal to what have you?

I submit that in following that logic the Court clearly wrestled with the subject and has a rule which is not keeping with Griffin and is not keeping with Duncan and when we come to a fact situation which we really have not come to in this case or any case that I know of in Illinois where the two other alternatives are shown to have been attempted and to be wanting in brining a meaningful record to the Court.

We haven't come to the case where then the Illinois Supreme Court would deny.

I do believe that if a --

Justice Potter Stewart: What sort of case would you hypotheticate that would be such a case?

Mr. Richard L. Curry: Pardon, I would hypotheticate that there would never be such a case in Illinois.

Justice Potter Stewart: You do not think there is any such case?

Mr. Richard L. Curry: I do not believe there would be, sir.

Justice Potter Stewart: There could be?

Mr. Richard L. Curry: There could be surely, but I do not believe there would be for simple reason that the purpose of the rule in my opinion clearly and unmistakably indicates the ruling is on the part of the Illinois Supreme Court to have the litigant available to come before him and present a meaningful record of what transpired.

It does -- it is presents alternatives and it seems to me that when have early say I do not want alternative B and I do not I want alternative C, I must have alternative A that is not keeping with what the Illinois Supreme Court rule has in mind.

If you took away the first two problems where you did meet that issue then I do believe that in Illinois a free transcript would be forthcoming.

Justice Thurgood Marshall: I just have a quick problem of how you get an agreed statement on “prosecutorial misconduct in many instances throughout the trial”?

Mr. Richard L. Curry: Prosecutor.

Justice Thurgood Marshall: How you can do that without a transcript, I have great difficulty, thinking?

Mr. Richard L. Curry: One of the errors alleged is that the prosecutor limped in the courtroom.

The prosecutor was although injured in that same affair, he did limp in the courtroom as you would be uncertain, perfectly willing to agree that he limped in the courtroom that day, if that is prosecutorial error.

I do not believe it is but I know --

Justice Thurgood Marshall: I don't know what other.

You said throughout the trial (Voice Overlap)

Mr. Richard L. Curry: But neither --

Justice Thurgood Marshall: Now, if he put these statements down and submits them and they are not agreed upon, is he bound by those statements?

Mr. Richard L. Curry: Is he bound by them, I believe that it would be very similar, the negotiation that would go on during a agreed statement or a settled statement would be very similar to the kind of negotiations that goes on when lawyers and the Judges get together over instructions to the Jury.

Chief Justice Warren E. Burger: What happens to Judge -- haven't you already told us counsel that on all unresolved matters of a settled statement, the Judge resolves?

Mr. Richard L. Curry: The Judge will resolve.

Chief Justice Warren E. Burger: So that the parties put down on paper what is agreed on and the Judge supplies the vacant spots, where they are not going to --

Mr. Richard L. Curry: That's my understanding.

He would have available to him, the note, the minutes note that he made as you said there.

He would also have I submit available to him the participation of the un-transcribed notes from the Court reporter if he sought them and thought they were necessary.

Chief Justice Warren E. Burger: Was any request ever made by the then defendant for having a reporter read any parts of the transcript?

Mr. Richard L. Curry: I know of none.

Chief Justice Warren E. Burger: And is any claim within in the record on behalf of the petitioner if you know?

Mr. Richard L. Curry: There is none.

There is none.

There is no showing throughout the record that any attempt has been made to secure an agreed statement.

I take issue with Mr. Field's statement that despite two days of trial he would find it impossible to prepare such a statement.

I would brought your attention to the extensive post trial notice which appears in your abstract at page 11 through 22, 14 pages I might add of in depth analysis of what did transpire at that hearing.

I submit that this almost in itself would be tantamount to a record made under either one of these proposals by the Illinois Supreme Court.

The cases since Griffin give the support of the kind of balance that judicial propriety found in Duncan.

That is the consequences to the defendant from the conviction of a petty offense are insufficient to what were the benefits to efficient law enforcement as simplified judicial administration.

In applying Fourteenth Amendment, Rinaldi versus Yeager says, these avenues of appeal must be kept free of unreasoned distinctions.

I believe that there is reason distinction in the Illinois Supreme Court rule.

The distinction being between petty and serious and I believe that is very important distinction that ought to be respected in future decision by the Court.

Justice Potter Stewart: And under the distinction in Illinois between petty and serious is offenses for which you can go to prison and those for which you cannot?

Mr. Richard L. Curry: Six months is the distinction made by the Illinois Supreme Court rule, yes sir.

Justice Potter Stewart: Up to six months?

Mr. Richard L. Curry: Yes sir.

Justice Potter Stewart: Same as the Federal rule?

Mr. Richard L. Curry: Right same as the federal rule.

The classification would fail we're told in Shapiro versus Thompson unless shown to be necessary to promote a compelling governmental interest.

I submit to you that a compelling elemental interest is very real here in the viability of the Court systems at the lower level, but most apparently at the appellate level, if appeals on full transcripts to indigence are the outgrowth of the rule of this case and finally in Boddie versus Connecticut the Court mentioning the absence of countervailing state interest of overriding significance and classification must fail.

I say to you that a classification such as we have here between serious and petty is a countervailing state interest of overriding significance.

I would respectfully ask this Court to reject what's urged by the appellant and not expand the rule in Griffin into the petty offense area.

Thank you very much.

Justice William J. Brennan: May I ask one question before you sit down?

Mr. Richard L. Curry: Certainly.

Justice William J. Brennan: I am looking at your rule 323 (c) that is on the alternative, at page 4 (a) and I think it is the petitioner's brief.

I know (Inaudible) the capture that rule is procedure if no verbatim transcript is available?

Mr. Richard L. Curry: That right.

Justice William J. Brennan: It is on the page that I would suppose mean that it been no transcript taken or something like that?

Mr. Richard L. Curry: Means if none is available by indigency, means if none is available by --

Justice William J. Brennan: Well, that seems -- it seems broader -- the rule the rule itself be not available if no verbatim transcript to the evidence of proceedings is obtainable.

Now, are they synonymous available and obtainable, but on face of it your other rule says it is not obtainable unless a felony case?

Mr. Richard L. Curry: Not obtainable in this case because he cannot pay for it, I submit Justice.

Justice William J. Brennan: Is that what (Inaudible) there is construction to this?

Mr. Richard L. Curry: None that I know.

Justice William J. Brennan: Thank you.

Mr. Richard L. Curry: Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Field, thank you Mr. Curry.

The case is submitted.

Featured:

Britt v. North Carolina - Oral Argument

Thu, 23 Aug 2012 18:18:35 +0000

Case:

Britt v. North Carolina

Media File:

70-5041_19711014-argument.mp3

Related Transcript:

70-5041_19711014-argument

Transcript:

Argument of Robert G. Bowers

Chief Justice Warren E. Burger: -- the number 5041, Britt against North Carolina.

Mr. Bowers you may Proceed whenever you are ready.

Mr. Robert G. Bowers: Mr. Chief Justice and may it please the Court.

The Chief Judge of the North Carolina Court of Appeals, Judge Raymond Mallard makes a comment frequently, has to me, that every case that he sees in his court has a hooker in it.

While I was noting the previous argument and this one has to do with a transcript, but it has a little bit different twist to it.

In this case, different from the previous case, the defendant, there is no question about his indigency now or then.

He is now in state prison, a young man who, I do not think there is any question ever raised by anybody, that he was absolutely indigenous.

He was tried in a trial beginning on November 11.

He was not convicted.

The jury verdict was never reached.

There was a mistrial order and the defendant was then set down for trial again.

Prior to the second trial, very shortly after the first trial a motion was filed for a transcript.

You will find the order of mistrial on page 11 of the appendix.

The affidavit -- on the bottom of that page it has motion for transcript which of course obviously is an affidavit in which the defendant signed an affidavit that he was indigent, that I had advised him that a transcript would be a great help and that it would be available if we could afford to pay for it.

The motion was made on that affidavit which was summarily denied by Judge Fountain (ph) who is a very fine and gracious Judge and very gifted Judge, but he and I disagreed on this but it was a matter of fact without argument denied to which the defendant accepted and this is the crux of our case of whether or not the defendant was entitled to a transcript of the evidentiary portion of the trial which commenced on November 11.

The mistrial was ordered on November 14.

The trial -- the jury had commenced its deliberation at 9:30 on that morning.

There where three days of trial.

Now, a question has been raised in the previous case about whether or not counsel could reconstruct.

Well, there again we have a peculiar situation here in which we do not need to have the reconstruction.

That was to probably done for purposes of an appeal, but for purposes of preparation and cross examination of the second trial this we thought was absolutely essential.

Justice Harry A. Blackmun: In other words, you want to defend this with the evidence of the state witnesses at the first trial?

Mr. Robert G. Bowers: Yes sir.

Justice Harry A. Blackmun: And cross examine if they testified against the second trial?

Mr. Robert G. Bowers: Yes sir, both for that and for investigative purposes prior to the second trial.

I will be very frank on this.

I used my own recollection in trying to investigate what had been brought out in the first trial and I do not know that I made many errors in them, but it would have still been most helpful.

Now, commenting collaterally on that, after the second trial and after we had transcript in preparation for the appeal to the Court of Appeals --

Unknown Speaker: Now, which transcript?

Mr. Robert G. Bowers: The second, of the second trial.

We have never seen the transcript of the first trial.

So far as we know it is never been prepared in any way shape form or matter.

Chief Justice Warren E. Burger: How long did that first trial case last?

Mr. Robert G. Bowers: Four days.

Well, actually three days of trial and one day of jury deliberation.

I do not want to lead optimistically the Court in anyway.

Unknown Speaker: It was a murder trial, was it not?

Mr. Robert G. Bowers: Yes sir.

In this particular case, the young defendant, I say young, 20-21 years old and it might that young, was charged with beating his girlfriend's grandmother to death with a frying pan in an effort to rob her of her worldly possessions.

Now, whether or not he is guilty is not a matter that is before this Court or was never subject of my determination.

I was appointed to represent him and I hope I did the best job that I could possibly do, but be that as it maybe, I do not think that I did the best job that I could have possibly done had I had that transcript.

It is difficult to argue this matter in this Court and try to put this Court back in the courtroom in Craven County, New Bern, North Carolina, where the fine Judge, where the good court, the courtrooms are fine place to work.

There is one witness who was the primary witness for the state, a Captain T. M. Brucher (ph) of New Bern Police Department.

Now Captain Brucher had made no notes, this appears in the transcript which is before you or the record which is before you, had made no notes of any kind, type or description with respect to anything that he had done in connection with the investigation of this case.

Yet he testified that he had spent one hour-and-a-half at the scene, but if you will read the testimony as elicited in the second trial, you will find that he did not account for more than five minutes of his time list.

He said that he was at the funeral home for an hour-and-a-half, yet he had made no notes.

He said -- he testified with respect to the arrest of the defendant without a warrant, his incarceration without a warrant, without being taken before a magistrate.

He testified about taking him out of jail and taking him back to the detective division of the Police Department and questioning.

Oh! Yes he testified that he calls under the Miranda.

He testified further about the statements made to him, but no where in this whole procedure had he ever filed a first note with his supervisor, where had he made the first note for his records.

We could not have ask to examine the notes that he had made under the Jinks rule, we could not have done anything.

The only thing he did by sitting in that courtroom was a folder in his hand which we found to contain upon questioning, the record of the (Inaudible).

Justice Byron R. White: Is this -- who is this, T.M. Brucher?

Mr. Robert G. Bowers: T.M. Brucher.

Justice Byron R. White: T.M. Brucher?

Mr. Robert G. Bowers: Yes sir.

Now, this -- I will frankly say I do not think this prejudiced the defendant a great deal in his defense because we pointed out what he was doing and I think it probably militated more against him than it did in his favor.

I am trying to be candid about this.

I am not trying to say that the prosecutor was guilty of any misconduct of any kind type or description.

Justice Thurgood Marshall: If the file in order (Inaudible) mistake, the prosecutor did or did not have the time shifted?

Mr. Robert G. Bowers: No sir.

He did not or if he did I did not know about it and I do not think that he did and he was very honorable man and he is and I am sure he would have told me ahead, in fact he probably would have handed it to me --

Justice Byron R. White: Was the reporter available to you?

Mr. Robert G. Bowers: Your Honor, yes sir, the reporter was available to us.

Justice Byron R. White: And the reporter has his notes?

Mr. Robert G. Bowers: Yes sir, the reporter had his notes.

Justice Byron R. White: Do you have any specific questions about what specific answers to question where it would have to reporter --?

Mr. Robert G. Bowers: It would have necessitated probably a day's delay for him to go get his notes.

Now, this would have, had he brought his notes to Court with him, this would have been available.

Justice Byron R. White: You could have had it with prior notice?

Mr. Robert G. Bowers: Yes sir.

Unknown Speaker: Did you have the same reporter?

Mr. Robert G. Bowers: Now, one motion, one moment here if I may, excuse me, may I answer your question to that.

One question in this, you see that motion was denied, we were unable to get a hearing on the motion, it was denied and we were forced to go immediately within ten minutes into the selection of the Jury.

Justice Byron R. White: In such a Court order, you would have the reporter to brief.

The appellants have reporter with --?

Mr. Robert G. Bowers: I am sure he would have.

Frankly I did.

I am not trying to --

Justice William J. Brennan: What seems is to about.

I wonder how practical that would have been?

You could not put him on the stand?

Mr. Robert G. Bowers: No sir.

Justice William J. Brennan: What you have to do is talk with him outside the courtroom, outside the trial, get a recess or something after you heard the Captain testify and you thought he had testified differently at the first trial, you can then go to reporter and say, “hey, I think I remember such and such that he said.”

Is that what you would have to do?

Mr. Robert G. Bowers: This is correct.

Justice William J. Brennan: Well, how practical would that be?

Mr. Robert G. Bowers: I do not think it would have been practical at all.

Justice Byron R. White: Well, the reporter would have read you his notes before the trial if you had asked him?

Mr. Robert G. Bowers: Yes sir.

He would have, but there again my problem was this.

Had he read me those notes, it would still would have not furnished me the need that I had for cross examination later.

Justice William J. Brennan: How could possibly you know if the need was not fully (Voice Overlap)

Mr. Robert G. Bowers: No sir I could.

Justice William J. Brennan: At time of trial.

Mr. Robert G. Bowers: This was my problem.

I did not know what the situation would be until it arose

Chief Justice Warren E. Burger: I think you may have answered one question (Inaudible) there with time of trial.

Someone questioned you, you said “you could not have put him on the stand” what would present to in calling the reporter, putting him on stand and I asking him to read into the record at second trial, testimonies that he had taken down in the first trial.

Mr. Robert G. Bowers: I could not have put him, I did answer that too hastily, I could not have put him on stand until I had reviewed what he had to testify about.

Chief Justice Warren E. Burger: Well you conceivably --

Mr. Robert G. Bowers: Yes.

Chief Justice Warren E. Burger: -- could take a chance if you were sure by just putting him on to clarify the record.

Mr. Robert G. Bowers: Of course there would have been the problem.

He was also, the Court reporter that was taking this at the trial.

Chief Justice Warren E. Burger: Well, that could not stop it.

Mr. Robert G. Bowers: No, I agree with you though, it would have been inconvenient but it would not have stopped it.

Justice William O. Douglas: Well, is that the way you cross examine witnesses?

I have never heard of anything like that.

Mr. Robert G. Bowers: No sir.

Chief Justice Warren E. Burger: Well, I suppose that it is often done counsel and I have done it myself in the trial of cases, to call the reporter from prior trial, put him on the stand and read the testimony of a particular witness or some other aspect of the trial?

Mr. Robert G. Bowers: Yes sir.

My problem in cross examination, if that would have been rebuttal testimony, yes.

That would rebutted what he said, but he would not have given me the paper that would have said now on such and such date did you not testify as fallows and then ask it and was your answer not as fallows.

Now, how do you put these two together, how do you get your position that your answer today is in conformity with your answer before.

The type of cross examination is detailed, of course, and this is where our complaint is, not with the fact that the court reporter was not available to comeback later and say “oh! No, he testified this way on that date.”

Chief Justice Warren E. Burger: But do I understand correctly that you and this may be of some importance, you said, if you had asked the reporter out of the Court, he would have read back any part of notes of the first trial if he wanted to?

Mr. Robert G. Bowers: Yes sir and I say this.

May I clarify that a moment.

The Court reporter and I are good friends.

I do not think he would turn down my request.

I do not think I would have had an legal standing to have demanded that he do that.

Not in our system, but because of the fact that the Court reporter in a small Eastern North Carolina town is usually a friend of all the lawyers, I could have asked him and I am sure that he would have accommodated me to that extent.

I did not, maybe I should have.

Justice Harry A. Blackmun: Mr. Bowers, how long was a decree to a trial?

Mr. Robert G. Bowers: Approximately about --

Justice Harry A. Blackmun: You defended in both?

Mr. Robert G. Bowers: Yes sir.

Justice Potter Stewart: Same reporter at both times?

Mr. Robert G. Bowers: Yes sir.

Same Judge, same reporter, same counsel.

Justice Potter Stewart: Different Jury?

Mr. Robert G. Bowers: Different Jury and frankly somewhat different testimony.

Now, I will say this.

I do no want to mislead the Court in that respect.

They had additional witnesses at the second trial that had not been in the first trial.

I am not trying to say to you and try to say they amended a lot of things with this previous testimony.

Frankly I do not know how many things they amended because I have been not to read the transcript, with my own personal recollection that is all.

Unknown Speaker: (Inaudible)

Mr. Robert G. Bowers: It does not tell me exactly all the discrepancies between the two trials.

I do not claim to have perfectly called.

I wish I did, but I do not and I frankly do not believe many lawyers do and I think that this is a very necessary element.

I am fully well aware of some decisions of the Circuit Court that are opposed to my position.

I am perfectly well aware of ones that are in favor of my position.

Of course they are the ones I would like to argue more strenuously than the three that I found that are opposed and I am sure Ms. Denson will argue those diligently.

However, there is very little law.

I am not going into the Griffin case.

You heard that I am sure until it is pending out -- well, you got -- like never hear that again, but it still we think basic law that justice should not depend upon the thickness of a man’s pocket book.

And if a transcript was available to me or to anybody else that had a pocket thick enough to pay for it, it sure certainly should have been available to young Charles W. (Inaudible).

Chief Justice Warren E. Burger: Well that does not quite square with your response a few minutes ago that if you had asked the reporter to read it, you would have got it?

Mr. Robert G. Bowers: I am saying that he would read it back to me, but having in writing and having it available to me for use for cross examination, I would not have been able to obtain that.

If there are no further questions, I will --

Justice Byron R. White: Well I suppose your position would be the same except we would agree with our hearing is granted for re hearing, grand jury testimonies?

Mr. Robert G. Bowers: No sir, it would not.

It would not in North Carolina or anywhere that I had dealings with grand jury testimony because that made available to the state nor that he would depend on.

Justice Byron R. White: It is secret?

Mr. Robert G. Bowers: It is completely secret hearing.

Justice Byron R. White: Well, in this case it is not quite available (Inaudible)?

Mr. Robert G. Bowers: It was available, I had to ask for it.

This, the state could have gotten it merely by requesting upon the court reporter.

If the Court reporter were applied to, he would have billed the state --

Justice Byron R. White: (Inaudible)

Mr. Robert G. Bowers: We have -- frankly we do not have Court reporters at preliminary hearings normally.

I think we should, but unfortunately we do not.

Justice Byron R. White: But the rich man can have one in your view?

Mr. Robert G. Bowers: Yes sir.

Now, I might say this.

In the Fourth District in our state, the judges are now requiring the Court reporter to come in for preliminary hearings, but this is not into any mandate that has come down.

Justice Byron R. White: The jury has (Inaudible) about the preliminary hearing are they not?

Mr. Robert G. Bowers: Yes sir, they certainly would.

Representing the defendant, I first would make that and so I think he is entitled to every defense that is available to anybody.

Justice Harry A. Blackmun: Mr. Bowers, you feel that the fact that same counsel defended in both trials is a factor?

Mr. Robert G. Bowers: I do not think it is a factor that should be considered in this particular manner.

I think it is a factor naturally in the actual trial because there is a certainty fin any case, any lawyer get the prior cases and I think that with this figure he can go to the second trial probably better than the first.

Justice Harry A. Blackmun: If we were to go along with you, would you really place the premium on mistrial?

Mr. Robert G. Bowers: I think that the state would argue that it would, but I do not think so.

I frankly think that we got an extra judiciary in North Carolina and I think that -- well in this particular case we had no transcript.

The jury stayed out one day and the mistrial was ordered.

This was not matter of deciding whether a transcript would be made available or not.

That factor never entered into it.

The court had found they were hopelessly in deadlock.

So far, the Court there can be an off deck -- cannot be a mistrial in North Carolina unless a Judge orders.

Most judges require the Jurors to sit there until every reasonable hypothesis had been pursued and they are satisfied with the trial.

Justice Harry A. Blackmun: Well, we have seen a lot and heard a lot about disruptive tactics in the courtroom.

I wondered if a ruling in your favor here would tend to promote further disruptions or a counsel can get a transcript to the first trial and be better off in the examination of witnesses is susceptible?

Mr. Robert G. Bowers: I think not.

I frankly think that the disruptive tactics that has been followed by some and I could use a word of abbreviation here, but I think I better leave it out, some who are not as ethical as others and some who are trying to try cases other than a legal process are still aware and hope they remain aware.

I hope they disappear in time, but I do not think that this particular procedure of providing transcript would encourage that in anyway.

I certainly if I --

Justice Harry A. Blackmun: If you have nothing of this kind here?

Mr. Robert G. Bowers: No sir, nothing whatever.

And in fact I cannot conceive of that being the basic.

I think they are trying to be political rather than to try to get transcript.

Chief Justice Warren E. Burger: Thank you, Mr. Bowers.

Mrs. Denson?

Argument of Christine Y. Denson

Ms Christine Y. Denson: Thank you Mr. Chief Justice and may it please the Court.

We want very strenuously to divorce this case from the one this Court has just heard because we are in a Court far the situation with this case.

The North Carolina system I am very proud off.

We do have trial de novo even for the petty offenses or misdemeanor and in event those cases are appealed nor collaterally attacked by certiorari or by habeas corpus, file temporary out, a transcript would be available and the merits of statement that our appellate courts require would be coming, forth coming from that transcript which would be made available.

So we are certainly not talking about cases that I said, this Court has -- as I read your decision previously decided.

Here we are talking about a direct attack, we talking about direct appeal, we are talking about a collateral attack on habeas corpus with the question of transcript being made available.

Rather we are talking about the mistrial situation which can be extended.

We are talking about mistrial situation which as the Court has already pointed out can be extended not only in the mistrial application but in preliminary hearing.

As Your Honors pointed out, a rich could hire a reporter to come in and take the transcript and could make that available to himself on his trial, he could thereby impeach the witnesses.

We are talking also about the trial de novo situation which we have in North Carolina and in many other states.

A rich man again could hire reporter to come on his traffic offense and hear the testimony there and have that reporter available at his appeal in Superior Court to again to try to impeach the testimony.

So we are talking about an application that is far divorced from the previous decisions of this Court and we are talking about an application that could be very sweepy and it go not only to this mistrial situation of which hopefully there are limited number, but could go to the preliminary hearing or to any other trial or any other kind of testimony by witness who comes on at the trial with final result from a conviction and we would emphasize that fact to the Court.

We have also in this case no indication that counsel did try to contact the Court reporter.

We note that the appendix shows that the motion for the transcript whether actually presented to the Court at that time or not was dated the 25 November and the man was not tried until mid December and so counsel knew what he was going to do on the 25 November at least in making his motion for a transcript and there is no evidence that he made any efforts to get up with the Court reporter.

He says, the reporter would have told him what was in that transcript.

He could have made notes himself and then again the reporter was available and is on trial.

He found from his notes that there were some discrepancies.

He could have asked those questions of the Court reporter and brought the Court reporter on to impeach the witness.

As it was, he had of course available to him the fact that this Captain Brucher had made no notes.

He pointed that out to the Jury.

He pointed out to the jury that the alleged confession was never reduced to writing, again calling into question the credibility of that witness.

In fact we think that he had available to him all of the things which the jury could see that would impeach the credibility of this witness.

We think rather, we got a case where although there are some alleged discrepancies in the testimony and we do not know what those discrepancies actually were, they are not important to this case.

We are talking about the difference between questioning a witness 30 or 45 minutes and an hour and a half.

We do not think that is important.

We are talking about whether or not he made some comments at the first trial about the defendant’s clothes.

Again, that cannot be important.

Question of who took the fingerprints from the water glass?

Was it the officer Dody who was present at the present the second time the defendant confessed and testified about that or was it accompanied by through himself.

That cannot be important.

Justice Potter Stewart: Did Captain Brucher, the key prosecution witness?

Ms Christine Y. Denson: Your Honor I would say no, I would not say he was.

Justice Potter Stewart: He testified as to the defendant’s confession, did he not?

Ms Christine Y. Denson: He testified as to defendant’s confession the first time then after that he got on who was present the second time the defendant repeated his statement in front of Brucher, Afobest, the girlfriend and officer Dody.

So we have a reconfirmation of those times.

His statement was essentially the same.

We have done to the facts that (Inaudible) got to blow with a knife and he did not do that himself.

So we have some collaboration there of Brucher's testimony by officer Dody.

Justice Potter Stewart: There was no eye witness testimony right there?

Ms Christine Y. Denson: Yes, Afobest herself, the girlfriend who was present, testified and the discrepancy between what he had to say and what part of the confession of the defendant would be or was a difference in who struck the blow with a knife.

She said the defendant did it and that she only stayed there because she was scared of him.

The defendant said that she got the blow with the knife.

Justice Potter Stewart: I thought it was a frying pan (Inaudible)

Ms Christine Y. Denson: It was the frying pan that killed the deceased.

The medical testimony of the doctor was that the knife wound was superficial and it would not have inflected death.

Justice Potter Stewart: Is it T.M. Brucher or P.H. Brucher?

Ms Christine Y. Denson: I do not recall from the record.

I believe --

Justice Potter Stewart: On page 30 it is called P.H. Brucher and that is the witnesses has called here (Inaudible)

Ms Christine Y. Denson: I believe it is T.M. I talked to Captain Brucher yesterday about the matter.

In short, we think that the alleged discrepancies here and counsel will admit that he cannot take for sure what those discrepancies are, are not important discrepancies in this case and for the Court to use this case as a step to take a very giant step who can make transcripts available to defendants, we think would be serious miscarriage of justice.

As the Court has pointed out, we think that this would put a premium a mistrial, not only of course do the disagreeing jurors cause mistrials, but the conduct of a defendant or of some witness or even if some police officer, as we had in our state where the policeman will put defendants in handcuffs in view of the jury or some such things can cause a mistrial.

If the defendant has some key testimony and his attorney has not known about it before and he does not like what his attorney does and (Inaudible) by a way of cross examination of that witness, we think it would put a premium on the mistrial situation for him to cause a mistrial knowing that he could get a free transcript from the State and have that available for his attorney on the next trial to better cross examine the witnesses.

So we fear that result.

We fear also of course the overburdening of our Trial Courts.

We make transcripts available when the defendant is directly appealing on collateral, they are attacking his conviction.

We feel that they are entitled to that.

In North Carolina we have done that voluntarily on the smallest offense, but to recall the Court authority to delay the activities, the Court to delay the preparation of transcripts for direct appeals, in order to prepare the transcripts of the mistrials was again caused the delay in the Court system which seriously overburdened the reporting of our own state courts and those of other State and the Federal Courts with them.

For that reason we ask the Court not to take that step.

Justice Thurgood Marshall: How many mistrials you had in the last year?

Ms Christine Y. Denson: Yes.

I do not have the statistics --

Justice Thurgood Marshall: About two or three?

Ms Christine Y. Denson: Your Honor, I have no idea.

I do not even have a statistics for our state.

Justice Thurgood Marshall: So you really do not know how much of a burden it will be there, do you?

Ms Christine Y. Denson: No we do not, but we think that this --

Justice Thurgood Marshall: I am not going to dispute what you say, but you have cited the burden on the --

Ms Christine Y. Denson: Well, Your Honor, far from those that we have now, we are afraid that this would give them an additional reason to make a mistrial.

Not only the defendant who would tend to be disruptive anyway, but the defendant who knowing that he has got a transcript available, he causes a mistrial and feels for some reason that he is not happy with counsel and could do better the next time, maybe even changing counsel, this would give him an additional reason we do not want.

Justice Thurgood Marshall: I am trying to suggest -- I wonder why you need all that additional weight on this transcript thing?

Ms Christine Y. Denson: Well, I do not think anyone knows Your Honor, certainly I do not.

I do not know the incidents now, but I am afraid the incidents will be increased and this is our great theory.

We think that the defendant on a showing of needs might be entitled to a transcript.

There maybe some reason that the Court reporter is not available.

There maybe some reason of a key state witness which we do not have in this case and maybe occasion for key testimonies that he does want to check, but first of all we do not have any indication in this case that he could not have secured and that they tried and secondly we do not have identification of special need in this case.

Justice Byron R. White: As I recall it your appellate Courts said that there has been no showing of discrepancies or needs for the transcript in the case?

Ms Christine Y. Denson: No.

I think the essential reason our Court said, made no decision with the first reason I alluded it to that there been no showing that he had not had the Court reporter available to call and that there is no showing that he made any effort to make use of that formal transcript in between the trial and for that reason though it is no showing of needs.

Justice Byron R. White: Well, did they not say that there had not been any showing that there were discrepancies in the testimony?

Ms Christine Y. Denson: I believe judge Mao did discuss since I urged to him as I urge to this Court today that the point at which they were alleged discrepancies which fill and they attended on minor.

Justice Byron R. White: Was that important for the trial, at the second now?

Ms Christine Y. Denson: Yes.

I believe there was, the usual motions that are made for a new trial.

Justice Byron R. White: Did it include this ground, it must have?

Ms Christine Y. Denson: I think that you (Inaudible) as available.

Justice Byron R. White: And I suppose after trial, he had thought there were discrepancies in his testimony after trial.

He said if he asked the Court reporter to read testimony and could might have pointed up for 50% of this?

Ms Christine Y. Denson: Well, yes Your Honor.

Practically I think the time for doing that would be before the defendant rested this case.

The Court of course gives him time to get ready to make his presentation and at that point I think he could have searched his memory for any discrepancy he thought there was.

The Court reporter was there at that time and could have asked for a recess and taken two years the time for this Court, certainly is far in a way grater delay than the one they might have been occasioned by getting the Court reporter to search his notes and although I cannot say this to the Court with certainty, I am very certain the Court would have allow him that delay, if he told the Court that he thought there were discrepancies and he wanted to see what the reporter might show.

We think there is been an absence by the defendants of any showing for special need in this case and at the very least if the Court is going to say transcript should be available, we think that that ought to be restricted to those cases where there is some sort of showing the need.

For that reason, we would ask the Court not to extend the doctrine on transcript and to say that in the case of mistrials, they remain in all of this, they are not important for that objectively, they are not important for these reasons unless there is some special need in the case.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mrs. Damson.

Mr. Bowers do you have anything further?

Rebuttal of Robert G. Bowers

Mr. Robert G. Bowers: Yes, I would make just one very, rather short comment.

In our statute which appears on page 5 of my brief 78450, sub section (b) says whenever a person under the standards and procedure set out in this sub chapter is determined to be an indigent person entitled to counsel.

It is the responsibility of the State to provide him with counsel and these were the important words, and the other necessary expenses of representation.

I was about to point that out to Court.

With that I will sit down.

Featured:

Wade v. Wilson - Oral Argument

Thu, 23 Aug 2012 18:15:39 +0000

Case:

Wade v. Wilson

Media File:

55_19691112-argument.mp3

Related Transcript:

55_19691112-argument

Transcript:

Argument of Marshall L. Small

Chief Justice Warren E. Burger: Number 55, Wade against Wilson and others.

Mr. Small, you may proceed whenever you are ready.

Mr. Marshall L. Small: Thank you Mr. Chief Justice and members of the Court.

In this case, petitioner Wade was tried with codefendant, Pollard, convicted of murder in the first degree.

Each of the defendants filed a notice for appeal.

Had they been tried separately, under the California Rules of Court, each of the codefendants would have been furnished a separate trial transcript.

However, they were tried together and, therefore, under the rules only one transcript was made available to both defendants.

And that transcript was sent to the codefendant, Pollard, Wade here did not see that transcript.

He didn't have the opportunity therefore to inspect the transcript before it was certified as correct for purposes of the appeal.

Chief Justice Warren E. Burger: Now, I may have missed it in the record and parts of the appendix which are here, but is there an explanation for why this could not have been obtained for the use of this petitioner by the ordinary courtesies and amenities as between and among lawyers?

Mr. Marshall L. Small: I don't know that there was any separate lawyer appointed at that time, Your Honor.

There was a new appellate counsel appointed for petitioner Wade here in connection with the appeal.

The record doesn't make clear at what point in time he was appointed.

Chief Justice Warren E. Burger: But we don't -- so we have nothing in this record to show whether he made any efforts or if so what efforts he made to get the transcript that had already been certified?

Mr. Marshall L. Small: That's correct.

We do -- we do not have that in his record.

The case went up on appeal, oral argument was waived.

The decision was affirmed and thereafter, subsequently, the petitioner instituted proceedings in the California courts to try and obtain a copy of its transcript for the purpose of instituting collateral attack on his convictions.

He first applied to the District Court of Appeals and it affirmed the conviction and that court told him they'd had had no facilities for duplicating the transcript.

He applied to the California Supreme Court.

They told him to go back to the District Court of Appeals.

The transcript hereof record then indicates that following correspondence with California courts became clear that in order to obtain a copy of this transcript he would have to pay for it.

It was available for duplication if he paid for it, but that's the only way that he could get it.

Chief Justice Warren E. Burger: With -- the California courts have had the -- do they have the power to order the codefendant to surrender his copy of the transcript for use by your petitioner?

Mr. Marshall L. Small: I would assume they do under rule ten by direction of the court they could've made it available, but they have taken no action to do that.

Chief Justice Warren E. Burger: And you -- do you know whether any effort was made to get them to exercise the rules and power?

Mr. Marshall L. Small: I do not, Your Honor.

Chief Justice Warren E. Burger: Is it -- while I have you interrupted, is it a substantial record if you know?

Mr. Marshall L. Small: I have looked at the record myself, just briefly perused at -- had it sent up from Los Angeles to San Francisco.

It is approximately 800 pages long.

I used in my brief my calculations for the cost of reproduction were based on that 800 pages and on commercial reproduction rates in the Bay Area and what -- we figured out that would be about $80 and the -- on reproduction rates at the court's own reproduction facilities were utilized (Voice Overlap) --

Chief Justice Warren E. Burger: Or about $25 for the Xerox equipment?

Mr. Marshall L. Small: Right it would be substantially less than commercial rates.

What we have here then in summary is a case that really presents, I think a fairly narrow issue.

The case where a defendant was denied his right to a transcript by the application to the California Rules of Court in connection with his direct appeal.

And, therefore, it comes around now for purpose of collateral attack as an indigent and is unable to get a copy of this transcript unless he can first demonstrate errors in his original conviction.

I might add the -- that he filed for habeas corpus in the Federal District Court after he had been turned down by the California courts.

The District Court found that, yes, he was entitled to a transcript and order he be supplied one or else discharged.

The case was taken to the Ninth Circuit and the Ninth Circuit reversed and said that he was required to first show meritorious grounds for off setting his conviction.

Turning to the argument now, on the first stage of the argument, the question is to whether he was unconstitutionally denied his right to the transcript in connection with his direct appeal is a predicate for moving on to second stage.

We feel that the operation, the California Rules of Court are discriminatory in at least two respects.

Number one, in the way they discriminate between defendants tried separately and defendants tried jointly.

If the defendants tried separately, he is entitled to a transcript whether he is a millionaire or a pauper and regardless of the seriousness of the crime involved or the severity of the sentence imposed.

If he is tried jointly, he isn't entitled to a separate transcript even if he is an indigent.

We also feel that as a second basis for claiming discrimination as far as indigents are concerned the operation of the California Rules of Court preclude an indigent codefendant from receiving a right to a trial transcript in connection with an appeal and this case is an example of how that sort of rule can work.

So that, therefore, we feel that the rules as they operate tend to unconstitutionally deny particularly an indigent defendant his right to a trial transcript.

Now, the State has argued that all that's necessary is access and that the attorney on appeal had access to the trial transcript for purpose of briefing the case.

First of all, this sort of case demonstrates access may not be sufficient in connection with reviewing the correctness of the record.

It's -- that's possible and that -- and it worked out that way.

Secondly, and perhaps more fundamental, is the burden that it places on appointed counsel in trying to brief and prepare cases if they have only access to a record where they have to borrow it from the Attorney General of the State.

I have cited in the brief references to some of the problems encountered, discussed and recognized by this Court in the Hardy case, appointed counsel in indigent cases may face when they are trying to prepare cases.

So, therefore, the appeal that -- the type of access that the state says was made available here really should not be viewed as constitutionally sufficient for the protection of indigents to give them the same sorts of access to legal channels to effectuate justice as are available to persons who are not indigents.

Justice William J. Brennan: Mr. Small, is it the problem here, I'm looking at that footnote, the Court of Appeals submitted.

Did that -- do you think that turn at all on -- tried and exhaust state remedies?

Mr. Marshall L. Small: I really do not think so.

Justice William J. Brennan: There is a suggestion that you might have a good interest point?

Mr. Marshall L. Small: Yes.

They were raised in the Court of Appeals' footnote.

They raised question and it might be a good Ander's point but they had an -- he hadn't exhaust the state remedies on that.

I think the reference to state remedies refer to the Ander's point, Mr. Justice Brennan and --

Justice William J. Brennan: You don't think -- in other words, is there anything in that which precludes or which he emerged, the issue?

Mr. Marshall L. Small: No sir.

I don't, I think that remark was directed to the Ander's point which I am of course not trying to raise and consider here in this proceeding.

Justice Byron R. White: You don't think any particular showing is necessary to prejudice in a particular case?

Here there was access to the record by appellate counsel and there's a -- is there any suggestion that he could've done any better with a transcript of his own or anything specific?

Mr. Marshall L. Small: I'm really not prepared to make that contention.

I think we can only speculate as to what prejudice resulted to this man by not having separate transcript available either to examine before it was certified as correct on appeal or at subsequent stages in the procedure.

We can only speculate on that.

Justice Byron R. White: Well, do you rely at all on the unavailability of the transcript, to prepare a petition for rehearing?

Mr. Marshall L. Small: Yes, I do.

I'm afraid that the record in this case is not as satisfactory as it should be.

Although I believe that the state's willing to concede the factual predicate that's set out in the exhibits to my reply brief that there is basis for certainly contending that the record was not available for preparation of our petition for rehearing --

Justice Byron R. White: Well, assume you win -- why -- what do you want to win for, so you can get another appeal?

Mr. Marshall L. Small: That would be -- I think the ultimate result of your primary -- first off, I think that the man is entitled to a copy of this transcript so that he can at least -- at the very least, at the minimum, he should at least have a copy of his transcript so that he can examine it and prepare its basis for collateral attack.

Step two and we'd ask for that in our original brief that we filed, he should have a right to appellate review again of his conviction.

But primarily, our first argument is that he should at least at the very minimum have a right to a transcript to prepare for a collateral attack.

Justice Byron R. White: Have -- has this Court ever held that a state must furnish a transcript in order to prepare a petition for collateral relief?

Mr. Marshall L. Small: Not specifically.

I think that that result can be drawn by putting together cases such as Smith and Bennett and Gardner v. California.

In the Smith case, the Court indicated that you couldn't impose a burden on access to habeas corpus by a minimal -- afford a filing fee, I think it was.

In Gardner, in effect the Court was saying just this last term that for purpose of effectuate, really effectuate pursuing a habeas corpus proceeding, you had to make available the transcript of the prior proceeding.

Now, you could argue as --

Justice Byron R. White: That was the state habeas, wasn't it Mr. Small?

Mr. Marshall L. Small: That was state habeas, that's correct.

Justice Byron R. White: But is there a right to counsel to prepare a habeas corpus petition?

Mr. Marshall L. Small: No, not necessarily and of course that's a point that we make in our brief that you can draw a legitimate distinction between right to counsel where a man made -- file repeated habeas corpus petitions which may or may not be meritorious and the right to a transcript which you need only once.

Justice Byron R. White: Well, is that -- on what provision of the constitution do you rely on?

Mr. Marshall L. Small: The Fourteenth Amendment, violation of the equal protection and due process.

Justice Byron R. White: Equal protection?

Mr. Marshall L. Small: Equal protection.

That an indigent -- I'm --

Justice William J. Brennan: That's because (Inaudible) ending up tried jointly.

Mr. Marshall L. Small: That's right.

Justice William J. Brennan: He would be entitled?

Mr. Marshall L. Small: That's correct.

Justice William J. Brennan: Because he was tried jointly and the other chap was supposed to get a transcript, the rules denied him of it?

Mr. Marshall L. Small: That's right, that he has none of his own and carrying that --

Justice William J. Brennan: That's the only basis, is it, of your equal protection argument?

Mr. Marshall L. Small: Well, I think you could carry it up a step further and say that there are other examples of how he was discriminated against, including on collateral attack.

He is not in the same position as a person who is moneyed defendant.

The whole theory of the Roberts v. LaVallee and the cases that stem from (Voice Overlap) --

Justice Byron R. White: But on that basis, it carry the right to counsel too, wouldn't it?

Mr. Marshall L. Small: Not necessarily, not necessarily.

Justice Byron R. White: Almost necessarily.

Mr. Marshall L. Small: I wouldn't want to have to advance that argument here, in this particular proceeding but simply the right to the transcript.

Chief Justice Warren E. Burger: How does California decide which of the three or four or five defendants, codefendants gets the first shot at the transcript?

Mr. Marshall L. Small: I only wish I knew Your Honor.

I really don't know the basis by which they do that.

The -- this is -- in this particular transcript as I recall --

Chief Justice Warren E. Burger: Then for all we know it may have been made available to all of them and each of them collectively?

Mr. Marshall L. Small: Well, I'm a little reluctant to speak from my own personal perusal of the transcript as what apparently happened and since it's not of record in the case, but on the facts that were alleged in the habeas petition here, which haven't been denied, petitioner Wade never saw a copy of his transcript, never had it available.

One other pint in connection with the state's argument as to access as we -- it was the case here being sufficient it works a particularly discriminatory result on subsequent proceeding on collateral attack because even if you say access is sufficient for any defendant, you only have to allow him to see a transcript and not give him a copy of it then the state switches its position on collateral attack and no longer grants the right of access an in effect is saying, well, you can't see your transcript unless you first show meritorious grounds for off setting your conviction.

So that even if you were to use the access point that the state is using here to try and uphold the procedure the petitioner here is twice in a less advantageous position than he otherwise would be in.

The state is arguing in effect two points, essentially two points as I see it in trying to sustain the position that the petitioner should not have a right to a transcript.

They are in effect saying first all that the burden on the state economically would just be terrifying because then anybody could come in and on purposes of collateral attack ask for a right to a transcript, but that isn't this case.

They were referring to statistics where maybe no transcript had ever been prepared and the person would come in and apply for a transcript for purposes of collateral attack.

This is a case where a transcript had been prepared and was indeed available and could easily have been copied at a fairly small cost.

So the type of statistics that the state is citing for the purpose of establishing undue economic burden really aren't relevant to this particular case which is really a fairly narrow case.

I say it's a case where there is a transcript in existence.

The man would've gotten it in connection with his original appeal, but for the particular operation of the California rules on appeal.

Chief Justice Warren E. Burger: What stage did you come in to the case counsel?

Mr. Marshall L. Small: In connection with the preparation of the brief on the merits in this Court.

Chief Justice Warren E. Burger: And you were appointed by this Court?

Mr. Marshall L. Small: I was appointed by this Court for the purpose of this case.

Chief Justice Warren E. Burger: I'm not sure that its relevant at all and please don't assume I'm suggesting any criticism by the question, but I wonder if you made any effort to consider getting an order to show cause on the codefendant or other processes to get that transcript before you came all the way here?

Mr. Marshall L. Small: No sir.

I felt under the terms of the appointment that my obligation was to brief and argue the case before this Court.

Chief Justice Warren E. Burger: Of course I recognize that.

You're here because we asked you to be here.

Mr. Marshall L. Small: Yes sir.

The second argument that the state presents for denying his right to transcript to this petitioner is that it may have a deleterious effect on prison discipline.

A suggestion is made that a prisoner gets a transcript, he might be discussing his case with other prisoners and this could hamper prison discipline.

I'm a little perplexed by this argument because as I understand it, a prisoner who say was tried individually rather than jointly and convicted and furnished a transcript would be entitled to keep his transcript and have it in prison with him and use it there so that in effect, the state is arguing that it's only codefendants who were tried jointly who might be causing problems with the prison discipline by having the right to their transcripts and the -- I just don't think that this argument really holds water when you look at the practicalities of the situation.

The basic premise I think here come down me is really is the question of trying to balance -- carry out as effectively as possible the administration of justice, the persons who were incarcerated by not clogging up the channels of judicial administration, making available to them the instruments necessary to vindicate their rights, but the same time, not thrusting unreasonable burdens on the state.

It seems to me that in this particular type of situation where you have the man who would've had a transcript but for the peculiar operation, the discriminatory operation of California law, where a transcript is available and can easily be reproduced that the balance should be struck in favor of making the transcript available to a person such as this indigent.

In terms of trying to carry out the line of cases, Griffin, Roberts and LaVallee, those cases that try to ensure that the channels of the courts, the access to vindication of legal rights will be available to all without any distinction based on financial position of the defendant involved.

I would like to reserve time now for rebuttal if I could unless the Court has any questions.

Chief Justice Warren E. Burger: Very well, Mr. Small.

Mr. Marshall L. Small: Thank you.

Chief Justice Warren E. Burger: Mr. Murphy?

Argument of John T. Murphy

Mr. John T. Murphy: Mr. Chief Justice and may it please the Court.

Your Honors, four facts stand out in this particular case.

First, petitioner Wade is now an indigent.

Second, as a state prisoner, he is a potential applicant for a writ of habeas corpus in the state courts or in the federal courts.

Third, he is seeking here now a free copy of his trial transcript for no other reason than to comb the records in the hope or anticipation that he'll discover some trial error in the record.

And the fourth fact and I think this ties in with your question Mr. Chief Justice, I think it's a -- the fact that we have to emphasize in this proceeding is that California has provided this indigent with a trial attorney, a daily transcript during the course of is trial with an appeal, with an attorney on appeal and has given that attorney an access to the trial transcript in the preparation over the brief on appeal.

California has provided all of these services at state expense to this particular indigent.

Now the trial proceedings and the appellate process which I suppose you can call the natural extension of the trial proceedings terminated in 1961.

Now, since 1961, this petitioner has made no allegation in any court, state or federal respecting the validity of his state court conviction.

What's -- he is in -- involved in --

Justice William J. Brennan: Excuse me Mr. Murphy?

Mr. John T. Murphy: Yes.

Justice William J. Brennan: Are you trying to say that he already had (Ianudible) daily transcript?

Mr. John T. Murphy: Yes Your Honor, this was a capital case.

It's a first degree murder case.

Justice William J. Brennan: And -- at -- was on appeal, first appeal.

Mr. John T. Murphy: Yes Your Honor.

Justice William J. Brennan: This is the compulsory (Inaudible)

Mr. John T. Murphy: No Your Honor, it was not a compulsory or automatic appeal because like --

Justice William J. Brennan: But he then -- he had a complete transcript for the purposes of that appeal, did he?

Mr. John T. Murphy: Yes Your Honor, not personal possession, the record doesn't disclose that he had a personal possession of the trial transcript.

The record does disclose that his attorney had access to the record for the preparation of the appeal.

Justice William J. Brennan: This is still something on how you been tried, and just to of them?

Mr. John T. Murphy: Yes Your Honor, codefendants.

Justice William J. Brennan: But there was only a single transcript?

Mr. John T. Murphy: Yes Your Honor.

Justice William J. Brennan: I see, a single daily transcript?

Mr. John T. Murphy: Yes Your Honor.

Justice William J. Brennan: Available --

Mr. John T. Murphy: That is -- I can make that representation of fact that there was but a single daily transcript appeared.

Justice Thurgood Marshall: Mr. Murphy what do you mean by access?

Actually, I mean, was it in the certain room where they can go and use it, could they take it to their office, could they Xerox it?

What do we mean by access?

Mr. John T. Murphy: Well, let me -- before I answer that question.

Justice Thurgood Marshall: Okay.

Mr. John T. Murphy: Let me premise your question Your Honor.

The record that is before this Court as it was before the District Court and the Court of Appeals, doesn't have the facts developed.

There was never any evidentiary process either in the state courts or the federal courts to determine what was distribution of the daily transcript, who had access to it and the full circumstances surrounding the use by appellate counsel, the transcript during the course of the appeal in the preparation of the brief.

We really haven't had any evidence presented on that.

If we look at this record, it would disclose that the appointed attorney on appeal borrowed a copy of the record from the State Attorney General because of some difficulty in obtaining the record from the codefendant, Mr. Pollard.

And that in preparing his brief in the state direct appeal, he relied upon this record and I assume we can or infer from this that the record that he did use was the same record that the court had.

It doesn't appear here that there was any handicap because he had to borrow the record from the Attorney General's Office rather than going over to the prison, removing a record from a prisoner and using that in the course of the appellate process.

Justice Hugo L. Black: May I ask your --

Mr. John T. Murphy: Yes Your Honor.

Justice Hugo L. Black: -- state, the method California use this when they have three or four defendants to make a copy of your evidence available to all of them?

I don't mean all at the same time, but what is your method, if you are familiar with it?

Mr. John T. Murphy: Yes, Your Honor.

During the course of the appellate process, there is an enforceable right that each co-appellant or codefendant would have a -- to obtain the copy of the record, either for the attorney to prepare the brief or if the appellant is proceeding in pro per, for himself to prepare the brief.

There is an enforceable right during this process that of course and it wouldn't be otherwise under this Court's decision in Griffin, the man is entitled during the direct appeal, to have access to the trial record in the preparation of the brief.

Justice Hugo L. Black: How does the state draw about fulfilling this obligation?

Mr. John T. Murphy: I can't speak with any -- any more than the general familiarity.

When the attorneys are appointed by the court to represent the appellants, the attorneys would have their interviews or discussions or conferences with the appellant and borrow the record from the appellant.

It would be a mutual arrangement made among or between the attorneys who are handling the appeal.

Justice Hugo L. Black: You mean the state has nothing to do with it but just leave it up to the different defendant, if you get from another defendant?

Mr. John T. Murphy: You Honor, if there was any complain, if every appointed attorney had a complaint that a transcript was not available to him to prepare a brief on appeal, all the attorney would have to do under the rules of court would bring this to the attention of the court and the court will take the necessary action --

Justice Hugo L. Black: What action?

Mr. John T. Murphy: -- to either to reproduce, say a copy of the Court's transcript for the -- whether the co-appellant to furnish his copy to the appellant who does not have a copy.

Justice Hugo L. Black: So, you are saying is -- in preparing his brief, or use in preparing his brief?

Mr. John T. Murphy: Yes Your Honor, in use for his brief.

Justice Hugo L. Black: Whether it's yes as to whether the state will furnish each individual defendant with a complete transcript of the record, is that what it is?

Mr. John T. Murphy: What the state furnishes is access to the record.

Now, if a defendant is tried separately, of course he has a unique trial record that is peculiar to his particular case.

As an incident or a circumstance of the appellate process, it may develop that at the termination of the appeal, after the reversal or the affirmation of the criminal conviction, he may retain personal possession of the transcript --

Justice Hugo L. Black: But have we ever held that where there are more than one defendant, the state is under an obligation, and they're all indigent, the state is under an obligation to file a complete transcript with each one?

Mr. John T. Murphy: That during the appellate process Your Honor.

Justice Hugo L. Black: What?

Mr. John T. Murphy: The state would be under an obligation to furnish the appellate attorney or the appellant in pro per --

Justice Hugo L. Black: But have we held -- has there been any in a case which either raised this question or decided the question --

Mr. John T. Murphy: No Your Honor.

Justice Hugo L. Black: -- whether there are four or five defendant, the state has to supply four or five transcripts?

Mr. John T. Murphy: No Your Honor, no case in California nor is there any federal case.

Let's put this case in its perspective.

Petitioner Wade without a transcript is really in no different position than any other potential habeas corpus applicant who does not have a transcript for any number of reasons.

He may not have a transcript because it was lost, it was stolen, it was destroyed, because he appealed on a settled statement rather than on a transcript or because he never appealed at all.

He doesn't have the piece of property which constitutes the transcript.

What he did get, what California did furnish him was a transcript for use during the appellate process and when that came to an end, the state's interest in whether or not he continues to have this document in his cell or wherever he wants to keep it, is that a determination where --

Justice Hugo L. Black: In your view -- your argument then that the state is not compelled to provide a transcript for collateral attacks only during the time that matter can be held on the appellate process?

Mr. John T. Murphy: Yes Your Honor.

Justice Hugo L. Black: From the original judgment, is that to -- what you're arguing?

Mr. John T. Murphy: Yes, yes Your Honor.

Now during an appellate process, whether the appeal is a direct appeal from the trial or whether it's an appeal from a habeas corpus evidentiary hearing or whether it's an appeal from a lower court coram nobis proceeding, the appeal necessarily concentrates on a specific proceeding.

The state is interested in satisfying itself that the proceedings below have been fairly conducted in an accordance with law, state law and federal law alike.

But once the appellate process ends, and I think this Court recognized in Johnson versus Avery the responsibility of presenting a claim of illegality in the conviction rests upon the potential applicant for habeas corpus relief.

Habeas corpus is a new proceeding.

We're starting something all over again.

It's broad in its scope and its varied in its reach.

Justice Thurgood Marshall: Mr. Murphy.

Mr. John T. Murphy: Yes, Your Honor.

Justice Thurgood Marshall: Do I understand you that this transcript, there is one that he had on appeal is still available some place?

Mr. John T. Murphy: Yes, Your Honor.

Of course there would be a copy in the files of the Court of Appeals.

There is a physical transcript available, yes Your Honor.

Justice Thurgood Marshall: Well, is -- I understood you to say, you gave him one when he went up on appeal.

Mr. John T. Murphy: No, Your Honor.

We don't know those facts.

We really haven't had any evidentiary process to determine for certainty whether or not this man did have at one time physical possession either during the course of the trial --

Justice Thurgood Marshall: What I'm trying to get to, is there more than one copy of this transcript available as of this moment?

Mr. John T. Murphy: Yes, Your Honor.

Justice Thurgood Marshall: Well, why not give it to him?

Mr. John T. Murphy: Well, Your Honor we are involved here --

Justice Thurgood Marshall: I mean, you don't need the one, do you?

Mr. John T. Murphy: Your Honor, we're involved here with a very broad issue.

Now counsel for petitioner has attempted to narrow this down and to paint the state as being irresponsible because it will not come up with $40 or $25 to Xerox a copy.

We have to look at the holding of the United States District Court.

The United States District Court said that an indigent prisoner is entitled, free of charge to his trial transcript to explore the record in the hope of finding some flaw.

This was the issue that was ruled upon by the United States Court of Appeals for the Ninth Circuit when it reversed the District Court.

So, we're up before this Court on a broader principle and if we were to furnish, if we were to concede that the District Court were correct that any habeas corpus applicant, potential, let me emphasize that word potential.

It's just not any one who has filed a habeas corpus petition.

This is the potential applicant which was -- would be anyone in the whole prison system and the reach of habeas corpus or the vast number of habeas corpus cases involved matters, they go outside the trial record.

The are matters collateral to the trial proceeding.

Justice Thurgood Marshall: I understand all of that, but I don't see the need for the Xerox copies.

As I understand it, the state can give him a copy which is available and which state don't need, is that your position?

Mr. John T. Murphy: Well, I don't know the exact number of copies, but under the rule of court, there would be an original which would've gone to the appellate court and there would've been three copies because this was a capital case, the District Attorney would've received the copy and the Attorney General would've received the copy.

The third copy would've gone to be shared by the appellants during the course of the appeal.

So, the answer to your question is that there should be an original and two copies somewhere in the state of California.

What we think is before the Court, the problem before the Court is not limited to this particular case.

The problem before the Court is whether or not when an indigent makes no allegation on collateral attack of any error that occurred in his trial, is the state then responsible to turn over its copy or the copy of any other documents whether they be police reports or any other matters that might be connected with the criminal proceedings, matters of physical evidence that might have been produced at the trial, whether or not the state is then responsible to turn over these documents because the man wants to engage in an exploration or fishing expedition.

We think the state burden comes to an end, that the conscience of the state, that it is satisfied, that it has given the man due process through a criminal trial in an appellate process, comes to an end when the affirmation of the -- with the affirmation of the decision on that -- on appeal.

Justice Potter Stewart: Mr. Murphy.

Mr. John T. Murphy: Yes Your Honor.

Justice Potter Stewart: It seems to me that you and your brother counsel are -- differ a little bit as to what is the issue in this case.

He puts in terms of this; that since California does provide a free transcript to every individually tried defendant, rich or poor, it is obligated under the equal protection law, under the particular Equal Protection Clause of the Fourteenth Amendment to provide an individual free transcript to every defendant, rich or poor who was tried jointly?

Mr. John T. Murphy: Yes Your Honor.

That's how I understand the issue --

Justice Potter Stewart: And that the only -- thus you can eat can the defendant be tried jointly be equated and give an equal protection with the defendant who is tried individually and singly, that's the way he posts the issue before us.

You on the other hand say what the issue in this case has nothing to do with that, but rather is the question of whether a state is obligated under the constitution, I suppose now the Due Process Clause to provide at a state convict's arbitrary request, a free transcript of that convict's trial even in the absence of any allegations whatsoever on the part of the convict that any error occurred at his trial that might be subject to collateral attack which is a much broader issue as you correctly say and which frankly it seems to me is what was the issue decided by the District Court and the Court of Appeals in this case?

Mr. John T. Murphy: Yes Your Honor.

I might add one more fact that --

Justice Potter Stewart: But would you -- am I right (Voice Overlap) --

Mr. John T. Murphy: Yes, Your Honor.

I think that's a very accurate summary of both our position and the position of the petitioner here.

I like to add one more thing.

If there were an issue regarding the validity of the California procedure whereby co-appellants or codefendants share a single copy of the transcript, you would not need a copy of the transcript to raise this issue.

The possession of a transcript would be immaterial.

The issue could be --

Justice Potter Stewart: Or the content of it?

Mr. John T. Murphy: The content of the transcript would be immaterial.

The state courts in this case and the federal courts have never passed upon this issue raised by the petitioner and of course the petitioner, you might say would be even in a better position if he didn't have a copy of the transcript if he were raising this point.

Justice Potter Stewart: But which point?

Mr. John T. Murphy: But the District Court --

Justice Potter Stewart: Which point?

Mr. John T. Murphy: If you're raising the point that there -- the -- there are some invidious discrimination in providing an individual --

Justice Potter Stewart: Yes, I understand that point.

Mr. John T. Murphy: -- defendant with the transcript in requiring codefendants to share a transcript.

You don't need a transcript to reach this issue, then the order of the District Court would be meaningless.

The court could have found if it reached that issue that this man had been discriminated against, it would've set aside its conviction and ordered the reinstatement of the appellate process, this wasn't done.

The decision that was reached and arrived at by the District Court which was reversed by the Court of Appeals was that this man who alleged no error, who we assumed -- we have no other course but to assume that he can't think of any possible error.

And here is a man that comes before the Court and is asking for a transcript at state expense, in other words for the state to subsidize his exploration in the anticipation that maybe he'll come up with something that he can present to the Court.

Justice Potter Stewart: Seven or eight years after the affirmance of his conviction on direct appeal at which his counsel did have access to a transcript, is that correct?

Mr. John T. Murphy: Yes Your Honor.

Chief Justice Warren E. Burger: Did anyone ask the District judge here to direct a copy of the transcript be made either from the codefendant or from some other person having custody.

Mr. John T. Murphy: Not to my knowledge Your Honor.

Chief Justice Warren E. Burger: The record doesn't show anything of that (Voice Overlap) --

Mr. John T. Murphy: The record discloses these alleged facts.

As I said, there's no evidentiary process to get into any certainty, but the record alleges these facts that he asked the petitioner, asked the California Court of Appeal for a copy of his transcript some five or six years after his conviction had been affirmed on appeal.

He was --

Justice Hugo L. Black: Wasn't that copy available in the court?

Mr. John T. Murphy: Yes Your Honor.

If he had the funds --

Justice Hugo L. Black: And was he indigent?

Mr. John T. Murphy: Yes Your Honor, he was indigent.

Justice Hugo L. Black: There was a copy in the --

Mr. John T. Murphy: The allegation is that he was indigent.

Justice Hugo L. Black: And he asked to see a copy?

Mr. John T. Murphy: He asked for a copy Your Honor, not to see a copy, asked for a copy.

Justice Hugo L. Black: And is that the only issue between them whether you give it to him or whether you'll let him have a -- have it available?

Mr. John T. Murphy: No Your Honor.

Again, there's a -- looking at this case in its broadest scope, it's a question of whether or not we are going to provide any requesting indigent who is a potential applicant for some form of collateral attack with documents at state expense, we don't provide him attorney --

Justice Hugo L. Black: You had it there looking at from a practical standpoint, the courts had it?

Mr. John T. Murphy: Well, Your Honor --

Justice Hugo L. Black: What --

Mr. John T. Murphy: I don't think this --

Justice Hugo L. Black: What harm would it do the court to let him see it?

Mr. John T. Murphy: What harm would it do Your Honor in reply to -- provide him with an attorney or to provide with a team of investigators or provide him with some experts.

There's any number of things that you could not necessarily say would be -- would be harmful.

Justice Hugo L. Black: (Voice Overlap)-- but we have said that a man who is indigent is entitled to get -- to have said as nearly as possible in the status of the man who would have money to pay for a record.

What he is saying as I understand you now is that he is entitled to have that record made available to him and he asked the court for it and they wouldn't let him have it, although they had it.

Mr. John T. Murphy: The court would've made it available to him if he could have arranged for the reproduction of the record, that's what the facts of this case disclose.

Justice Hugo L. Black: If -- who could arrange them?

Mr. John T. Murphy: Pardon me Your Honor?

Justice Hugo L. Black: If who could arrange for the reproduction of the --

Mr. John T. Murphy: If the petitioner himself --

Justice Hugo L. Black: Well that means if he didn't have the money to do it, he just couldn't do it.

Mr. John T. Murphy: Your Honor if he had had the money, he could have to be candid with the court, he could have had a copy of the record, but that's not the question before the court, I think --

Justice Hugo L. Black: It seems to be the question to me from what you tell me?

Mr. John T. Murphy: Well, Your Honor, here is how I would pose the question.

Is the state responsible to provide a record to an indigent in his continuing efforts to search for a possible error in his trial or to put in another way, is the alleviation of any doubt in the mind of the prisoner about the validity of his state conviction, so important, so fundamentally important that the state must assume the great financial burden far greater than any burden it has right now.

Justice Thurgood Marshall: What is the --

Mr. John T. Murphy: -- of providing a transcript for any indigent who request a copy of it.

Justice Thurgood Marshall: Mr. Murphy, what is the financial burden of giving him the record that they have, you said they had it?

Mr. John T. Murphy: Yes Your Honor.

Justice Thurgood Marshall: There is no financial burden.

Mr. John T. Murphy: Let me answer the question this way.

Justice Thurgood Marshall: Well, suppose if -- would you agree that it would fair to say that if there is one available, it should be shared with the prisoner, that there'd be no financial burden there, would it?

Mr. John T. Murphy: Your Honor I -- on an administrative basis, on a legislative basis, some procedure might be devised which would permit an incarcerated prisoner a glance or a look at his particular record.

Justice Thurgood Marshall: But don't you think he should have the same right as the wealthy prisoner?

Mr. John T. Murphy: Well, does a wealthy prisoner Your Honor have any real need for the transcript?

Justice Thurgood Marshall: Unless the --

Mr. John T. Murphy: That's I think is a basic question.

Justice Thurgood Marshall: Unless I misunderstood you, you said that this man could get it if he could pay for it.

Mr. John T. Murphy: Yes Your Honor.

Justice Thurgood Marshall: And the only reason he couldn't get it was because he couldn't pay for it?

Mr. John T. Murphy: That's right Your Honor.

But he -- there's also many other -- there's many other things that he can't have because he can't pay for it.

He can't have an attorney, he can't have experts, he can't have investigators during the course of his incarceration and this Court has never held that upon a mere request for these services, he is entitled to it.

Now, let me emphasize one more thing.

We don't have an absolute final foreclosure or preclusion of this inmate from access to the record, nothing is final here.

All we're asking is that this potential applicant come forward and state to some court on apparently meritorious ground why his conviction was invalid or why his custody is illegal, that's all we're asking.

So we have a balance, we had a great financial burden upon the state to provide transcripts to indigent and on the other side, a rather minimal requirement that the man tell the court, apprise the court that he is not engaged in a mere exploratory fishing expedition in the hope that he is going to find some error and --

Chief Justice Warren E. Burger: Would you concede Mr. Murphy that the District judge had inherent power to direct that a Xerox copy or some other kind of copy would be made for the benefit of the District Court judge at the time of the original hearing?

Mr. John T. Murphy: Your Honor if he had -- if the petitioner had come forward and alleged some trial error, if he had come forth -- I don't think there'd be any question but that the District Court judge could've required the state to produce the trial transcript.

Chief Justice Warren E. Burger: We'll take it in exactly the posture it was in when it appeared before the United State's District judge, not the state court.

Could the District judge have said, “I want a copy of this transcript, please get one for me” and for $25 or $30 at the most, it could've been made.

Now, would you agree or -- I'm inquiring because I am not sure, does the District Court have any power to do that?

Mr. John T. Murphy: I don't think so, Your Honor.

I think the District Court in -- under those circumstances would be on a fishing expedition of its own.

I think in order to get a justiciable issue before the District Court, there has to be some allegation of error in the trial.

Now, if this petitioner had alleged that his attorney never discussed defenses with him, that there was facts outside the record that affected something that occurred during the trial, there wouldn't be any need then for the trial transcript to resolve that.

All we're asking in this case is to alleviate -- not to alleviate because we don't have the burden yet, but they asked this Court to -- not to impose upon the states the burden of financing the indigent --

Chief Justice Warren E. Burger: I think we have (Voice Overlap) -- I think we have your argument on that point.

Mr. John T. Murphy: -- continuing efforts once the state has satisfied itself that the man has been validly --

Chief Justice Warren E. Burger: I think we (Voice Overlap) Mr. Murphy that the state having provided this for a complete appeal once around that that's the end of the obligation.

Mr. John T. Murphy: Yes Your Honor.

Chief Justice Warren E. Burger: Alright.

Thank you.

You have a few minutes left, I think about ten minutes Mr. Small.

Rebuttal of Marshall L. Small

Mr. Marshall L. Small: Thank you, Your Honor, I don't believe I'll need to take very much additional time.

I just wanted to respond to two or three points that have been raised in the course of the counsel's presentation of argument and some of the questions raised from the bench.

One of the points that you raised yourself was the possibility of obtaining of show cause order to require Pollard to turn over his copy of the transcript.

Justice Hugo L. Black: Would you mind speaking a little louder?

Mr. Marshall L. Small: Well, excuse me Mr. Justice Black.

One of the point that Mr. Chief Justice raised was the possibility of ordering Pollard, the codefendant here who apparently still has a copy of this transcript to turn it over at this stage in the proceeding for use by this petitioner Wade.

I'd have question in my own mind whether California would permit such a procedure now because the procedure for sharing transcript is cached in terms of the direct appeal process and I therefore would have really substantial question as to whether a California Court would be prepared to enter such an order at this point.

Chief Justice Warren E. Burger: But since the codefendant presumably has it or may have it in his possession for use for the same purposes, why couldn't the district judge have issued such an order to show cause on that codefendant either at the request of the counsel if they had the imagination to ask for it or on his own motion?

Mr. Marshall L. Small: I suppose he could Your Honor, but I think that this --

Chief Justice Warren E. Burger: And then this case would not have been engaged all the time, involve the people all the way to Washington?

Mr. Marshall L. Small: I suppose that might have been the result, but I think that that in and of itself underscores the unfair application of these California Rules of Court.

Assume for instance that there were four or five codefendants tried here rather than just two codefendants --

Chief Justice Warren E. Burger: Well, why was there a denial when such a lack of imagination and enterprise at least as I see it as exhibited on this record?

Mr. Marshall L. Small: Because I think that puts a burden on the indigent and his appointed counsel.

Chief Justice Warren E. Burger: To ask the court to do this?

Mr. Marshall L. Small: To have to go to court and fight to get a copy of the transcript to use, a burden that a moneyed defendant would not have placed upon it.

Chief Justice Warren E. Burger: Well, now he is all the way through the chain of command to this Court and that was a considerably greater enterprise than simply asking the District judge in open court on an oral motion to do what I've just suggested, would you not agree?

Mr. Marshall L. Small: I'd say that that is correct, Your Honor that it -- that he is certainly having to take it up through this sort of procedure --

Chief Justice Warren E. Burger: I'm directing no criticism or no implication of at you?

Mr. Marshall L. Small: No, I understand that.

Certainly, it would have -- well, just the cost of producing the transcript would have been a much smaller portion of the cost of bringing the proceedings up to this Court and paying for bringing attorneys back here to argue the case.

But this of course, this case is simply going to be exemplary of other codefendant cases that come up in the California courts.

Chief Justice Warren E. Burger: I hope it isn't exemplary of the lack of enterprise that I see for my part on this record.

Mr. Marshall L. Small: It would be easier though I believe in the terms of the administration of justice if instead of requiring court appointed counsel for indigents to fight to get copies of the record.

If it were made clear that they should be furnished them as a matter of course --

Justice Potter Stewart: Well, excuse me, I don't want to interrupt your answer to the Chief Justice Mr. Small.

Mr. Marshall L. Small: No sir, that's quite alright.

Justice Potter Stewart: I'm not sure I quite understand whether your basic claim is that it was incumbent upon California to supply a separate extra transcript to this man for his direct appeal which took place a good many years ago or whether its now incumbent upon California to supply to this man at -- upon his mere request a transcript of his trial that took place many years ago for the purpose of now making a collateral attack on his judgment of conviction, which is it?

Mr. Marshall L. Small: My argument is that it was incumbent upon them to supply it years ago and because they didn't, he should not be placed in a less advantageous position now because of his indigency and having to show meritorious grounds for reversal before he can even have a look at his trial transcript.

Justice Potter Stewart: Because the second is a much -- of course a much broader rule of law?

Mr. Marshall L. Small: Yes, and I am not arguing for that.

I'm not arguing (Voice Overlap) --

Justice Potter Stewart: Very understandably you're not arguing that.

But what if the -- what if five or six, seven years ago he had been given it on appeal and then he had lost it, where would you be?

Mr. Marshall L. Small: If he had been given his appellate -- And he --(Voice Overlap)

Justice Potter Stewart: With all his negligence that it just disappeared, now, where would you be in?

Chief Justice Warren E. Burger: Just bearing mind before you answer there will be of other question I'll add.

Bearing in mind that if he were an affluent man, he could go out and buy one?

Mr. Marshall L. Small: Yes.

I would say and I'd grant, just go ahead and go beyond this particular case, I would argue that the state should furnish him that copy on balance because of the relative smaller expense involved where a copy of the transcript is available and can be reproduced.

I don't think it's necessary to argue that here.

Justice Potter Stewart: But that is really -- its that broader issue is it not that the District Court seems to have decided and that its upon that broader issue that the Court of Appeals seems to have reversed the District Court (Voice Overlap) --

Mr. Marshall L. Small: The opinion could be so read, however, I don't think that this Court has to deny relief to this petitioner simply because of the broader basis upon which the District Court may have posited its result.

This Court could cut down the basis for granting a transcript to this particular petitioner.

Justice Potter Stewart: And in this particular State of California where if this man had been -- for everybody who was separately and individually, this question would never arise unless he lost the transcript.

Mr. Marshall L. Small: That's right and in the same way in most states as we point out in our brief, the -- in most states this question isn't going to come up because the overwhelming majority of the states give transcripts to individual defendants whether -- and the codefendants.

They make no distinction the way that California and limited number of states do.

So they were talking about if there were a narrow issue.

Mr. Chief Justice --

Chief Justice Warren E. Burger: Perhaps the advent of the Xerox machine and other related machines will help solve this problem without more.

Mr. Marshall L. Small: That in substance is really my contention that that as modern techniques become available, they really should be applied to judicial process such as the stenotype machine here in this Court that over a period of time that hopefully by using modern methods of recording and duplicating trial transcripts, we won't have to get into this type of situation.

They'll be either way available and easily reproducible.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you counsel.

You acted at the appointment of the Court and you came here at our request.

We thank you for your assistance for the court.

We thank you both for your submissions.

Mr. Marshall L. Small: Thank you sir.

Featured:

Williams v. Oklahoma City - Oral Argument, Part 2

Fri, 18 Nov 2011 02:36:47 +0000

Case:

Williams v. Oklahoma City

Media File:

841_19690402-argument-2.mp3

Related Transcript:

841_19690402-argument-2.xml

Transcript:

Argument of Giles K. Ratcliffe

Chief Justice Earl Warren: Tommy E.L.Williams, petitioner, versus City of Oklahoma, et al.

Mr. Giles K. Ratcliffe: Mr. Justice -- Chief Justice may it please the Court.

Yesterday afternoon, inquiry was made I believe by Justice White relative to the significance of some language in the trial court's order pertaining to the inability of the defendant or his counsel to prepare a transcript from memory.

The reason for this is the courts in Oklahoma have set this as one of the prerequisites for furnishing a free case-made and we think that it's significant for the reason that by implication it indicate that for this requirement to have any relevance, it must mean that if the defendant or his counsel could prepare a transcript that the court would consider it.

We'd like to further remind the Court that part of this record has already been transcribed.

That three of the witnesses that petitioner maintains or material had -- their testimony has already been prepared in narrative form, that the only testimony needed were the three witnesses that testified in behalf of the city and the defendant and we believe that this could be prepared in narrative form and we think that the courts, that the appellate court below would consider it in that fashion.

Justice Thurgood Marshall: Mr. Ratcliffe, as I read the opinion of the Court of Criminal Appeals, they didn't touch this at all.

Mr. Giles K. Ratcliffe: No sir, they did not.

Justice Thurgood Marshall: Was it argued to them?

Mr. Giles K. Ratcliffe: I wasn't in that proceeding in that time and I don't know but it did not go to that.

Justice Thurgood Marshall: Well, don't you think if there was a procedure in the Court of Criminal Appeals, would you suggest that they would have mentioned in their opinion?

Mr. Giles K. Ratcliffe: Well, I'd like to think that they did.

They would have but if the question was not put to them I just don't know whether they would consider it or not.

Justice Thurgood Marshall: They went on the merits and said that simply because this was an ordinance and not statute, you didn't get it, period.

Mr. Giles K. Ratcliffe: Yes.

That in as much of this was a violation of municipal ordinance that there was no statutory authority for it --

Justice Thurgood Marshall: And if it had been the statute and the man had been given 90 days, there would have been?

Mr. Giles K. Ratcliffe: The state law authorizes the furnishing of case-mades in those cases that are tried in the county and the District Courts.

Justice Thurgood Marshall: So that's the only point that they decided.

Mr. Giles K. Ratcliffe: Yes.

However, we can --

Justice Thurgood Marshall: Do you support that?

Mr. Giles K. Ratcliffe: Sir?

Justice Thurgood Marshall: Do you support that?

Mr. Giles K. Ratcliffe: Yes.

Justice Thurgood Marshall: Why?

Mr. Giles K. Ratcliffe: Well, I believe that --

Justice Thurgood Marshall: What's the magic difference between the violation of an ordinance -- well let me first ask, does he go to the same jail?

Mr. Giles K. Ratcliffe: No, sir.

Justice Thurgood Marshall: He goes to a city jail?

Mr. Giles K. Ratcliffe: Yes, sir.

Justice Thurgood Marshall: But he has served 90 days?

Mr. Giles K. Ratcliffe: Yes, sir.

Justice Thurgood Marshall: And if he goes to the city jail and served 90 days and he's a pauper, no appeal?

Mr. Giles K. Ratcliffe: Well, --

Justice Thurgood Marshall: If he's sentenced by a state statute, he goes to the state jail for 90 days, he gets a record?

Mr. Giles K. Ratcliffe: That's correct.

Justice Thurgood Marshall: And you said that's alright?

Mr. Giles K. Ratcliffe: Well, I say that in this particular case, that there's been no need or necessity shown that he have a reporter's stenographic copy of the record, that this was a case that was tried in less than a day, that it was not particularly complicated case, that there were just four witnesses, that this testimony could have been prepared in narrative form and submitted to the court.

Justice Thurgood Marshall: Well would the -- would you have answered that in the brief if they have prepared a narrative out of their mind, would you have answered it?

Mr. Giles K. Ratcliffe: Well, I think we've been given opportunity to approve it.

Justice Thurgood Marshall: Well, I mean when the argument came up in the Court of Criminal Appeals, would you have had the transcript to work on?

Mr. Giles K. Ratcliffe: If we have ordered one, yes.

Justice Thurgood Marshall: But the other side wouldn't?

Mr. Giles K. Ratcliffe: Well, no.

Justice Thurgood Marshall: And you don't see anything wrong with that?

Mr. Giles K. Ratcliffe: Well, I don't know why there would be any necessity for us to have a transcript if we could stipulate and agree and approve on the narrative form statement of the issues.

And as I say, I can't cite you any cases where Oklahoma has held that they would consider it this way but by implication, I think that it's there, that it could be.

Thank you, sir.

Chief Justice Earl Warren: Very well.

Featured:

Williams v. Oklahoma City - Oral Argument

Thu, 23 Aug 2012 18:31:21 +0000

Case:

Williams v. Oklahoma City

Related Transcript:

841_19690402-argument

Transcript:

Argument of Giles K. Ratcliffe

Chief Justice Earl Warren: Tommy E.L.Williams, petitioner, versus City of Oklahoma, et al.

Mr. Giles K. Ratcliffe: Mr. Justice -- Chief Justice may it please the Court.

We'd like to further remind the Court that part of this record has already been transcribed.

Justice Thurgood Marshall: Mr. Ratcliffe, as I read the opinion of the Court of Criminal Appeals, they didn't touch this at all.

Mr. Giles K. Ratcliffe: No sir, they did not.

Justice Thurgood Marshall: Was it argued to them?

Mr. Giles K. Ratcliffe: I wasn't in that proceeding in that time and I don't know but it did not go to that.

Justice Thurgood Marshall: Well, don't you think if there was a procedure in the Court of Criminal Appeals, would you suggest that they would have mentioned in their opinion?

Mr. Giles K. Ratcliffe: Well, I'd like to think that they did.

They would have but if the question was not put to them I just don't know whether they would consider it or not.

Justice Thurgood Marshall: They went on the merits and said that simply because this was an ordinance and not statute, you didn't get it, period.

Mr. Giles K. Ratcliffe: Yes.

That in as much of this was a violation of municipal ordinance that there was no statutory authority for it --

Justice Thurgood Marshall: And if it had been the statute and the man had been given 90 days, there would have been?

Mr. Giles K. Ratcliffe: The state law authorizes the furnishing of case-mades in those cases that are tried in the county and the District Courts.

Justice Thurgood Marshall: So that's the only point that they decided.

Mr. Giles K. Ratcliffe: Yes.

However, we can --

Justice Thurgood Marshall: Do you support that?

Mr. Giles K. Ratcliffe: Sir?

Justice Thurgood Marshall: Do you support that?

Mr. Giles K. Ratcliffe: Yes.

Justice Thurgood Marshall: Why?

Mr. Giles K. Ratcliffe: Well, I believe that --

Justice Thurgood Marshall: What's the magic difference between the violation of an ordinance -- well let me first ask, does he go to the same jail?

Mr. Giles K. Ratcliffe: No, sir.

Justice Thurgood Marshall: He goes to a city jail?

Mr. Giles K. Ratcliffe: Yes, sir.

Justice Thurgood Marshall: But he has served 90 days?

Mr. Giles K. Ratcliffe: Yes, sir.

Justice Thurgood Marshall: And if he goes to the city jail and served 90 days and he's a pauper, no appeal?

Mr. Giles K. Ratcliffe: Well, --

Justice Thurgood Marshall: If he's sentenced by a state statute, he goes to the state jail for 90 days, he gets a record?

Mr. Giles K. Ratcliffe: That's correct.

Justice Thurgood Marshall: And you said that's alright?

Justice Thurgood Marshall: Well would the -- would you have answered that in the brief if they have prepared a narrative out of their mind, would you have answered it?

Mr. Giles K. Ratcliffe: Well, I think we've been given opportunity to approve it.

Justice Thurgood Marshall: Well, I mean when the argument came up in the Court of Criminal Appeals, would you have had the transcript to work on?

Mr. Giles K. Ratcliffe: If we have ordered one, yes.

Justice Thurgood Marshall: But the other side wouldn't?

Mr. Giles K. Ratcliffe: Well, no.

Justice Thurgood Marshall: And you don't see anything wrong with that?

Mr. Giles K. Ratcliffe: Well, I don't know why there would be any necessity for us to have a transcript if we could stipulate and agree and approve on the narrative form statement of the issues.

And as I say, I can't cite you any cases where Oklahoma has held that they would consider it this way but by implication, I think that it's there, that it could be.

Thank you, sir.

Chief Justice Earl Warren: Very well.

Featured:

Williams v. Oklahoma City - Oral Argument, Part 1

Fri, 18 Nov 2011 02:36:47 +0000

Case:

Williams v. Oklahoma City

Media File:

841_19690401-argument-1.mp3

Related Transcript:

841_19690401-argument-1.xml

Transcript:

Argument of Jon F. Gray

Chief Justice Earl Warren: Number 841, Tommie E.L. Williams, petitioner versus City of Oklahoma City, et al.

Mr. Gray, you may proceed with your argument.

Mr. Jon F. Gray: Mr. Chief Justice and may it please the Court.

The petitioner below has been completely barred from his statutory right to appeal the criminal conviction against him and this bar has been solely upon the basis of his poverty.

We therefore contend that the case before Your Honors today is on all force or even a stronger case than that presented to this Court in the case of Griffin versus Illinois and following cases in which this Court has held that for decade that the state may not withdraw a right of appeal from a person upon any invidious discrimination such as poverty.

The respondents raised two points, their first point is that there is some adequate alternative method of appeal open to us and their second point is that the Griffin rule should not apply since the offense convicted in this case and appealed from is a petty offense with which we disagree.

In Oklahoma as was the situation in Illinois at the time of Griffin case there are two methods of appeal.

There is a short form of appeal which is the clerk's transcript then contains barely the few papers of record.

It is conceded in respondents' brief at page 8 and it was so held by the trial court that this method of appeal is inadequate in this case.

The second method of appeal available in Oklahoma is the long form which we call a “case-made” and which respondents agree at their brief in page 4 is the method in which the court reporter's transcript evolved with the evidence and all of the proceedings and all of the instruments are made up and presented to the appellate court.

Now, turning to their first point, that there is an adequate alternative method the response assert that the defendant should have made up a statement of the evidence for memory in early form and submitted it and I quote from page 8 of their brief, “in lieu of the case-made” and that therefore, we would have an alternate method of appeal.

Justice Abe Fortas: Of course it matter in which word does that word “case-made” come from?

Mr. Jon F. Gray: Your Honor, the statute as far as I can tell states that the party shall make up a case and that the statute set forth in our brief and I think that's where it come from.

Justice Potter Stewart: You said statute, it's in the appendix of your brief.

Mr. Jon F. Gray: Yes.

Justice Potter Stewart: This many, I have a little trouble finding it.

I'm not being critical it's a very thorough brief.

Mr. Jon F. Gray: It's section on page 39.

Justice Potter Stewart: Top of page 39, case-made in criminal cases.

Mr. Jon F. Gray: Right.

Now, the facts of this case which we say bring this case within Griffin rule is that the defendant who is conceded in this case to be indigent.

He was a hospital janitor making about $55.00 a week and supporting 11 children.

The defendant was convicted in the municipal court of Oklahoma City after a trial and this is important, a trial by a 12-man jury and was convicted of the crime of driving, and this is also critical, driving under the influence, not drunk-driving for everybody knows what drunk-driving is, but driving under the influence and he was sentenced to serve 90 days in jail and paid a fine of $50.00 under a statute in which the maximum sentence is 90 days in jail and $100.00.

Chief Justice Earl Warren: Is there a legal distinction between drunk-driving and driving under the influence?

Mr. Jon F. Gray: I think it's a matter of degree, Your Honor.

Chief Justice Earl Warren: Then what is the legal difference between the two?

You said, you know what drunk-driving is but this is something different, then it's something different.

Mr. Jon F. Gray: I think in the drunk -- if he was charged with drunk-driving, and I know of no common statute that sets about that charge but I understand some states have them that the prosecution would have to prove that the defendant was drunk, drunk on his mind, they drunk out -- and in this case, the prosecution only has to prove that the defendant had enough alcohol to influence his driving to some degree which would render him incapable of safely driving.

And that's the distinction that I --

Justice Potter Stewart: You just have this single offense in your statement.

Mr. Jon F. Gray: Right.

Justice Potter Stewart: You don't have the two.

Mr. Jon F. Gray: I know -- as far as I know of, there's no drunk-driving statute in Oklahoma, just the driving under the influence.

The defendant filed his motion for a new trial and attached thereto the sworn affidavit that the person who was driving the car at the time of the so-called alleged accident but that motion for new trial was overruled and he requested a case-made in forma pauperis.

It is recognized by the trial court and that the petitioner in this case would have an absolute right to appeal if he would pay for the court reporter's notes.

The respondents have attached as an exhibit to their first brief in this case a transcript of the hearing and the trial court conceded this point.

Justice Abe Fortas: Well, do I -- Mr. Gray, do I correctly understand that the question here is not whether he has a right to appeal.

He can appeal.

Mr. Jon F. Gray: Right.

Justice Abe Fortas: And on that appeal, he would get the transcript which you refer.

What do you referred to it as?

Mr. Jon F. Gray: The “case-made”, yes.

Justice Abe Fortas: No, no.

Mr. Jon F. Gray: The court reporter's transcript?

Justice Abe Fortas: The reporter's transcript.

Mr. Jon F. Gray: Right.

Justice Abe Fortas: He would get that without paying for it, is that right?

Mr. Jon F. Gray: That's correct.

It has been --

Justice Abe Fortas: And so the only question here is not his right of appeal but it's whether he can have a right as you would put it I suppose whether he's got a right of effective appeal in the sense that he can obtain without paying before it the stenographic report of the -- what transpired at his trial.

Mr. Jon F. Gray: That's very well put and it was conceded by and expressly stated by both courts that if he had been convicted of the felony in District Court, he would have been given this transcript without cost.

Now, it is interesting to note that at the hearing on our request for a court reporter's transcript, the trial court held several findings of fact which are lengthy but briefly the important ones are and it is for this reason that we contend this case is stronger than Griffin.

The trial court held that we have the legal need for the long form of appeal and that the short form is inadequate.

The second important point that the trial court found is that our appeal is not without merit which is similar to a federal court finding that the appeal is not frivolous; and the third point that strikes right at the heart of the respondents' first contention is that the defendant, neither the defendant nor his attorney could compile for memory an adequate narrative statement, an adequate transcript.

Chief Justice Earl Warren: Why not?

Mr. Jon F. Gray: Well, the trial court Your Honor heard the pretrial hearing and they have pretrials in this Court and heard the trial and heard our motions and our arguments and of course in taking all of that into consideration, I assume, he felt it not unreasonable that we can remember all of the important points of the case.

Chief Justice Earl Warren: How long did the trial take?

Mr. Jon F. Gray: It took approximately one day.

Chief Justice Earl Warren: How short would it have to be so memory would suffice?

Mr. Jon F. Gray: Your Honor, the only thing that I can respond to in that regard is this Court's holding in the Gardner case which was rendered at the time my brief was turned in so it's not in my brief but this Court pointed out that certainly, a lawyer would be lost without a transcript and even preparing the petition for review and that is the position in this Court today.

I don't know how short the hearing would have to be.

Justice Thurgood Marshall: How many witnesses?

Mr. Jon F. Gray: I think there were approximately four, four witnesses.

Justice Thurgood Marshall: And it took a whole day?

Mr. Jon F. Gray: Yes.

Chief Justice Earl Warren: To forward?

Mr. Jon F. Gray: Yes sir, that's my memory.

Chief Justice Earl Warren: Well, don't some states have this as a regular procedure where the defense counsel presents a statement of the fact on appeal and it's settled by the Court after a consultation with counsel?

Mr. Jon F. Gray: Yes, they do Your Honor and we admit that Oklahoma could establish such a procedure.

Chief Justice Earl Warren: You have such a procedure.

Mr. Jon F. Gray: No, I say that we admit that they could and that would be a reasonable alternative.

Chief Justice Earl Warren: Well, what do they have?

Mr. Jon F. Gray: Well, Your Honor, the two methods of appeal are the clerk's transcript which contains only the bare pleadings in the case, the information, the minutes and the judgment, and the case-made that we've discussed.

Chief Justice Earl Warren: Those were the only two?

Mr. Jon F. Gray: Yes, sir.

Chief Justice Earl Warren: There is no provision at all for counsel getting together and presenting a statement of the facts to the Court and have it approved and used as a record on appeal.

Mr. Jon F. Gray: There is none that I have found and if there is, it's appointed it has escaped also defense counsel and the trial court because this has all been discussed in the hearing.

Justice Byron R. White: Why did the trial court make the finding that the parties couldn't -- that the party couldn't remember what went on?

Mr. Jon F. Gray: Well, he --

Justice Byron R. White: What if he could have?

What would --

Mr. Jon F. Gray: What if he could have?

Your Honor I don't know --

Justice Byron R. White: He could have made this case.

Mr. Jon F. Gray: Well, there are many cases in Oklahoma that set out the requirements for a free case-made and one of them is that neither the party nor their attorney can make up a transcript from memory and we requested the trial court rule on this issue and he did so and he ruled that it would not be reasonable to require us to make up a transcript from memory.

Justice Byron R. White: Well, what if he could remember it?

Mr. Jon F. Gray: That's a good question Your Honor.

Justice Byron R. White: Well then, a good question.

Mr. Jon F. Gray: I don't know.

Justice Byron R. White: It's rather relevant here, isn't it?

Mr. Jon F. Gray: Yes, it is.

It's relevant but it is not one that this Court need get to.

Justice Byron R. White: Let's assume you thought you could remember -- you'd make plenty of notes like most lawyers do in Court and you made up a running account of what happened to trial, what the testimony was, do you think that would be acceptable as a case-made in Oklahoma?

Mr. Jon F. Gray: I've tried that Your Honor and in a case exactly in the same Court, and that has been the petition for certiorari has been year --

Justice Byron R. White: Well, what happened to you in the state court?

Mr. Jon F. Gray: In the state court, the Oklahoma Court of Criminal Appeals did rule that the petition for writ of mandamus was denied for the same reason as it was denied in this case.

And because the defendant there was employed and I think there was one other situation that went to his earnings --

Justice Potter Stewart: There's a question asked to whether or not he was an indigent, as I remember.

Mr. Jon F. Gray: Right.

Justice Potter Stewart: That's the petition for certiorari pending here.

Mr. Jon F. Gray: Right.

Justice Potter Stewart: Yes.

Mr. Jon F. Gray: But in other words, the Court of Criminal Appeals in Oklahoma did not rule in that case that we couldn't have the case made because we could remember the testimony.

I think its unfortunate they didn't speak to that point.

Justice William J. Brennan: Well, does this all come down to this Mr. Gray that you're saying to us that whatever Oklahoma might adopt in the way of some substantive facts, the present factors from it on appeal only on short form or on case-made.

This case is inappropriate for short form and you're denied case-made because you can't afford to pay for the transcript.

Therefore, this practice in those circumstances is unconstitutional.

Mr. Jon F. Gray: That's correct, Your Honor.

Justice Byron R. White: But part of it is that you must have a transcript to make a case.

Mr. Jon F. Gray: That's correct.

Justice Thurgood Marshall: And that goes --

Mr. Jon F. Gray: In this case.

Right.

Justice Thurgood Marshall: And that goes for all traffic violations?

Mr. Jon F. Gray: Well, we believe that goes for all.

All we're asking this Court to get to is that that goes for all serious criminal convictions.

And --

Chief Justice Earl Warren: Are there any cases in Oklahoma where a trial record has been made by counsel and approved by the court and used by the Courts of Appeal?

Mr. Jon F. Gray: I have not seen any.

Chief Justice Earl Warren: I see.

Justice Potter Stewart: May I ask this, this is from the what, the municipal court or the municipal criminal court as called?

Mr. Jon F. Gray: Right, it's court of record.

Justice Potter Stewart: And does this mean that there always is a court reporter --

Mr. Jon F. Gray: That's correct.

Justice Potter Stewart: -- sitting there, taking down the -- transcribing the evidence?

Mr. Jon F. Gray: That's correct, Your Honor.

The statutes have given the same court reporter to the municipal criminal court of record in Oklahoma City as they have given to the District Court which is the Court of the General Jurisdiction.

Justice Potter Stewart: And here she is paid out of public funds?

Mr. Jon F. Gray: That's right.

Justice Potter Stewart: So this isn't a question of one party or the other needing to arrange in advance and hire a reporter to come into the courtroom?

Mr. Jon F. Gray: The statutes on the court reporter salary set in our brief that briefly they are that the court reporter is paid a salary and then he may charge the individual appellant per page.

Justice Potter Stewart: Per copy.

Mr. Jon F. Gray: Right, per copy.

Justice Byron R. White: But now, do you go directly up to an appellate court from this municipal court or is there an appeal to the District Court for de novo trial?

Mr. Jon F. Gray: Prior to the inception of this Court in 1965, the appeals of this type of case went to the District Court then they instituted this Court and the appeals are exactly as in the District Court straight to the Court of Criminal Appeals in the State of Oklahoma.

Chief Justice Earl Warren: There's a trial de novo in the District Court?

Mr. Jon F. Gray: No, Your Honor.

There is one trial in the municipal court and then you appeal that finding to the appellate court in the state.

So the point I would like to make is that the trial court has negated this first point that there is no alternative record and the only basis for their argument is the 1918 Harris case which was adopted at the time when the court reporter took down all the testimony in longhand and the judge who find that there -- the attorney might as well do.

There is no need to remand this case therefore as the respondents request since both courts have ruled upon the issue and have stated the issue to be a lack of statutory authority that was expressly the trial court's ruling and the Court of Criminal Appeals denied the petition expressly because the U.S. Supreme Court had not intimidated that a person convicted of a quasi-crime or a petty offense could get an appeal by case-made.

Now, the issue of quasi crime which was briefed well in the court below as apparently been abandoned by respondents and I'll submit it on my third argument in my brief covers quasi crime to think it's clear there is no quasi crime, that's relevant in this case.

Justice Potter Stewart: This man received a sentence of 90 days imprisonment and a $50.00 fine.

Mr. Jon F. Gray: That's correct.

Justice Potter Stewart: What's the 90 days, that's the maximum under this?

Mr. Jon F. Gray: That's the maximum under the city ordinance.

Right.

Justice Byron R. White: I take it you're arguing -- I gather from your brief, you think you're arguing not only about a transcript but about counsel here.

Mr. Jon F. Gray: That turns to the issue of the petty offense Your Honor and the short answer is yes.

Justice Byron R. White: Is that whatever we decide here also determines the counsel issue?

Mr. Jon F. Gray: Yes, Your Honor.

Justice Byron R. White: In your view?

Mr. Jon F. Gray: And this is why.

Because our contention is that this is a serious crime.

There are as Your Honor is well aware in this discussions, petty-serious crimes, there are two elements.

Justice Byron R. White: And what's that got to do with it in this area, serious or petty?

Mr. Jon F. Gray: Well, the -- usually, the past determination of whether it's serious or petty has come from the type of penalty and the type of crime but we think it goes deeper than that.

Justice Byron R. White: But who's made that distinction in question as concerning counsel or transcript?

Who's made that distinction between serious and petty crime?

Mr. Jon F. Gray: Most of the cases do --

Justice Byron R. White: Well do the states have?

Mr. Jon F. Gray: No, most of the cases -- most of the cases involving the petty-serious distinction have been jury trial issues.

Justice Byron R. White: Yes.

Mr. Jon F. Gray: And I think there had been one or two cases involving the right to counsel.

Justice Byron R. White: There has in the federal courts?

Mr. Jon F. Gray: Under that impression Your Honor, I can't cite you one right now.

Justice William J. Brennan: You don't mean in this Court?

Mr. Jon F. Gray: No.

Justice William J. Brennan: I gather that this Court has refused to review some instances of offenses which carried no more punishment than 90 days at least.

We refuse to review refusals to provide counsel.

Mr. Jon F. Gray: I think that's correct, Your Honor.

Justice William J. Brennan: And you think we have to reach that question?

Mr. Jon F. Gray: Well no, Your Honor, I don't.

And this --

Justice William J. Brennan: I wouldn't think so.

I suppose you suggest this in Congress if you prevail on the right to transcript like it wouldn't necessarily follow.

You'll also take the right to a counsel.

Mr. Jon F. Gray: We believe that in serious crime, and that's why we think the right to counsel is important.

If this is a petty crime, possibly we wouldn't have a right to counsel.

But it's a serious crime and since it's a serious crime, we have a right to a fair jury trial including the right to counsel, a fair preliminary hearing and a fair appellate procedure and it's the right to a jury trial without counsel would be half a loaf.

And in this case, there had been no Oklahoma cases cited to this Court in which the Court said that this situation is a petty offense.

So turning the Court to the case of Duncan versus Louisiana for example as a guide, this Court said that if we look to the laws of the locality as a gauge of the social and ethical judgments, we see that the crime in this case is serious for the singular reason that for 50 years, for 50 years, the State of Oklahoma has given a right to a jury trial based upon due process and that in all cases in which there is any incarceration, in all cases in which there's any incarceration, the Oklahoma courts have held that due process requires a jury trial.

And for instance Franks --

Justice William J. Brennan: And even for 15 days, 20 days?

Mr. Jon F. Gray: Yes sir, even for one day.

Justice William J. Brennan: Now, is this a matter of Oklahoma Constitution?

Mr. Jon F. Gray: Well, settled to Oklahoma constitutional law and Oklahoma case law based upon the federal constitution.

Justice Byron R. White: But haven't we held up -- haven't we held that up to six months of the petty offense here --

Mr. Jon F. Gray: Yes sir, the Court certainly has.

Justice Byron R. White: -- that reverses the jury trial question?

Mr. Jon F. Gray: Yes, sir.

Justice Byron R. White: Do you think that if the -- you should a different --

Mr. Jon F. Gray: No.

Justice Byron R. White: -- view of it on the counsel or transcript?

Mr. Jon F. Gray: No sir, we concede the fact that there is at some place a petty offense but this Court need not re-examine the roots of the petty-serious offense distinction because in this case, it's a serious crime.

It's a serious crime because Oklahoma has always construed this type of crime to be a serious offense.

Did that answer Your Honor's question?

Justice William J. Brennan: I wonder if it does because -- at least, am I wrong about this Mr. Gray to the extent we've dealt at all with the distinction between petty and serious or petty or non-petty whichever way you want to phrase it.

We have indicated, have we not that there are certain of the guarantees, notably jury trial which do not apply if the offense whatever or however serious carries with it a punishment not exceeding six months, have we?

Mr. Jon F. Gray: Yes, Your Honor.

In the Duncan case, you implied that if the punishment was under six months, there would be no right to a jury trial.

But we think that --

Justice William J. Brennan: But there we've drawn the distinction on the time of a rather a length of imprisonment which the offense may carry.

Mr. Jon F. Gray: Right.

Justice William J. Brennan: We haven't drawn the line based on whether the offense is serious or non-serious.

Mr. Jon F. Gray: No, Your Honor.

It was my reading of the cases.

The sixth month -- the sixth-month line is result of finding that as I understand that under six months, it's not serious and over six months it is serious but we'll argue that there are more considerations than the mere six-month penalty.

Your Honor knows well that there's long been discussed, there are two elements, the length of the penalty as well as the seriousness of the crime.

And in the Oklahoma court and other cases cited in our brief in pages 17 and pages 28.

For example in 1918, Franks versus Muskogee gets to the point when a defendant is convicted of an offense carrying a maximum offense, a $25.00 fine is the maximum penalty and this Court held, I mean the Oklahoma court held that in any regard to ordinance violations, any crime in which carries imprisonment is an essential part of the tribunal and in this case that I'm mentioning to you, the defendant could be jailed for failing to pay a fine which emphasizes my point that if there's one day of imprisonment, in Oklahoma that's a serious crime.

Ex parte Monroe also pointed out.

It's another Oklahoma case cited in our brief, that it was never contemplated that a police court which is not a court of record could try crimes involving incarceration.

Now, there are precedents in this Court, Callan versus Wilson, was $25.00 fine and a 30-day imprisonment penalty and in 1888, this Court held that was serious.

In the case of District of Columbia versus Colts, the charge is reckless driving which we think to be a lesser including offense and the Court held that that was indictable under the common law.

It was shocking to the general moral sense and state cases have since continued that evaluation of the charge of reckless driving to be a serious offense.

There are -- our contention is that in deciding whether a crime is serious or not, there are other legal indicia besides the length of --

Justice William J. Brennan: Well, is this your submission Mr. Gray that on this business of an extension of right to counsel if that's what it's to be and the determination should be made on the basis of the criterion called seriousness of the offense rather than by focusing primarily on the punishment that the offense carries?

Is that what you're --

Mr. Jon F. Gray: We believe that the right to counsel is part of the baggage of the jury trial.

I don't know if that answers your question and I submit that the right to counsel shouldn't depend upon an arbitrary imprisonment, a time of imprisonment.

It should depend upon whether the crime is serious or not and in the past, this Court had said there are two considerations.

We're arguing today that there are many considerations about whether a crime is serious.

The right to counsel that you're speaking of is extended in Oklahoma by a statute and Oklahoma state constitution as I mentioned and it's an essential part of the jury trial and also the City of Oklahoma City has an attorney and it certainly would be a violation of due process and equal protection we contend to try a man with a jury trial when the City of Oklahoma City has an attorney --

Justice William J. Brennan: Incidentally, did this petitioner have an attorney?

Mr. Jon F. Gray: Yes, sir.

I was his attorney in the trial court.

Justice William J. Brennan: Well how was this issue of right to counsel came out?

Mr. Jon F. Gray: Well, we're indicating that since there is a right to counsel that is another indication of the seriousness of the crime.

Justice Potter Stewart: But you said there's a right to counsel in every case in Oklahoma or did I misunderstand you?

Mr. Jon F. Gray: I think that is the correct position.

Justice Potter Stewart: But in Oklahoma, every serious offense is a serious crime under that definition even a parking offense.

Mr. Jon F. Gray: Well, I see what you mean, Your Honor.

I think this Court need not get that point but I think you're right.

Justice Potter Stewart: That is for your oral argument at least.

Mr. Jon F. Gray: That's correct.

Justice Abe Fortas: Well, Mr. Gray, as I remember your brief, what the points that you rely on to show that Griffin ought to be applied in this case that is to say that the state ought to be required to furnish without a cost to an indigent the -- such a transcript as is necessary for effect of appeal.

That's what you're trying to get us to hold, isn't it?

Mr. Jon F. Gray: Yes, sir.

Justice Abe Fortas: And in order to support the argument that this is a kind of case in that category, you point out that this is a case in which that the jury trial has required, that's point one, is that right?

Mr. Jon F. Gray: The case in which the jury trial has required and given.

Justice Abe Fortas: Is that?

Mr. Jon F. Gray: Yes that is right.

It is required but even --

Justice Abe Fortas: And the second thing as I remember is you say that this is regarded that driving while under the influence of intoxicating liquor is regarded as malum in se under your cases.

Mr. Jon F. Gray: That's right, in our cases and in this Court.

Justice Abe Fortas: Sorry?

Mr. Jon F. Gray: In our cases and in this Court.

Justice Abe Fortas: And in this Court.

And then you are pointing out, is there some provision in the Oklahoma Constitution to which you refer us with respect to the serious definition of a serious offense?

Mr. Jon F. Gray: No, Your Honor.

The definition of the serious offense we contend comes from the old Oklahoma case that's cited in our brief which construed the Due Process Clause to mean that any crime which --

Justice Abe Fortas: It has to have a jury trial.

Mr. Jon F. Gray: That's right.

Justice Abe Fortas: I see.

What is the limit in your Constitution?

Mr. Jon F. Gray: For jury trial?

Justice Abe Fortas: Yes.

Mr. Jon F. Gray: The limit that applies to this case --

Justice Abe Fortas: Yes.

Mr. Jon F. Gray: -- is anything over a $20.00 fine or any imprisonment.

Justice Abe Fortas: Or any imprisonment.

Mr. Jon F. Gray: Right.

Justice Abe Fortas: Concerning your Oklahoma Constitution in the amendment.

Mr. Jon F. Gray: That's correct.

But in the amendment, they have left the imprisonment requirement if there is still any imprisonment if the serious crime --

Justice Abe Fortas: And in this case, the penalty did include imprisonment and prison term was actually imposed, was it?

Mr. Jon F. Gray: No.

No, it's a state pending this appeal.

Justice Abe Fortas: No, but I mean to say the judgment include it.

Mr. Jon F. Gray: Yes, 90 days, a maximum of 90 days incarceration.

This -- of course this court is a court of record and on your question as to the right to a jury trial, our position is that since we do have a right to a jury trial, that is the indication of seriousness of the crime.

But the other indication as to which we submit that this Court may consider are the seriousness, serious is a relative term and should be related to something other than some other length of punishment.

For example, a $50.00 fine given to a wealthy man would certainly not be serious but given to a man earning $50.00 a week and supporting 11 children is serious.

Now, I think that's a proper consideration.

There are other gauges of social and ethical judgments of the locality by some authors have termed the extra legal consequences such as the loss of job or for example if a school teacher were given a three-month jail term wrongfully, that would be a serious offense.

So we think this Court or any court need not stop just as the penalty of the three-month, whether it be three months or six months to look at the seriousness of the crime.

It is interesting that in the Duncan versus Louisiana case, the state level was two years and that was the level of which we're being attacked whereas the federal level is six months.

In this case, the state level is any imprisonment and in the Duncan case, they were asking this Court to improve the individual protections and bring it down to the federal level.

In this case, we're asking to prove the individual protections by leaving the dividing lines where it is in Oklahoma at any imprisonment.

So we asked this Court --

Justice Potter Stewart: That's the dividing line for trial by jury?

Mr. Jon F. Gray: Right.

Justice Potter Stewart: And also for the right to appointed counsel if you're an indigent?

Mr. Jon F. Gray: Right and a court reporter.

Justice Potter Stewart: And a court reporter?

Mr. Jon F. Gray: In this particular court.

Justice Potter Stewart: Right and the dividing line is whether or not it can possibly be punished upon conviction by imprisonment.

Mr. Jon F. Gray: Imprisonment, that's correct.

Justice Hugo L. Black: What is this municipal criminal court?

Mr. Jon F. Gray: The municipal criminal court is a city court of record established especially by statute and all of the statutes which regard its procedure are set out in a special section separate from the statute.

Justice Hugo L. Black: Did you say at each county?

Mr. Jon F. Gray: No it is just in Oklahoma City.

There are --

Justice Hugo L. Black: Oklahoma City only.

Mr. Jon F. Gray: Right.

The -- in 19 --

Justice Hugo L. Black: Can it take the place of the recorder's court?

Mr. Jon F. Gray: Yes, Your Honor, that's essentially correct.

In other counties, there are county courts except that in 1968, we had a constitutional revision and the laws were changed but it doesn't affect this case because the new laws specifically on appeal at least --

Justice Hugo L. Black: Did they have stenographers there regularly?

Mr. Jon F. Gray: In Oklahoma City, --

Justice Hugo L. Black: In the criminal municipal?

Mr. Jon F. Gray: Yes sir, everyday.

Justice Hugo L. Black: That's part of the law?

Mr. Jon F. Gray: Yes sir, statutory, right.

Thank you.

Chief Justice Earl Warren: Very well.

Mr. Ratcliffe.

Argument of Giles K. Ratcliffe

Mr. Giles K. Ratcliffe: Mr. Chief Justice, if Your Honor please.

The respondents have urged two positions here.

One is that the Court's ruling in the Griffin case should not be extended to this type of case for the reason that the relief that the petitioners have sought was denied by the appellate court below on the grounds that this was a quasi criminal in the language of the court are a petty offense.

Now, I think this is what we've got into this discussion of serious offense or petty offense.

The Court just said that it had reviewed Your Honor's decisions on these matters and had found no case where this Court has said that a transcript must be furnished in a case involving what they call quasi criminal or a petty offense.

Now, clearly if this were one in which a felony was involved, it would not be tried in this city court.

Consequently, this problem wouldn't have arose.

Justice Potter Stewart: What's the jurisdiction in this city court?

Mr. Giles K. Ratcliffe: $100.00 fine, 90 days maximum sentence.

Justice Potter Stewart: That's the Court had no -- the court has no jurisdiction of anything punishable with a more serious offense.

Mr. Giles K. Ratcliffe: No, that's true.

These are city ordinances only.

That's all they find in your city ordinance.

Justice Hugo L. Black: Why are there cases appealed to other court?

What's the next --

Mr. Giles K. Ratcliffe: Well, this Court that we're dealing with now has only been in existence two or three years.

Prior to that time, we had what we call the police court where the maximum fine was $20.00.

The appeal from there was to the common plea court where it was trial de novo.

Then of course an appeal from that to the Court of Criminal Appeals would be treated as a county matter.

Transcripts would have been furnished under the state law and say this problem didn't arise until just a couple of years.

Justice Potter Stewart: But in answer to Justice Black's question now, not the last couple of years, where is the appeal, where is the --?

Mr. Giles K. Ratcliffe: It is directed to the Court of Criminal Appeals just as it was before from the Court of Common Plea.

In other words, this is --

Justice Hugo L. Black: This one has a jury?

Mr. Giles K. Ratcliffe: Yes, sir.

Justice Hugo L. Black: Which one has a jury?

Mr. Giles K. Ratcliffe: Well, both now.

Both, the city court of record has the jury.

Justice Hugo L. Black: Municipal court?

Mr. Giles K. Ratcliffe: Yes.

And then from that court, you appeal directly to the Court of Criminal Appeals.

Justice Potter Stewart: There's no trial de novo?

Mr. Giles K. Ratcliffe: No, no, no.

It's tried their jury --

Justice Hugo L. Black: All this time, they're entitled to have a jury trial?

Mr. Giles K. Ratcliffe: Yes.

Justice Hugo L. Black: In that Court?

Mr. Giles K. Ratcliffe: In this Court.

They're entitled to jury trial.

Chief Justice Earl Warren: Do you agree with Mr. Gray to the effect that there is no other way that this indigent client can have appeal on the record, on the evidence other than to have a case-made by the stenographer at his own expense?

Mr. Giles K. Ratcliffe: No sir, I don't agree with that.

However, I can't --

Chief Justice Earl Warren: That's what I want to know.

Mr. Giles K. Ratcliffe: I can't quote you any cases where this has been done.

However, in his -- in the hearing before the trial court, he on his motion for a free case-made, the transcript, a copy of it attached to our brief in opposition to the certiorari, he alleged that it was necessary for him to have the testimony of the three city witnesses, the testimony of the defendant and he needed to present some additional evidence by way of affidavit which has been made a part of this record in the last week or so.

Now, clearly, he could not complete his case-made if he just took the reporter's transcript because the two affidavits and the -- well, the three affidavits that he has acquired, these people did not testify in Court.

Those were attached to his motion for new trial.

So if the Court had said yes, you can have a case-made.

Part of his transcript would have to have been in narrative form because these people did not testify in the trial -- in the case at trial court.

The reporter could not have been included it in the case-made, so if he can present his case to the Court of Criminal Appeals on a partial reporter's transcript, on a partial narrative statement of evidence by way of affidavit, we don't think that he would be prejudiced by presenting at all.

Now this was not a complicated case.

Chief Justice Earl Warren: Well, that isn't exactly my question.

What my question was, is there in the power of the court to make any kind of a record that would enable him to appeal on the evidence in his case other than by a case-made paid by him?

Mr. Giles K. Ratcliffe: I can't quote you where this has been done Your Honor.

But I believe that it can be.

I believe that the Court, the petitioner's attorney or the attorney for the city or anyone who could had the information available could sit down and prepare a narrative form, a statement of the testimony of these witnesses and that the Court of Criminal Appeals would consider that.

Chief Justice Earl Warren: Is that done as a matter of practice?

Mr. Giles K. Ratcliffe: As far as I know, it has not been done.

Chief Justice Earl Warren: Do you have any authority to the effect that it can be done?

Mr. Giles K. Ratcliffe: No, I have no authority where it could be not.

However, I have quoted a case.

It's an old Oklahoma case.

It's Harris versus State in which the Court of Criminal Appeals had this to say, if for any reason stenographer's notes could not be obtained, then it was the duty of such lawyers to use their best exertion to make up the case-made from memory and if they failed to do so, the defendant would be held responsible for this neglect of duty on their part.

See also Dove versus State, the writer of this opinion practice law many years in Texas before court stenographers were known to that state and when the law -- when it went under the law, the evidence had to be written out as a matter of memory by the attorneys and filed in Court within ten days from the adjournment of the term of Court.

The writer never had the least difficulty in preparing his statements of the evidences in his cases.

And he knows from personal experience that it can easily be done.

In fact, he seriously doubts that the employment of court stenographers is at all necessary either in the administration of justice up to the development of lawyers.

It has a tendency to breed carelessness on their part but be that as it may, the trial court has a large discretion as to when to order the stenographer's note be extended without expense to the defendant.

Chief Justice Earl Warren: We'll recess now.

Featured:

Gardner v. California - Oral Argument

Thu, 23 Aug 2012 18:26:20 +0000

Case:

Gardner v. California

Media File:

73_19681120-argument.mp3

Related Transcript:

73_19681120-argument

Transcript:

Argument of Charles E. Rickershauser, Jr.

Chief Justice Earl Warren: Number 73, Robert Newton Gardner, Jr., Petitioner versus California.

Mr. Rickershauser?

Mr. Charles E. Rickershauser, Jr.: Mr. Chief Justice, May it please the court.

This is a case involving the right of an indigent California prisoner to a free transcript of his hearing out of petition for habeas corpus in the California Superior Court.

That petitioner alleged insufficient access to legal materials and to the courts.

The issue in this case is whether under the facts of the case, petitioner can obtain an adequate appellate review consistent with due process and equal protection under the California habeas corpus procedures where a non-indigent prisoner could have purchased this transcript.

But the appellate procedures in California relating to habeas corpus cases are not conditioned as a matter of law on the availability of that transcript.

Following the hearing, the Superior Court denied the petitioners petition for a writ of habeas corpus.

Petitioner then filed a written motion for a free transcript alleging his lack of funds, his need for the transcript to prove his case claims in the California Supreme Court and to assist him in the preparation of his case.

Petitioner did not then and does not now complain about the hearing, but instead contends the evidence will prove his habeas corpus contentions.

Petitioner in his motion raised the federal questions presented here citing authorities.

The Superior Court denied that motion by written order stating among other things that none of the proceedings in that court would be of concern to the California Appellate Courts.

Petitioner sought review of that denial of his motion for a free transcript by petitioning for writ of certiorari in the California Court of Appeal, which was denied.

Petitioner then sought a hearing in the California Supreme Court which was denied. Both of those denials were without opinion.

Petitioner then petitioned this court for a writ of certiorari, which was granted after a response was filed by the State of California upon request.

This court then appointed counsel, the only time the petitioner has been represented in these proceedings by counsel except at the hearing on his petition for the writ of habeas corpus in the California Superior Court.

It is a transcript of that hearing for the purpose of presenting his contentions for habeas corpus to the California Appellate Courts, this Court and if necessary the lower federal courts that petitioner is here seeking.

It seems clear under various decisions of this Court most recent prominent one of which is Long versus District Court 385 U.S. 192 that if the Californian habeas corpus procedure was a traditional appellate procedure, equal protection would require that this transcript be furnished to petitioner so that he could have the same means of pursuing his remedies as man with means to purchase the transcript.

The difference if any, in this case is that habeas corpus in California is termed as a theoretical matter to be an original writ procedure in each of the court's of California and theoretically --

Justice Potter Stewart: You say that is theoretical, that is fact; isn't it; in other words and it works.

It may work to the benefit of the applicant because if this is not an appeal but rather an original new application for habeas corpus in the second court then the applicant is free to bring in additional material, which he would not normally be free to do, if this were simply a review of the District Court action.

Mr. Charles E. Rickershauser, Jr.: That is true Mr. Justice Stewart but in practice it seems to me we have to look at the California procedure and see how it usually works and I think we will see that is very much like an appellate procedure in the usual case and of course even if it isn't I think the petitioner has shown his need for that transcript to prepare for the appellate court review, but if I might I'd like to point out that even though the petitioner is theoretically able to proceed and either the Superior Court or the Appellate Courts of California in an original proceedings, as a general matter and the usual practice as established in the State's brief here as referred to, is that the Appellate Courts will require him to start in the trial court.

So the next aspect --

Justice Potter Stewart: That's not unlike the Federal system I expect.

Mr. Charles E. Rickershauser, Jr.: That's right.

Justice Potter Stewart: Where I think I'm right in saying that under the statute an original writ of habeas corpus could be brought either to Federal District Court or before a Circuit Judge or the whole Court of Appeals or before any Justice or before this whole Court, but the practice is that it's authorized by the statute of Federal system to transfer any such applications filed in the particular Circuit Judges or Supreme Court Justices to transfer it to the District Court, is that more or less the California practice?

Mr. Charles E. Rickershauser, Jr.: I believe the more common practice is to deny the application for habeas corpus, it's referred to a footnote in the State's brief on the ground that he should proceed in the trial court, absent some unusual circumstances of the trial court would not act.

Justice Potter Stewart: Of course in the Federal system, there is provision for appeals from denials of habeas corpus and as I understand it in California there's no appeal from a denial.

Mr. Charles E. Rickershauser, Jr.: There is an appeal by the State if the petition is granted.

Justice Potter Stewart: No, I'm not appealed for the denial asset of habeas corpus is that correct?

Mr. Charles E. Rickershauser, Jr.: Well, that is correct.

However, in many times the subsequent proceedings in the Appellate Court have the same effect as an appeal, because the Appellate Courts often limit their review to the record before the trial court and that is all that was asked here since there was no complaint about the hearing in the trial court or that it was insufficient or that additional evidence would be required in the Appellate Court.

Justice Potter Stewart: Well, as I read your trial judge's order, he may clear that the appellate court if it so minded was free to ask for the transcript of what had gone on in the habeas corpus proceeding in the Trial Court, didn't I read that correctly, I don't have it.

Mr. Charles E. Rickershauser, Jr.: That is correct Mr. Justice.

The Appellate Court could have ordered that transcript.

Our position is that in order to get the Appellate Court to take the case is essential to this indigent petitioner to have that transcript available both in aid of preparation of his case and in establishing his case at the discretion of the Appellate Court to take it or not because --

Justice Abe Fortas: Which transcript was necessary for him to have?

Mr. Charles E. Rickershauser, Jr.: The transcript of the hearing on a petition for habeas corpus in the trial court.

Justice Abe Fortas: You're not asking that the Government supply that the State should supply the transcript of the original trial?

Mr. Charles E. Rickershauser, Jr.: No sir.

This petition for habeas corpus contented that he was denied insufficient access to the Courts and to legal materials, which had it been established, I assume would have then proceeded to attack his prior conviction and well he's in on two different crimes one of which he pleaded guilty to.

Justice Abe Fortas: Mr. Rickershauser, do you know whether this procedure that my brother Stewart was talking about is peculiar to California whether there are other States and if so how many?

You have the same procedure that is to say that don't permit appeals and post conviction proceedings, but that do provide for original proceedings in the Superior Court.

Mr. Charles E. Rickershauser, Jr.: I'm sorry Mr. Justice Fortas I do not know the answer to that question.

I'd attempt to supply it if you would desire me to do so.

Justice Abe Fortas: I would be interested in having that, yes.

Mr. Charles E. Rickershauser, Jr.: Alright.

It stems from the original common law practice so that it's reasonable to suppose that it exists in other states but I can't actually answer the question.

Justice Byron R. White: Well, could you tell me whether I gather from what you say that sometimes there are hearings in the Supreme Court.

Mr. Charles E. Rickershauser, Jr.: That's correct.

Justice Byron R. White: When you file a new petition in the Supreme Court instead of appealing, sometimes as a hearing.

Mr. Charles E. Rickershauser, Jr.: It's correct Mr. Justice White.

Justice Byron R. White: Now, why wouldn't you, if they wouldn't give you the transcript of what occurred in the lower court, why wouldn't you ask for a hearing, so you could make a record and give the -- put the evidence before the Court of -– the Supreme Court of California.

Mr. Charles E. Rickershauser, Jr.: We would ask for a hearing and as depending --

Justice Byron R. White: But you think that you have -- are you claiming the constitutional right not to have to ask for that hearing?

Mr. Charles E. Rickershauser, Jr.: No, I am claiming that in order to get that hearing it is necessary to have this transcript.

Justice Byron R. White: Why is that?

Mr. Charles E. Rickershauser, Jr.: Because as both in aid of preparation of the petition for the hearing and in proving to the court --

Justice Byron R. White: You prepared the petition for the hearing, petition without such a transcript in the lower court and got a hearing on it?

Mr. Charles E. Rickershauser, Jr.: That's correct.

You understand that I didn't sir.

Justice Byron R. White: Well, I understand but the petition was filed in the lower court and then a hearing on it.

Mr. Charles E. Rickershauser, Jr.: That's right, that's correct.

Justice Byron R. White: Now, is there any reason to suspect that you couldn't have got a hearing in the Supreme Court of California, if the Supreme Court of California refused to call up the record from the lower court.

Mr. Charles E. Rickershauser, Jr.: I am not sure I follow your question is, the Supreme Court of California does not have to grant a hearing on the petitions.

Justice Byron R. White: It's true, but it's never been denied yet is it?

Mr. Charles E. Rickershauser, Jr.: Yes, it has.

It's pending here on certiorari.

Justice Byron R. White: But did you ever ask them for a hearing?

Mr. Charles E. Rickershauser, Jr.: Yes.

Justice Byron R. White: And they, so that -- you'd come here with, you come here in a situation where they wouldn't call up the record in those kind of court and wouldn't give you a hearing.

Mr. Charles E. Rickershauser, Jr.: That is correct.

We do not know what happened at that hearing in the trial court as a result of any subsequent proceedings and neither has there been another hearing in any of the --

Justice Byron R. White: And neither did the Supreme Court of California --

Mr. Charles E. Rickershauser, Jr.: That's right.

Justice Potter Stewart: Where does that show in the record that the Appellate Court denied a hearing on your application?

Mr. Charles E. Rickershauser, Jr.: Well, the only proceeding that's before the court in this case is the request for the hearing.

I believe the court could take notice of the fact that two other petitions for certiorari are pending in this court at this time relating to the subsequent proceedings in this petitioner's attempt to obtain habeas corpus --

Justice Potter Stewart: I thought what we had here and perhaps not quite wrong, I thought what we had here was simply the denial of the trial court to supply your client a free transcript of the hearing to be used by him in his new application for habeas corpus in the appellate court.

I thought that's what we had before us here.

Mr. Charles E. Rickershauser, Jr.: Well it's really arguable I guess what you have before you because the petitioner took that denial to the California Court of Appeal by writ of certiorari and then took that to the Supreme Court of California by petition for a hearing, both of which were denied.

He then came here for a writ of certiorari which was granted. Direct to the Superior Court of California although we have treated it in our brief as directed to the Supreme Court, I think it would apply to either case, either court.

Now subsequently he has pursued his habeas corpus remedies in the California appellate courts and has filed some petitions for certiorari.

Those -- that is not this case, those cases are pending here.

Justice Potter Stewart: But this case is an attack, is it not upon the denial of the trial court by request for a free, for a free transcript of the habeas corpus proceedings in the trial court to be used by your client, he says necessary for him to have in order to file an application for habeas corpus in the appellate court?

Mr. Charles E. Rickershauser, Jr.: That is correct Mr. Justice.

Point where I was discussing that the fact that the California procedure has developed appellate similarities, I do not think is required in establishing our case.

We do not ask this court to say that California in fact has an appellate remedy; we're just showing that it has some of the same aspects and is therefore makes the need for this transcript even greater under those circumstances, and it is not always the tradition to grant separate hearings to consider these records separately.

I think the basic considerations underlying the transcript cases, which are that an indigent prisoner is to be afforded an adequate means of review in the appellate courts as a man with means, require the furnishing of this transcript.

It seems to us that the facts of this case uniquely demonstrate the essential aspect of this transcript.

This petitioner in his habeas corpus petition is asking, is claiming that he is denied access to the courts.

This is obviously a problem with complexity in which the courts must weigh his liberty and his rights against the right of the institutional authorities to run the prison, a complex problem and it is exceedingly -- it is almost unbelievable that a man who had means would not purchase the transcript of this hearing in the trial court in order to assist him in the preparation of his papers in the appellate courts.

And also to demonstrate to the appellate courts how it is that he was denied access to, which would certainly be of assistance to a court in determining whether or not there was the kind of denial of access that would be a deprivation of his rights.

It is our view therefore that there is that kind of invidious discrimination between the prisoner of means and the prisoner without means that the transcript cases have discussed.

Justice Abe Fortas: Mr. Rickershauser, do you know what happens in the Supreme Court of California when a habeas petition is filed, and the court decides to hear it, does the court hear it, suppose the evidence has to be taken, do they ever take evidence before the court, do they appoint a master?

Mr. Charles E. Rickershauser, Jr.: My understanding Mr. Justice Fortas is that a master is appointed or a referee, and that a transcript is obtained of that proceeding, which is then reviewed by the court to the extent necessary to reach a decision.

Justice Abe Fortas: hey don't customarily then rely on the transcript of the lower courts?

Mr. Charles E. Rickershauser, Jr.: Well there are circuit court, Court of Appeals cases in which they have relied on it, and I am sure they would in this case had they granted a hearing because the petitioner doesn't seek to establish anything beyond that transcript.

This isn't a case where he is asking for the transcript in order to comment for errors that he might then urge on in an appellate court.

I can't, that's obviously some speculation as to what they would do.

I would like to mention one or two of the state's contentions, first one of which significant seems to be that there are not sufficient particular allegations of the need for the transcript.

We feel that a layman with a problem such as this trying to establish that he does not have adequate access to the courts when on the face of it he is in court, has alleged all that any layman ought to have to allege in expressing his need for this transcript, especially when he contends that he is willing to rely on it and that he had a fair hearing in that trial court.

Justice William J. Brennan: I am looking at the appendix page 22 that apparently is the order in the Supreme Court of California, titled petition for hearing, order denying hearing.

Petition for hearing denied and yet our writ page 63 runs not to that order of the Supreme Court of California but apparently to the Superior Court of California.

Mr. Charles E. Rickershauser, Jr.: Mr. Justice Brennan I am not with you on page 22 --

Justice William J. Brennan: 62.

Mr. Charles E. Rickershauser, Jr.: 62 I am sorry.

Justice William J. Brennan: 62 and 63.

Mr. Charles E. Rickershauser, Jr.: I think I mentioned a few moments ago that it is not actually clear from an arguable standpoint as to what is here.

It is true that the writ does run to the Superior Court in the State of California.

Justice William J. Brennan: Now may I just, just ask there looking at page 50, that would appear to be to the denial of the petition for writ of certiorari, is that it in the district court?

Because at page 52, the order seems to be petition for writ of certiorari denied?

Mr. Charles E. Rickershauser, Jr.: That is the order of the Court of Appeals.

Justice William J. Brennan: Now is that what this --our writ ran to, to that order and not to the order of page 62 of the Supreme Court of California?

Mr. Charles E. Rickershauser, Jr.: Mr. Justice Brennan your writ ran to the order of the Superior Court on page 43 of the appendix.

Justice William J. Brennan: 43, is that denying a transcript.

Mr. Charles E. Rickershauser, Jr.: That's correct.

Justice William J. Brennan: And you appeal that order?

Mr. Charles E. Rickershauser, Jr.: That order will take Court of Appeals in California by writ of certiorari under the procedures of that state, on which there is no decision establishing that that's either the correct or the incorrect procedure.

No clear decision and was then taken to the California Supreme court --

Justice William J. Brennan: That's where you ask for a hearing?

Mr. Charles E. Rickershauser, Jr.: That's right.

Justice William J. Brennan: In the Supreme -- that's like petitioning for a writ of certiorari to the Supreme Court of California.

Mr. Charles E. Rickershauser, Jr.: I am sorry.

Justice William J. Brennan: You asked --

Mr. Charles E. Rickershauser, Jr.: In the petition for certiorari, we asked for the supplying of the transcript below and I assume there would be a hearing, now the procedure in the California Supreme Court is a petition for a hearing, which has the discretionary aspects of a petition for certiorari here.

Justice William J. Brennan: In other words this is not something -- that petition for hearing in the Supreme Court of California is not something peculiar to the state habeas corpus?

Mr. Charles E. Rickershauser, Jr.: No sir.

That is the way you petition the Supreme Court for a hearing on --

Justice William J. Brennan: That's all right, now I am getting.

Unknown Speaker: And this wasn't a petition for a hearing on a writ of habeas corpus?

Mr. Charles E. Rickershauser, Jr.: No sir I may have misled you or not understood your question.

Justice William J. Brennan: No, you didn't mislead us it's just that those labels, apparently petition for hearing, it's just a label describing a procedure of the Supreme Court of California and review of almost anything, is that it?

Mr. Charles E. Rickershauser, Jr.: That's correct.

Justice William J. Brennan: Discretionary review.

Mr. Charles E. Rickershauser, Jr.: That's correct.

It is a luxury perhaps that petitioner is here in time on the orders both of the Superior Court and of the Supreme Court.

Justice William J. Brennan: I must say I have a little trouble seeing how our petition runs to that order of -- at page 43, rather than to the denial of the order denying a petition for certiorari on the state.

Mr. Charles E. Rickershauser, Jr.: Well it would only be proper on your writ Mr. Justice Brennan if the order of the Superior Court was the last order possible in the state court system and I don't, if it was final judgment of the final court and would not appeal which is far --

Justice William J. Brennan: Which is the order, at 43, is that it?

Mr. Charles E. Rickershauser, Jr.: Our view is that it's not the case because it could have been taken out from certiorari, the attorney general questions that in his brief.

But I think it's correct and I think it would be more appropriate although certainly up to this court to --

Justice William J. Brennan: Well I got it, your point is if what's before us then, if our writ runs to that order at page 43, then there is indeed before us the question you raised of the denial of the transcript, isn't it?

Mr. Charles E. Rickershauser, Jr.: That's correct Mr. Justice Brennan, I don't think there is any question about that issue being before you if you should have the Supreme Court denial on hearing before you leave it.

Justice William J. Brennan: I see.

Mr. Charles E. Rickershauser, Jr.: That's the issue that was raised in the request for -

Justice Byron R. White: If the court was denying the transcript you still have left over the question of whether you really were denied anything if you could get a new hearing on the petition for habeas corpus, a new evidentiary hearing in the Supreme Court of California.

Mr. Charles E. Rickershauser, Jr.: The question really I think Mr. Justice White is whether we needed that transcript in a constitutional sense in an application for that hearing.

Justice William J. Brennan: Just to prepare a --

Mr. Charles E. Rickershauser, Jr.: Prepare and to convince the court and incidentally the California statute requires us to make a brief description of the proceedings below, so that --

Justice Byron R. White: Why shouldn't you have to come here with the -- after they've denied you a hearing?

Let's assume they bring your petition for a hearing, you filed a writ of habeas corpus in the California Supreme Court and they granted you a hearing on it and you had an evidentiary hearing.

Then I don't suppose, you'd have any constitutional claim for the transcript in the lower court?

Mr. Charles E. Rickershauser, Jr.: I think that's correct.

Justice Byron R. White: Well then why shouldn't you have to come here having them been denied both the transcript and the hearing?

Mr. Charles E. Rickershauser, Jr.: Well, my reaction to that is that at that point we would have lost our right to attack the order below in the trial court denying the transcript.

Justice William J. Brennan: This well you wouldn't have to use -- but then you could come here and say that we have a petition for habeas corpus, and they won't give us either a hearing or a transcript.

Mr. Charles E. Rickershauser, Jr.: I think that would be another way to raise the issue.

Chief Justice Earl Warren: Mr. Rickershauser and I see that we had a number of 894 miscellaneous 1967 term, number 1001 miscellaneous 1967 term which were respectively the petitions for cert in the Superior Court of California apparently denying petition for mandamus and the petition for a cert to the California Supreme Court, and the last one the petition is filed for a writ of certiorari to the California Supreme Court whereas, as best to review the order denying the petition for habeas corpus, isn't that right?

Mr. Charles E. Rickershauser, Jr.: That's correct Mr. Justice.

Chief Justice Earl Warren: And did you say to us that those were filed were timely file.

Mr. Charles E. Rickershauser, Jr.: I did not address myself the timely filing of that one, I said this case was timely filed with respect to the order both of the trial court and of the Supreme Court denying a hearing.

Chief Justice Earl Warren: I see but those other cases that are before us and have not been acted on, they're petitions, is that right?

Mr. Charles E. Rickershauser, Jr.: That is correct.

Chief Justice Earl Warren: So we do have up here regardless of how our writ ran, we do have here a petition for certiorari which has not been acted on asking us to review the refusal of the Supreme Court of California to grant habeas for this petition.

Mr. Charles E. Rickershauser, Jr.: That is correct, that is correct.

I was discussing the state's contention as to the specificity of the allegations and I think the final state's point of, that I would like to discuss is that the decisions of this court in the transcript cases talk about the state may provide adequate alternatives.

The difficulty I have with that here is that there is no adequate alternative that we are able to determine to and none has been offered.

The only discussion if any is that the petitioner alleged with particularity what happened at the hearing.

This I think is an undue burden upon him, one that a man with means would not assume and that they're, therefore that there is the kind of discrimination without alternatives that the transcript cases require in this court and an opinion below should be – the decision below should be reversed.

Thank you.

Chief Justice Earl Warren: Mr. Weber.

Argument of Jack K. Weber

Mr. Jack K. Weber: Mr. Chief Justice, May it please to court.

Permit me to begin by attempting to distinguish Long versus District Court of Iowa and to explain something of our California procedures in the process of doing that.

The obvious distinction between Long and the situation here is that California does have habeas corpus and Iowa had an appeal procedure.

However permit me to emphasize the significance of that difference.

When you have an appeal although it is possible to hear the matter on a clerk's transcript, in the ordinary case, the focus is on the trial court below, the proceedings there, and the reporter's transcript of those proceeding and --

Justice William J. Brennan: You are talking about an appeal from a denial of habeas corpus, you are not talking about an appeal from a conviction?

Mr. Jack K. Weber: That's right, yes sir.

And the focus of the court is to review the proceedings below to determine whether or not there was error and in order to do that you look at the transcript.

However in California we have an entirely different procedure where the proceedings below are entirely tangential and collateral.

There the court doesn't necessarily review the proceeding below, it receives allegations from the petitioner and it tests those allegations to determine their sufficiency and because of that, because the court relies on allegations it does not necessarily need a transcript to resolve the issues.

There is another aspect of this difference also.

The habeas corpus procedure has multiple stages, the first stage is a pleading stage, after that the court gets into the process of determining the truth of the allegations that it has not denied the petition.

Thus in this initial stage, the court does not require proof, it does not require evidence, it does not require a procedure for submitting the matter in any particular way.

It can proceed to determine the sufficiency of the allegations just by reading the allegations and this is the normal, the meaningful and the usual way to proceed in habeas corpus matters.

Justice Byron R. White: Can you file a petition in habeas in the trial court and the allegations being by the trial court such as making a hearing in the trial court, to repeat identical allegations filed either in the Court of Appeals or the Supreme Court either those courts may claim the insufficiency of the --

Mr. Jack K. Weber: That's correct Your Honor yes.

Well, of course there are differences between judges as to interpretation.

Justice Byron R. White: That's the way it works, there is no appeal whether you are right or wrong, what the trial court did or (Inaudible) Court of Appeals or --

Mr. Jack K. Weber: Well, I wouldn't go so far as to say it's not reviewable there are rare cases in which the appellate court has determined that there was some error in a collateral attack proceeding in the court below but the usual practice is to treat the whole matter a new and it's a de novo proceeding and I guess namely it's just --

Justice Potter Stewart: Well, in a hearing -- concludes in the hearing and fact finding was handed against the petitioner, nevertheless may the petitioner file that same complaint in the Court of Appeals or the Supreme Court and perhaps get another hearing even though this may result in the perhaps a contrary fact find?

Mr. Jack K. Weber: That's the way it's done, as a matter of fact, he isn't bound by the substantial evidence rule or any of the other customary rules relating to appeal.

He isn't bound by the record below or anything else.

Second time around, he can find some new ways to present the matter to the court, though a new and better allegations.

Argument of Justic Marshall

Mr. Justic Marshall: How can a Supreme Court find an error in the record below if it doesn't have the record?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well of course when it proceeds by allegations it doesn't need to find error in the court below, they just test the sufficiency of the allegations and determine the original substantive claim anew.

However if the petitioner alleges there was some error below, the court if it desires to do so can get into the business of evaluating what happened below and order a transcript of what occurred there.

Rebuttal of Justic Marshall

Mr. Justic Marshall: How can it determine that he is not entitled to have those allegations considered if it doesn't have the record upon, which they're based?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, now we're getting into the second stage of the habeas corpus procedure which relates to proof, he would go to the appellate court, he would set out his allegations about what went wrong in the court below and if the court deemed those allegations sufficient, then it would get into a question of getting the transcripts and establishing the truth of those claims.

Rebuttal of Justic Marshall

Mr. Justic Marshall: And if it doesn't find those allegations sufficient, what course does the Supreme Court take?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: It denies the petition.

This is the standard --

Rebuttal of Justic Marshall

Mr. Justic Marshall: Doesn't have, then it doesn't have an independent hearing of its own?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, it holds an independent hearing.

If it finds that the allegations are sufficient and that they require an evidentiary test, it doesn't always go straight to a hearing you understand, the usual procedure of the court is to appoint counsel for the petitioner and to coax the parties into entering into stipulations and to test out whether there's any real evidential differences between them because hearings are an expensive cumbersome process.

Justice Potter Stewart: Well if the, if they -- Supreme, if this in the Supreme Court Mr. Weber, and it's finally concluded that there has to be live testimony taken before someone, before whom is it heard?

Mr. Jack K. Weber: It's a referee, I think I've cited the Riddle case in my brief where the court describes this procedure and then a transcript is prepared and the court receives the report of the referee and then it re-determines and reweighs the referees' findings, giving them great weight but not being bound by that.

Justice Potter Stewart: Is that also true in the intermediate court of appeals?

Mr. Jack K. Weber: Yes, sir.

Justice Potter Stewart: Reference to a referee?

Mr. Jack K. Weber: Yes.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Mr. Weber, in this original paper that the petitioner files, I assume the State files a response.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: If the request that, yes, Your Honor.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Well, would the State view the transcript?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: It depends on the nature of the allegations.

If the nature of the allegations are such that a transcript would be necessary to answer them, we'd quite often will secure a transcript and supply it to the Court at that point.

Rebuttal of Justic Marshall

Mr. Justic Marshall: But the petitioner couldn't get—

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: That's one of those allegations.

Rebuttal of Justic Marshall

Mr. Justic Marshall: -- the transcript?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, if he has the, of course if he has the – of course he doesn't have the means, he can't buy the transcript, he'd have to make some request to the Court to secure it.

Rebuttal of Justic Marshall

Mr. Justic Marshall: So the State would use transcript because the State I assume has the means.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, we still have a few dollars, and yes.

Rebuttal of Justic Marshall

Mr. Justic Marshall: So the State would use the transcript for its pleadings, but would deny the transcript to the pauper.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, there's always a process of testing out these claims and when then the Court requests a response, the State could secure a transcript.

But the petitioner has to get his transcripts in effect at the sufferance of the Court if he's an indigent.

He has to ask the Court for it and he has to establish his need for it to the Court.

It just isn't practical we feel to let in the Judge --

Rebuttal of Justic Marshall

Mr. Justic Marshall: Isn't it worse when pauper without a lawyer is up against the weight of the whole prosecuting authority of the State of California plus the transcript?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, I usually feel that the situation is turned around and that the petitioners are the ones who are putting us on the spot through their allegation.

But it does exist this difference, the State does have the power to order a transcript, the indigent has to secure his transcript at the determination of the Court and this procedure I guess comes about because of the possibilities of economic waste involved.

If the indigent could just secure every transcript that he desired at his own determination, there's concern that many of the prisoners would abuse that sort of privilege.

Justice Byron R. White: Don't you do though on direct appeals from conviction?

Mr. Jack K. Weber: Well, as this Court has pointed out there's a difference between direct appeals and --

Justice Byron R. White: Well, I know but what about my question?

Mr. Jack K. Weber: We do furnish free transcripts on the direct appeal.

Justice Byron R. White: Automatically?

Mr. Jack K. Weber: Automatically, yes.

Justice Byron R. White: Without any --

Rebuttal of Justic Marshall

Mr. Justic Marshall: Whether they have money or not?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Whether they have money or not, yes Your Honor, California is very liberal in doing that.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Let me ask you this Mr. Weber, if this man had the money and had purchased the transcript, could it have been used in the Supreme Court to determine whether he was entitled to hearing that?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, the court customarily receives any documents that petitioners send it and they will make use of those documents, yes.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Then if he, if he isn't able to get that then the Court would have used it.

Then he has suffered some deprivation, as he not?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, we don't deny that there's some difference between the way that indigents are treated here and between the powers of the State to secure a transcript.

The problem is one of determining whether that difference or discrimination is invidious.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Well, how is that justified, how, on the part of the State?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: The justification for requiring him --?

Rebuttal of Justic Marshall

Mr. Justic Marshall: For the discrimination that you just mentioned.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, the justification would be in the economic cost in furnishing the transcripts without some test or need.

Rebuttal of Justic Marshall

Mr. Justic Marshall: It seems to me in a State like California that wouldn't be very good argument because if the man is a millionaire and he has a long trial, the State pays for his transcript on appeal?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Yeah.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Why shouldn't an indigent have it in a situation like this if a man of means could have the transcript and it would be used by the Court in determining the merits of the case?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, I think that perhaps the best answer to Your Honor's question is that the indigent has an effective procedure apart from having the transcript, he can describe it all to the Court in his allegations if he feels he wants to do so.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Layman without a lawyer?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, he did file a petition in the Superior Court which gained him the hearing, we feel that that's an adequate test to demonstrate that he would be able to do the same thing in the appellate court.

Justice Abe Fortas: Well, his hearing came to a -- not in the Superior Court and the Court in some instances, the Supreme Court in some instances will review that transcript to determine whether there was error in it, why shouldn't he have the opportunity to have that before the court?

Mr. Jack K. Weber: Well, because we need some test to curb waste in these areas and some test --

Justice Abe Fortas: Curb what?

Mr. Jack K. Weber: Waste in these areas because if we gave all of these transcripts out whether the indigent needed them or not, it could cause a wasteful system.

Justice Abe Fortas: Just pecuniary matter insofar the state is concerned.

Mr. Jack K. Weber: Well, of course if human resources were unlimited and funds were unlimited, we would be able to provide indigent prisoners with all that they wanted in the way of transcripts in many other problem areas too.

Justice Abe Fortas: How often does the State Supreme Court have a master upon it or referee upon it, is that a matter of common practice or is it very rare?

Mr. Jack K. Weber: I would say that it's a fairly common practice, one can pickup almost any volume of the California Supreme Court reports and it will have two or three such hearings reported in it.

Justice Potter Stewart: Do you know Mr. Weber the answer of the question or not, Mr. Justice Fortas just asked whether other states have the same procedure?

Mr. Jack K. Weber: I made a very quick canvas of laws of the other states and there are a few, I think there's about five or so that still retain the common law procedure, many of the others have adopted by statute an appeal procedure, some others have converted writ review procedures into something that is virtually or equivalent to an appeal.

I think North Dakota has something that they call a Power of Superintending Control which is in effect a kind of appeal procedure.

Justice Abe Fortas: But at the time this appellate procedure was established in California, habeas corpus did not have the scope that it has now, did it?

In those days all of -- you could prove on, habeas corpus was always necessary for the state to prove, as in a warrant of arrest had been issued and the man had been then arraigned and so forth and if those things had been complied with, the writ is denied, isn't that right?

Mr. Jack K. Weber: It's very true Your Honor, the California --

Justice Abe Fortas: Now, that's been expanded in more recent years.

Mr. Jack K. Weber: California has directly expanded the writ of habeas corpus to protect the rights of the prisoners.

Justice Abe Fortas: But this right to a transcript has not been expanded in accordance with that different procedure.

Mr. Jack K. Weber: Well, we feel that the right to transcript is adequate at the present time in order to fully protect the real rights of the prisoners, well at the same time providing some kind of a screening procedure to take off waste and needless requests and so on.

Justice Byron R. White: A moment ago, a moment ago you referred to what would go on in the Supreme Court of California after the petitioner files his petition for habeas corpus there after it is denied in the lower court.

He makes his allegations and you refer to his alleging what went on in the lower court?

Mr. Jack K. Weber: Yes he could if he desired to do so, write out his own bill of --

Justice Byron R. White: Well, as a matter of practice, if I petition for habeas corpus in the Superior Court and I am denied after a hearing and then I file petition for habeas corpus in the Supreme Court of California, well in the Appellate Court and then the Supreme Court.

I finally file one at the Supreme Court of California and all I do is make the -- put the same allegations in it that I put in the Superior Court, that's all I did.

Now if the Supreme Court of California thinks those allegations are sufficient to grant the writ if they are true, what do they do at that point?

Mr. Jack K. Weber: The issue in order to show cause usually--

Justice Byron R. White: And then what happens?

Mr. Jack K. Weber: Appoint counsel for petitioner and then the state will file its return to it and answer the--

Justice Byron R. White: Well, the Supreme Court of California at that point if they think that they need some that if there is some; they need to find out whether these allegations are true or false.

Do they ever call for the transcript of the lower court?

Mr. Jack K. Weber: I don't recall any cases off hand where they have called for the transcript.

Justice Byron R. White: So if their exclusive method of resolving evidentiary conflicts in the Supreme Court on petitions for habeas corpus where the state and the petitioner cannot agree from the facts.

The exclusive method resolving those is by having a hearing there before a referee and they make their own resolution of the facts.

Mr. Jack K. Weber: That's generally speaking true although it's possible that one of the parties will supply a transcript of what occurred to the court, so that it can use that in making determinations of the fact.

Justice Byron R. White: And if, but I don't suppose that if either party refused to accept that transcript, I suppose there would have to be a new hearing?

Mr. Jack K. Weber: Well, I don't know of any cases in which the California Supreme Court has dealt with that particular problem overtly.

I suppose that if it was a certified transcript by a reporter there wouldn't normally be any issue as to its validity, it doesn't -- it's not something that arises too often.

Justice Byron R. White: But do you think there is any more or likely that the Supreme Court would grant a petition for habeas corpus filed in that court if the petitioner there can make allegations about what went on in the lower court?

Mr. Jack K. Weber: I think that the likelihood of a hearing in the State Supreme Court would depend on the substantive claims more than anything else.

It would depend whether he has sufficiently stated that he has been deprived certain constitutional rights.

Justice Byron R. White: What if you were representing an individual petitioning for habeas corpus in the Supreme Court of California after a denial in the Superior Court?

Would you think the transcript of what went on before the Superior Court in that evidentiary hearing there, would that transcript be useful?

Mr. Jack K. Weber: In most cases, I think it would not.

There is some possibility that you could find something in there that might interest or intrigue the Supreme Court, but I think that possibility is sufficiently remote and speculative that it would be out waived --

Justice Potter Stewart: Hold on Mr. Weber let's take a rather simple case.

Suppose his allegation is, I was tried and convicted and did not have the assistance of counsel and that's his petition for habeas corpus in the Superior Court, there is a hearing in the Superior Court or does it, at the conclusion of the hearing the trial judge concludes that the fact that is contrary he did have the assistance of counsel.

Now he then goes in the Supreme Court with the identical petition, I didn't have the assistance of counsel at my trial and suggesting that in the face of a finding to the contrary that the Supreme Court would be interested with the transcript to go ahead and have it's own hearing in that petition.

Mr. Jack K. Weber: Well, there if the allegation was sufficient they would call for a rule to show cause and the state well, I suppose it responds, he did have counsel and you would say I suppose you would say --

Justice Byron R. White: Mr. Justice Marshall you might have the transcript and you could say or without the transcript you could say it was found in the contrary in lower court.

Mr. Jack K. Weber: Well, you could just get the records from Superior Court filed from the original trial.

Justice Byron R. White: What if you did what if you did get the record and you attached a part of the transcript to your return, so he did have counsel and here is what was found by the Superior Court.

Mr. Jack K. Weber: Well, if the court would normally rely on the Superior Court's records unless they are disputed by the petitioner in some way, I suppose that if he says that the records are a lie that some sort of a hearing would be necessary to determine the accuracy of the records.

Justice Byron R. White: So are you suggesting though then that hypothetical case, the Supreme Court might not deny on the basis -- deny the petition or deny a hearing on the basis of the hearing in the Superior Court?

Mr. Jack K. Weber: I've never known the Supreme Court to expressly deny a hearing based on a hearing in the Superior Court.

Of course, I don't know of any cases in which they've discussed the points at all.

So that it is largely a matter of trying to guess what goes in the minds of the justices there.

Justice Abe Fortas: Mr. Weber suppose all of the facts stated in the petition in the Superior Court were true; would the Supreme Court -- would they be sufficient to grant a hearing in the Supreme Court.

Mr. Jack K. Weber: In this particular case?

Justice Abe Fortas: In this particular case.

Mr. Jack K. Weber: Well, this is an unusual situation, because between the time that the petition was presented in the Superior Court and the time that the Supreme Court received the substantive allegations, it came down with a major pronouncement in this area affecting inmate rights and that determination was against the petitioner, so that the legal situation had changed considerably and I think that the State Supreme Court could have utilized its very recent decisions to deny the petition without a hearing in this particular case.

Justice Abe Fortas: So you take the position that even if all the allegations of the petition in the Superior Court were true that he would not be entitled to any relief?

Mr. Jack K. Weber: That's correct yes Your Honor.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Mr. Weber excuse me --

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Although of course we do dispute –

Justice Abe Fortas: I beg your pardon?

Mr. Jack K. Weber: We do dispute the truth –

Justice Abe Fortas: I can't hear you.

Mr. Jack K. Weber: We do dispute the truth of the allegations in the petition.

Rebuttal of Justic Marshall

Mr. Justic Marshall: If these are actual de novo hearings, independent hearings and in the interest of not wasting money, why take a transcript at all, why do you record it?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well --

Rebuttal of Justic Marshall

Mr. Justic Marshall: Except that if a person is wealthy enough he can pay for it.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Of course if the writ is granted in Superior Court the state would have a right of appeal.

So that would be one situation where a transcript would be necessary.

Rebuttal of Justic Marshall

Mr. Justic Marshall: But that doesn't help the petition at all.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well, some of these procedures help the state occasionally, again the transcript could be used by one party or the other on the--

Rebuttal of Justic Marshall

Mr. Justic Marshall: Does it add up to the transcript is really for the purpose of helping the wealthy petitioner and the state?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: No, I don't think.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Failure, that's all.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: I wouldn't agree with that.

I noticed that the federal courts have a power to order the transcript made up from the reporter's notes also, so that it does bear on the federal determination as well as the state determination.

Rebuttal of Justic Marshall

Mr. Justic Marshall: We don't have the state here?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Excuse me.

Rebuttal of Justic Marshall

Mr. Justic Marshall: We only have the state here, State of California.

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Yes, but the Federal Courts have a power in determining state habeas corpus petitions to order the transcript of this particular evidentiary hearing.

So that would be a situation in which the petitioner would benefit from the preparation of a transcript.

Rebuttal of Justic Marshall

Mr. Justic Marshall: Oh!

So finally he had sufficient legal advice, there is no way the Federal Court was --

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: Well we have forms provided for the petitioners and they --

Rebuttal of Justic Marshall

Mr. Justic Marshall: Well I guess I'm taking it too far field but to me it looks like the benefit of the transcript is solely for the State and of course is able to pay for it.

Doesn't it?

Rebuttal of Jack K. Weber

Mr. Jack K. Weber: No, Your Honor I think it goes a little beyond that and that our procedures are adequate to give meaningful habeas corpus to indigent prisoners as well as those who have some funds.

If there are no further questions I will submit.

Chief Justice Earl Warren: Mr. Rickershauser.

Rebuttal of Charles E. Rickershauser, Jr.

Mr. Charles E. Rickershauser, Jr.: I have nothing further Mr. Chief Justice.

Chief Justice Earl Warren: Very well.

Featured:

Long v. District Court Of Iowa - Oral Argument

Thu, 23 Aug 2012 18:30:42 +0000

Case:

Long v. District Court Of Iowa

Media File:

77_19661109-argument.mp3

Related Transcript:

77_19661109-argument

Transcript:

Argument of Ronald L. Carlson

Chief Justice Earl Warren: No. 77, Lawrence Long, petitioner v. The District Court of Iowa in for Lee County, Fort Madison Island.

Mr. Carlson?

Mr. Ronald L. Carlson: Mr. Chief Justice, may it please the Court.The petitioner, Your Honor, in this case is an indigent inmate at Fort Madison Penitentiary in Iowa and I have been appointed by this Court to present his course to the Court.

Petitioner, Mr. Long was arrested in Iowa on April 9th of 1963.

On April 10th he was taken before the Justice of the Peace where his preliminary occurrence.

At that time, he was not represented by counsel and as the record shows in the case, a plea of “guilty” was recorded.

The petitioner being indigent, Your Honors, was incarcerated for some six months before he came up for trial in October of 1963.

At that time, no less than 11 questions were directed at the petitioner concerning admissions that he made at the preliminary hearing.

Some of these questions were objected to and the objections were sustained but others he was forced to answer.

He was convicted of larceny in Iowa and the jury there sets the amount of the thing in value which he stole in this case, it was a pump which was valued at $25.

He was sentenced to four months in penitentiary for a term not to exceed five years.

Justice William O. Douglas: Did he ever counsel during the trial?

Mr. Ronald L. Carlson: Yes, Mr. Justice Douglas, he had appointed counsel at his trial, and this was only trial.

Now his court-appointed counsel did, Your Honor, appeal the case but the appeal did not raise the White vs. Maryland point which we have urged to the Court that exists on his habeas corpus claims here.

The appeal on the case involved itself for the lack of speedy trial.

The Iowa Supreme Court deemed his delay regrettable in getting to trial but affirmed his conviction and thereafter, well, at Fort Madison Penitentiary, he filed the action which now brings this cause to the Court.

He filed a Petition for Writ of Habeas Corpus, alleging certain claims including the fact that his court appointed counsel was incompetent and that he was denied his White vs. Maryland rights at the preliminary hearing.

The Lee County District Court, which is the county wherein Fort Madison Penitentiary is located, set the case for an evidentiary hearing and the cause came on for evidentiary trial at which time witnesses were called and evidence taken on the petitioner's habeas corpus claims.

The Lee County District Court dismissed the petitioner's application for habeas corpus in an order stating that the petitioner had not carried the burden or for other reasons the claims were not viable.

The petitioner filed a timely Notice of Appeal from his denial of habeas corpus and thereafter filed an Application for a Transcript of his evidentiary hearing for purposes of preparing a meaningful appeal on the habeas corpus denial to the Supreme Court of Iowa.

The Lee County District Court passed upon the Application for Transcript and it stated in an Order denying the Application for Transcript that habeas corpus being a civil proceeding in Iowa, there was no right to the transcript of the evidentiary hearing.

Petitioner then filed a Petition for Certiorari to the Supreme Court of Iowa -- his appeal is still pending at this time, Your Honors -- requesting that the Supreme Court of Iowa enter an order directing that he receive a transcript of his evidentiary hearing.

The Supreme Court of Iowa at this time summarily denied his Application for Certiorari, citing to the case of Waldon vs. District Court.

In the cited case, the Waldon case, credence was again given to the civil label of habeas corpus.

As a means, we submit of denying constitutionally protected rights.

Petitioner then filed a Petition for Certiorari to this Court and the matter comes on for hearing on the question of, is the petitioner entitled on an appeal from a habeas corpus denial to a transcript under equal protection of the law?

Justice Abe Fortas: Mr. Carlson, at any time, did they, in any of these proceedings, did the petitioner receive the transcript?

Mr. Ronald L. Carlson: Yes, he did Your Honor.

When he took his direct appeal from the District Court where he was convicted on his felony of larceny to the Supreme Court of Iowa, he obtained a transcript of the original trial.

Justice Abe Fortas: Well then, that's what he wants here?

Mr. Ronald L. Carlson: No, Your Honor.

What he wants here is a transcript of the habeas corpus trial, the evidence presented on habeas corpus.

Justice Potter Stewart: And what were the issues on the merits of the habeas corpus trial?

Mr. Ronald L. Carlson: Oh, there were basically four issues at that time, Mr. Justice Stewart, including that he did not have counsel at his preliminary hearing.

At which time, a plea of “guilty” was recorded and he was interrogated on his original trial as to admissions made at the preliminary hearing.

Justice Abe Fortas: Excuse me.

Mr. Ronald L. Carlson: Yes, sir.

Justice Abe Fortas: Was the transcript after this trial before the court on habeas corpus?

Mr. Ronald L. Carlson: No, it was not, Your Honor.

Justice Potter Stewart: It could have been brought to the court --

Mr. Ronald L. Carlson: It could have been, Mr. Justice Stewart but counsel is not provided on habeas corpus in Iowa and this was not presented to the court.

Our point here is this, however, Your Honors, the original trial transcript would not reflect the particular point raised in habeas corpus here, that is, the original transcript would not reflect whether or not Long was --

Justice Potter Stewart: He had counsel on this preliminary hearing?

Mr. Ronald L. Carlson: He was represented in the preliminary hearing, right, Your Honor.

And this could only have been developed, we submit by evidentiary matter presented on habeas corpus on which point of evidence was taken and that issue was resolved against the petitioner on habeas corpus.

Justice Potter Stewart: That is that he had had counsel or --

Mr. Ronald L. Carlson: Yes, yes.

Justice Potter Stewart: -- that something damaging had happened at the preliminary hearing.

Mr. Ronald L. Carlson: No, no, Your Honor.

The issue was decided factually that he had had counsel at preliminary hearing.

Justice Potter Stewart: On the basis of what kind of evidence?

Mr. Ronald L. Carlson: Well, as I recall, there was evidence presented by the county attorney from the county which had convicted Long.

I believe another police officer had testified on the point and Long himself testified contradictory matter on it, Your Honor.

Justice Potter Stewart: But -- so that was a factual issue?

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: -- resolved by the habeas corpus court.

Mr. Ronald L. Carlson: Now on review, the Supreme Court of Iowa must adjudicate whether this finding is supported by substantial evidence in the record and our point is, that the reviewing court cannot (Voice overlap)

Justice Potter Stewart: -- on the record before?

Justice Abe Fortas: It's not that jurisdiction -- you are not depriving an appeal the proof of the essence of the transcript?

Mr. Ronald L. Carlson: There are two propositions that apply here, Your Honors.

We take the position that under Iowa Rule 340a which we have cited the Court to that the rule does call for the filing of a transcript to present any evidentiary record to the Iowa Supreme Court on an appeal of this kind.

Now the attorney general takes the position here that Iowa has in several indigent cases, permitted the indigents to type up from memory of their own narrative of the facts and therefore, it is not necessary that the attorney general contends to file this transcript.

However, it's our position that the informal waiver on a few prior unreported cases does not constitute a standing waiver or notice to this indigent that he need not file the transcript which is called for in that rule.

Justice Byron R. White: Was a testimony of where the proceedings taken down?

Mr. Ronald L. Carlson: Yes, it was.

They were --

Justice Byron R. White: Is that customary in Iowa in habeas corpus?

Mr. Ronald L. Carlson: In a District Court matter, court reporters are always provided, Your Honor, and there's no exception to that.

Justice Byron R. White: And has the transcript been made?

Mr. Ronald L. Carlson: Yes, it has.

Justice John M. Harlan: The appeal has not been heard by the Iowa Supreme Court?

Mr. Ronald L. Carlson: No, Mr. Justice Harlan.

That appeal is still pending.

Justice John M. Harlan: They thought that the transcript was necessary in order to enable them to deal with this White against Maryland and they have prior order as well.

Mr. Ronald L. Carlson: Yes, they would although they have, as I say, denied our application for that transcript.

The petitioner himself tried to obtain the transcript.

Central to our position here, Your Honors, is the point that appeal is a matter of right in habeas corpus in Iowa.

The petitioner (Inaudible) was able to appeal his denial of habeas corpus and obtain full and meaningful appellant review.

The petitioner, Mr. Long -- the indigent and Mr. Long's position is precluded from doing that.

He – basically, he is in the position, we submit, of the petitioner in Lane vs. Brown or the defendants in Griffin vs. Illinois being foreclosed from meaningful appeal because of the lack of transcript.

And, we submit that it is clear the Griffin is made applicable for post-conviction remedies by virtue of Smith vs. Bennett, which case arose out of our jurisdiction as well as Lane vs. Brown.

Now the question is, is a transcript necessary to obtain meaningful review from your habeas corpus denial?

Well, the Iowa Supreme Court has recently passed on this connection in connection with direct appeals.

In the case of Weaver v. Herrick, which I have cited in my Brief, the Iowa Supreme Court was presented with the question, what is necessary for meaningful review under the Iowa rules?

And the Court said in Weaver vs. Herrick that to provide the indigent with any kind of meaningful appeal under the Iowa appeal rules, a full transcript is necessary.

That is the rule on Iowa on direct appeals.

Question is, why does a different rule prevail in habeas corpus?

The reason is, we submit, because of a continuing misconception of the habeas corpus process.

We point out that in Mr. Justice Clark's opinion, representing the unanimous consensus of the Court in Smith vs. Bennett, Court said that the choice of labels should not continue to persist as a means for suppressing constitutionally protected rights.

However, even after that decision, as we pointed out, the use of the civil label continues to persist to suppress rights which are necessary in this case to obtain meaningful appeal.

Now, the counsel for the respondent here has raised some possible substitutes for a transcript.

We submit that these are inadequate that they in no way give the indigent petitioner as meaningful appeal as the petitioner with funds, first of all, use of the original trial transcript, which may be available to the petitioner here.

This will not reflect claims not contained within the trial record itself.

Such things perhaps as prejudicial pre-trial or during trial publicity which may not be in the trial transcript and may be far from erasable from habeas corpus.

Such things as threats or corrosions on a defendant which will not show up in the printed pages of the record, may properly be raisable in habeas corpus and therefore, the trial transcript would not operate there.

Justice John M. Harlan: Are there issues as a kind of that?

Mr. Ronald L. Carlson: The issue of that kind, no, Your Honor.

Those are matters that I'm simply using to illustrate the point.

The point that is involved here is, however, this White vs. Maryland point which does not show up in the trial transcript which is a point in this case.

And I must say the attorney general here has commendably, upon the review of this record, basically conceded the point that it appears that there was a White vs. Maryland violation here.

That will not be in the trial transcript.

Therefore, an evidentiary transcript –

Justice Potter Stewart: The transcript you say was in the habeas transcript?

Mr. Ronald L. Carlson: No.

Oh, excuse me, yes, Your Honor –

Justice Potter Stewart: -- as a trial transcript.

Mr. Ronald L. Carlson: Right.

Justice Potter Stewart: But a record was made at the habeas hearing, is that it?

Mr. Ronald L. Carlson: That is exactly, Mr. Justice (Voice overlap).

Justice Potter Stewart: And the issue was resolved against the petitioner, right?

Mr. Ronald L. Carlson: Against the petitioner.

Justice Potter Stewart: As an appeal from the resolution of the issue against petitioner Joan (Inaudible), is that it?

Mr. Ronald L. Carlson: That's right, Your Honor.

Justice Potter Stewart: And you say you can't do that effectively except as you have copy of the habeas transcript?

Mr. Ronald L. Carlson: That's right.

We cannot review whether the trial Court was correct without that transcript.

Justice Abe Fortas: When is this concession of appeared?

Just tell me, is it in your Brief, or the record or –

Mr. Ronald L. Carlson: Yes, there is reference to it in the record or in the Brief, Your Honor, of the respondent and I have also alluded to that in my Brief.

Justice Abe Fortas: But did the Attorney General's Office make that concession at the habeas proceeding?

Mr. Ronald L. Carlson: Oh, no, Your Honor.

Justice Abe Fortas: Just in this Court.

Mr. Ronald L. Carlson: Just in this court.

Justice Abe Fortas: Thank you.

Mr. Ronald L. Carlson: That's right.

Justice William J. Brennan: Well, let's see if I understand the concession –

Mr. Ronald L. Carlson: Sure.

Justice William J. Brennan: As the one I am looking at the page 5 of the State's Brief.

While the trial Court erred in its reason for denying the transcript, it doesn't necessarily follow that the Supreme Court can -- we contend that the real issue is, whether the petitioner can obtain adequate appellate review without a free hearing transcript.

Mr. Ronald L. Carlson: No, that is not the reference, Mr. Justice Brennan.

Justice William J. Brennan: Which was it?

Mr. Ronald L. Carlson: If you go to page 20, please of the respondent's Brief –

Justice William J. Brennan: Twenty?

Mr. Ronald L. Carlson: Yes, Your Honor, page 20.

As the record reflects, Long was brought before Justice of Peace of W. Minor for a preliminary hearing.

At which time, he entered a plea of guilty.

Justice William J. Brennan: Now that's the trial record, is it, or is that the habeas corpus?

Mr. Ronald L. Carlson: No, Your Honor.

What I did when I prepared the record here, I got the Justice of the Peace transcript and that is the record -- it's the record before this Court that we are referring to; not the trial record but the Justice of the Peace Papers.

Justice William J. Brennan: Right and as well not the habeas record here.

Mr. Ronald L. Carlson: Right.

Justice William J. Brennan: Okay.

Justice John M. Harlan: Well, there's a private concession it says that the admission of guilt was initially the guilt usually was not represented.

He probably is entitled to relief in habeas.

Is that what you are referring to --

Mr. Ronald L. Carlson: Yes, this is what I'm referring to on page 20, Your Honor.

Justice John M. Harlan: But is a concession an admission of the fact --

Mr. Ronald L. Carlson: Yes, sir.

Justice John M. Harlan: But not a concession of court of law.

Mr. Ronald L. Carlson: And that particular point of fact was, as I say, resolved against the petitioner in the habeas corpus proceeding.

That is, the District Court for Lee County found that he didn't in fact had counsel.

Justice Potter Stewart: Now, Mr. Carlson, what you referred us to is an admission by the State of the fact that he was not represented by counsel for the preliminary hearing?

Mr. Ronald L. Carlson: Yes, sir.

Justice Potter Stewart: I thought you told me that you needed the transcript to establish that fact because that didn't appear in the recent trial record; it did appear in the habeas record.

Mr. Ronald L. Carlson: What the habeas record shows are the conflicting evidentiary matters on whether or not he had counsel at preliminary hearing.

Justice Potter Stewart: Well, here's a concession that he was not represented to that by counsel.

Mr. Ronald L. Carlson: Your Honor, that would be splendid if that would control the Supreme Court of Iowa.

The District Court in and for Lee County has found this fact adverse to us.

And when it goes on appeal to the Supreme Court of Iowa their function is to determine if the trial court had substantial evidence to support their findings.

Justice Potter Stewart: The State didn't make this concession before the Supreme Court of Iowa?

Mr. Ronald L. Carlson: No, Your Honor.

Justice Potter Stewart: They're making it only here?

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: And you say that doesn't do you any good as the judgment against you in the Supreme Court of Iowa?

Mr. Ronald L. Carlson: That's exactly right.

Justice Abe Fortas: Was there any reason suppose they withdraw the concession, (Inaudible)?

Mr. Ronald L. Carlson: No, there is not, Your Honor.

In fact, as I say I think counsel here has commendably, upon a review of the record, brought this to our attention.

Justice Abe Fortas: (Voice overlap) stipulation, now the attorney general that when that appeal is heard, you will say that the trial court is in error.

You find him to be handcuffed so you are probably over.

Mr. Ronald L. Carlson: Well, I submit to Your Honor, now.

I suppose the concession here goes to the point that he did not have counsel.

There is the additional matter for litigation as to whether or not that was used against to me adversely or prejudicially at the trial of the cause.

Justice Potter Stewart: And was that -- that was in the habeas hearing?

Mr. Ronald L. Carlson: Yes, I believe it was, Your Honor.

Justice Potter Stewart: And was that -- the question whether it was or was not used on the trial of the court.

Is that also resulting as an issue, as a question of fact?

Mr. Ronald L. Carlson: Yes -- well, no, no it was not.

It was not, Your Honor.

The trial court's order on this says, “We find the petitioner had counsel at all relevant times” and that's the end of this finding of fact as I recall on that point.

So that's where we are left but -- this is why I am saying, Mr. Justice Harlan, that this concession will probably not be the end of the matter.

There was also that additional point of White vs. Maryland to be litigated as to whether or not it was prejudicially used against the petitioner.

In addition to that, if that claim would be lost, there are other claims in the petitioners' habeas corpus concerning incompetency of counsel and things of that nature which we contend the transcript is necessary to show.

Justice Abe Fortas: Well, I don't know, Mr. Carlson, but it looks to me as that the attorney general on page 20 expressed pretty clearly reserves the conclusion of law.

It says that petitioner probably is entitled to relief in habeas corpus in the White against Maryland.

That would cover a reservation of the question as to whether the admissions made with preliminary examinations were used against him at trial.

Mr. Ronald L. Carlson: Yes, as I see the concession here, Mr. Justice Fortas, it is clear on counsel that on the White vs. Maryland point, as you properly pointed out, with some reservation.

We contend also, Your Honors, that the trial transcript in habeas corpus now, trial transcript in habeas corpus –

Justice Potter Stewart: I would just like taking your time, Mr. Carlson.

Mr. Ronald L. Carlson: Sure, Your Honor.

Justice Potter Stewart: I would just like to make this clear.

To say now that the Supreme Court of Iowa, there's been an admission in this court that the trial court was wrong and he did not in fact said --

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: Therefore, vacate and proceed to courtroom.

You say that would get you nowhere since there's still a White-Maryland point whether or not this was --

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: -- this was introduced to the criminal trial.

Mr. Ronald L. Carlson: Yes, Your Honor.

Justice Potter Stewart: But if no evidence was taken on the question whether it was introduced at the criminal trial that is no evidence taken at the habeas hearing, what good it is going to do to you to get the transcript to what occurred at the habeas –

Mr. Ronald L. Carlson: I don't know what occurred at that habeas hearing for sure, Your Honor.

I've got to get that transcript to see.

Justice Potter Stewart: Oh, I see.

Mr. Ronald L. Carlson: It could be that my petitioner has explored that and –

Justice Byron R. White: I see, but what about the trial transcript itself at the criminal trial?

Mr. Ronald L. Carlson: I submit it would be helpful, Mr. Justice White, have that didn't introduce that evidentiarily at the habeas hearing.

Justice Byron R. White: I know but that doesn't mean you have to have the transcript of the habeas hearing.

You have available the transcript in the criminal trial?

Mr. Ronald L. Carlson: Yes, right.

Justice Byron R. White: And if that doesn't show whether that evidence was introduced; nothing was --

Mr. Ronald L. Carlson: Yes.

Justice Byron R. White: So I don't see why you need the transcript to the habeas hearing just to show what went on at the trial because the trial transcript shows that.

Mr. Ronald L. Carlson: Yes, that's true.

The trial transcript would be--

Justice Byron R. White: Then why do you need the transcript?

You don't need the transcript of the habeas hearing with respect to whether you had counsel for preliminary hearing because it's been a concession.

You don't need, it seems to me, the transcript to the habeas hearing to show up what went on at the trial because the trial transcript is by far that (Inaudible) to that.

So now, why do you really need the transcript in habeas hearing?

I agree with you that this Iowa, the State, it seems to me has conceded that if you can demonstrate a need on appeal for the transcript that you are entitled of transcript.

That's what the major point in this case seems to me.

Mr. Ronald L. Carlson: Yes.

Justice Byron R. White: And that was the State, it seems to me that has conceded, the same has conceded.

Mr. Ronald L. Carlson: Yes, as I say --

Justice Byron R. White: -- I don't know why you need that transcript in the habeas transcript.

Mr. Ronald L. Carlson: Well, assuming that that White vs. Maryland point may be determined adversely against me, that is if the Supreme Court feels that the trial transcript shows that White vs. Maryland was not violated and therefore, I lose on that point.

I have additional points for the reason of this habeas corpus petition including incompetency of counsel and including also, I submit, Your Honor, this, whether or not in the --

Justice Byron R. White: But incompetency -- that's a good blanket word but what specifically was that the trial transcript would show to --

Mr. Ronald L. Carlson: The petitioner contends the --

Justice Byron R. White: Where you find out how counsel for this before?

Mr. Ronald L. Carlson: Yes, that's true.

However, I think the Court has indicated that whether the Court has made an accurate and adequate investigation of the case may not be completely shown by what the pages of the trial indicate.

The petitioner here has alleged specifically that counsel lack time and there was a shift of appointed counsels shortly before the trial that the counsel act--

Justice Potter Stewart: Why don't just draw that instead of a need to transcript not because of any specific question, any specific reason that I tell you, “I'm just plain entitled to the habeas corpus transcript because I'm representing this man on appeal and I have to know what went on there”.

There may be that -- that's what I really want.

You want to engage in an exploratory examination not fishing expedition.

Mr. Ronald L. Carlson: Well, I wouldn't call at that, Your Honor.

It's incumbent upon me that test whether this man had a --

Justice Potter Stewart: There's nothing wrong with your fishing, I would say that.

Mr. Ronald L. Carlson: It seems to me that it's incumbent upon me to see that he had a fair trial in habeas corpus.

The original trial transcript won't tell me that.

To find out of the trial judge in habeas corpus wrongfully admitted hearsay whether he improperly cut off my client from testifying on relevant matter.

All of that, it seems to me, it's essential for me to have a habeas transcript to see --

Justice Potter Stewart: Did they have counsel at the habeas hearing?

Mr. Ronald L. Carlson: No, Your Honor.

There's no proof that he requested counsel.

There's no provision for counsel in habeas (Voice overlap).

Justice Potter Stewart: Was there a hearing?

Was he there?

Mr. Ronald L. Carlson: Yes, he was there.

He was permitted to ask such questions as he wanted of the State's witnesses and also to make an argument.

Justice Potter Stewart: Have you asked him what went on at the hearing?

Mr. Ronald L. Carlson: Yes, I have.

Justice Potter Stewart: You think he has told you or not?

Mr. Ronald L. Carlson: Yes, I do.

Justice Potter Stewart: And you really, you will find out something more out of the transcript?

Mr. Ronald L. Carlson: Well, I do, Your Honor.

As I say, I'm sure that he can't recollect the decisions made by the trial court on the admission of evidence or objections made things of this nature.

It seems to me that test whether he got a fair hearing or fair trial, I need the transcript to look at.

Justice Hugo L. Black: What does the trial record show was to whether this was -- this plea of guilty in this justice court was used against him.

Mr. Ronald L. Carlson: It appears clear to me, Your Honor, that upon looking at it that it was used.

As I say 11 questions that I found were directed to admissions made at the preliminary hearing.

Some of those were objected to and overruled but -- or the objection was sustained but on some points, the petitioner was required to answer.

Justice Potter Stewart: You found those from looking at the –- afterwards looking at the trial transcript?

Mr. Ronald L. Carlson: The original trial transcript, Your Honor, yes.

Justice Potter Stewart: Which you didn't see here at list the – it wasn't there at the habeas corpus hearing.

Mr. Ronald L. Carlson: I can tell you it was not there at the habeas corpus, Mr. Justice Stewart, because the petitioner, being a non-lawyer, apparently did a very poor job permit me to the very cord job of putting (Voice overlap)

Justice Potter Stewart: And he didn't have a lawyer there.

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: Was the trial or the transcript could it be made available to the Supreme Court of Iowa, this is the matter of judicial notice even though it wasn't before the habeas corpus court?

Mr. Ronald L. Carlson: Yes, I think he might be able to do that.

They have rather liberal authority to order up other record material --

Justice Potter Stewart: Professionally notice of proceedings on their own court?

Mr. Ronald L. Carlson: Yes, I think they could.

Justice Potter Stewart: And that could've done here.

It could be also done here.

Mr. Ronald L. Carlson: Now, the experience of the States following Smith vs. Bennett and Lane vs. Brown has been moving in the direction of the position that we here advocate.

At least 30 States give habeas corpus appeals as a matter of right just as Iowa.

And of those 30, 26 gave a transcript of the habeas corpus hearing to the petitioner in the position of the petitioner whom I represent.

So, we think that the experience of the States is moving in the very direction of the position we raised to this court.

We do not say that the Court -- that the Court is not or that the States are not free to put on limiting devices on perhaps the number of writs that can be filed to otherwise police what they're -- the amount of habeas corpus applications made but what we are saying here is, that where a screening device depends upon poverty as this one does.

This is an improper screening device.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Bennett?

Argument of Don R. Bennett

Mr. Don R. Bennett: Mr. Chief Justice, may it please the Court.

First of all, I'd like to go to the point that has been commented upon by several justices so I don't lose it.

Did Mr. Carlson was referring to the District Court's order denying Long's petition for writ of habeas corpus insofar as that Court found that Long was represented by counsel at the preliminary hearing?

I believe I am free in reading this language to have made the concession on behalf of the State because I think the language of the Court's order had self indicates that counsel wasn't there.

And if I could take the liberty on page 30 of the record and without going into the whole hearing down in the last paragraph, about middle way through, “Court further finds that as to objection no. 2 that he was denied counsel at the time of preliminary hearing, the county attorney (Inaudible) contacted the attorney for the then defendant, Patrick Lied, and said attorney advised that he would not be present and informed the county attorney that he would waive the defendant to the grand jury”.

So, the Court's own finding shows that an attorney was not physically present in the courtroom; that the county attorney had called the attorney and he said, “Yes, I'll represent the man but I waive him to the grand jury”.

And of course, after they got into the room where the Justice of Peace was at, the Justice of Peace accepted “plea of guilty”.

And the Justice of Peace in the State of Iowa has no jurisdiction to accept a guilty plea in a felony case; this is why we have White vs. Maryland comparable situation.

Justice Potter Stewart: I don't quite understand that, this language that follows what you read to as on the bottom of page 30 of the record.

Where it goes along and says that “The Court finds that no rights were lost at this time” and that “he was actually represented” and the Iowa Supreme Court found on the case of State against Long, he was at all times represented by counsel.

It seems inconsistent.

Mr. Don R. Bennett: I think, Mr. Justice Stewart that what the trial court is saying is that he was at all times represented in the sense that the Iowa Supreme Court had made the same statement in its opinion affirming the conviction on direct appeal.

Justice Potter Stewart: That that he had a lawyer?

Mr. Don R. Bennett: Yes, physically in --

Justice Potter Stewart: He had a lawyer but the lawyer decided not to show up there?

Mr. Don R. Bennett: Right.

Justice Potter Stewart: But he was represented by a lawyer.

Mr. Don R. Bennett: Well, as the Court's opinion indicates, at the very moment, the man was taken there for a preliminary hearing, that was when the lawyer was contacted.

The county attorney got in touch with this lawyer on the telephone.

As a matter of fact, if this is confusing to you and I mean I can't of course that's in the record.

This is exactly what happened -- they brought the man in for a preliminary hearing, at which time a County attorney went out and called Patrick Lied, who was a local attorney in Oskaloosa, Iowa where this took place.

Mr. Lied said, “Yes, I'll represent the man but I waive him over the grand jury”.

So I just want --

Justice Potter Stewart: I suppose, this is really a holding that the defendant was represented by counsel at all crucial times or relevant times and that then at the preliminary hearing, this doesn't have to deal a kind of a time in Iowa where you need to be represented by counsel.

Mr. Don R. Bennett: The attorney general for whatever that is were, has ruled subsequent to White vs. Maryland, that counsel must be appointed at a preliminary hearing at least to this extent.

But the counsel was not appointed.

And if the man, “enters a plea of guilty, and then that plea of guilty or admission of--

Justice Potter Stewart: If that would be true --

Mr. Don R. Bennett: By virtue of this court proceeding.

Justice Potter Stewart: As long as he doesn't lose anything at the preliminary hearing as long as he pleads not guilty.

The attorney general hasn't said that under White against Maryland, you need to have a counsel at the preliminary hearing.

Mr. Don R. Bennett: Well, he has ruled that counsel ought to be appointed at preliminary hearing because of White vs. Maryland.

Perhaps, I don't fully appreciate your question but to me White vs. Maryland becomes significant only at a subsequent period of time when they tried to introduce any damaging statements made after preliminary hearing.

Chief Justice Earl Warren: Well, what is your understanding at the trial record?

Does it show that his plea of guilty there was used against him in anyway?

Mr. Don R. Bennett: Well, I cannot -- the States unequivocally as Mr. Carlson had stated that the record shows that.

Now actually, what happened, I got the trial record with me -- it was found by him here and what does this record would show?

Chief Justice Earl Warren: Do we have that?

Do we have--

Mr. Don R. Bennett: No, you do not have, Mr. Chief Justice.

You do not request -- this record was not directed up to the Court and at the late stage, we get attempt to get this record before the Court was unsuccessful.

You're certainly entitled or you certainly may have my copy if you want me to leave it with the Court.

Chief Justice Earl Warren: I suppose that no objection from you two.

Mr. Don R. Bennett: I'd be very happy for you, Your Honor.

Chief Justice Earl Warren: Would you leave it to the Court then?

Mr. Don R. Bennett: Yes, Mr. Chief Justice.

Now to briefly answer your question.

What the record shows is an attempt by the county attorney, the prosecuting attorney, in cross examining Lawrence Long when he took the stand to get Lawrence Long to admit that he made some admissions before the Justice of Peace.

But it's neither Black nor White.

It's not clear as to whether White vs. Maryland has been violated in my estimation.

Now here's what we are here talking about this morning.

It's a 28-paged transcript that recorded the testimony at the habeas corpus hearing, and I'm not saying this case is moot because I ordered this transcript after certiorari was granted and it has not been made available to Lawrence Long.

Obviously, that's what we're here talking about.

Now I've got to admit, and I'm going to admit as practical matter, that it isn't too practical to have now in retrospect spent some $3,000 or $4,000 probably to attempt to justify the denial of this $25 transcript.

But be that as it may, this Court has said time and time again and so numerous that I don't mean to waive aside any cases since the Court is not concerned with whether the State is impractical but whether the State has denied this individual particularly Lawrence Long due process, equal protection by not making available to him a free copy, a copy without cause in this transcript.

Justice Abe Fortas: But what is the rule in Iowa, this matter -- if there is one formulated so to tell us those?

There's an opinion to the Supreme Court of Iowa from denial of habeas corpus?

Mr. Don R. Bennett: That is right.

Justice Abe Fortas: There is a request here and I take it as one of the separate ancillary or collateral proceeding done by application in the District Court in Iowa and then petitioner's certiorari was filed from the denial of that application and this is to say the application for the habeas corpus transcript, is that right?

Mr. Don R. Bennett: Yes, Mr. Justice Fortas.

Physically what happened was, after the petition for habeas corpus was denied -- there had been a hearing and it was denied -- then, Lawrence Long per se filed at that time with a proper notice of appeal with the Iowa Supreme Court.

So that now that gave the Iowa Court jurisdiction to review the denial of this petition.

Simultaneously with filing this notice, the petitioner made an application to the trial court that denied the petition.

He said, “I want to be a free hearing transcript” and incidentally, “I want counsel to assist me in connection with the appeal”.

And that's an issue which is in the petition but what this Court denied, unaccepted.

Alright, the trial court said, “That particularly your application is denied because there is no provision of law” and I'm required to furnish him of the pre-trial transcript.

Alright, so then Lawrence Long says well, “You can't do that because of this line of decisions, Griffin vs. Illinois on down true”.

He filed then a petition or an application for certiorari in the Iowa Supreme Court.

Certiorari in the Iowa Supreme Court lies to correct illegal action on behalf of the lower tribunal.

So he is saying that –- Lawrence Long was saying the lower tribunal acted illegally, unconstitutionally.

Justice Abe Fortas: The only part of the case that we have before us is a denial of the certiorari.

Mr. Don R. Bennett: That's right.

Now --

Justice Abe Fortas: Because the Iowa Supreme Court still is considering.

It has before it the merits of the appeal.

Mr. Don R. Bennett: Now in footnote 5 of our Brief, I pointed this out because I think conceptually it's very important that the Court knows/understands that on appeal that the appeal still is pending.

Now we could have moved to dismiss the appeal.

When Long didn't file his record, he had a certain length of time within which to file this record -- we could have moved to dismiss his appeal but obviously, we're not going to do that whenever he has made application to this Court for relief contending the denial of constitutional rights.

So, he still has an appeal there.

Now, if he is or if he is not entitled to a transcript, he still has the Iowa Supreme Court to turn to, to review the denial of this habeas corpus petitioner.

Justice Abe Fortas: Now is the rule or is there a rule on the Iowa Supreme Court, decisions of this Iowa Supreme Court in no event will that Court order that a transcript of habeas corpus proceeding be made available --

Mr. Don R. Bennett: No, Mr. Justice --

Justice Abe Fortas: Or they formulated some other rule.

Mr. Don R. Bennett: No, Mr. Justice Fortas.

It's pretty universal that the trial courts will not give a free copy of the habeas hearing transcript.

On the other hand, there's nothing to keep.

Justice Abe Fortas: Well, how about -- any holding in the Iowa Supreme Court?

Mr. Don R. Bennett: Not to my knowledge.

Justice Abe Fortas: Nothing one way or the other.

Mr. Don R. Bennett: Well, yes.

In denying this petitioner, in denying this application for certiorari, the Iowa Supreme Court cited Walden vs. District Court which Mr. Carlson has referred to.

Now, Walden vs. District Court was concerned with the appointment of counsel for an indigent in a habeas action.

And Mr. Carlson rightly points out that the Iowa Court talks in terms of the civil liability but I don't think it's that clear, I mean do you recall that when this Court decided Smith vs. Bennett, it indicated that it wasn't going to be quibble with this nomenclature whether it would be so a criminal is right or --

Justice Abe Fortas: But the Iowa Supreme Court has never for example said that “We will make a case by case determination and it doesn't say that in this particular case, there's no showing that the transcript is needed?

Mr. Don R. Bennett: No, it does not say that.

Justice Abe Fortas: It's a broad -- we are confronted with the broad rule of law here to the effect that in no event will the Iowa Supreme Court reverse a trial court's holding that --

Mr. Don R. Bennett: I do not know -- excuse me.

Justice Abe Fortas: -- transcript will not be furnished on habeas corpus.

Mr. Don R. Bennett: I do not know that that is entirely accurate because the petition for certiorari, petition as it was filed with the Iowa Supreme Court as well as the application to the trial court simply as a conclusary allegation that he needs the transcript.

There was nothing beyond it that we would have to assume but perhaps, had there been a stronger showing on behalf of the inmate that he really needed the transcript, that he couldn't get the record up to the Court in any other way, may be the Court would have granted the certiorari.

Justice Abe Fortas: Can you refer a standing case in which Iowa Supreme Court has ordered a transcript to be furnished in these circumstances?

Mr. Don R. Bennett: Not directly in point, Your Honor.

I can refer you to all of the cases in Volume 256 of the Iowa Reports, dealing with habeas corpus matters.

I went back and checked them.

I put some of the orders in appendix to this Brief.

In every one of those cases, the petitioner proceeded per se and everyone of the Supreme Court relaxed the rule regarding the record, regarding the Briefs in some respects or the other.

Justice Byron R. White: And you would agree that the trial court was wrong, gave the wrong reason for denying the request for a transcript?

Mr. Don R. Bennett: Well, I think to say that it is civil is irrelevant to the real issue here, now we can take --

Justice Abe Fortas: And would you go on and say that this petitioner could demonstrate satisfactorily to you that for a meaningful appeal, you needed the habeas corpus transcript that he is entitled to it?

Mr. Don R. Bennett: I believe I would have to --

Justice Abe Fortas: You would but you can't speak for your Supreme Court?

Mr. Don R. Bennett: I cannot speak for the Supreme Court and unfortunately I have and on pretty tenuous ground even speak for the Attorney General because of last night.

Justice Abe Fortas: Well, was it open to the Supreme Court? [Laughter]

Mr. Don R. Bennett: I'm sorry.

Justice Abe Fortas: Is it open in your view to the Supreme Court to decide if this man is entitled to the transcript?

Mr. Don R. Bennett: I'm sorry, --

Justice Abe Fortas: Is it open to your Supreme Court when the appeal is heard to say that this man should have a transcript or they foreclosed by any of their prior decisions?

Mr. Don R. Bennett: Well, no, they're not.

But part of our argument here is that the appeal is still pending and the rules in the Civil Procedure which are applicable to habeas appeals are flexible enough that this man may very well be and we will get an adequate record before the Court.

Justice Abe Fortas: You mean short of the transcript?

Mr. Don R. Bennett: Short of having the hearing transcript.

Justice Abe Fortas: And I suppose that he wasn't?

Mr. Don R. Bennett: You mean that he not able?

Justice Abe Fortas: Of course then the Supreme Court says, “Well, this record is not good enough for us, we can't tell you or we cant' decide this thing.

There's no transcript here.

We can't give him the transcript because of civil proceeding, are they foreclosed by their prior decisions in saying that they will order up an adequate transcript of the habeas corpus proceeding?

Mr. Don R. Bennett: Are they foreclosed from doing it?

Justice Abe Fortas: Yes?

Mr. Don R. Bennett: No, I don't think so.

I don't think the trial court is for -- the trial court has the power to do it.

Trial court says --

Justice Abe Fortas: This trial court has refused to do it.

Mr. Don R. Bennett: Right, there is no rule of law in the State of Iowa requiring furnishing an indigent --

Justice Abe Fortas: This case went back to the Iowa Supreme Court and this appeal is heard.

Is there an opportunity for this man to persuade the Supreme Court that he does needed this transcript to the habeas proceeding?

Mr. Don R. Bennett: Well, I would have to answer I think, yes that he could file a further application, trying to set forth why he cannot comply or work with the rules of the Civil Procedure which would allow him to get up a record despite the transcript.

Justice Abe Fortas: And you don't know of any decision in your books that would prevent the Supreme Court from saying that these circumstances will require a transcript?

Mr. Don R. Bennett: No, I do not.

Justice Tom C. Clark: (Inaudible)

Mr. Don R. Bennett: No, let's go to the rules, Mr. Justice Clark.

Rule 340 which is the main rule and the one that's discussed on the Brief, provides that in a situation like this, shortly or promptly -- the appeal has been noted.

The appellant is to file a duplicate typewritten manuscript of so much of the record as is believed to be relevant to the appeal and at the same time he showed file of the trial transcript; in this case, this document.

It goes on to say that within the 20 days the other party can amend the record, make corrections and so forth and so on. And then after the time for amendment is up, then upon three days written notice, the proposed abstract, with whatever amendments or corrections there might be, can be submitted to trial court who heard the case.

And then, the language of the rule as in this, by the way, has statutory authority.

It's not just a rule.

It is that the trial court shall settle the record -- to the end of the abstract correctly shows the evidence and proceedings at the trial -- and I assume along with me just for a moment that the hearing transcript may not be filed as Rule 340 said and as I told you.

Well then, you have got a situation which I think was contemplated by the majority in Graper v. Washington, a situation where if this man, Lawrence Long, has the ability to remember the evidence at the hearing, he can prepare a narrative statement.

Now remember this man, at least we've got to assume if he has prepared applications and petitions and etcetera and etcetera.

Alright, I don't think he can't --

Justice Abe Fortas: He was personally there at the habeas corpus hearing, was he?

Mr. Don R. Bennett: Yes, he would have to have been because a hearing was held at which he was to give his side.

Justice Abe Fortas: And he was a witness there?

Mr. Don R. Bennett: So assuming that the transcript may not be filed, at least, we have a situation where if he is capable, he could file a narrative statement of what he thinks the evidence shows.

Now, at the other side, in this case the county attorney doesn't agree that this was a way the evidence was shown. Well then, he's got the burden to comment, amend and correct.

Now what I think as even more important is, then when you got to get this thing before the trial court and the trial court is enjoined to settle any differences in that proposed abstract.

To the end of the abstract correctly shows the evidence in proceedings at the trial.

Now --

Justice Hugo L. Black: Would you mind, may I disturb you and tell me, just from the beginning, what is the precise issue between you and your adversary?

Mr. Don R. Bennett: Whether it is in the record?

Justice Hugo L. Black: (Inaudible) that was presented between you and him that you are at issue.

Mr. Don R. Bennett: Well, we have in effect conceived that perhaps the whole court, if not the whole then a substantial majority of this court is committed to the proposition that if an indigent in a post-conviction proceeding needs a transcript to get adequate and effective appellate review, he is constitutionally entitled.

Justice Hugo L. Black: Alright, do you agree on that.

Now what are you at issue?

What is that issue?

Mr. Don R. Bennett: Well, no. 1 we are taking a position that he has not shown that he needs the transcript and no. 2, that there --

Justice Hugo L. Black: Not shown it where?

Mr. Don R. Bennett: Any place.

Justice Hugo L. Black: Where can you show it?

Mr. Don R. Bennett: In his petitioner for certiorari, he could have attempted to have made a showing beyond just simply a conclusary allegation that he needs the transcript.

Justice Byron R. White: You mean the petition for the cert in the Iowa Supreme Court?

Mr. Don R. Bennett: To the Iowa Supreme Court, right.

Justice Hugo L. Black: But it looks to me like you're near together.

I don't know.

Mr. Don R. Bennett: Well, we're not --

Justice Hugo L. Black: I don't know why you have been issued.

Justice Byron R. White: All you have to do is return over that document to him and the case is over isn't it?

Mr. Don R. Bennett: I have no intention of turning that document over to him.

Justice Hugo L. Black: Is that your issue?

Mr. Don R. Bennett: Yes, in effect that's the issue but I want to take a step further.

I was developing this point.

So we think that at least it is arguable that he could have got the record made up.

Alright now, the petitioner said, “Well, isn't that foolish, Mr. Bennett?”

The very thing which I can't get, they going to force me to file in order to get this thing started.

Well, I suggest to you that's just not so because Iowa rule of Civil Procedure 371, which his cited in the Brief, plainly indicates that the Court, the Iowa Court has go the power to change or modify Rule 340 insofar as the record making procedures are concerned and I don't think the Iowa Court is going to say to him, “We recognize you an indigent.

We recognize you've got the right to appeal but were going to force you to file the very thing you can't get because you can't buy it to get up here to us.

Justice Hugo L. Black: What are you asking as not to do that he is asking as to do?

Mr. Don R. Bennett: I am asking you to hold that there has not been a sufficient showing that this man has been deprived of the constitutional right.

Justice Hugo L. Black: That's a pretty broad abstract clearly, (Inaudible) something concrete.

What is he asking us to do that we should not do?

Justice William J. Brennan: He wants that blue covered book and you don't want to give it to him. [laughter]

That's what it is, isn't it?

That's the concrete factual then.

Mr. Don R. Bennett: Mr. Justice Brennan, I would rather say, it's not I who doesn't want to give it to him. [Voice overlap]

Justice William J. Brennan: Well, yes, but he says that he not only wants that book, that he is entitled to it because he needs it to have a meaningful appeal.

You say he would be entitled to it if he did get it to have a meaningful appeal but he doesn't need it to have a meaningful appeal.

Mr. Don R. Bennett: That's right.

Justice William J. Brennan: Because there's nothing went on anyway that they need the transcript or even if there is, there's another way for him to make up the kind of the record he needs for a meaningful appeal, no. 1.

Mr. Don R. Bennett: Now no. 2 I think -- I'm sorry.

Justice Hugo L. Black: They seem to have everything but that is -- that's the reason I want it but we (Inaudible) last time you are filling -- (Inaudible)

Mr. Don R. Bennett: I don't think the Draper versus Washington was decided couple of years ago and of course, you have dissented in that opinion but you say that in Davis versus California (Inaudible) Griffin versus Illinois.

And Draper clearly says that an alternative -- I'm reading from page 905 I guess of Lawyer's Edition -- No, 372 US 487, “That alternate matters of reporting trial proceedings are permissible.

If they place before the Appellate Court an equivalent report of the events at trial for which the appellee's contentions arise.

Yes, and the Court says -- a statement of facts agreed to by both sides.

We have a rule-making procedure which allows that and which is very briefly discussed in the Brief.

The statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken before trial or on the court reporters untranscribed notes.

Now I have suggested that this need not be filed and that the trial court is enjoined to settle that record.

To the end of that show, the evidence is correct.

Now, the trial court has jurisdiction over and control of his court reporter and there's nothing that keep him from calling that book reporter in the –

Justice Hugo L. Black: As Long came in to the trial court and I remember that in this piece of evidence I don't remember anything about objection, I don't remember anything whether sustained or not?

Mr. Don R. Bennett: You mean at the habeas?

Justice Hugo L. Black: Definitely.

When you raise that up, then you say what does the district attorney has to do with --

Mr. Don R. Bennett: You mean in trying to get up a record from the habeas hearing itself?

Justice Hugo L. Black: Yes.

Mr. Don R. Bennett: I think whether the objections were made or not, whether it was sustained or not, is not terribly important because what his interest should be is getting the evidence set out to show how and he has been unlawfully confined.

Now, the petitioner has stated in argument and he states in his Brief that -- and in the record because may be the habeas trial court made some error -- overruled an objection or didn't sustain an objection something like this.

I don't think that's important.

I don't think that he is --

Justice Hugo L. Black: (Inaudible) record on the merits shows that the Long pleading used -- they might have raised that and --

Mr. Don R. Bennett: Yes.

Justice Hugo L. Black: You never know when (Inaudible)

Mr. Don R. Bennett: Alright, I think this brings to the third point.

I just want to spend at least a couple of seconds on and that's his trial record right here.

Now, in Draper vs. Washington, this Court has made it quite clear, the majority of the court, that is not necessary to furnish a transcript to an indigent if the transcript is not germane to the contentions which were made.

Draper filed a motion setting forth his contentions and why he needed the transcript.

Alright, here, Lawrence Long filed a petition and he set forth certain contentions.

In fact, he set forth specifically filed.

One is the White vs. Maryland contention.

Alright, at that plea, a guilty was entered at the trial, this is the best source.

This will tell you not anything that happened at the habeas corpus hearing.

You look to the original trial transcript to find out whether White vs. Maryland had been --

Justice Hugo L. Black: They could see whether --

Mr. Don R. Bennett: What's raised -- you can see that from the trial court's judgment denying the petitioner for habeas corpus.

He sets the five areas out so we know it's been raised there.

But the most relevant source to (Inaudible) and secondly, he says he had incompetent counsel and that he checked the petition, he says the comments the petitioner's court-appointed attorney is challenged in the question of competence here goes only to the said attorney's conduct and action and representation of the petitioner in his criminal trial.

Where else would you want to -- what more relevant source would you have to see how his attorney behaved than right here in the trial transcript?

Justice Potter Stewart: Well, I'd expect that although it's not issue of waiver here; that you pointed out at 26 and so forth, 30 rather.

Well, that's an issue of waiver.

Counsel wasn't there, went on and then these things happened at the preliminary hearing and waiver gets you all (Inaudible) problems there and anything else, does it?

Don't they have to be developed at the -- if the State is going to rely on the waiver, I would suppose the facts would have to be develop at the habeas hearing.

You are relying here as I understood you when you opened your argument, say you are.

And what appears in the trial court's finding that in effect there was a waiver by the lawyer and appearance at preliminary hearing.

Mr. Don R. Bennett: Well, yes, but then if he was not physically present and the plea of guilty was entered at this trial then, I think the petitioner is entitled to relief under White vs. Maryland.

Justice Potter Stewart: Unless there is something lesser than the plea of guilty and may be something else.

I think you've told us that that shows or perhaps as Mr. Carlson said.

Mr. Don R. Bennett: Well I don't [Voice overlap]

Justice Byron R. White: That shows cross examination?

An effort by the DA to find out what it was he had admitted it.

Mr. Don R. Bennett: Right.

I don't concede that White vs. Maryland has been violated.

Justice Byron R. White: I know.

Mr. Don R. Bennett: The point is, I think this is the place to find out.

Now as far as his third contention is, he says that no brief on the merits was filed with the Iowa Supreme Court and he is thereby contending the ineffective assistance of counsel on his appeal.

Well, you don't mean copy that trial transcript where the Iowa Supreme Court is concerned to find out what it's own record show and in fact, they will show on the appendix of our brief and--

Justice Potter Stewart: You know, Mr. Bennett, I fully appreciate the use of (Inaudible) but I must say it presses me to think.

That there is going to be more time of viewers, of your judges, of everyone because inevitably, that he is not to get this transcript this is going in the Federal habeas corpus and we're all going to find out the misuse anyway.

And why do we have to go over to that.

Chief Justice Earl Warren: You may answer that after lunch.

Mr. Don R. Bennett: To answer your question and I am a little bit (Inaudible) with it because it seemed not to be phrased quite so much as a question but as an observation.

Would you –

Unknown Speaker: (Inaudible)

Mr. Don R. Bennett: If I might respond the observation, we may very well be wrong, of course, in the position we've taken in the Brief and if we are wrong, why don't this Court rule, issue a decision which will take care of the problem because it will be a constitutional decision and Wallace probably will be no comfort.

I will assure you this that if the Court holds for the State, in view of the fact that I have already ordered the transcript, and in fact two copies.

I will certainly see that this doesn't happen. But I'm not releasing that transcript until --

Justice Potter Stewart: I appreciate fully -- you (Inaudible) filing, you take that position and ask that it be decided by the Court.

Mr. Don R. Bennett: I happen to share your view, Your Honor, I would just assure not to see this waste also.

But I'm precipitated in --

Justice Byron R. White: Well, you could take the same position, in all fairness, in the Federal habeas corpus petition as you have taken here.

The issue would make up the same way: you just need transcript at all in order to have a meaningful appeal.

And there -- and because there is a meaningful State procedure available where in to vindicate its constitutional rights.

You could make up the same sort of an issue there as here.

But let me ask you.

As far as this record shows, in this case that is presented here on the petitioner for certiorari, as far as we were concerned, we were reviewing a decision of the trial court of Iowa because the writ, the appeal has been denied and we were reviewing a ruling of the trial court entered after a habeas corpus hearing that this man was not entitled to a transcript in any event because this was a civil proceeding.

And that issue, and as far as we knew, and as far as we still know, that is the law of Iowa.

Mr. Don R. Bennett: That is the law of Iowa in so far as the Court is right in saying that –

Justice Byron R. White: Well, the Ohio Supreme Court has never said otherwise or the Iowa Supreme Court has never said otherwise, does it?

Mr. Don R. Bennett: That's correct.

Justice Byron R. White: What do you suppose, if this be speculated on your part, what if this Court said, “No, the law is, you must have a transcript” or some other way available to protect his appeal?

Now your response is, “Well, these rules are not or without having to buy a transcript at all”.

Do you think the Iowa Supreme Court has never been through that issue, has it?

Mr. Don R. Bennett: Not to my knowledge, they have not.

Justice Byron R. White: You don't know whether they would agree with you or not?

Mr. Don R. Bennett: Whether they would agree to what I have argued to the Court today?

Justice Byron R. White: Yes.

Mr. Don R. Bennett: I would have to assume they would because they summarily denied the application for certiorari for --

Justice Byron R. White: Well, I know, but they could have denied because they could have said that this is a civil proceeding and he is not entitled to transcript in any event.

Mr. Don R. Bennett: Well, I don't think that in ruling they necessarily have stated that.

Justice Byron R. White: No, but you can't give us any case in Iowa that says that the rule about an indigent in a criminal case applies to a habeas corpus case.

There's no ruling like that in Iowa, is it?

There's no Supreme Court holding in Iowa that says that an indigent petitioner in habeas corpus is entitled to a free transcript?

Mr. Don R. Bennett: No, there is no such ruling.

The Iowa Supreme --

Justice Byron R. White: Because we know the rule that in a civil proceeding, he is not entitled to anything.

Mr. Don R. Bennett: That's correct, Your Honor.

Justice Potter Stewart: Now, Mr. Bennett, in this appendix to your Brief, you have attached some orders of the Supreme Court of Iowa.

And what do they mean where they say and I'm just reading one at random, “It is hereby ordered that plaintiff may file nine copies that we have typewritten record and Briefs in lieu of printed record and briefs to be used by the Court upon submission of the appeal in this case”.

Now, what “record” are they talking about there?

I gathered not the transcript but something else.

Mr. Don R. Bennett: Well, they're talking not the transcript but about an abstract of record which would ordinarily be made up from the hearing transcript.

Justice Potter Stewart: Or from the recollections of the people appearing, would it be what Justice (Inaudible) heard to as equivalent to a bystander's bill of exception or something like that?

Mr. Don R. Bennett: Well, this is possible except in some of those cases.

There was not a hearing to begin with.

These were habeas corpus actions that were resolved on the pleadings themselves so it wasn't necessary to go --

Justice Potter Stewart: This type of question in law so that there wouldn't be a transcript.

Mr. Don R. Bennett: That's right.

Justice Potter Stewart: But the record would still show the pleadings and the orders or any memoranda of the trial court.

Mr. Don R. Bennett: That's correct.

And those, of course, are available to Lawrence Long.

Justice Potter Stewart: In this case.

Mr. Don R. Bennett: That's correct.

That's what the record would show.

Justice Potter Stewart: Yes, alright.

Mr. Don R. Bennett: Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Carlson.

Rebuttal of Ronald L. Carlson

Mr. Ronald L. Carlson: Thank you, Your Honor.

Your Honors, I will briefly addressed myself to a point that Mr. Justice Fortas and Mr. Justice White have inquired into and that is, “Has the Iowa Supreme Court ever afforded transcripts in habeas corpus?”

If I could respond with perhaps a brief quote, Your Honor, from the latest authority I could find on the point which is Hoskins vs. Bennett which they say -- here the petitioner also had requested a transcript of public expenses in habeas corpus.

The trial court said that habeas corpus is a civil proceeding and there is no provision in the Iowa law for a transcript to be evidence in such cases at public expense.

This is true.

Justice Potter Stewart: That case is in the citation.

Mr. Ronald L. Carlson: Yes, it is, Your Honor, Hoskins vs. Bennett.

I just have the Iowa here, Your Honor, 256 Iowa, citing page 1376.

Justice Byron R. White: And what -- when was that?

Mr. Ronald L. Carlson: 1964.

Justice Byron R. White: And that was before Long.

Mr. Ronald L. Carlson: Yes.

Also, Your Honor, in the case of Walden vs. District Court which our Supreme Court ordered in this case, cites 2 gives credence to this civil labeling of habeas corpus. Mr. Justice White also asked the question, had the Iowa Court ever been faced with the potential substitutes, the bystanders bills and so forth that Mr. Bennett here has suggested in this case, we point to the case of Weaver vs. Herrick, decided by the Iowa Supreme Court in 1966 in which the question came to the Supreme Court, what is necessary for a meaningful appeal to indigents in Iowa?

This, in connection with direct criminal causes, first appeal, Court responded emphatically.

Of course, the transcript is essential for this kind of appeal.

The reason they don't do it in habeas corpus we submit, is because of the civil labeling.

Justice Byron R. White: What if this Court took this case and reversed it and -- to what Court would it go?

Mr. Ronald L. Carlson: It would go to the Supreme Court of Iowa to order the District Court to enter to prepare a transcript –

Justice Byron R. White: Yes, but what if this Court just took the -- this one as far as saying the -- what I understand with the law of Iowa to be at least the decision, the rule of law in the decision which we are reviewing said that: this is a civil proceedings, no transcript.

We reverse that and Iowa must have observe another rule.

And we reversed the further proceeding consistent with this opinion?

Mr. Ronald L. Carlson: Yes.

Justice Byron R. White: Now we go back to the Supreme Court of Iowa.

Then the Supreme Court of Iowa would have the job of saying, how -- in the light of Iowa procedures, should we implement this constitutional rule, wouldn't it?

Mr. Ronald L. Carlson: Yes, Your Honor, although the decision of this Court --

Justice Byron R. White: -- it might not decide but in this case, there was to be a transcript or it might remand the trial court for further proceedings.

We don't know how the Iowa would react to it.

Mr. Ronald L. Carlson: Yes, I think we've done that, Your Honor.

Justice Byron R. White: I know, but the Iowa Supreme Court never had a crack.

That you're showing because they never get to it.

They never get to the question because they say this is a civil proceeding.

Mr. Ronald L. Carlson: Yes, I think that's legitimate Your Honor.

Of course, it seems to me that this Court's decision perhaps could be broader and say that where evidentiary hearings are had as in this case, where the appellate court is being asked to review evidentiary matters, obviously without a transcript of the petitioner who --

Justice Byron R. White: Well, I would think the Iowa Supreme Court might decide the same thing.

But if they thought you are really asking for something that where you needed the transcript --

Mr. Ronald L. Carlson: Yes, I think you have the problem arising quite analogously in Griffin vs. Illinois.

Justice Byron R. White: It would be quite an argument between the two of you, why do you really need the transcript of that?

It's not as you say a black and white situation.

Mr. Ronald L. Carlson: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. Ronald L. Carlson: Yes.

My response would be on that, Your Honor, that in this particular case, of course, our petitioner is without counsel denied that by the State.

He would be all prepared to drudge up from memory.

What evidence was presented at the trial of the case even to present to bystanders to affirm it.

Justice Potter Stewart: That's right.

You don't represent.

We just appointed you to represent him here.

Mr. Ronald L. Carlson: That's right, Your Honor.

Justice Potter Stewart: If you go back to Iowa, he may still be what otherwise --

Mr. Ronald L. Carlson: That's right and he will still be.

Justice Potter Stewart: I gather you would agree with Mr. Bennett that if we correct -- that's what our judgment should be, the misunderstanding based on this being a civil procedure for the Iowa Supreme Court.

I gather you would agree with Mr. Bennett that the rule of Iowa Supreme Court are broad enough within their present context to authorize you to have a transcript.

Mr. Ronald L. Carlson: Yes, I think they are.

They certainly could promulgate a Supreme Court rule to that effect, Your Honor.

They're broad enough to do that --

Justice Byron R. White: Why do you say that he wouldn't have a lawyer?

Mr. Ronald L. Carlson: Well, that is also denied him under the civil proceeding rationale.

Justice Byron R. White: Well, I know.

But do you think is going to happen? [Voice overlap]

Mr. Ronald L. Carlson: Yes, excuse me, Your Honor.

Justice Byron R. White: He is bound to have a lawyer.

Mr. Ronald L. Carlson: Yes, that's right.

Justice Byron R. White: Because we have already held that, haven't we?

Mr. Ronald L. Carlson: Well, it seems to me that if the civil proceeding rationale is -- well, perhaps I should pause on that, Mr. Justice White.

Justice Byron R. White: What?

Mr. Ronald L. Carlson: Perhaps I should pause on that.

I would feel that in the context that were talking about here, equal protection – that would dictate the appointment of counsel ultimately but –

Justice Byron R. White: What's the case?

Mr. Ronald L. Carlson: It seems to me that --

Justice Byron R. White: We held that on the (Inaudible).

We had a case like that.

Mr. Ronald L. Carlson: On counsel?

Justice Byron R. White: Yes, in post conviction hearing?

Mr. Ronald L. Carlson: No, no, that's my response.

[Voice overlap] That has not been decided.

Justice Byron R. White: So we he might go back to that lawyer in the Iowa Supreme Court.

Justice Hugo L. Black: Unless you volunteer.

Mr. Ronald L. Carlson: Well, I've enjoyed my service so far, Your Honor, and it's not too griever prospect.

Justice Byron R. White: Well, you did a good job.

Mr. Ronald L. Carlson: That's for sure.

Featured:

Rinaldi v. Yeager - Oral Argument

Wed, 22 Aug 2012 16:56:38 +0000

Case:

Rinaldi v. Yeager

Media File:

940_19660421-argument.mp3

Related Transcript:

940_19660421-argument

Transcript:

Argument of Frederick B. Lacey

Chief Justice Earl Warren: Number 940, Joseph A. Rinaldi, Appellant, versus Howard Yeager, Warden, et al.

Mr. Lacey.

Mr. Frederick B. Lacey: Mr. Chief Justice, may it please the Court.

Joseph Rinaldi, the appellant in this proceeding is presently confined in the New Jersey State Prison.

He is there following conviction and following admittedly and frankly an exhaustion of not only the trial process but the appellate process afforded him by the State of New Jersey.

To that extent, and I want to make this clear at the outset, we are not within the precise holding of Griffin and the cases which follow.

In other words, we are not here contending that because of this financial obligation which I will point out later, he was asked to assume, he was impeded in having either due process with respect to his freedom at the trial level or due process with respect to his freedom at the appellate level.

The position that I take here, however, is I believe a logical extension of what this Court has held in Griffin and the other cases which are cited in our brief such as Eskridge, Draper, Burns, etcetera.

Specifically, Rinaldi following conviction at trial applied under New Jersey procedures to be permitted to proceed in forma pauperis to appeal in the Appellate Division of the state court.

This procedure was pursued by him and he was permitted to so proceed in forma pauperis.2 (a) 152 Section 17 permitted this procedure and he availed himself of it.

Our quarrel is not with 17 however but with the next section which is Section 18.

18 we say, provided a means whereby New Jersey was permitted to utilize this carrot so to speak of appellate procedure to coerce Rinaldi into making an assignment of all of his institutional wages should he, following this gamble of whether to appeal or not, take the appeal and lose because Section 18 provides that if the applicant for proceeding in forma pauperis should have his conviction affirmed on appeal, then the cost of the trial transcript must be taken from all of his institutional wages until it is paid.

We say that this constituted unlike Griffin which was of course a due process taking of liberty, but this constituted without due process, a taking of property.

I think that in the overall in terms of the public interest and quite aside from a narrow question of Joseph Rinaldi, it flies in the face of what I believe was a clearly articulated philosophy of this Court that we don't want to do anything that will interfere with the thinking process as to whether or not an appeal should be taken.

The history of the statute, that is the legislative history, is devoid of any assistance and there's nothing in the record to indicate what it was.

However, the statute itself was a specific answer to this Court's holding in the Griffin case.

The Attorney General forthrightly concedes that one of the policy reasons behind the statute was to discourage frivolous appeals.

Justice William J. Brennan: When was – did it happen?

Mr. Frederick B. Lacey: 1958 sir.

Griffin, I believe, was 1956, yes sir.

And the Attorney General thus concede that one of the policy reasons for it Mr. Justice Brennan is to discourage non-meritorious appeals -- or frivolous appeals or non-meritorious appeals.

Justice John M. Harlan: Is there any indications (Inaudible)

Mr. Frederick B. Lacey: As I indicated sir, there is nothing in the record and I can state outside the record that we did search Florida legislative history and found none.

Chief Justice Earl Warren: Did you say the state concedes that that was the reason for it?

Mr. Frederick B. Lacey: The state says that that is one of the reasons for it.

Chief Justice Earl Warren: One of the reasons, yes.

Mr. Frederick B. Lacey: Yes sir.

Certainly sir, it could not be -- I'd hate to put my native state in the position of exacting a tribute of $20 -- 20 cents a day, a dollar a week to repay the cost of a $215 transcript on an economic basis.

And so I think that in the large public policy area in which this case falls, it clearly has the – an intended effect to discourage exercising the right to take an appeal granted by the New Jersey constitution.

Justice William J. Brennan: I thought that --

Mr. Frederick B. Lacey: Now, I do --

Justice William J. Brennan: And its --

Mr. Frederick B. Lacey: Yes sir.

Justice William J. Brennan: It's not limited within its application, the appeal held in fact to (Inaudible)

Mr. Frederick B. Lacey: Oh, no sir.

Justice William J. Brennan: Whether or not an -- the appeal is lawful?

Mr. Frederick B. Lacey: That is correct sir.

Justice William J. Brennan: That doesn't (Inaudible) the truth.

Mr. Frederick B. Lacey: No sir, it certainly doesn't.

Justice William J. Brennan: (Inaudible)

Mr. Frederick B. Lacey: What I am saying Mr. Justice Brennan is that the applicant for proceeding in forma pauperis is asked to make a gamble, to take a gamble and I think that to that extent, it is a fettering of the freedom of choice on whether or not to take an appeal.

Now, public policy, I think pervades the entire issue because if penalogically, it makes good sense to pay whatever the minimum wage might be in New Jersey state prison at the moment and the stipulation of facts indicates that with respect to Rinaldi, its 20 cents a day.

If this is good penalogically speaking, why then should New Jersey turn around and permit the county which laid out $215 for the transcript to take back this 20 cents a day.

The state says, “Well, we don't have to pay him anyway, and therefore, we're doing nothing more than putting him in a position where he could be in any case where we not to pay him.”

I say that --

Chief Justice Earl Warren: Would you state that again?

Mr. Frederick B. Lacey: Yes sir, I'm sorry Mr. Chief Justice.

Chief Justice Earl Warren: (Inaudible)

Mr. Frederick B. Lacey: I may not have stated it clearly.

The state says in its brief that as a matter policy, internal state policy, we would not have to pay him while he's in prison, doing work.

I say that that misses the mark.

The fact is that for what I would deem good public policy reasons its deemed sound penologically to pay some minimum wage, here specifically 20 cents a day.

Then to turn around and say that you're going to lose this for four years until you pay off $215 to the county which afforded you this transcript so you could take the appeal which constitutionally we give you, I say is to -- if that is really the argument not -- whether or not we have to pay him in the first instance.

Now, I do say quickly here that in Rinaldi's case, I do not have -- I do -- I am not able to avail myself of the argument that his choice as to taking the appeal was impede -- obviously he took the appeal.

Obviously, he took the gamble and he lost.

But I am saying that now, he is being deprived of his property at the rate of a dollar a week, $52 a year for four years.

Justice John M. Harlan: Suppose he would say to pass the laws (Inaudible) free transcript that the state would have a (Inaudible)

Mr. Frederick B. Lacey: You're asking sir what might my view is on a reimbursement statute generally I think.

And I -- my answer to that is this, first of all, this is not a case generally but rather a case of an indigent and I think that under our thinking as it has evolved over the past few years, this puts the indigent in a position where his choice at the time of taking an appeal is different from the man who may expect to come in with some money later.

Secondly --

Justice John M. Harlan: There are (Inaudible)

Mr. Frederick B. Lacey: Yes sir.

Justice John M. Harlan: Supposing the State of New Jersey sued without any statute at all after this man got out of jail and he earns some money.

Mr. Frederick B. Lacey: I think that you could just --

Justice John M. Harlan: (Inaudible) statute of limitations sued him (Inaudible) of transcript.

Mr. Frederick B. Lacey: I think Mr. Justice Harlan that you could justify a statute that was in somewhat of this pattern if it conformed to a state policy of repayment of debts by garnishment.

For example in New Jersey, we have as I recall a garnishment statute, nothing up to $18 a week, may be garnished to repay a civil indebtedness and beyond that 10% of compensation.

If there were a reimbursement statute that was in that vein, in that setting, I would be prepared to say sir that this would probably be acceptable as far as I'm concerned but I come down here to the fact that we have the indigent situation and we have the great and sovereign State of New Jersey saying we are going to do something to restrain the multitude in these appeals that were -- we're being forced to accept because this can be the only intent of the statute and it is said to be one of intents by the Attorney General.

I think this that if we were to have a general garnishment statute which provided that sometime within the next 20 years, the man had a job, the state would not be barred by any statute of limitations.

It could pursue the collection.

Here's what concerns me further though about this public policy that's involved here, again in view of the way we're going today in affording free transcript now in the various states in the federal level.

Counsel pursuant to fee if this kind of statutory pattern is permitted to exist and survive then the policy having been established cannot then -- it'd be equally said that with respect to any fee that the state must pay to a counsel, the indigent must agree to pay this out of this person's wages because certainly in terms of policy, there could be no distinction drawn between a transcript and counsel fee.

Justice William J. Brennan: And didn't the (Inaudible) Supreme Court used to hold that there is a public governmental obligation with a county or state?

Mr. Frederick B. Lacey: Yes sir, Mr. Justice Brennan.

Justice William J. Brennan: (Inaudible)

Mr. Frederick B. Lacey: Yes sir, the case came down just the end of the year, as I recall and it provided that this is now going to be an obligation no longer born by the legal profession alone but rather is to be carried by society generally within the State of New Jersey at a rate that Mr. Chief Justice Weintraub I think even talked in terms of the lawyer's fee being 60% of what he might ordinarily get in a regular case.

So that I do recognize that I don't have with respect to the narrow issue of Joseph Rinaldi, the precise holding of Griffin and the other cases because he was not deprived of his liberty by a pre-existing condition or a condition precedent.

I say however that he was coerced by holding this appellate right before him, constitutionally given he was coerced into assigning all of his prison wages and that this is a deprivation of his property and I say further that this statute is brought with a public interest and I think a public danger.

Now additionally, in addition to the due process argument --

Justice John M. Harlan: The man who couldn't afford to pay for the record must -- he has to pay (Inaudible) and the state could provide him with the transcript (Inaudible) possible to appeal (Inaudible)

Mr. Frederick B. Lacey: Yes sir.

And he also has to think twice about whether he can afford to pay counsel.

That is true.

Justice John M. Harlan: I sort of understand --

Mr. Frederick B. Lacey: But --

Justice John M. Harlan: -- is it showing if he's (Inaudible) an appeal (Inaudible) the state could provide him a transcript?

Mr. Frederick B. Lacey: Yes sir.

I'm sure that's so, I know --

Justice John M. Harlan: Maybe -- this comes down really to a question (Inaudible)

Mr. Frederick B. Lacey: Well it does, but in a -- I had not thought of it frankly sir in that large sense.

I believe that -- as a practicing attorney, I have been in a position and all of the members of this Court I'm sure have been in the position of advising clients what it was going to cost them to take an appeal and having clients lose their order about taking an appeal.

But how often this is in the civil field rather than the criminal field, how often we are faced with this and have a decision by a client not to pursue his rights on appeal.

In a civil case, I would guess its 10, maybe 20 to 1.

I do really think that there is a public policy involved here that we should -- if we're going to do something for indigents, we should not then turn around and take it away from them.

With respect to the equal protection argument, I had dealt with this but not in the sense in which you put it Mr. Justice Harlan.

Instead in the discovery period before we made our motion we had arrived at a stipulation of facts.

And as is set forth in the stipulation of facts contained at page 37 of the record and referred to in our briefs, we point out that apparently there is a thinking that pervades the county officers that the statute somehow best them with a discretion as to whether or not they can deduct from the man who's in jail.

Now, the state responds to this by not really meeting the issue factually.

They say, well, in certain instances cited by appellant's brief this may have been true or that may have been true.

They don't deny that basic contention we make that this statute is not applied universally and yet the statute is in terms of shall, it is mandatory, it allows of no discretion.

So I am saying that in addition to the basic due process argument I urge that this statute as applied to Rinaldi is denying him equal protection of the laws.

The --

Justice Abe Fortas: I suppose that an indigent released pending appeal on its own recognizance, let's suppose I -- guess that's possible in New Jersey.

Could demand a transcript and then there's nothing in the law that requires him to repay the state (Inaudible) -- if he's not (Voice Overlap) --

Mr. Frederick B. Lacey: At that point sir --

Justice Abe Fortas: If he's not in jail.

Mr. Frederick B. Lacey: No sir, that's correct.

Justice Abe Fortas: He's released on bail or his recognizance pending appeal.

Mr. Frederick B. Lacey: Yes sir, that's correct.

Justice Abe Fortas: Oh, from one point of view perhaps there is a distinction in the treatment that turns on the circumstance on whether the indigent is or is not in jail.

Fellow --

Mr. Frederick B. Lacey: Well --

Justice Abe Fortas: -- is not in jail, he doesn't earn the 20 cents a day and has no other obligation to repay the state.

A fellow who's in jail has to pay the state the 20 cents a day that he earns.

Mr. Frederick B. Lacey: Well, I would -- I'm not sure what the thrust of that is -- as you state it but I would turn it this way.

Really, if -- I think it associates with what Mr. Justice Brennan asked me before, what does it say, how does it apply?

The fact that it is only applied in case you lose I think reflects again an attempt to discourage the frivolous appeal and I put "frivolous" in quotes because what "frivolous" is today, it may not be five years now.

What frivolous was five years ago or pre-Escobedo, it is not now.

So frivolous is a concept I do not think we should permit a state statute like this to stand upon and I do believe that if you look at it as a statute that is intended to penalize that you are viewing the statute in the light in which it was intended to be put on the books and to be enforced.

Thank you sir.

Chief Justice Earl Warren: Mr. Handler.

Argument of Alan B. Handler

Mr. Alan B. Handler: Mr. Chief Justice, may it please the Court.

I'm not certain in my own mind exactly what constitutional grounds appellant concentrates on in his attack upon the New Jersey statute.

There was some confusion in the proceedings below as to whether or not an Eighth Amendment and the Thirteenth Amendment ground were advanced.

In the brief presented to this Court, it would appear that appellant has argued that the statute violates both due process and equal protection.

And then there was a separate argument with respect to discrimination in the application of the statute to this appellant.

Whatever they purport of the constitutional attack is however, it is extremely important to understand and appreciate the New Jersey statute in its totality.

We have suggested in our brief that this statute is designed to provide an indigent with an effective and prompt right of appeal and in some measure, to minimize the cost to the public and to discourage an abusive resort to the appellate judicial machinery.

The legislative history as pointed out by counsel is barren.

There is a statement next to the bill that was -- when it was introduced which indicates just simply that the statute was apparently in the past responsive to this Court's decision in Griffin versus Illinois.

Justice William J. Brennan: I thought, Mr. Handler, that's all we ever do get in the way of a legislative history in New Jersey, is it?

Mr. Alan B. Handler: That's one of our complaints also Justice Brennan.

There are no transcripts or records of legislative sessions and the only thing that one can go on might be the statements annexed to the bill or perhaps any committee reports that may have been filed.

In this case, we don't have the advantage of any meaningful legislative history except it was obviously a response by the New Jersey legislature to fall within the mandate of the Griffin case and the statement of the bill so provides.

Well, let's -- left to infer however as to what else the New Jersey state legislature had in mind when it included in its statutory provision Section 18.

We have suggested, as I've just mentioned that reasoning from the obvious thrust of the statute, it must have been designed to discourage in some measure a promiscuous or wanton resort to the judicial machinery and although its impact is not great, it is designed in a minimal way to defray the clause that are otherwise visited on the public.

Justice Abe Fortas: How do you know when -- how do you know whether an appeal is frivolous, or promiscuous or some of those other words?

Mr. Alan B. Handler: I don't think that anyone can be certain as a matter of any objective analysis whether an appeal is frivolous or whether sham or bogus merely because an appeal is lost.

I suppose could -- enable it to fall into the category of non-meritorious but there could be a serious appeal taken which lacks merit in which may be anything but frivolous.

Justice Abe Fortas: I guess we've all seen some appeals which at the time they were taken that the -- frivolous and then it turned out to be successful.

Mr. Alan B. Handler: That's -- has happened probably too often and of course it's happened not infrequently in the area of appeals by indigents.

But counsel has argued on behalf of the appellant that he has no quarrel with Section 17 of the law which is the application provision of the statute.

And I think this concession on his part is fairly mandated by the history of the case.

The application provision of the New Jersey law has been considered and comparable statutory provisions have been considered by this Court in at least three of the other so-called main decisions, Eskridge, Draper and Lane versus Brown.

Each involved a state statutory provision which entailed an application of some kind being made by an indigent for a free transcript and in each of those cases as applied to the particular indigent this Court has held that the state provision was unconstitutional that it was discriminatory.

In this case --

Chief Justice Earl Warren: May I ask you Mr. Handler.

Did I understand you to say that counsel had conceded that there was no unconstitutional application of this statute to him?

I thought he said otherwise.

Mr. Alan B. Handler: No.

I'm only referring to Section 17 of the New Jersey --

Chief Justice Earl Warren: Oh!

Mr. Alan B. Handler: -- statute which requires an indigent --

Chief Justice Earl Warren: But this is 18 that --

Mr. Alan B. Handler: He is attacking Section 18 which is the --

Chief Justice Earl Warren: Yes, yes.

Mr. Alan B. Handler: -- reimbursement statute.

Chief Justice Earl Warren: Yes, I understand that.

Mr. Alan B. Handler: But in evaluating the New Jersey statute in its totality and as applied to this appellant, I think it important that the Court appreciate that the New Jersey statute has a application provision, that as applied to this particular appellant he was not deterred or impeded in his recourse to the appellate courts.

As a matter of fact, he took two appeals from two separate convictions and his applications were promptly passed favorably by the Appellate Division.

Justice William J. Brennan: Mr. Handler, may I ask you, suppose the -- on his conviction, if that -- the jail term, he got a suspended sentence and had taken the appeal.

Under 17, would he have been entitled to a transcript as an indigent?

Mr. Alan B. Handler: Yes, Justice Brennan.

Justice William J. Brennan: But would Section 18 have been operative in that case?

Mr. Alan B. Handler: But Section 18 would have been inoperative.

Justice William J. Brennan: Inoperative way?

Mr. Alan B. Handler: In other words, Section 17 is designed to enable any person claiming a state of indigency to apply to the Court for a free transcript.

And incidentally, I might point out that the New Jersey rules of court go beyond the statute in question.

Because under the New Jersey rules a application or petition may be made in forma pauperis to relieve an indigent of all costs, not only transcript costs.

These would be filing fees and any other costs or fees incidental to the processing of a normal appeal.

It also --

Justice William J. Brennan: Now, incidentally, this applies only to the one who is in that institution, an institution covers more than the prison, I gather.

Mr. Alan B. Handler: It does.

As a matter of fact, as we point out in a footnote in the New Jersey statute that provides for compensation both in terms of cash as well as time remission applies to all inmates of all institutions including hospitals and --

Justice William J. Brennan: Mental hospitals?

Mr. Alan B. Handler: And other types of institutions where work is --

Justice William J. Brennan: Do we still though, the sex offender law that the -- on conviction for sex offense instead of going to a prison, after he'd gone a mental (Inaudible) he go to some mental hospital, do you still have that?

Mr. Alan B. Handler: Yes.

Yes, that --

Justice William J. Brennan: So that I take it a -- one convicted under that statute and went to a mental hospital and earn 20 cents a day or whatever he did at the mental hospital would also be taken out of his earnings, wouldn't it?

Mr. Alan B. Handler: Yes.

And the same thing would apply to a convicted person who was mentally insane or met the requirements for committing.

Chief Justice Earl Warren: If he was found not guilty by reason of insanity and committed to a mental hospital, would he have to pay this?

Mr. Alan B. Handler: I'm not prepared to say Chief Justice.

I would think that if he were acquitted that the statute would not apply at all.

The reimbursement and this is the law applies only in the event the appeal was unsuccessful.

Chief Justice Earl Warren: And wouldn't apply to anybody who had been placed on probation or who had been fined or had been given a suspended sentence?

Mr. Alan B. Handler: It would not apply to that category of indigent defendant.

And one might very well ask why should the state make a distinction between a prisoner who is confined to an institution and an indigent defendant who has been convicted but has been paroled or has served out his sentence or has received a suspended sentence before reimbursement came into operation.

And I think the answer to that is that there is a greater policy to be subserved in assuring that persons in a state of indigency notwithstanding their convictions who have demonstrated by their good behavior in prison that they are entitled to parole or that they have demonstrated by virtue of their reports to the sentencing judge that they are entitled to a suspended sentence, that the interest of society in here in effect that we want people such as these to return to a useful meaningful place in society and that it does not -- that is not conducive to any overriding state policy to follow them for the cost of their transcript appeal.

Chief Justice Earl Warren: Well, that doesn't square very well with your original pieces as I understood that this was to -- designed to discourage frivolous appeals.

Now, if a man took an appeal when he was placed on probation or when he was fined or when he was given a suspended sentence and he lost, you couldn't collect anything from him under this section so you're not basing it on the question of discouraging frivolous appeals, you are discouraging it upon the basis of only the people that the judges think should go to jail.

Mr. Alan B. Handler: I would say not entirely so Mr. Chief Justice.

Before a person takes an appeal, I think he has to go to the same risk weighing process as --

Chief Justice Earl Warren: You say in what?

Mr. Alan B. Handler: Risk weighing process.

He has to evaluate what the outcome of his appeal would be.

It may very well be that a person under prison sentence put out on bail faces the prospect that his appeal is unsuccessful that he would go to jail.

He may not know whether he'll get paroled, whether there will be a remission of his sentence.

And so as long as he faces the prospect that in the event that his appeal is unsuccessful and that he may go to jail, he goes to the same risk evaluation that a person not on bail and confined to prison would also have to undertake with respect to a person who has received a suspended sentence.

It's true that more likelihood he doesn't anticipate that even if his appeal is unsuccessful that that sentence would be altered and he'd be committed to jail.

And to that extent he is not under the same kind of onus but I would suggest --

Justice William J. Brennan: Yes, but Mr. Handler, how -- I can't read Section 18 as suggesting for example that one who has a suspended sentence who takes an appeal for some reason or another the suspension is revoked and he then goes to prison subject to this Section 18, this seems to indicate its only the applicant who is confined at the time he applies for the transcript to whom this sentence -- Section 18 applies.

Am I wrong about that?

Mr. Alan B. Handler: Well, let me say this Mr. Justice Brennan.

I don't think -- I'm not aware of any instance in which the statute has been or has not been applied with respect to a defendant who was under a suspended sentence who lost his appeal and then there was -- remitted to prison.

I don't know that there has been any occasion.

Justice William J. Brennan: Well, I'm just looking at the words, the wording of the statute itself.

And the language is confined so far a notice to the institution in which the person upon to his application, the transcript to the record was prepared is confined which indicates, doesn't it, that it applies only to the application that one can find at the time the application is filed.

Mr. Alan B. Handler: I would have to concede that the -- that language seems clear enough on that point.

I would only again add that I'm not aware of any occasion in which a -- the question would arose as to whether it could be applied to somebody subsequently going to jail.

Justice Hugo L. Black: Is that question involved in this particular man's case?

Mr. Alan B. Handler: I think it is involved only to the extent that the appellant is urging that the statute in terms of the classifications that it draws or that it -- are inherent in the policy are invidious against him.

I don't think that the appellant has urged that there is a discrimination between a jail defendant and a indigent defendant who is under a suspended sentence or was in jail at the time of his application.

Chief Justice Earl Warren: I thought he mentioned something of that in his argument to us.

Mr. Alan B. Handler: Well, I think that was in response to a question.

I'm sure counsel on his rebuttal will clarify to the Court whether this particular point is urged.

It's not clear to me that it is.

Justice Hugo L. Black: But so far as he is concerned, is he hurt by that particular provision, that's what I was asking.

Mr. Alan B. Handler: I don't think that he is hurt and --

Justice Hugo L. Black: But how could you be?

I haven't yet gathered how he could be by that provision.

Mr. Alan B. Handler: I don't see how he could be.

And I would like to develop this further thought as to whether --

Justice Hugo L. Black: Am I right in thinking that the real issue here -- I'm just asking because I am not sure, is this.

The State of New Jersey has authorized people to appeal who are indigents even though they can't pay the Court of the cost.

They're not barred from taking their appeal as was the case in Griffin.

What you have then is that the state has said that we're going to create a debt against you for cost if you lose just as we created debt against all losing indigents.

Is that right as to that point?

Mr. Alan B. Handler: That is substantially correct except for the qualification that must be conceded that this creation of a debt applies only to a prisoner who is being paid by the state.

Justice Hugo L. Black: Well, I suppose -- suppose he is not a prisoner and being paid for the state.

Does he have to pay the cost?

Mr. Alan B. Handler: No.

Not by any statutory authority and --

Justice Hugo L. Black: How do you collect the cost?

Mr. Alan B. Handler: The costs are waived.

In other words, if a defendant takes an appeal and he has satisfied the Court that he is a pauper and the Court authorizes him to proceed with his appeal, free of cost and his appeal is unsuccessful, certainly, if he doesn't go to jail, there would be no effort on the part of the state.

Justice Hugo L. Black: Suppose he's not a pauper --

Mr. Alan B. Handler: If he's not a pauper, he would pay.

Justice Hugo L. Black: -- and loses.

Mr. Alan B. Handler: He would pay costs.

Justice Hugo L. Black: Pay costs.

Mr. Alan B. Handler: He would pay costs.

Justice Hugo L. Black: So that -- why is that, (Inaudible) that the state created debt for those cost and how do they collect that debt from him --

Mr. Alan B. Handler: Those --

Justice Hugo L. Black: -- if he's not a pauper?

Mr. Alan B. Handler: Those costs would be assessed in the normal course of litigation.

In other words, it would -- he would have to pose post cost to file his notice of appeal.

He would have to file -- pay certain filing and docket costs.

If he wanted a transcript and the transcript would be necessary if he's urging trial hours, he would have to order it himself --

Justice Hugo L. Black: Have paid them (Voice Overlap) --

Mr. Alan B. Handler: -- from the reporter and pay it for himself.

And if he didn't, his appeal couldn't proceed.

Justice Hugo L. Black: The difference here then is it, after you finally get down to the ultimate difference is that the state pays those costs for an indigent.

But it says, we're going to require you to pay them back like the other people would have to pay the cost if you have -- get abled or if we can collect it by deducting it from something that somebody owes you, is that the result of it?

Mr. Alan B. Handler: Well, the state does that only with respect to indigents.

Justice Hugo L. Black: Well, you say they collect it from the others without that.

Mr. Alan B. Handler: I thought your question applied to non-indigents, Mr. Justice Black.

In other words --

Justice Hugo L. Black: No, for non-indigents, you say they collect it from them anyhow.

If they've got it, they can collect it, they collect it.

Mr. Alan B. Handler: That's correct.

Justice Hugo L. Black: So you have a system whereby you collect costs.

But you waive that as I understand it for the defendants who are indigents but you also say that although we are waiving this, we claimed that our state has the power.

No federal provision constitutional provision prohibits us from collecting that back if we want to --

Mr. Alan B. Handler: That is --

Justice Hugo L. Black: -- and can.

Mr. Alan B. Handler: That is correct.

Justice Hugo L. Black: Is that the ultimate issue?

Mr. Alan B. Handler: I think that is -- that is the --

Justice Hugo L. Black: I don't know.

Or there's something else.

I didn't understand it.

Mr. Alan B. Handler: I think that is the ultimate issue of what --

Justice William J. Brennan: But Mr. Handler, wait a minute, I don't know that it is.

As I understand it, and correct me if I'm wrong.

If no costs whatever are assessed against the indigent who's not in prison and whatever the cost may be for a transcript and otherwise even if he loses, the state thereafter -- there's no provision in our law which permits the state thereafter to collect it from the indigent if later on he gets money.

Mr. Alan B. Handler: That is correct.

Justice William J. Brennan: That's right.

Mr. Alan B. Handler: That is correct.

Justice William J. Brennan: The only indigent who has to pay anything is the (Inaudible) in prison and then only to the extent of the 20 cents a day that the state pays him for whatever work he does in prison.

Mr. Alan B. Handler: That is correct.

Mr. Justice Black's question however was --

Justice Hugo L. Black: But I wanted to get out of that was the case.

Mr. Alan B. Handler: That is the case here.

Your question was whether the state has the power to go after indigents in general (Voice Overlap) --

Justice Hugo L. Black: Well, of course the state might have the power to go after an indigent to make him pay the money back but it might if the reason of some special provision which thereby discriminated him against him on account of the fact that they were indigent, still could be barred by the Equal Protection Clause.

Mr. Alan B. Handler: Oh!

I certainly have to agree with that.

Justice Hugo L. Black: Well --

Mr. Alan B. Handler: Of course we (Voice Overlap) --

Justice Hugo L. Black: Then you're -- then the ultimate issue as you see it, do you agree with Mr. Justice Brennan that that's the ultimate issue here?

Mr. Alan B. Handler: That is --

Justice Hugo L. Black: The one he said?

Mr. Alan B. Handler: I agree with his statement of the problem.

Chief Justice Earl Warren: Well, doesn't that raise some equal protection problem?

Mr. Alan B. Handler: I don't think so Mr. Chief Justice.

Getting back of course to your earlier question you indicated that isn't the state being somewhat ambivalent or inconsistent in only searching for costs, transcript costs against the indigent prisoner not going near to the indigent who is not in jail if the state's policy is to discourage frivolous appeals.

And I would suggest by way of the answer that even though this inferentially is probably one of the policies of the statute that there are other considerations that cut across other objectives of state policy which are also entitled some deference.

Chief Justice Earl Warren: What are they?

Mr. Alan B. Handler: Now, the question that would have to be posed by the court, is there any reasonable basis for the State of New Jersey not to collect the costs of litigation against indigents who are not confined to prison, notwithstanding they are under conviction that they have not reverse their convictions.

And I would suggest that the larger policy involved is that these people by virtue of their backgrounds either that they have -- been entitled to parole or that they are entitled to a suspended sentence based upon a sentencing judge evaluation of their personalities, that these people should be permitted to function in society as best they can without the added burden of the state assessing cost of litigation against them.

I think you have a different consideration.

Chief Justice Earl Warren: Let me give you just a specific case and see if there is any discrimination, this situation.

Two men are charged with the commission of the same offense.

They are both convicted.

One of them is sent to prison.

The other one is given probation.

They both appealed.

They both lose.

They're both indigents.

They both were given a transcript.

The man who was convicted and placed on probation, goes out and gets a job and makes $100 a week.

The one who goes to jail gets 20 cents a day or less than a dollar a week.

The state in order to reimburse itself under Section 18 puts a lien on and takes the 20 cents a day that the man in prison makes but has no way of collecting on the fellow who earns a $100 week and doesn't try, the state doesn't try to get that back.

How -- don't you think that's some discrimination?

Mr. Alan B. Handler: I think that that question cannot be answered unless you give some consideration to why in one case a man is sentenced and in another case, he is given probation.

Chief Justice Earl Warren: Well, you're putting it then not on the basis of frivolous appeal.

You're putting it on the basis of who the state thinks are good people and who the state thinks are bad people.

Mr. Alan B. Handler: I think that this is not disassociated from the policy of the statute.

There are several strains that that runs --

Justice John M. Harlan: (Inaudible) another thing, if the state as a matter of (Inaudible) say that the man who's a pauper who is not in jail but who can get hold of these funds that he goes out, the chances of our collecting from such a man isn't worth the candle and therefore is a general manner we're not going to proceed trial.

Mr. Alan B. Handler: I think that there can be that practical aspect of what is a practical consideration by entering --

Chief Justice Earl Warren: But is it --

Mr. Alan B. Handler: (Inaudible)

Chief Justice Earl Warren: But is it worth the candle for the state to collect 20 cents a day, the only money that a man can earn while he's in prison and then let go, free from any obligation at all, the man who goes out makes $100 to $200 a week or more.

Mr. Alan B. Handler: There's no question, they have to do an awful lot of bookkeeping to it.

Chief Justice Earl Warren: Yes.

And it costs them more --

Mr. Alan B. Handler: (Voice Overlap)

Chief Justice Earl Warren: -- to collect that money than it's worth, wouldn't it?

Mr. Alan B. Handler: I'm not prepared to say that but I do want to get back to the distinction between the state's treatment of a person not confined to prison and an indigent who is.

And I think that the greater policy that's being subserved by the state not taxing the cost of an indigent not in jail is that with this type of person, he represents a good risk for the state, for society.

He doesn't deserve a jail sentence and for that reason, he hasn't been confined to jail.

Since he's indigent, undoubtedly, society wants to give him every opportunity to be self-sustaining, to become responsible and it just doesn't make sense with that greater policy to assess him for the cost of an appeal notwithstanding that it was an unsuccessful appeal.

Now --

Chief Justice Earl Warren: Well, isn't that -- isn't that 20 cents a day be given to a man for his work in prison on the theory that it would have a tendency to rehabilitate him?

Mr. Alan B. Handler: Yes.

Chief Justice Earl Warren: Then you want to take that away from him and not take it away from the fellow who's on the outside and have -- make money in an unlimited way.

Mr. Alan B. Handler: But I -- I say yes with this broader answer.

The monetary wage is only part of the compensation that a prisoner gets and it is in fact the less important compensation that he receives.

A prisoner under the New Jersey regulations at the present time can earn as much as 55 cents a day depending upon how hard he is willing to work and what he wants to do.

The most important thing as far as a prisoner is concerned is the remission of time off his sentence.

And --

Justice William J. Brennan: But he earns 55 cents, under this they take the 55 cents, isn't it?

Mr. Alan B. Handler: Well, to pay it off that much more quickly.

Justice William J. Brennan: I know but that's what they take.

Mr. Alan B. Handler: Yes.

Justice William J. Brennan: He ends up with nothing.

He decided to work to get 55 cents, it's pretty well discouraged, isn't it?

Mr. Alan B. Handler: It is except by -- again, I don't know that the question has ever imposed as to whether --

Justice William J. Brennan: Well, this says -- this says that, shall be reimbursed from any institutional earnings of the person.

That's what the statute says.

Mr. Alan B. Handler: Yes, but it doesn't say that --

Justice William J. Brennan: They have to take it all.

Mr. Alan B. Handler: They have to take it all at the same time.

Justice William J. Brennan: Yes.

Mr. Alan B. Handler: But I do want to put before the Court the added thought that under the New Jersey compensation provision that the other element of compensation is remission from the sentence and that under the statute as well as under the regulations governing state institutions prisoners that show by their conduct that they can become minimum security risks can get a much more accelerated credit on their sentence than prisoners that have not (Inaudible) that.

With respect to the argument of the appellant that there has been discrimination in connection with other types of criminal defendants, I would of course urge to the Court that there is a meaningful or invidious discrimination as far as prisoners convicted of capital offenses may be concerned.

But with respect to successful indigents the non-assessment of costs I think is reflected of the general state policy that costs are normal incident to litigation with respect to a losing litigant.

With respect to the unsuccessful, non-indigent, of course the simple answer to that is that he's paid his costs and not only his transcript costs but of course all of the costs of litigation which include his attorney's fees, printing costs, costs of investigation and any other fees that may be involved.

With respect to the argument that there has been invidious discrimination in the application of the statute, I think that the Court must appreciate that the mechanics for the reimbursement of the statute arise upon a request by county officials that reimbursement be had against a particular inmate.

Criminal prosecution of course is handled in the State of New Jersey by their respective counties and so there maybe some unevenness in terms of the overall application of the statute but certainly there is no basis in this record for the assertion that this is discrimination, is invidious or purposefully selected.

Thank you.

Chief Justice Earl Warren: Mr. Lacey.

Rebuttal of Frederick B. Lacey

Mr. Frederick B. Lacey: First I would like to respond to a question put by Mr. Justice Brennan to Mr. Handler.

At page 42 of the record sir, there is a form that Rinaldi was required to sign and this form I think sir answers your question.

You wanted to know if he was paid 55 cents an hour, could they in effect apply the garnishment rate.

Instead the form says all.

Whatever he makes if he should go up to a dollar a day, this form implementing the statute demonstrates the policy that they're going to take everything he makes until he gets this indebtedness paid.

Justice Hugo L. Black: May I ask you a question (Voice Overlap) --

Mr. Frederick B. Lacey: Yes sir, Mr. Justice Black.

Justice Hugo L. Black: Just to the issue, completely clear.

Mr. Frederick B. Lacey: Yes sir.

Justice Hugo L. Black: Is your case in your judgment depend on a holding that a state is without constitutional power to collect back from a defendant that it is required to pay costs, that is without constitutional power to collect that money back if they can, so long as the law doesn't in some way discriminate as between the person to which collect it from.

Mr. Frederick B. Lacey: No sir because that would include the example put to me by Mr. Justice Harlan and in answering him, I said that under certain language, certain phrasing, certain proportion, I would recognize the state had a right to reimbursement.

I say however that in this particular case, this is tied to the right of appeal and I say that this case is a logical extension of Griffin.

It's tied to a right to appeal that's tied to an indigent.

It makes him take the gamble and he logically I would assume that he's faced with the lengthy jail sentence he's going to take the gamble.

But when they thereafter persuade him by this means to assign in full all of his prison earnings, I say that this is a deprivation of his property without due process.

Justice Hugo L. Black: I understand that argument but as far as I'm concerned, as my understanding of Griffin would not go -- does not fit in -- it is not the same.

Mr. Frederick B. Lacey: No sir.

Justice Hugo L. Black: It's wholly distinguishable in this respect.

There we held as to the non-indigent, the right to get his appeal heard because of his indigency would deny him equal protection of the law.

This man here had his appeal heard, so you have to go a little further than the Griffin case.

Mr. Frederick B. Lacey: Yes sir, on --

Justice Hugo L. Black: As you --

Mr. Frederick B. Lacey: I want to make that clear at the outset Mr. Justice Black.

And I stated it as forthrightly as I could --

Justice Hugo L. Black: Yes.

Mr. Frederick B. Lacey: -- that we were not arguing a deprivation of liberty here as was the case in Griffin and you're quite right sir that we are arguing a deprivation of property.

And I am saying that we are not within the holding of Griffin but rather I am arguing a logical extension of Griffin.

Justice Hugo L. Black: Deprivation of property is --

Mr. Frederick B. Lacey: Without due process, yes sir.

Namely the --

Justice Hugo L. Black: You're not relying on equal protection?

Mr. Frederick B. Lacey: Yes sir.

Oh, I thought we were talking at the moment about due process with respect to what he was being -- what he had taken away from him at the moment.

I said in Griffin, I recognized that he was being deprived of this freedom.

In this case, I said that we were arguing that but rather arguing that he was being deprived of his property without due process.

Now, additionally, I certainly --

Justice Hugo L. Black: Well, if (Inaudible)

Mr. Frederick B. Lacey: --they didn't want to waive that sir.

Justice Hugo L. Black: You're relying on the Griffin principle there unless we consider the two as meaning the same and they do -- maybe one of them does substantial includes those but deprivation of property here is in effect, they are in taking his property when others who are in factually the same situation as him do not have their property taken.

Mr. Frederick B. Lacey: Yes sir and you -- yes sir, and I do recognize.

In fact, I proclaimed that inseparable is the equal protection argument in the context of this case.

I think this is what you're asking me and my answer would be that that is exactly the point.

Thank you sir.

Chief Justice Earl Warren: Mr. Lacey, before you sit down, I should like to express the appreciation of the Court to you for having represented this indigent defendant.

I understand you are appointed by the court below and you've carried it through with great diligence.

And we consider that to be a real public service and we feel endeavored to the members of the Bar when they do that and we appreciate your efforts in this regard.

Mr. Frederick B. Lacey: Sir, I'd be remissive.

First, I didn't ask that you also recognize and associate our own office Mr. Thomas Campion who is in the counsel table with me who's --

Chief Justice Earl Warren: Indeed.

The same --

Mr. Frederick B. Lacey: As you must have recognized at most of the work.

Additionally, Justice -- the Third Circuit, Justice McLaughlin was nice in an opinion that he wrote up until we came to the decision line, I hope I don't meet with the same result here.

Thank you.

Chief Justice Earl Warren: Thank you.

And Mr. Handler, I also should like to thank you in behalf of the Court for your very earnest and diligent protection of the rights of your state.

Rebuttal of Alan B. Handler

Mr. Alan B. Handler: Thank you sir.

Featured:

Hardy v. United States - Oral Argument

Wed, 16 Jan 2013 22:47:57 +0000

Case:

Hardy v. United States

Media File:

112_19631121-argument

Related Transcript:

112_19631121-argument

Transcript:

Argument of Mozart G. Ratner

Chief Justice Earl Warren: Number 112, Zebedee Hardy, Petitioner, versus United States.

Mr. Ratner.

Mr. Mozart G. Ratner: May it please the Court, Mr. Chief Justice.

Here on a writ of certiorari to the Court of Appeals from District of Columbia, this case presents the question whether an indigent convict confronted with the District Court finding that his appeal or would be appeal is not taken in good faith is entitled to a complete stenographic transcript to unable his court appointed counsel to search for hidden error.

For us, it is both the beginning and the end of the argument that in the federal system, in the first place under rule 52 (b) hidden error is ground for reversal.

And in the second place that a solvent defendant can provide his counsel a complete stenographic transcript to search.

That brings denial of a complete transcript to an indigent squarely within Douglas against California, "Where the errors are hidden, the indigent has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

The Governments says, “So what?”

The gap is only a product of the indigent's poverty and Government is not required to equalize economic condition.

But when the consequence of poverty is inability to defend a criminal conviction, overcoming the disability is not to equalize economic condition.

It is to equalize the criminal justice under law.

If Government is under no obligation to overcome the disabilities of poverty when it under takes a criminal prosecution or would borrow criminal appeal, why should it have to supply an indigent with counsel or with any record at all?

Government is constitutionally required to do these things because in administering criminal justice, it must overcome disabilities resulting from poverty just as much as it practically can.

In Norvell versus Illinois, this Court held that the State was not obliged to supply a transcript because through no fault of the State, the transcript was simply unavailable.

The inescapable implication is that the transcript had been available.

The State would have been compelled to supply it.

What otherwise could we possibly mean when we claim to provide in our system equal justice under law for the rich and for the poor.

To deny a poor man the appellant review which is available to a convict with money is to mock the very idea of equality, nothing could be more damaging to democracy at home or abroad than the notion that to us, the majestic equality of which the law speaks means only that the rich and the poor alike have no right to sleep under bridges, to beg in the streets and to steal bread.

Justice John M. Harlan: Mr. Ratner, I suggest that (Inaudible) the fact of this case?

Mr. Mozart G. Ratner: The fact of this case Your Honor, that this poor man was denied a stenographic transcript in which his counsel could search for hidden error which a poor convict identically situated could provide to his counsel to search for error in order to defend against the charge of frivolity.

I submit that the right to take the appeal depends upon the right to search for the hidden error in a complete transcript.

And if that is withheld from the indigent conflict, he is being deprived of equal justice under law.

For whatever right of appeal from a criminal conviction, the lower courts in practice to a rich man, it must in practice and able to poor man equally to enjoy and to deny --

Justice John M. Harlan: (Inaudible)

Mr. Mozart G. Ratner: I'm sorry Your Honor, I didn't hear you!

Justice John M. Harlan: If you have gotten any case and if you (Inaudible)

Mr. Mozart G. Ratner: Your Honor this Court is held that to deny a poor man the right to appeal for one of a filling fee, is to deny an equal justice under law.

I said that to deny poor man appeal for warrant of the opportunity to search the transcript -- the trial of which he was convicted is no different to deny him the right to appeal for one of a filling fee because if he had the money to buy the transcript, if he could buy the transcript, he might be find the error and if the error is there and he can't find it, if he had it and could appeal if he found it, you're denying him the equal right to appeal.

Justice John M. Harlan: The Court has also said (Inaudible) that the right to make reasonable steps to protect himself against those appeal of what -- there was a contest to this case for equal protection (Inaudible).

Mr. Mozart G. Ratner: Well, let me say at the onset and I'll return to that in a couple of minutes in more detail, but this dispose it right now.

As far as I'm concerned, any system which makes hidden error a ground for reversal and does it reply a proper observation and notice and preservation of the point below carries with it inevitably the requirement of the opportunity to find the error be accorded.

And when you add to that, that in the federal system, alright, any state system that adds to that the rule that any paying defendant has a right to buy an opportunity to buy the whole transcript then I say juxtaposition this Court is held and I think due process and equal protection both jointly are denied by the denial to the man for indigency of the juxtaposition of those privileges to search in a complete transcript for hidden error.

Justice William J. Brennan: You're arguing this Mr. Ratner the constitutional question?

Mr. Mozart G. Ratner: I'm arguing at a -- all levels Mr. Justice Brennan on the constitutional level, on the policy level, on the level that this is the federal system and not a state system and -- and matters of general (Voice Overlap) --

Justice William J. Brennan: Well, I appreciate it what I'm getting to, whether eliminating this to a constitutional argument or also appealing to the supervisor?

Mr. Mozart G. Ratner: Oh I'm feeling to supervisor power this Court as well as view the Constitution.

This argument happens to be pitched to the Constitution because I think the policy notions permeate if not that far, far enough for my purpose.

Justice Hugo L. Black: The main thing is you're prevailed?

Mr. Mozart G. Ratner: I'm sorry.

Justice Hugo L. Black: Main thing is you are prevailed?

Mr. Mozart G. Ratner: That's right Mr. Justice Black always.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mozart G. Ratner: Correct.

Justice Arthur J. Goldberg: -- in order to pursue their obligations (Inaudible)

Mr. Mozart G. Ratner: That's right.

Justice John M. Harlan: (Inaudible)

Mr. Mozart G. Ratner: That is exactly right Mr. Justice Goldberg.

As a practical matter, absolutely impossible if the error is hidden, and I mean absolutely impossible if the error is hidden to find it without searching this -- the transcript because by definition, if it's hidden, the trial court doesn't know about it.

If it escapes the trial counsel when he tried the case, he obviously hasn't discovered it since the end of trial.

The court reporter on reading it may or may not revealed it, but the chances are he won't because appellant lawyers know generally that the place you get your idea is by reading and pondering a transcript and not by hearing somebody talked about it.

The consequence is that you just cannot meet the yellow standard.

It's impossible to meet the yellow for -- pointed counsel meet the yellow standard without a transcript.

Justice John M. Harlan: This is probably good but (Inaudible)

Mr. Mozart G. Ratner: That is -- that is correct.

I -- my argument is pitched and I tried to indicate that to my answer Mr. Justice Harlan.

My argument is pitched exclusively to those judicial systems in which there is a plain error rule and which a transcript exist automatically for price.

Those are the two -- between premises in the argument, I think they carry even a constitutional verdict.

Justice William J. Brennan: May I ask Mr. Ratner, there was no en banc consideration of this on the Circuit, was it?

Mr. Mozart G. Ratner: No Your Honor there was not.

It was a two to one decision judge may dissent.

Justice William J. Brennan: Was there any application made for en banc?

Mr. Mozart G. Ratner: I made not.

Justice William J. Brennan: I'm just wondering this is -- at least a part isn't rather a local administrative matter that I --

Mr. Mozart G. Ratner: I think -- (Voice Overlap)

Justice William J. Brennan: I wonder whether there was panel determination necessarily should be just positive, was it?

Mr. Mozart G. Ratner: I think that it's broader than a local determination --

Justice William J. Brennan: Well I -- I can appreciate that it is on the constitutional arguments you're making that the --

Mr. Mozart G. Ratner: Well, I think it is even -- even --

Justice William J. Brennan: Even --

Mr. Mozart G. Ratner: -- with respect for the entire federal system but it isn't localized to the District of Columbia.

There is a Fourth Circuit decision that I went in to the other day that became down in May that carries over ton of implications by the Judge Schwellenbach and then in the opinion of the Fourth Circuit.

They too do not believe that the on counsel for indigent is entitled to a complete stenographic transcript search for error.

I think that the minimum what we invoked here is the -- the power of this Court Supervisor Administrative Justice, the Administration of Justice throughout the federal system in the federal courts and not merely the District of Columbia that's not applied there.

Justice William J. Brennan: Whatever the rule is, it ought to be a common application.

Mr. Mozart G. Ratner: Yes I believe so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mozart G. Ratner: Mr. Justice Goldberg, I confess that I'm not (Voice Overlap) --

Justice Arthur J. Goldberg: (Inaudible) I know there is some rule that if (Inaudible)

Mr. Mozart G. Ratner: I think that it did -- well, the notion that the transcript ought to be denied in the federal system is based on the assumption that somehow converses responsible for this result.

And then I think it's based done on misreading of 28 U.S.C. Section 1915.

The assumptions are that under that statute, the indigent unlike the solvent defendant either has the one assumed the burden of proving substantiality or to specify errors as a condition of being allowed to appeal in the form of proverbs.

Now, if either of those disparities really existed, if Congress really provided for that, then a serious constitutional question would be presented.

But copied, as we read it put an end to the first idea.

The burden is not on the indigent but on the Government to prove insubstantiality and there is nothing in the second section which lends the slightest support to the second idea.

All that Section 1915 requires is that the convict state in his affidavit, "The nature of the action defense or appeal and defiance belief that he's entitled to redress."

If the indigent is not required to specify errors at that stage of the case, how can it possibly be argued that Congress tried the indigents appointed counsel to those portions of the record which relate to errors that the indigent pro se has superfluously specified.

The only semblance of plausibility as we see it in the Government's argument is that Section 1915 does say that in appeal may not be taken inform of papyrus, if the trial court certifies in writing that it is not taken in good faith.

The consequence of that provision is that where the error is hidden, the indigenous confronted with the District Court finding of frivolity before his appellant counsel has even with a chance to look at the record whereas the solvent defendant cannot be faced with a challenged on frivolity ground until his appellant counsel has either filed his statement of points on appeal or has filed his brief on the merits.

Rule 75 (b), if the federal has criminal procedures specifically provide that no assignment of errors is necessary, we take it that that is true in the form of papyrus case as much than any other.

It is only if the appellant does not designate for inclusion the complete record at all the proceedings and evidence in the action that he's required to serve with his designation a concise statement of the points on which he intense to rely on appeal.

Now of course, before any paid lawyer would file a statement of points on appeal, he will have coned the entire stenographic record for every piece of reversible error he can possibly find.

Justice Byron R. White: In this Mr. Ratner, a little -- different argument in the -- in the plain error or the hidden error argument that you -- you're just saying that if you're -- a new counsel come in to the case at the appellant state must have the chance or the indigent is entitled to have him and look the record to see what points he wants to make?

Mr. Mozart G. Ratner: Well, I don't know that it's a really different point.

What I'm -- I'm suggesting that even -- even counsel would try the case would be entitled to a second crack at the record.

Suppose he hadn't seen it before, suppose that it hadn't been prepared until the time of the appeal, he would be entitled at the time he noted the appeal it seems to me or requested leave to appeal when he came in to the -- to that stage of consideration of his case.

Suppose he representative throughout, he would be equally entitled to have a complete stenographic transcript to make the initial decision as to whether he's going to take this case up unless than a complete transcript or he wants a complete transcript because that's going to determine whether he makes a statement of points on appeal or not.

And then he can't do until he is studying and finding the transcript and decided what is better in -- in this case.

If paid counsel has that opportunity in accordance with the Federal Rules of Criminal Procedure, if he has that and it's worthwhile that he haven't -- and if for worthwhile he wouldn't -- rules wouldn't provide to him, that account be withheld from an indigent.

Justice William J. Brennan: Well, this is an argument then Mr. Ratner but it's not necessary that they'd be asserted, the grounds solvents sufficiency of the evidence.

Mr. Mozart G. Ratner: Well --

Justice William J. Brennan: This is an argument that you can't even assert that ground until you look at the whole record.

Mr. Mozart G. Ratner: That's exactly right.

My argument comes precise -- on this point comes precisely to that.

It says that the notion that you can require an indigent as a condition of determining either a right to appeal.

Justice William J. Brennan: I don't know whether -- I don't know whether dollars are necessarily a relevant consideration here but if you get any idea that this would run into dollar?

Was there anybody?

Mr. Mozart G. Ratner: I haven't but there are some figures in the amicus brief and there are some figures in the -- quoted in Poverty and the Administration of Federal Criminal Justice, they reported the Attorney General's Committee.

But I am not all sure and certainly the amicus brief persuasively argued at least persuasively to me that the financial burden will not be a heavy one.

For me, I don't reach the question because I just don't think the United States can weigh dollar, the justice on the same scale.

We submit --

Justice William J. Brennan: But nevertheless.

Chief Justice Earl Warren: How long did this case take to trials, you know (Voice Overlap) --

Mr. Mozart G. Ratner: I have no idea Your Honor.

I -- I did never saw the transcript and they didn't give it to me and the part I saw of it was very big, it was one volume.

But I can imagine that it may have been -- oh there's no point in my guessing, I don't know.

Much what I would have known if I had gotten the transcript, I don't know.

We submit that the minimum constitutional condition of requiring indigents to face a frivolity hurdle at an earlier state then solvent defendants have to face it, is that indigent's counsel must be provided with the same opportunity paid counsel have to search the record for ammunition to meet such an effect.

That means that the entire stenographic record must be made available promptly to appointed counsel faced for the finding of frivolity.

The Government says this distracts the tracks unduly from the weight that was be given to the District Court's finding of frivolity, but the Government is very significantly silent about the duty that Ellison poses both on counsel and on the Courts of Appeals to search diligently for error with which to upset the District Court.

It is that word as -- we remarked, determined colloquy with Mr. Justice Goldberg which this Court has never envisage it seems to me before in this context in which requires the result for which we contempt.

Restriction of transcripts to indigents explained as a safeguard against the wasteful abuse of the appellant process.

But as long as the plain error rules stand withholding a full transcript from indigents could be justified only if there were some connection between the defendant's solvency and the potentiality of unnoticed error so that there would be less chance on hidden error in indigent's cases than in other.

Well, there is a connection, alright, but it works just the other way around.

This Court observed in Coppedge that forma pauperis defendants are generally less ably defended in the trial court than solvent one.

Therefore, it is more not less likely that the records in the case of the indigent will contain unnoticed plain error.

Obviously therefore, to make ability to pay the test for opportunity to search a record for unnoticed error is that their impunity of invidious discrimination.

Of course as I say, our argument would have no relevancy in a judicial system in which no appeal can be taken except for errors noted and preserved the law.

This, we think, is all this Court had in mind when it reaffirmed in Draper versus Washington, Griffin statement that a state did not provide parts of the stenographic transcript which are not germane to an appeal nor our courts need we be concerned about problems which may exist when transcript tuck unavailable, for Congress is to make sure that in the federal system, transcripts are available, and where a transcript is available, Government must supply it.

Every appellate lawyer knows that in searching for hidden error, there can be no substitute for a stenographic transcript.

Thank you.

Chief Justice Earl Warren: Mr. Claiborne.

Argument of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.

At the outset, I'd like to bring the case back down to focus if I may and suggest that the question presented here is how likely is it that an injustice will result in these types of cases if a complete transcript is not granted solely on the allegation that the appellate counsel wants to search it for error.

It seems to me, it's that likelihood or unlikelihood, it must be weighed against the cost and against the probability of a wealthy defendant obtaining the same transcript under the same circumstances.

Chief Justice Earl Warren: Let me know how long this trial took place?

Mr. Louis F. Claiborne: Yes, Mr. Chief Justice, it's stretched over three days though the indications to me all that it probably did not take three full days.

For instance, the transcript of the Government's case which was supplied to the petitioner here is only 49 pages long.

Chief Justice Earl Warren: 49 pages.

Did the defendant put in much of a defense?

Mr. Louis F. Claiborne: Only two witnesses so far as I may -- could ascertain which would indicate perhaps no longer transcript of -- is portion of the evidence.

In addition to which, the quests includes, however, wider examination of the jury, the arguments of counsel charged of the judge.

Justice Hugo L. Black: But was this taking stenographical error that they have some kind of dictating machine that can be used?

Mr. Louis F. Claiborne: That I'm not aware Mr. Justice Black.

My impression is that it was taken stenographically but that's -- I think the odds would be in that direction in view of the practice in the District Court in District of Columbia.

I think it varies from court-to-court, with reporter, from reporter-to-reporter.

Justice Hugo L. Black: Of course there could be a question if use -- they took it down where the machine could be a question as to whether Government could be advised to transcribe them.

Mr. Louis F. Claiborne: Yes.

But as I understand my opponent's argument, however, he would be satisfied with listening to a transcription that -- mechanical transcription, if one had been made.

He would insist --

Justice Hugo L. Black: We don't have to decide that case?

Mr. Louis F. Claiborne: No, no, it's correct sir.

But the record in this case is not reflecting what manner of the testimony was transcribed.

At the outset, I'd like to emphasize that the request here for a transcript to search for error necessarily means that a transcript would be available, must be made available to every indigent in every case.

Obviously, if the indigent --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: It may not be but at least, it is important I think, to -- to point out that it's not only those defendants who claim inability to allege error and who must, therefore, have a transcript to search for error, would be entitled to a transcript.

But surely, those who assign error, should by the same standard of equality, be entitled to the remaining transcript to search for additional error.

The notion that a complete transcript should be made available in every case is clearly contrary to every decision on this subject which this Court has rendered thus far.

Mr. Justice Goldberg point out that the Draper decision, which I cite in support of this proposition, involved the jurisdiction which plain error was not noticeable.

That, however, can hardly be said to distinguish Johnson involving the federal courts and Coppedge which clearly implies that only -- it says -- that only such portions of the transcript as are necessary to evaluate the claims actually made, need to be finished.

All of that would have been unnecessary I suggest if a full transcript is required in every case.

Likewise Griffin versus Illinois makes it clear that a full transcript is not required in every case.

It is also clearly contrary to the policy of Section 1950 to acquire a transcript, a full transcript in every case.

Technically, I suppose that the granting of the transcript is not the same as the granting of the appeal.

No argument on that basis has been made.

However, the statute insofar as it addresses itself to the question of a record at all seems to talk of the record being granted after the trans -- after the appeal has been granted.

Likewise, Section 753 (e) of Title 28, envisages a transcript granted after lead to appear in forma pauperis.

In the court below, seemingly recognizing the -- this problem uses the form whereby they grant the appeal to the extent to requiring the Government to furnish such and such portion of the transcript in this case, the whole of the Government's evidence.

The most important hurdle to overcome it seems to me in Section 1915 is the prohibition on appeals in forma pauperis where the trial judge has certified that the appeal is frivolous and not taken in good faith.

Justice Arthur J. Goldberg: (Inaudible) where the Government (Inaudible)

Mr. Louis F. Claiborne: Not at -- not in all cases, no, Your Honor.

Justice Arthur J. Goldberg: It's not all (Inaudible)

Mr. Louis F. Claiborne: No, if it were, I don't think Government would make any argument about making available their copy or a carbon copy to the -- to the indigent.

That Government itself, sometimes later on at the appellate petition stage may for its own information required a transcript which in forma pauperis cases, it usually files in this Court for instance, an opposition to petition.

Unknown Speaker: Yes, it did (Inaudible)

Mr. Louis F. Claiborne: In logic cases.

But I don't think Your Honor in the case of this sought which took two or three days if there would be any -- reform any useful purpose to be said by daily transcript.

Nor do I think that the defense attorney, even with all of his clients' funds that is disposal would require a daily transcript in this sort of short case.

Chief Justice Earl Warren: Mr. Claiborne, under the practice in the District of Columbia, is there any alternative procedure by which a -- an appointed counsel for an indigent and perhaps ignorant defendant might be able to -- to determine whether there is hidden error in the case?

Mr. Louis F. Claiborne: I -- he is, of course, free to interview trial counsel, his own client, the judge, the court reporter and he may be able to under some circumstances, have the court reporter read back to it in the transcript the notes or the stenographic recording if there had been one.

I know of no such common practice, take it in this case, no such request was made and the argument made to Your Honors about the petitioner is that that alternative would be inadequate in any event.

Chief Justice Earl Warren: Do your -- do the appointed counsel for these defendants had the right to demand to the court reporter that he takes his time to read back the transcript in each case?

Mr. Louis F. Claiborne: I can only say to Your Honor that there is no statutory provision one way or the other, that to my knowledge, a court reporter has not refused to accommodate the attorney for an indigent when such request was made, but I'm frank to say that I don't know how often such request has been made.

Chief Justice Earl Warren: Probably that's not made because it can't be obtained.

Mr. Louis F. Claiborne: I'm not --

Chief Justice Earl Warren: Is that possible?

Mr. Louis F. Claiborne: I'm not sure that that's the justified assumption Mr. Chief Justice.

Justice William J. Brennan: Mr. Claiborne, we really ask a lot of non-compensative counsel, don't we?

Chief Justice Earl Warren: I'll say.

Justice William J. Brennan: And now, I'll put on in the burden of going around and interviewing everybody and move the transcript, it didn't strike me as the soundest argument you have?

Mr. Louis F. Claiborne: Well, Mr. Justice Brennan, we must remember that we're dealing with an unusual case in which counsel after the interviews which he would undertake in any event that is an interview of his own client and of the trial attorney, I presume he would do that with or without a transcript, still can make no allegation of error which he himself can label as non-frivolous.

Now, at that point, it is not likely especially in the face of the certificate from the trial judge that there is so-called hidden error.

And perhaps, I should suggest that plain error rule is not fully applicable here.

Rule 52 (b) covers errors which are not timely noticed but which may very well in the memory of the trial attorney come to his mind.

He may remember that he should've objected at one point when he didn't and the plain error rule will protect him but it's not necessary that he referred his (Voice Overlap) --

Justice William J. Brennan: Tell me what happens?

Suppose -- suppose he's got all through this interview process after talking with the defendant, the witnesses, the judge and court reporter, he concludes that there's a serious question whether the Government had presented sufficient evidence to support a conviction.

He makes that assignment of error.

How does he support it on the appeal without a transcript?

Mr. Louis F. Claiborne: I think -- at once, he has made that assignment of error Your Honor.

He will be furnished a transcript --

Justice William J. Brennan: Automatically?

Mr. Louis F. Claiborne: Without opposition from the Government and under the rule of the Court of Appeals for the District of Columbia at least in the Ingram case, his allegation no matter how conclusory, no matter how unsupported, provided it is a specific allegation of error will earn him so much of the transcript as is necessary --

Justice John M. Harlan: He got that (Voice Overlap) --

Mr. Louis F. Claiborne: -- to dispose of their claim.

Justice John M. Harlan: Didn't he get that kind of a transcript in this case?

Mr. Louis F. Claiborne: In this very case, the petitioner said --

Justice William J. Brennan: As of -- as of the Government's evidence.

Government evidence.

Mr. Louis F. Claiborne: As to the Government's evidence on the claim of insufficiency of the evidence which normally would be tested out for the Government's proof.

He did not come back and say, this is insufficient for me to judge the substantial -- the sufficiency of the evidence.

Justice William J. Brennan: Well may I ask, is the practice and factors that if counsel with or without interviews, assigns as a ground of appearance, sufficiency of evidence automatically without further inquiry.

He gets a transcript to the Government's proof?

Mr. Louis F. Claiborne: Well, I've -- I should say to say to Your Honor that the present practice in the District of Columbia Circuit under the Ingram decision, is to assign counsel and to furnish at the one and the same time such portions of the transcript as seem necessary to evaluate the pro se claims of error made by the indigent which normally or often includes one of insufficiency of --

Justice William J. Brennan: But he usually says, “I wasn't guilty."

Mr. Louis F. Claiborne: Yes.

Justice William J. Brennan: And I suppose that carries with it the legal jargon, wasn't enough evidence to convict.

Mr. Louis F. Claiborne: At that point, counsel is then free to -- as traditional transcript, if he can in good faith, make additional claims of error based on his investigation or based on his examination of the question that has (Voice Overlap) --

Justice William J. Brennan: Of course to the situation in this case presents does it?

Mr. Louis F. Claiborne: At -- this case is decided before this new practice.

Justice William J. Brennan: I see.

Mr. Louis F. Claiborne: But nevertheless, counsel initially suggested insufficiency of the evidence as had the petitioner on that basis he was given a transcript to the Government's evidence.

He then returned to the Court and said, on that basis of my examination of this transcript, on the basis of my interview of trial counsel and of my client, I can make no claim of error whatever, in effect of abandoning his claim of insufficiency of evidence.

But, there may well be some plain error which a full transcript would disclose.

Justice William J. Brennan: On description of evidence or overzealousness by the prosecutor or erroneous charge or something like that, (Inaudible).

Mr. Louis F. Claiborne: We do point out that he did not exhaust the investigation which he might have undertaken.

No indication that he approached the court reporter of -- or the judge or any witness in the case, nor did he furnish the Court of Appeal with any summary of the cases he had been able to reconstruct it from the infuse he did conclude, leaving the Court of Appeal in the position of having to rule abstractly as this Court perhaps is forced to rule abstractly whether in any case, it is sufficient to say, “I want a transcript to search for error.”

Justice Arthur J. Goldberg: Mr. Claiborne, (Inaudible)

Mr. Louis F. Claiborne: I must --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: I must concede Your Honor that it is a burden on appointed counsel to make this investigation.

I would suggest that in a great many cases, a conclusory allegation of error can be made without exhausting all available avenues and the Court does not require counsel to exhaust all other investigation.

If he can on the basis of one interview, say I have good cause to believe that the evidence may have been insufficient, the Court will promptly grant him transcript to at least the Government's evidence.

Justice John M. Harlan: Suppose one must start with the premise that the Congress has spoken on this subject and right here only, has limited the transcript in respects that he's now being contended and should not tolerated.

And therefore, a real question is here, whether or not that limitation by Congress is unconstitutional or whether as an exercise of supervisory power.

The Congress having rejected this broad formula, this Court always step into the picture, that's the real essence of this problem, isn't it?

Mr. Louis F. Claiborne: Exactly Your Honor.

I would say that I -- here in a sense more on behalf of Congress so the Department of the Treasury then the Department of Justice.

A point of view of the Department of Justice, it might be most desirable to have a transcript in every case.

Justice John M. Harlan: I would say.

Mr. Louis F. Claiborne: Also the Government's benefit and for the benefit of the indigent, and it would spare the Government the need of filing oppositions to motions believe to have a transcript of leave to appeal.

In answer to Mr. Justice Goldberg's question, it is I understand the practice in the District of Columbia, a practice initiated by the United States Attorney.

Chief Justice Earl Warren: Would you talk a little louder please?

Mr. Louis F. Claiborne: I'm sorry.

A practice initiated by the United States Attorney not to oppose the granting of a complete transcript in any case in which the cost thereof would not exceed $200 which is a practical matter and usually it means, any case tried in less than three days -- in three days or less.

The Court I understand inevitably grants such a transcript upon the Government's failure to object.

Chief Justice Earl Warren: Well, does that seem fair to put a price tag on -- on these things -- on these transcripts and say that if a -- if a defendant has a short trial, it only takes a day or two where there's perhaps little opportunity for air, if he's entitled to a transcript or that if he has a rather long, hard-fought trial where error often is committed?

If it is committed, that he's not entitled to the same thing, is that -- do that seem reasonable?

Mr. Louis F. Claiborne: No, I must agree with you Your Honor that there is no basis in terms of equality for distinguishing between the short trial and the long trial.

Chief Justice Earl Warren: Why do they do it there?

Mr. Louis F. Claiborne: It is simply that we do the best we can now.

It has been determined that in terms of cost to the Government, it is no more expensive to have the transcript prepared than to file the opposition and waste the time of the Government attorneys and of the court in judging this motion without the benefit of the transcript.

Chief Justice Earl Warren: Well, has Congress intimated that in the long, hard-fought trial, a defendant is entitled to -- to less protection than he is in a -- in a short probably, very simple trial?

Mr. Louis F. Claiborne: Mr. Chief Justice, I don't want to suggest any impropriety on the part of the United States Attorney's Office but I'm -- I'm not sure that their procedure informal as it is, is authorized by the statute.

I agree that the statue makes no distinction between expensive and cheap transcripts and therefore -- or perhaps if it were a question of the Government's taking any active role in furnishing a transcript in one case or the other, it would be improper.

All they actually do is not file an opposition and the Court, by its order, tested understanding I suppose grants the transcript in those cases, on the ground that their cost factor is no longer an important element to be weighed in the balance.

Unknown Speaker: (Inaudible)

Justice William J. Brennan: Qualify within that --

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: I notice here that as -- as report of the Mr. Clark Committee, a transcript of a three-day trial will generally cost less than $200 to prepare --

Mr. Louis F. Claiborne: That --

Justice William J. Brennan: -- I thought -- you thought this trial probably did not take three-full day.

Mr. Louis F. Claiborne: You -- you're quite right Mr. Justice Brennan.

And the explanation is that the practice is -- came after this case.

Justice William J. Brennan: Oh I see, this new practice.

Mr. Louis F. Claiborne: This case in fact in many respects, is the very strange animal.

It could not occur today under the practice of the Court of Appeals.

Justice William J. Brennan: Well suppose we send it back to the District and we consider and let it the practice that of (Voice Overlap) --

Mr. Louis F. Claiborne: That is precisely the disposition which the Government has suggested.

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

I mean if (Inaudible) probably get it.

Chief Justice Earl Warren: Well, would not be put in the stamp of approval on what you, yourself have said, is not a fair differentiation?

Mr. Louis F. Claiborne: I don't suggest that on remand, the transcript would necessarily be granted.

The Court in the Ingram case itself, in which it announced the new rules said, this is for the future and now as to the cases in the past, we must require counsel to make some claim of error.

That never happens today because the indigent pro se makes some claim of error before his counsel has a chance to disavowing and therefore, he gets some transcripts.

Under the new practice, this result had been happened.

I will say, in answer to the Chief Justice that we do feel it necessary for the Court to determine before remanding this case that it should agree with us, that there is not a right to a complete transcript in every case, merely to search for error.

If the Court should agree with the petition on that proposition, there would be no purpose served in remanding the case.

Now, as to --

Justice Hugo L. Black: If the charge that's been in the transcribed, was anything transcribed in this particular case except the Government's evidence?

Were the preliminary proceedings transcribed?

Mr. Louis F. Claiborne: There was a motion to suppress the evidence which was transcribed and was made available before trial to the petitioner and he's then -- his trial counsel.

We reproduced in appendix to our brief the indictment and the judgments.

Justice Byron R. White: Mr. Claiborne, the uses -- would you have one rule for cases of which trial counsel is the appellate counsel also in one -- the different rule for cases where your appellate counsel had been assigned?

Mr. Louis F. Claiborne: I wouldn't think Mr. Justice White, that there would be justification for such a rule where appellate counsel is -- where a trial counsel is freely available to appellate counsel.

If any error -- well, let me put it the other way, if the trial counsel is unavailable, then there is reason to afford appellate counsel another method of learning something informative about the trial from someone who was in position because a lawyer to appraise it properly.

Justice Byron R. White: Such as the transcript.

Mr. Louis F. Claiborne: Such as the transcript and then the Court of Appeal has recognized that in a case where trial counsel had died, the United States Attorney who is normally consulted had left Government service, then the Court realized that the only practical way for appellate counsel to do his job was on a full transcript which the Court did order.

But in very Ingram case, the case which follows this one and the light of which we suggest this case should be remanded, the Court distinguished between that unusual situation where trial counsel is no longer available and the normal situation where he can be consulted.

Justice William J. Brennan: Mr. Claiborne, certainly, there's pending legislation on providing trial counsel, as I recall it has provisions of one kind or another for the expenses of discovery of discovering that sort of -- I take it at that legislation has nothing in it which bears on our problem, does it?

Mr. Louis F. Claiborne: I think not, Mr. Justice Brennan, but I -- I must submit that I have not researched it.

I think I should point out in conclusion that there is a realistic chance that by granting a transcript to every indigent defendant, whom is unable to make any claim of error despite consultation with his client and with trial counsel, and in the face of a certificate of frivolity by the trial judge will be given more than the moneyed defendant.

That chance seems to me, at least equal to the chance of an injustice resulting from the denial of transcript under these unusual circumstances.

In the best of all possible wills, everyone, rich and poor, would be given a free transcript but no one has suggested that nor would that be by any stretch of the imagination possible under the existing statutes.

Chief Justice Earl Warren: That has been done in my State for over 50 years --

Mr. Louis F. Claiborne: And that might --

Chief Justice Earl Warren: -- in my own personal knowledge.

Mr. Louis F. Claiborne: Mr. Chief Justice that is a truly equal rule.

Chief Justice Earl Warren: As in bankrupted of the State either.

I doubt -- I doubt if we have many more appeals in California than they have in other jurisdictions that supply no transcript when they can get out of it.

Mr. Louis F. Claiborne: But there is a difference between that rule which treats everyone alike, truly treats everyone alike and the rule which requires the man with money who is unable to make the affidavit of poverty to weigh the -- how worthwhile it is to pay for a transcript.

He may well decide unless his sentence is severe or unless his attorney advises him that there's some real point in appeal not to buy transcript merely on the hope that some error will be found there.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: I suggest Your Honor that it does not fully answer the question to say that indigent appeals are not frivolous.

Certainly, there have been many indigent appeals which are well-taken.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: I -- I think Your Honor had it any criminal penalty or severe criminal penalty as opposed to a light one.

And that would get in -- get us into another problem whether there was any basis for distinguishing between the man who had a 10-year sentence to the man who only had a two-year sentence.

Justice John M. Harlan: May I ask you a question Mr. Claiborne?

Assuming that (Inaudible)

Mr. Louis F. Claiborne: I think the Court would insist on counsel's giving the Court a little more information.

If he gave the Court more information about the case and still insisted that he was unable to discover any basis for error, having already received the Government's evidence, I think the Court might well deny any further transcript, and ultimately might well deny the appeal after looking at the Government's transcript.

On the other hand, that decision, Ingram was a two to three decision -- a two to one decision.

Dissenting view was that the new rule should be applied retrospectively and that view may very well prevail on the remand of this case.

In which event, since the petitioner pro se made sufficient allegations to require in the entire transcript, he would receive an entire transcript.

I can't confidently predict what would happen in the Court of Appeal.

One question I think, I should in or kindly advise the Court as to the cost of indigent transcripts, it has gone up very measurably from -- in 1960, the Administrative Office advises me the cost of the transcripts in criminal cases to indigents criminal cases involving United States of course 74,500, last year, fiscal 1963, $145,000.

Justice William J. Brennan: Is this a district only?

Justice Potter Stewart: Nationwide is it?

Mr. Louis F. Claiborne: It's a nationwide.

Justice William J. Brennan: Nationwide.

Chief Justice Earl Warren: I see.

Mr. Louis F. Claiborne: That -- to that must be added the cost of printing joint appendix of the cost are involved in processing these appeals but the cost of joint appendix would not exceed about $20,000 under -- assuming the number of appeals provided here.

This has nothing for the cost of a program which would allow every case be prosecuted with a full transcript.

Chief Justice Earl Warren: Mr. Ratner.

Rebuttal of Mozart G. Ratner

Mr. Mozart G. Ratner: May it please the Court.

To me, the one thing that Mr. Claiborne's discussion of the shifting sands of Court of Appeals policy has done is to demonstrate that there is no basis for the assumption which Mr. Harlan indulged when he asked Mr. Claiborne what this case was about.

Namely, whether assuming Congress has spoken on this subject, then are we who reverse Congress.

If Congress has spoken on this subject, how does it happen that the Government and the Court of Appeals can decide to grant indigents without making anymore claim of error than has been made in this case, a full transcript if the cost is under $200 but not if it's over it?

Where in the statutes does it say that it equals an appeal to give a transcript if the cost is under $200 but it doesn't equal an appeal if the cost is over $200?

Where in Section 1915 or any other statute of the code does it say that in order to honor the District Court's certificate of frivolity, you must deny a transcript to an indigent in order to permit his counsel an opportunity to prove that the District Court is wrong?

The fact to the matter is that this policy of the Court of Appeals are requiring counsel to come forward with some assurance to the Court that they have done a job of investigation.

It seems to me, it can do nothing but to lead, to invite something less than complete candidate for counsel.

How can counsel in good faith say that there's a substantial basis to allege that there is inadequate evidence in the record that the District Attorney has been unduly pierced in his attack upon the defendant if he hasn't read what has been said?

Whose word is he to take of this?

Is this the way we expect lawyers to operate?

Is this the kind of representations to the Court have a right from expect from Bar?

I don't believe it and I think that to avoid what to me is an unseemly business, this Court in the exercise of its supervisory power should demand that lawyers' function in a way that appellate lawyers always function.

By reading a transcript, they can possible lay their hands on it in making statements based on fact instead of hypothesis and suspicion.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mozart G. Ratner: I believe that that's correct Mr. Justice Goldberg, but I can't answer that at my own knowledge.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mozart G. Ratner: You -- you are probably right.

I -- I just can't --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mozart G. Ratner: What I suggest to the Court, Congress really has decided.

It's the problem that Mr. Claiborne would set it large.

Congress has really decided the defendants who can afford to pay for transcripts should pay for it.

And by allowing indigents to appeal, whenever they haven't got a frivolous case, Congress has necessarily decided by implication that the Government could -- should pay for their transcripts because without it, we just cannot know whether their case is frivolous or not.

Thank you.

Chief Justice Earl Warren: Mr. Ratner, I understand you're reported by the court below to represent this indigent -- indigent appellant and you represented him there and here and I want you to know that the Court appreciates that kind of service on the part of employers.

It's a public service and one must -- well-done.

We thank you very much.

And Mr. Claiborne, I thank you for your very fair, frank representation of the Government in this case.

Mr. Mozart G. Ratner: Thank you very much (Inaudible).

Featured:

Norvell v. Illinois - Oral Argument

Tue, 25 Sep 2012 22:36:05 +0000

Case:

Norvell v. Illinois

Media File:

513_19630424-argument

Related Transcript:

513_19630424-argument

Transcript:

Argument of Thomas P. Sullivan

Chief Justice Earl Warren: Number 513, Willie Norvell, Petitioner, versus Illinois.

Mr. Sullivan.

Mr. Thomas P. Sullivan: Mr. Chief Justice Warren, Honorable Members of the Supreme Court.

This case is here on certiorari to the Supreme Court of Illinois and it comes here as an aftermath to the case of Griffin against Illinois in 351 United States.

This case presents the question whether a convicted defendant whose poverty has precluded him from obtaining appellate review and therefore prevented the trial proceedings that were begun against him from being completed is entitled to a new trial.

The facts in this case are these, the petitioner Willie Norvell was an 18-year-old colored boy in 1941.

He and his brother James and his brother-in-law Edgar Shepherd were indicted for murder.

The petitioner at that time and at all times between then and now was indigent and have no money, whatever.

However, his family retained counsel to represent him at the trial.

The defendants waive trial by jury and were trying before a judge in the criminal court of Cook County.

The -- at the conclusion of the trial, all three defendants were found guilty.

Petitioner, Willie Norvell, was sentenced to 199 years in the Illinois State Penitentiary.

The other two defendants were each sentenced to 50 years imprisonment.

At the conclusion of the trial, Mr. Norvell's family no longer had funds with which to retain counsel and counsel did not represent him at any time between 1941 at the end of the trial and 1961 when I was appointed to represent him by the Supreme Court of Illinois, nor did the family have any money with which to buy the trial transcript which as Your Honors know this is necessary in order to present a case to the Illinois Supreme Court, a criminal case in Illinois.

Nevertheless, efforts were made by the petitioner to determine the cost of a transcript.

An order was entered in the trial court extending the time within which the transcript could be filed and certified but -- and this, Your Honors, is undisputed in the records, solely because the petitioner had no funds.

Solely because he was a pauper, he was unable to obtain the transcript in 1941.

The time expired for the certification of the transcript.

He went down to jail to begin the service, 199 years sentence.

Justice John M. Harlan: Up today -- up-to-date this is all pre-Griffin?

Mr. Thomas P. Sullivan: Yes, Your Honor.

This is all 1941, and Mr. --

Chief Justice Earl Warren: How was -- how was that represented to the Court, his indigency at that particular time?

Mr. Thomas P. Sullivan: So far as this record shows, Mr. Chief Justice, there was no representation made to the Court in 1941 of his indigency.

He was represented at the trial and the record we have doesn't show that they talked about pauperism or wealth or poverty.

He was convicted.

A judge who was entered against him, the sentence was imposed and that's the last thing we have other than an order extending the time for filing the transcript for 90 days.

In other --

Chief Justice Earl Warren: But -- well, how would they -- assuming that Griffin does apply as of that date, how could it be expected that the Court would know that he was indigent and that he was in need of a free transcript, and that the Court should have given him one?

Mr. Thomas P. Sullivan: So far as this record is concerned, Your Honor, there is nothing that shows that the trial court in Cook County knew that Norvell was a pauper in 1941.

There is nothing in this record.

There is a provision and was at that time in Illinois law that the trial judge could order a transcript to be prepared at State's expense, but there's nothing on the record to show that the court was informed that Norvell was a pauper.

Is that --

Chief Justice Earl Warren: Well, yes.

I was just wondering what effect that would have on all prisoners who are in prison at the present time but who before Griffin made no representation to the Court as to indigency at all and no transcript was given to them.

No request made for a transcript.

Mr. Thomas P. Sullivan: No request made then.

Chief Justice Earl Warren: How could the State be at fault in not providing a transcript under those circumstances?

Mr. Thomas P. Sullivan: Your Honor's decision in Griffin against Illinois of course was not speaking just as of 1956 when that case was decided but the Court held that Illinois always was under a constitutional obligation to do that.

Now --

Chief Justice Earl Warren: Yes.

That isn't the point I'm making.

The point I'm making is this.

Why would -- how would the State be charged by not giving a transcript to a person because he was indigent if there was no representation made to the court that he was an indigent and that he needed the transcript and wanted one, a free transcript because of his indigency?

Mr. Thomas P. Sullivan: Well, Your Honor, I would answer that in this two-fold fashion.

In the first place, I think that the State of Illinois will concede today that if in 1941 the court was informed that the man was indigent and did ask for a transcript, that transcript would not have been granted.

It would have been denied.

Secondly, when in 1956, the Illinois Supreme Court on remand in the Griffin case wrote its rule to comply with Griffin.

They stated that everyone, whenever convicted, should be given a free transcript and no distinction was drawn as to whether or not a request had been made by the defendant at the time of his trial or conviction.

And it is our position that the classification that has been established by the State of Illinois.

Now, the outcome of that classification is arbitrary, capricious and unconstitutional.

Chief Justice Earl Warren: But was -- was there anything in that order to say that he was entitled to it regardless of his indigency?

Mr. Thomas P. Sullivan: The --

Chief Justice Earl Warren: Regardless of his indigency?

Mr. Thomas P. Sullivan: The rule provides, Your Honor, that if the defendant who is -- who was tried before the Griffin decision, files a petition in the court in which he was convicted before a certain date and states that he was a pauper at the time of his conviction and is still a pauper, then he is to be given a free transcript.

Chief Justice Earl Warren: If he merely states that fact now, not whether he doesn't make -- it depends on whether he was at that time a pauper.

Mr. Thomas P. Sullivan: Well, of course the Court -- I assume the Court could hold a hearing to determine whether the statements in his petition are true.

Chief Justice Earl Warren: It'd be pretty hard after 20 years, wouldn't it --

Mr. Thomas P. Sullivan: Well, it might be, Your Honor.

Chief Justice Earl Warren: -- to point out whether the man was indigent --

Mr. Thomas P. Sullivan: It indicates --

Chief Justice Earl Warren: -- when he had a -- when he had a paid lawyer?

Mr. Thomas P. Sullivan: That -- that may be, Your Honor.

It might be hard to determine it but in this case, the petitioner did file such a petition after the Griffin case was remanded and that rule was written.

Chief Justice Earl Warren: Yes.

Mr. Thomas P. Sullivan: There was an order entered by the criminal court of Cook County finding that he was indigent in 1941 and still indigent.

And he himself testified in the proceedings held in 1961 and testified to that fact when there is no dispute about that in the record whatsoever.

Chief Justice Earl Warren: I see.

Justice Arthur J. Goldberg: Are you referring to the finding of this trial, page 42 of the record?

Mr. Thomas P. Sullivan: I believe that's correct, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Thomas P. Sullivan: That is correct, Mr. Justice Goldberg.

And I'm also referring to the testimony of the petitioner himself in 1961 appearing at page 42 of the record which said, “I did not have a penny at the time of my trial from the time I went down the Stateville in 1941 until today I have not had any money,” except for a few dollars that he got from being a guinea pig in some of these injection matters that they have.

In 1956, going back now to the facts, if the Court please.

In 1956, this Court decided the Griffin case and as I have stated, Illinois -- then, the Illinois Supreme Court promulgated its Rule 65-1, providing that those convicted before the Griffin case could obtain a free transcript if they filed a verified petition in the trial court containing certain allegations.

Mr. Norvell, the petitioner here, filed such a petition in 1956.

The -- an order was entered directing the court reporters to prepare the transcript.

It was found that a full transcript was necessary in order to present to a reviewing court the errors that he stated were made at the trial.

Nothing further was done in the case between 1956 and 1961 when I was appointed to represent Mr. Norvell by the Supreme Court of Illinois.

At that time, upon checking into the matter, we discovered that two reporters were present at the time of his trial and one of them had died in 1949.

Hearings were then held in the criminal court of Cook County, and as a result of those hearings, the following facts appear without any contradiction in this record.

Half of the transcript of the 1941 trial is missing, including all of the State's proof and sheet.

There are approximately 200 to 250 pages of actual transcript that are -- were contained in the deceased reporter's notebook.

Further, no one can read the notes of this deceased reporter.

Efforts have been made not only in this case but in a prior case, the Oscar Bragg case in which I represented Mr. Bragg and it was to the Supreme Court of Illinois twice to construct -- to read the notes of Mr. E.M. Allen.

Efforts were made throughout the country to find a court reporter who could translate these notes and we were not successful.

So that we have the facts in this record, half of the transcript is missing, there notes are eligible and we called witnesses back, all the witnesses we could from the 1941 trial to try to reconstruct the missing portions of the trial and none of these people could recall the testimony that had been given back in 1941 at that trial.

So that we have half of the record, including none of the State's case and sheet, whereupon we moved for a new trial.

The motion was denied, we appealed to the Supreme Court of Illinois.

The court unanimously affirmed the order denying the motion for a new trial and the cases before this Court on certiorari raising issues under the Fourteenth Amendment to the federal constitution.

It is our position, if the Court please, in this case that the legal proceedings which were begun against Mr. Norvell in 1941 have never been completed.

In the Griffin case, this Court recognized that appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant.

And that to deny appellate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside.

The petitioner here has never had that appellate review.

His conviction may be unjust.

Not only has he never had the appellate review which is guaranteed to him by the constitution and the laws of Illinois, he never can have it insofar as his 1941 trial is concerned.

The approximate cause of this situation is two-fold, I believe.

It is first that in 1941, Illinois unconstitutionally failed to make available to paupers, convicted of crime, free transcripts of the trial or some other means by which they could obtain review.

And then we have the continuance of that situation until the State's official reporter died in 1949 and it has been discovered that the State's official reporter took a system of shorthand notes that no one now can read.

Therefore, there is no question about that, if Mr. Norvell had had funds in 1941, he would have been able to obtain review of his conviction.

Because he had no funds, he could not do it and now he can never do that.

We think not only that Illinois violated Mr. Norvell's rights in1941 when he was convicted but also that the classification that has been established by Illinois is arbitrary and capricious and violates the Fourteenth Amendment.

Illinois -- the Illinois Supreme Court as I mentioned earlier in response to the Chief Justice's question has ruled, in there ruled and written in response to this Court's opinion in the Griffin case, that any person who was convicted before the Griffin case, is entitled to a free transcript if he files a petition setting up certain facts within a certain time and Mr. Norvell did that.

What we have here as the thing has worked out is that Illinois says, “We will grant relief to you if your court reporter is still alive or if he is dead if he took a legible system of notes.”

We submit that this classification of granting review to all persons except those who had -- court reporters who died in the interim and who took a system of shorthand notes that cannot be read is more arbitrary and capricious than granting -- than denying review to persons who are poverty stricken.

And because as Mr. Justice Harlan pointed out in his dissenting opinion in the Griffin case, the State does not cause a person to become poor but -- and perhaps the defendant himself has -- by his wastefulness has brought about his poverty.

But how can Mr. Norvell be charged with the help of the State's official court reporter or the way in which he took notes back in 1941.

We say that if Illinois as it has applies the Griffin rule retrospectively, it must do so without regard to whether the court reporter who took notes if the trial is still alive and without regard to whether or not that court reporter used the system of shorthand which cannot be read.

Justice John M. Harlan: To put -- If I get your argument correctly, to put it crudely, you're saying that it's an unreasonable classification for the State to distinguish between the possible and the impossible?

Mr. Thomas P. Sullivan: That is one way of putting it, Mr. Justice Harlan.

Justice John M. Harlan: Well, isn't -- isn't that the substance of it?

Mr. Thomas P. Sullivan: I think that it should be put this way.

They say, “We'll give you a transcript if we can.”

That's about the size of it and I say that that's an unreasonable classification when you ask, “But why can't you give Mr. Norvell a transcript?”

And the only reason you can't do it is because his reporter is dead and he didn't use a legible system of notes.

Justice John M. Harlan: Neither of which events was attributable to any fault on the part of the State?

Mr. Thomas P. Sullivan: Nor is it attributable, Your Honor, to any fall on the part of the defendant.

Justice John M. Harlan: Oh naturally -- naturally.

Mr. Thomas P. Sullivan: However, I suggest to the Court that if Illinois had granted Mr. Norvell his full constitutional rights in 1941 this problem would not have arisen.

So that to the extent there is fault, the fault lies with the State and there is no fault lying with the defendant in the case, the petitioner here.

Chief Justice Earl Warren: Did I understand you correctly to say that even in 1941 the judge -- trial judge was empowered to grant a free transcript if he desired to?

Mr. Thomas P. Sullivan: Yes, Your Honor.

And the --

Chief Justice Earl Warren: Yes --

Mr. Thomas P. Sullivan: -- the citation to the Illinois statute is --

Chief Justice Earl Warren: Yes.

Mr. Thomas P. Sullivan: -- in the statement of facts in our brief.

Chief Justice Earl Warren: Yes.

Mr. Thomas P. Sullivan: Granting a new trial to a person whose trial transcript has been become unavailable in a criminal case is the routine relief granted by courts throughout the United States.

We have cited many cases in our brief from courts all over the United States in which new trials have been granted to convicted defendants where the trial transcript is unavailable and therefore appellate review is not possible.

The reason of course is that the reason for the foreclosure of appellate review is not ascribable to the defendant.

He will be deprived of an important right and integral part of the trial system.

And in order that an injustice not be done in light of the fact that the proceedings cannot be completed, the proceeding is started all over again.

The Illinois Supreme Court in Clyde Castle case cited in our brief recently granted a new trial to a convicted defendant who was unable to obtain a transcript for appeal.

We say that if Mr. Castle is entitled to a new trial under these circumstances, the Equal Protection Clause requires that Mr. Norvell likewise be granted a new trial.

Justice William J. Brennan: (Inaudible)

Mr. Thomas P. Sullivan: They did not advert to the Norvell case.

I should correct myself, Mr. Justice Brennan.

The Castle case was decided before the Norvell case.

The opinion in the Castle case was not published and it was not called to my attention until after I had submitted my briefs in the Illinois Supreme Court.

So I did not confront them with the conflict.

But it was shortly before they decided the Norvell case, so presumably they had it in mind when they wrote the opinion.

Castle was convicted after the Griffin case, Norvell before him.

Perhaps that's the ground of distinction --

Justice William J. Brennan: Which made no reference here to the case --

Mr. Thomas P. Sullivan: That is correct, Your Honor.

There is no question, if the Court please, about the fact that review is needed in Illinois.

We have cited in an appendix to our brief the many, many, many cases that have been reversed in Illinois solely as a result of this Court's opinion in the Griffin case.

There are over 50 case since 1956 in which convictions has been thrown out entirely or gross error has been found at the trial and the Court has determined that appellate review was necessary.

Justice John M. Harlan: Is there anything to indicate or is it possible to say without the transcript what kind of trial errors the client would assert if he had an appeal -- if he didn't have an appeal?

Mr. Thomas P. Sullivan: There's only this, Your Honor.

The defendant made a confession apparently and that confession is part of the record in this case and that confession starts at page 21 of the trans -- of the record.

And that was introduced against them at the trial.

A motion to suppress the confession was made by the defendant.

We don't have the hearings on the motion to suppress but at page 20 of the transcript, the trial judge said this to the state's attorney at the conclusion of the State's case.

I want to state the situation for the record, this is at page 20.

If the confessions as to, as to two of these boys are stricken, there is no testimony whatsoever against them outside of the verbal statements if there are any in the record that incriminate these boys.

And then the state's attorney says, well as to Willie Norvell, who's the petitioner here, he thinks that Officer Negrin (ph) testified through an oral confession and the judge said, “Well he didn't he remember it but we better -- we'll talk about it when we talk about the motion to suppress on Monday.”

So the trial judge was concerned about the adequacy of the proof.

I don't know what the ground of the motion to suppress was.

I don't know what any of the evidence was, Your Honor.

But I think that this is the kind of a case where appellate review might be necessary and if it -- if we have the whole record, we may find that the confession was unlawfully obtained from this 18-year-old moronic-Negro boy back in 1941 and that the entire conviction would form.

I just don't know.

The --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Thomas P. Sullivan: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Thomas P. Sullivan: Yes, Your Honor.

It so happens that I have become very familiar with this problem.

And Mr. Wines and I in 1958 argued against each other in the Court of Appeals in the Westbrook case which is much discussed in the brief.

It happens that I was appointed to represent Charles Westbrook, Oscar Bragg, Willie Norvell here and I also represent a man named Claude Dickerson, who -- who however paid me a fee, my only criminal fee case.

So far as I know, there are five such cases in Illinois.

One is the case McKee pending here on petition for writ of certiorari undoubtedly pending the outcome of this case.

Justice William J. Brennan: What was the name of that?

Mr. Thomas P. Sullivan: McKee, it's cited in my brief.

Another is the Leodis Smart case, pending before the Court of Appeals for the Seventh Circuit awaiting the out case -- outcome of this case.

The third is the Claude Dickerson case, whom I represented Mr. Dickerson.

He was paroled and withdrew his writ of error from the Supreme Court of Illinois.

The fourth is the Oscar Bragg case cited in these briefs, Mr. Bragg died pending the appeal to the Illinois Supreme Court.

That case presumably would have been argued here instead of this case if he had lived.

The fifth is the Westbrook case which Mr. Wines and I argued against each other in 1958 in the Seventh Circuit and Mr. Westbrook has been granted a new trial and had been released.

Those are the only cases that I know about.

They talk about a mass exodus from the jails throughout the country.

I don't think it's true.

Justice Potter Stewart: There are only two live cases so to speak --

Mr. Thomas P. Sullivan: These one and two others --

Justice Potter Stewart: This one and one other?

Mr. Thomas P. Sullivan: Well, this one and the McKee and the Smart case, three, one in the Court of Appeals for the Seventh Circuit, one waiting here and this one.

Chief Justice Earl Warren: We'll recess now.

Mr. Sullivan, you may continue your argument.

Mr. Thomas P. Sullivan: Your Honors, I have concluded my opening argument.

Chief Justice Earl Warren: You may, you may preserve your time.

Mr. Wines.

Argument of William C. Wines

Mr. William C. Wines: Mr. Chief Justice, may it please the Court.

Mr. Sullivan has stated the facts of the case fairly and accurately as he invariably does.

However, I think that I can best present Illinois's argument by restating those facts in the focus of the questions from the bench and distinguishing those facts from those in the cases upon which the petitioner chiefly relies in this argument.

Petitioner, whose race is not so far as I know shown by the record, was indicted for murder in 1941 with two other defendants, pleaded not guilty, waived trial by jury, was tried by the bench and was found guilty of murder.

He was represented at that time by counsel employed and paid by his family.

Its not disputed at least to this juncture of the case that the employment of counsel exhausted petitioner's funds.

He then made informal inquiry, perhaps even request of the official court reporter of Cook County or one of them for a gratuitous transcript, what it was then called and still is called in an Illinois criminal case, a bill of exceptions without charge.

So far as the record shows and so far as it's contended, the only effort that petitioner made in 1941 to obtain a free transcript which request the court before the Court.

He made no application of any kind to any court for any kind of an order that would entitle him to that transcript.

Some fifth -- in April of 1956, the 23rd I believe --

Chief Justice Earl Warren: Before we get to that Mr. Wines.

Mr. William C. Wines: Yes, sir.

Chief Justice Earl Warren: Was there any, any representation to the court in 1941 that he was an indigent?

I understand he was represented by paid counsel.

Mr. William C. Wines: Yes.

So far as I know, there was no representation to any judge of any court in 1941.

The trial court, any justice of the Supreme Court of Illinois, a federal court or any other court, that he was a pauper, that he was indigent.

Chief Justice Earl Warren: It'd be -- and as I understood from Mr. Sullivan, the Illinois law at that time did give the trial judge the discretion to grant a free transcript if he --

Mr. William C. Wines: I think that is true.

Chief Justice Earl Warren: Yes.

Mr. William C. Wines: Now, he, as I say, made no effort in 1941.

Eight years later, Mr. E.H. Allen, the court reporter, died.

Mr. Sullivan is correct, Mr. E.H. Allen was a venerable court reporter in Cook County for many years, it is considered -- not only in this case but in many others, many others.

Everybody tells a state's attorney and the Attorney General that nobody can read the notes of E.H. Allen in any of his cases.

With his death, they became insoluble cryptograms, a dead script.

Among such cases was the case of William Highlands which has been through the Supreme Court of Illinois.

Another seven years and a few months went by, and in April of 1956, Your Honors decided Griffin against Illinois.

Promptly, upon the announcement of the opinion in that case, the Supreme Court of Illinois promulgated its Rule 65-1.

That rule gives free transcripts or authorizes at least the giving of free transcripts to prisoners who were indigent at that time of their conviction, if they make application before March 1st, 1957.

Petitioner made such an application.

He obtained an order from Judge Crowley, directing that he be given a free transcript of his proceedings.

It then developed.

Perhaps it had been previously suspected but it then developed with certainty that was not -- it was impossible to transcribe the notes of Mr. E.H. Allen.

Thereupon, petitioner brought this proceeding to the Supreme Court of Illinois and elicited the opinion and judgment to which review, which Your Honors have granted to this Court certiorari.

Now, I should like to contrast this case, the case upon which petitioner chiefly relies, Eskridge against Washington Prison Board 357 U.S. 214, decided in 1958.

The opinion is per curiam.

Because of certain passages in the reply brief, I should like to ask the Chief Justice's permission to read less than half page of this opinion so I won't -- I can't possibly misrepresent what is in it.

Your Honors say at the bottom of pages -- page 214 and the top of page 215.

In 1935 after petitioner, now that's petitioner Eskridge in Washington, was convicted of murder in a Washington State Court and sentenced to life imprisonment.

He gave timely notice of appeal to the Supreme Court of the State, end of that quotation.

It appeared that he was indigent and Washington, the Supreme Court of Washington held that Your Honors didn't intend the Griffin case to be retrospect just how the Washington Court could achieve that in conclusion, I don't know, but it did and it declined to give Mr. Eskridge a transcript.

Now, the Court says at page 216, “The State,” that's the State of Washington, “The State concedes that the reporter's transcript from the 1935 trial is still available.”

In other words, all that Your Honors did in this unanimous per curiam case in the Eskridge case was make the State of Washington what the Supreme Court of Illinois did promptly upon the announcement of the Griffin case in the issuance of the mandate, Rule 65-1 was then drawn.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: That's right, but as of the present time barring some such anomalous cases raises a different question.

You must get your bill of exceptions certified within 100 days.

It was 50 days in 1941 or any extension obtained within that hundred days and there's no limit on the length of the extension, except you must get each one before the last one expires.

Justice Arthur J. Goldberg: May I ask you one more question?

(Inaudible)

Mr. William C. Wines: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: I never know of one that was granted but I never know one that was applied for.

I really don't know.

I don't handle criminal cases in the trial court and I do know this and I'll concede it, that nobody would have -- it wasn't done.

How often it was applied for and denied, I don't know.

How often if ever it was applied for and granted, I just don't know, but I will tell the Court that it was certainly not a common practice.

Now --

Justice Byron R. White: Mr. Wines.

Mr. William C. Wines: Yes, Your Honor.

Justice Byron R. White: It seems to me that -- that if in this case, the transcript to the reporter's notes had been available when they were requested in 1957, 1958, whenever it was.

Why couldn't the court have refused that transcript even though the notes were available on the grounds that the defendant or the petitioner had not pursued his remedies at the time of his trial or right after his trial had not requested a free transcript then?

I don't know why.

I mean if your reason is -- if you're -- if the ground you're relying on is good for one thing or that would be good for another.

Mr. William C. Wines: Is Your Honor through with the question?

Justice Byron R. White: You are apparently relying in this case upon the -- upon the failure of the petitioner to request from the judge a transcript back in the time of his trial, aren't you?

Mr. William C. Wines: Well, so far I'm narrating the facts, but to answer Your Honors first question as I understand it, the Supreme Court of Illinois promulgated Rule 65-1 which gave convicted persons transcripts even though they hadn't requested and the time to request them -- request them would otherwise have expired.

The -- let me, let me --

Justice Byron R. White: Constitutionally, you are saying that failure to request at an earlier time when the opportunity was available.

Constitutionally, that's an adequate answer to his request.

Mr. William C. Wines: I say that that would be an adequate answer showing -- absent some showing that he was prevented from requesting it which wouldn't necessarily mean that coercion by guards might be mental infirmity or something of this sort.

Justice Byron R. White: So that if Illinois wanted its part of its rules say that we will grant these transcripts, delayed -- this delayed request for transcripts in cases where the petitioner has asked for and was refused a transcript at an earlier dates, Illinois could constitutionally do that.

That would be your contention.

Mr. William C. Wines: That would be my contention, yes.

Justice William J. Brennan: But I gather, Mr. Wines, under 65-1, transcript where there exist have been provided.

Mr. William C. Wines: Yes, and there --

Justice William J. Brennan: Even though no claims and no request had been made --

Mr. William C. Wines: Oh, Yes.

Yes, indeed, Your Honor.

In fact, I don't know of any case where a request was made within -- would otherwise have been the time.

Again, I just don't know, but as far as I know there were no such cases.

Now, if the Court please, Rule 65-1 does contain a provision which raises no question here but I'll inform the Court of it, that rule by the way is set forth at appendix page 7 of the petition for certiorari.

It does provide that you must specify the alleged errors which the petitioner claims occurred at his trial and that he desires to apply for issuance of a writ of error to review the conviction but petitioner did that.

He complied that -- with that and we don't say that he didn't.

And he obtained an order for a transcript under Rule 65-1, but Rule 65-1 contains this provision which occurs at page 8, “In the event, the court finds it is impossible to furnish petitioners to know stenographic transcript for the proceedings of his trial because of the unavailability of the court reporter, who reported the proceedings and the inability of any other court reporter to transcribe the notes of the court reporter who served at the trial or for any other reason the court shall deny the petition.”

Of course, all that does is recognize what, as Mr. Justice Harlan so principally said, is an impossibility.

There's really nothing gained -- it makes no -- by granting a petition that mounts only where a rule on a man who is dead and buried to transcribe his notes.

Now, eight -- now, 15 years after his conviction and more than seven years after the death of Mr. Allen, petitioner made application under Rule 65-1 and obtained this order for a free transcript.

The notes could not be transcribed and the Supreme Court of Illinois, as I say, wrote the opinion, it's now here for review.

Now, at this -- the second case upon which petitioner principally relies is the Westbrook case from the United States Court of Appeals for the Seventh Circuit arising in Illinois.

In the Westbrook case, Westbrook was not a pauper.

There may be an inadvertent statement in Illinois brief that he was.

He wasn't a pauper.

Within the hundred days, he requested a bill of exceptions and he offered to pay for it.

And he got several extensions.

The reason he didn't get it was that the reporter developed multiple sclerosis, left the State and refused to transcribe anything for anybody, no matter how much he was paid.

There, timely application had been made, had been persisted here.

The Court of Appeals for the Seventh Circuit says in this statement quotation is criticized in petition of reply brief here, that Westbrook “filed a timely notice of appeal.”

Actually, that's inaccurate because notice of appeal isn't ordinarily used and until recently couldn't be used in Illinois.

What you filed was a press for a writ of error.

Well, the court -- petitioner's counsel takes the Court of Appeals for the Seventh Circuit to pass for this inaccurate statement.

But what the Court of Appeals meant is correct that he evinced the record his desire for a transcript within the time provided for him.

He didn't make a showing of poverty because he wasn't a pauper but he did come up with money.

Now, in that case, the Court of Appeals for the Seventh Circuit did say that -- and they relied on the timeliness of the application that in that case sits, it wasn't possible to grant a timely application or a report of proceedings.

The petitioner was entitled to a new trial and Illinois did seek certiorari.

Now, in the instant case, the situation is that petitioner made no effort for 15 years to obtain a free transcript.

Justice Tom C. Clark: I see in these defendants to petitioner's brief, a case called a Monroe case that a sentence was imposed in the year 1936 and the Griffin case was in what?

1956?

Mr. William C. Wines: 1956.

Justice Tom C. Clark: And the Illinois Court reversed and remanded in 1958?

Mr. William C. Wines: Yes, Your Honor.

Justice Tom C. Clark: How do you explain that case?

Is that different from this one?

Mr. William C. Wines: Well, the court reporter didn't die, there was a transcript available.

Justice Tom C. Clark: There was one case.

Mr. William C. Wines: In the Monroe case, there was a transcript.

Many of our court reporter's transcripts can be read by any reporter.

At least so the reporter tells us and everybody believes him.

Justice Tom C. Clark: So your point is not what you just said that the 15 years delay is --

Mr. William C. Wines: 15 years delay plus intervening impossibility.

That is our contention.

The Supreme Court of Illinois, I think as I understood Mr. Justice White of course not to rule but to suggest that Illinois could have taken the position that absent of showing in a particular case of mental retardation, something in that sort if you didn't make timely application in 1941, you can't make it now.

But I don't have to argue that because the Illinois didn't take that position.

Justice Byron R. White: (Inaudible)

Mr. William C. Wines: What?

Justice Byron R. White: If you do have this case (Inaudible)

Mr. William C. Wines: I say that as a matter of constitutional law under the Fourteenth Amendment to the Constitution of the United States.

Forget Rule 65-1 for a moment as though it had never been promulgated, that in 1941, petitioner Willie Norvell could have done exactly what Griffin and his co-defendant Crenshaw did in 19 -- shortly before 1956.

He could have gone before -- the judge before whom he was convicted or any other judge at the criminal court.

He could have asked for a transcript.

It might have been denied.

He could have taken his case to the Supreme Court of Illinois.

There's no presumption that the Supreme Court of Illinois wouldn't have respected the constitutional amendment.

That this petitioner, in other words, could have done in 1941 exactly what Griffin did shortly before 1956, made his application, timely application, taken his case to the Supreme Court of Illinois and if he suffered defeat, sought this Court's writ of certiorari.

If Griffin was the law in 1941, presumably this Court would have said so in 1941.

If it wasn't the law in 1941, presumably this Court wouldn't have said so.

Now --

Justice Tom C. Clark: Of course, it wasn't the law when Griffin was convicted.

Mr. William C. Wines: I think it was.

Your Honors just hadn't said so yet and presumably would have said so if -- if some previous convicted person such as Norvell had brought this case here.

Now, I'm --

Justice Byron R. White: Mr. Wines, would you say that the (Inaudible) to a defendant who were a -- commit the same crime (Inaudible) either one of them is requesting (Inaudible) Would you say, this person has a --

Mr. William C. Wines: Yes, Your Honor.

Justice Byron R. White: (Inaudible)

Mr. William C. Wines: I say --

Justice Byron R. White: All he have to say.

Mr. William C. Wines: A little more than that.

A little more than that but just in amplification and this is what I say in amplification.

That one, if we look at it realistically, one who seeks appellate review of a conviction of a crime is like anybody else who has to prove a fact, only this time instead of having to prove what actually happened at State, in Monroe, in Chicago, he has to prove in order to get a review, what a witness said happened there.

The best evidence of that, not necessarily the only evidence but the best evidence of that is ordinarily an authenticated transcript of a record.

Justice Byron R. White: There's no suggestion that indicates that anyone (Inaudible)

Mr. William C. Wines: That's right.

Justice Byron R. White: (Inaudible)

Mr. William C. Wines: There -- the evidence on that is there's not only no evidence that they can be done but there's pretty conclusive evidence that it cannot be done.

Now, so the fifth of my argument --

Justice Byron R. White: This also proves the state could be (Inaudible)

Mr. William C. Wines: -- which also proves that the State can't be tried.

The fifth of my argument is this, as a matter of Fourteenth Amendment Due Process, never mind some greater right that Illinois may choose to give, who has the burden of proof on getting up a record when a convicted man waits 15 years and then seeks it.

I'm so anxious to make this point.

While I'm arguing, it's conceivable that some court reporter, some place in the United States is dying right this minute.

Now, talk about unreasonable classifications.

Does a man suddenly get a right to a new trial as soon as his court reporter dies?

Whether that is 15 years or 20 years afterwards, now it's different when he goes within -- with reason -- I'm talking due process now, not the appellate -- canons of appellate judicature of Illinois or any other particular state --

Justice Byron R. White: (Inaudible)

Mr. William C. Wines: Yes.

Justice Byron R. White: (Inaudible)

Mr. William C. Wines: My answer is that if he has waived an unreasonable length of time, he should, that a convicted person shouldn't be able to bet his own life expectancy against that of the court reporter in effect.

Justice Byron R. White: (Inaudible)

Mr. William C. Wines: No, I wouldn't.

I say that it's -- that when -- that when we get to Fourteenth Amendment Due Process, it's a matter of reasonableness.

Reasonableness is the defining ingredient of due process in all cases and I say that it might very well be that in the hypothetical case that Mr. Justice White puts, that this man who has got the transcript would wish to heaven's sake that it was his court reporter who died because he might get an affirmance and the other fellow say, “Well, you can't presume that the record in my case was like his and he would get the new trial.”

I say that for a reasonable time and that time should usually be the time fixed by the rules of the State.

100 days, 60 days, 3 months, 2 months, if the court reporter dies and there's no real way to reconstruct it, the defendant should get a new trial.

But otherwise, if you can raise it anytime then every time a court reporter dies, it operates as a pardon for everybody whose trial is transcribed if his notes can't be read and if they can't -- and if they can't be transcribed.

Now, as to this question as to how many cases are pending as to how many cases are filed in Illinois, I don't know.

I haven't had anything like the information that Mr. Sullivan had for Mr. Justice Goldberg.

As to how many prisoners there are, whose notes were transcribed by E.H. Allen, I have no information.

As to how many prisoners there are in the other 49 states, convicted anywhere from 10 days to 40 years ago, whose reporters have died, I don't know.

I don't think that the death of a court reporter ought to act not just as a pardon but as a general active amnesty to everybody whose notes -- whose case he transcribed.

Justice William J. Brennan: Mr. Wines --

Justice Byron R. White: (Inaudible)

Justice William J. Brennan: Excuse me.

Mr. William C. Wines: It certainly would, it certainly would.

I would not want to be a court reporter under --

Justice Tom C. Clark: (Inaudible)

Mr. William C. Wines: I beg Your Honor's for --

Justice Tom C. Clark: What happens in Chicago particularly in Chicago?

Mr. William C. Wines: Oh, I wouldn't want to comment on that for fear I might offend our group libel statute that Your Honors --

Justice Hugo L. Black: Mr. Wines --

Mr. William C. Wines: -- upheld.

Justice Hugo L. Black: Mr. Wines --

Mr. William C. Wines: Thank you.

Justice Hugo L. Black: On arguing this wholly as a matter of due process which you say means reasonableness.

Mr. William C. Wines: And equal protection.

Justice Hugo L. Black: Well, the equal protection.

Is your argument made on the basis of equal protection?

Mr. William C. Wines: Yes, Your Honor.

Justice Hugo L. Black: (Voice Overlap)

Mr. William C. Wines: I think it was made better by Mr. Justice Harlan's single question that was by my half hour.

But when Mr. Justice Harlan asked counsel, “Does Illinois deny equal protection when it does discriminates between the possible?”

That is the case where the court's reporter is alive or his notes can be otherwise transcribed and the impossible that is where he's dead or has multiple sclerosis.

I think this that -- I really think that these petitioners who have waited a long time, what they need is a witness to what happened.

If the court reporter is dead, the best evidence is gone.

If nobody else is around and nobody can prove it, it's just a question who has the burden of proof, 20 years later that due process was denied in 1941.

The man who --

Justice Hugo L. Black: Are you speaking to one who thinks that if anything denied his equal protection of the law at least one?

Mr. William C. Wines: I beg, Your Honor.

Justice Hugo L. Black: I said at least one of those whom you're addressing think if there's anything denied, it was equal protection of the laws are due process only so far as it forbids discrimination provided in the equal protection?

Mr. William C. Wines: Well, I understand that.

I understand that the court has said that you don't have to allow appellate review of any kind.

But that if you do, you can't deny it on a basis of race, property, things of that sort.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: I wish Your Honor would.

Justice Arthur J. Goldberg: Let us assume a hypothetical (Inaudible), at that time there was no decision of this Court to furnish a transcript or a free transcript or whatsoever, the decision of this Court -- the decision the other way had been entitled to counsel on the appeal towards a capital case.

Now, wouldn't your argument still say that these constitutional -- ought to be denied his right under the constitution for not pursuing the appeal all the way up (Inaudible)

Mr. William C. Wines: Yes, Your Honor.

That case that you will put as a hypothetical is exactly the actual Griffin case.

Griffin had no counsel any place until this Court granted certiorari and appointed counsel for him.

He and Crenshaw, they were co-defendants.

They took their case in forma pauperis proceed from the criminal court of -- I think it was Cook County to the Supreme Court of Illinois and sought certiorari here.

Now, in the (Inaudible) case Your Honors, sustained the conviction where court-appointed counsel appealed and filed a notice of appeal within five days and that was the capital case.

I say that their -- that the situation is if this wasn't the law in 1941 which I think it was then Norvell wasn't entitled to it.

And if he was if he's properly claimed it, it's presumed that he would have gotten it.

Because he has made no allegation that anything kept him from applying in that time.

Chief Justice Earl Warren: Mr. Sullivan.

Rebuttal of Thomas P. Sullivan

Mr. Thomas P. Sullivan: Your Honor.

As I understand the argument of the State of Illinois, it is in short that the petitioner here should not be given any relief solely because at the time he was tried, he did not ask that he be given a transcript of the trial without payment of cost.

Now, it may be that this Court will hold that the Griffin case does not extend retrospectively to those who did not request transcripts, as Mr. Wines points out the Eskridge case involved the person who did ask for a free transcript, although he didn't raise a constitutional point in that regard.

However, when this -- when the Griffin case went back to the Supreme Court of Illinois, the Supreme Court of Illinois itself resolved that issue for Illinois.

Justice William J. Brennan: (Inaudible)

Mr. Thomas P. Sullivan: Your Honor, I say as did Mr. Wines, that if the transcript cannot be prepared, there's no point in having an order directing that it'd be prepared.

The rule doesn't say what shall happen if this case arises.

If the transcript can't be prepared, the petition shall be denied.

The question here is whether a new trial should thereupon be granted and this rule does not expressly state or even by implication that no other relief should be granted.

The Illinois Supreme Court looked at this question of waiver, they looked at this question of whether we should hold it against the man that he didn't make an application back in 1941 or whenever he was tried and they said this, “We have considered the applicability of the doctrine of waiver, it could be held that a prisoner who did not request a free transcript within the time has waived his right but waiver assumes knowledge and we are unwilling to hold under the circumstances of this case that the constitutional rights of prisoners have been waived.”

It is the same notion that this Court expressed several weeks ago in the Noia case.

In order for there to be a waiver there must be an intelligent, knowing, giving up of a right.

That's the very same thing.

Now Illinois has said we will not hold it against you indigent defendants but at the time you were convicted you didn't apply for a free transcript or raised a constitutional question.

Therefore, in the final analysis, the only difference between Mr. Monroe, whom Mr. Justice Douglas pointed out, was convicted some years before Norvell.

The only difference between Monroe and Norvell is that Monroe's court reporter is still alive or that the reporter being dead he wrote an eligible system of shorthand.

We say that to deny relief solely because of that circumstance is arbitrary and capricious.

Norvell was just as prompt in seeking relief as Monroe.

Norvell did nothing to cause this reporter to die or the transcript to be lost, yet he cannot obtain review under the present circumstances and Monroe did.

Justice John M. Harlan: In view of your state rule, post-Griffin rule, what difference does it make whether he knew, whether he waived, whatever happened back in 1950, in 1941?

Under the rule he's entitled on a showing of indigency to get the transcript as I read the rule.

Mr. Thomas P. Sullivan: That is correct, Your Honor.

Justice John M. Harlan: And the only question then is whether or not the provision in the rule that says, the State will not do what I call the impossible is a constitutional provision.

Is that permissible -- permissibly --

Mr. Thomas P. Sullivan: Well --

Justice John M. Harlan: --constitutional provision?

Mr. Thomas P. Sullivan: Mr. Justice Harlan, I don't think Rule 65-1 says if the -- if the transcript cannot be supplied, the prisoner shall be sent back to jail without further relief.

The rule leaves open the question of what relief should be granted under the circumstances of this case.

Justice John M. Harlan: Now, but the rule is construed by your court is that he gets now relief which I'd assume, binds us, meaning that he doesn't have to get a new trial.

Mr. Thomas P. Sullivan: Well, Your Honor, they did not reach this result based on a construction of the rule but rather --

Justice John M. Harlan: Well, they reached it.

Mr. Thomas P. Sullivan: They reached it based upon decisions of this Court.

Justice John M. Harlan: Well, as the law we have to take is a state law.

Mr. Thomas P. Sullivan: Yes, and that is precisely the rule which I am appealing from and saying it creates an arbitrary and unreasonable classification.

Justice John M. Harlan: But the reason I am raising this question is to talk about waiver and not waiver whether he had a lawyer or whether he didn't have a lawyer, whether he made a representation to -- that he was or was not indigent.

I don't see what bearing all that has on -- in view of the existence of this rule in your state.

Mr. Thomas P. Sullivan: I concur, Your Honor.

I don't understand why Mr. Wines stands before you and argues waiver, argues that you should hold it against Norvell that he didn't ask for a transcript when the State of Illinois has already said that they won't do that as to any of these men and that that is not a ground for discrimination or distinction.

Justice John M. Harlan: I can understand what Mr. Wines argued because it's kind of appealing ad hominem point.

Mr. Thomas P. Sullivan: But it -- I suggest, Your Honor that it is not a proper argument in light of the opinion on the Griff -- the Illinois Supreme Court on remand in Griffin and of the text of the rule that we have before us.

Justice John M. Harlan: Or I should think from your point of view you would say that you can accept everything that Mr. Wines said and still stand on your present rule and then argue from that premise.

Mr. Thomas P. Sullivan: Just one last point in --

Justice Byron R. White: (Inaudible)

Mr. Thomas P. Sullivan: That is the opinion on remand in the Griffin case in the Illinois Supreme Court, 9 Illinois 2d 164.

Justice Arthur J. Goldberg: Mr. Sullivan, can I ask you about -- can I ask you a question about this?

Mr. Thomas P. Sullivan: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Thomas P. Sullivan: On the petition for writ of certiorari, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Thomas P. Sullivan: It is, I agree with that Judge.

I certainly do.

Justice Arthur J. Goldberg: (Inaudible) these cases were under the Constitution and the decisions were overruled.

Convictions were reversed (Inaudible) that resulted for the transcripts of the court, is that correct?

Mr. Thomas P. Sullivan: That is correct and I might add, Your Honor, that Appendix B of the petitioner's brief, I have included a much more complete list with many more cases as a result of further research.

Justice Arthur J. Goldberg: This one that you have here?

Mr. Thomas P. Sullivan: Yes, Your Honor.

Chief Justice Earl Warren: Mr. Sullivan, before you sit down, I would like to express the appreciation of the Court to you for your representation of this indigent defendant at the request of your own Supreme Court and doubly so because you have apparently done it for a number of other indigent defendants.

That's a splendid public service and our Court is very appreciative of it.

And Mr. Wines, we're very appreciative of course of the fair and earnest way in which you always represent the State of Illinois in these cases.

Mr. Thomas P. Sullivan: Thank you, Your Honor.

Thank you.

Featured:

Draper v. Washington - Oral Argument

Tue, 25 Sep 2012 22:33:50 +0000

Case:

Draper v. Washington

Media File:

201_19630116-argument

Related Transcript:

201_19630116-argument

Transcript:

Argument of Charles F. Luce

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

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

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

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

They are admittedly without funds.

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

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

Chief Justice Earl Warren: Well, would you --

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

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

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

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

Chief Justice Earl Warren: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Byron R. White: (Inaudible)

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

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

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

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

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

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

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

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

Yes, yes.

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

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

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

Well, that's simply a general denial.

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

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

That's correct.

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

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

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

Mr. Charles F. Luce: That is correct.

That is correct.

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

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

Now what did the trial court do about that?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: I know that.

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

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

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

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

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

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

Mr. Charles F. Luce: Well, yes.

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

Unknown Speaker: And?

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

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

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

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

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

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

That equal protection question?

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

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

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

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

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

Justice John M. Harlan: It covers property rights.

It covers every conceivable kind of a right --

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

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

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

Justice John M. Harlan: Not necessarily.

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

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

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

Unknown Speaker: Well --

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

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

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

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

But I feel --

Justice Tom C. Clark: On equal protection.

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

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

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

I would like to reserve my remaining five minutes.

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

Mr. Lally.

Argument of John J. Lally

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

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

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

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

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

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

In this particular case which --

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

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

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

Mr. John J. Lally: On the application.

Justice Arthur J. Goldberg: Not of the trial?

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

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

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

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

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

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

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

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

Justice John M. Harlan: Where is that affidavit?

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

Justice John M. Harlan: (Inaudible)

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

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

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

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

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

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

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

Justice Byron R. White: (Inaudible)

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

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

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

Mr. John J. Lally: That is correct.

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

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

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

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

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

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

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

Justice Potter Stewart: Right.

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

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

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

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

Just for illustration, I try to boil it down.

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

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

On number six, for example, was this --

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

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

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

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

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

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

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

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

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

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

Mr. John J. Lally: The seventh assignment?

Justice Arthur J. Goldberg: Yes.

Mr. John J. Lally: Very well.

The seventh assignment --

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. John J. Lally: Number eight?

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

Mr. John J. Lally: Well --

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

Mr. John J. Lally: With reference --

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

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

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

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

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

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

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

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

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

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

Mr. John J. Lally: That is correct.

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

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

In other words --

Justice Arthur J. Goldberg: (Inaudible)

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: I --

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: Well --

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. John J. Lally: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

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

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

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

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

We would very like to have a different problem.

In other words --

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

Mr. John J. Lally: Yes.

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

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

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

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

Mr. John J. Lally: Yes sir.

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

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

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

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

Mr. John J. Lally: Oh well --

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

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

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

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

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

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

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

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

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

Justice Hugo L. Black: By a full transcript.

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

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

Justice Hugo L. Black: With that argument?

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

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

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

So, under the procedure --

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

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

No one contends there an error factually.

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

I can understand that findings of fact --

Mr. John J. Lally: Well --

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

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

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

Justice Hugo L. Black: And in Court?

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

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

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

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

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

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

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

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

Mr. John J. Lally: Yes.

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

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

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

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

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

Mr. Draper said, “I have witnesses.”

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

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

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

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

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

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

Mr. John J. Lally: There is.

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

Chief Justice Earl Warren: Well --

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

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

Chief Justice Earl Warren: It is a --

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

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

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

Chief Justice Earl Warren: I beg your pardon?

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

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

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

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

Mr. John J. Lally: Yes.

Chief Justice Earl Warren: No -- yes.

Mr. John J. Lally: Yes.

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

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

Justice Arthur J. Goldberg: From that reference.

Mr. John J. Lally: Yes.

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

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

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

Thank you.

Chief Justice Earl Warren: Mr. Luce.

Rebuttal of Charles F. Luce

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Charles F. Luce: One of them.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I don't think that it was.

Justice Potter Stewart: (Inaudible)

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

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

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

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

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

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

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

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

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

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

They give free transcripts to everybody.

Unknown Speaker: (Inaudible)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Is that the time --

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

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

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

Unknown Speaker: (Inaudible)

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

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

One of the exceptions?

It wasn't stated that way.

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

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

That's correct.

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

It couldn't be more so, could it?

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

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

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

I don't think is contemplated by our rules.

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

Justice Potter Stewart: Alright.

Thank you.

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

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

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

Featured:

Lane v. Brown - Oral Argument, Part 1

Tue, 25 Sep 2012 22:34:29 +0000

Case:

Lane v. Brown

Media File:

283_19630116-argument-1

Related Transcript:

283_19630116-argument-1

Transcript:

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.

Featured:

Lane v. Brown - Oral Argument, Part 2

Tue, 25 Sep 2012 22:34:30 +0000

Case:

Lane v. Brown

Media File:

283_19630117-argument-2

Related Transcript:

283_19630117-argument-2

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.

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