Anders v. California

PETITIONER:Anders
RESPONDENT:California
LOCATION:Former Spot Club Location

DOCKET NO.: 98
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 386 US 738 (1967)
ARGUED: Mar 14, 1967
DECIDED: May 08, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – March 14, 1967 in Anders v. California

Earl Warren:

Number 98, Charles Robert Anders, Petitioner, versus California.

Mr. Heyman.

Ira Michael Heyman:

Mr. Chief Justice, may it please the Court.

This case is on certiorari to the Supreme Court of California from that Court’s denial of a petition for habeas corpus.

The case involves whether petitioner, an indigent, was provided appointed counsel on his direct appeal from a criminal conviction consistently with the requirements of due process and equal protection especially as stated in Douglas versus California.

Petitioner was convicted of possession of marijuana in 1957 after a jury trial at which he had been represented by the public defender.

He sought to appeal in forma pauperis in the California courts.

A transcript — a full transcript was provided and counsel was appointed to represent him.

Counsel, however, informed the appellate court that he, the counsel would not file a brief, because in his opinion, there was no merit to the appeal.

Petitioner then requested the appointment of another attorney.

This request was denied by the District Court of Appeals in California and petitioner was advised that he could file a brief pro se or allow the District Court of Appeal to decide the appeal on the record.

Petitioner filed a pro se brief, the state filed a lengthy answering brief, petitioner filed a pro se response.

And the California District Court of Appeal affirmed the conviction.

This occurred in 1959.

In January of 1965 after this Court’s decision in Douglas versus California, petitioner sought habeas corpus in the California District Court of Appeal to reinstate his original appeal.

The District Court of Appeal denied his petition.

Petitioner relied in his petition for habeas corpus on Douglas versus California alleging that he had been denied a federal right to representation by counsel on his direct appeal from the original conviction.

The order of the District Court of Appeals denying the reinstatement of the appeal was on the merits for it cited a California case In re Nash, a post-Douglas decision of the California Supreme Court as the basis for the denial of the writ.

The In re Nash case indicates that the procedure originally applied in this case meets in the view of the California Supreme Court the requirements of the Douglas case.

Petitioner then sought habeas corpus on the same grounds in the Supreme Court of California.

In California, there is no direct appeal from the denial of a petition for habeas corpus rather the petitioner seeks the same writ in the higher court.

The Supreme Court of California denied the petition for habeas corpus without opinion.

The question here is whether the California procedure concerning counsel on appeal that was followed in this case adequately meets the requirements of Douglas.

Under that procedure which is in issue here, one that was approved, as I had stated in the case of In re Nash.

The District Court of Appeal on the first appeal as of right in a criminal conviction concerning an indigent proceeds to consider the case on the record and without lawyer prepared briefs for the defendant and without oral argument if appointed counsel files a so-called no merit letter with the appellate court.

There is no procedure testing the adequacy of the counsel’s determination that there is no merit in the sense that the case ought not to be argued by a lawyer in behalf of the indigent.

Potter Stewart:

Now Mr. Heyman you said —

Ira Michael Heyman:

Yes sir?

Potter Stewart:

— these no-merit letters come obviously in the absence of briefs, but did you say in the absence of any record before the Supreme Court?

Ira Michael Heyman:

No sir, the District Court of Appeals has a full record of the case.

Potter Stewart:

That’s made automatically in California (Voice Overlap) —

Ira Michael Heyman:

That’s made automatically in California.

Potter Stewart:

And the copy provided to each side and to the Court.

Ira Michael Heyman:

That’s correct sir.

Potter Stewart:

And so that the Court does have that record before when it gets.

Ira Michael Heyman:

Right sir.

Potter Stewart:

There’s no merit letter?

Ira Michael Heyman:

That’s right sir.

Potter Stewart:

And that’s all it has?

Ira Michael Heyman:

That’s all it has before it sir.

Potter Stewart:

It does know that much about the case —

Ira Michael Heyman:

Yes.

Potter Stewart:

— no more no less.

Has the record but no arguments.

Ira Michael Heyman:

That’s correct sir.

It has somewhat the same thing it had under the procedure prior to Douglas versus California when it had a record and it had to make a determination whether to appoint counsel, in other words would counsel be appropriate in this case.

Potter Stewart:

And this in California is a full record, isn’t it?

Ira Michael Heyman:

Yes sir, a very full record.

Potter Stewart:

As in — as you know from state to state, the word record means a variety of different things.

Ira Michael Heyman:

Yes sir, I want to be sure that the Court understand this is a very full record.

Potter Stewart:

Though the transcript of the evidence and the —

Ira Michael Heyman:

That’s right sir.

Potter Stewart:

And so on and everything.

Ira Michael Heyman:

Yes.

In the situation where the no-merit letter is filed the court then goes straight to the merits in the same manner that it did in the case at bar.

William J. Brennan, Jr.:

Well, let’s see Mr. Heyman.

Ira Michael Heyman:

Yes sir.

William J. Brennan, Jr.:

I suppose as a practical matter that means then the appellate courts simply studies the records to see the victim detect any point of merit?

Ira Michael Heyman:

Yes sir that’s precisely —

William J. Brennan, Jr.:

But without any help as to what possible points might be argued on behalf of the convicted (Voice Overlap) —

Ira Michael Heyman:

That is correct sir.

William J. Brennan, Jr.:

— is that it?

Ira Michael Heyman:

It’s not dissimilar in my view in any event to the procedure that existed prior to Douglas versus California which this Court rejected in the Douglas versus California case.

In Douglas, the Court rejected a California procedure under which the appellate court unaided by counsel, reviewed the trial record and the full record indicated before, to determine whether counsel should be appointed.

Two interrelated reasons in my view supported the decision of this Court in the Douglas case.

The first is the necessity of a lawyer participating in the adversary process, the essence of which is really challenged.

And where both that trial and on appeal, it is necessary to have a more trained person fully to exploit the potentialities and the system of the adversary process.

A fair trial or a fair appeal requires counsel to deal with the complexities of fact and law involved in the case.

Potter Stewart:

But if in — under the present practice that was followed in this case which was authorized by the Nash case in California, what does happen after the District Court of Appeal gets this so-called no-merit letter then what happens?

Then what does the Court do?

Ira Michael Heyman:

It’s hard for me to generalize Mr. Justice Stewart.

In this case, what the Court did was then to notify petitioner that he could file a pro se brief or not as he wished, and that it, the appellate court on the record would determine whether to affirm or to reverse the conviction.

Potter Stewart:

In this case he did file a pro se brief (Voice Overlap)?

Ira Michael Heyman:

In this case he did file a pro se —

Potter Stewart:

And a reply brief, if I remember correctly.

Ira Michael Heyman:

That is correct sir.

Potter Stewart:

And then did the Court indicate what it did in this case, or has it indicated generally what its practice is to do in this kind of a case?

I’m not quite sure.

Do you mean sir, does it make a review of the record to determine whether or not to appoint an attorney or does it make a review of the record to determine —

I mean one attorney — one appointed attorney has been appointed —

Ira Michael Heyman:

That’s correct sir.

Potter Stewart:

He has now withdrawn about — on the — upon the representation that he can’t find no merit in this case.

Ira Michael Heyman:

That’s correct sir.

Potter Stewart:

And the — then the Court notifies the man himself, the petitioner —

Ira Michael Heyman:

Yes sir.

Potter Stewart:

— of this fact and gives him leave to file a brief if he wants to and this petitioner did do so, and then the state filed a brief and then the petitioner field a reply brief.

Ira Michael Heyman:

Yes sir.

Potter Stewart:

And then I gather there was no oral argument.

Ira Michael Heyman:

No oral argument.

Potter Stewart:

Is there a generally oral argument to the (Voice Overlap) —

Ira Michael Heyman:

I do not believe there is a generally oral argument.

Potter Stewart:

So this was no (Voice Overlap) —

Ira Michael Heyman:

I’m quite sure there is not —

Potter Stewart:

— normal case.

Well, no.

Is there a generally oral argument of an appeal on the District Court of Appeals?

Ira Michael Heyman:

Yes there is Your Honor.

Potter Stewart:

In paid appeal?

Ira Michael Heyman:

Yes Your Honor.

Potter Stewart:

Or an indigent appeals when there’s a lawyer.

Ira Michael Heyman:

Yes Your Honor.

Potter Stewart:

And then — so here there was no oral argument and the Court wrote an opinion, didn’t it?

Ira Michael Heyman:

Yes it did Your Honor.

Potter Stewart:

Did it indicate where, if any, where it got any additional help in developing the issues?

Ira Michael Heyman:

No, it mentioned in that opinion Your Honor that petitioner’s attorney had withdrawn indicating that in his view there was no merit to the appeal.

It then took the contentions that petitioner made and that the state responded to — in its answering brief, it considered each of those and it found no merit if you will, or at least it rejected the contentions of the petitioner, didn’t indicate that it’d received help from elsewhere.

Potter Stewart:

The reason I asked is — one reason I asked these questions, I got the impression somewhere that the Court asks its lawyers on its staff or maybe lawyers with some bar association —

Ira Michael Heyman:

Yes sir.

Potter Stewart:

— or something to give it (Inaudible).

Ira Michael Heyman:

No.

I — in the Appendix B to my brief, I have an excerpt from a book that was just published or published recently by the American Bar Foundation concerning the law of the poor, and interestingly enough, the section on California includes a description of appellate procedure in the District Court of Appeal on which this case arose.

And the person who is describing that procedure indicates that when a counsel files a no-merit letter as in this case, a judge of the District Court of Appeals is assigned to the case and he and his research attorney, which I suspect means law clerk, make an estimate of the record in the case to determine whether there is merit to the appeal, or to deal with the appeal.

Potter Stewart:

The Court consists of a panel of three judges?

Ira Michael Heyman:

That’s correct Your Honor.

Potter Stewart:

And this is one of the three?

Ira Michael Heyman:

That’s correct Your Honor.

Potter Stewart:

Who’s assigned for this particular case?

Ira Michael Heyman:

Yes Your Honor.

William J. Brennan, Jr.:

But as — I think you said Mr. Heyman the opinion here made reference only to the points raised by the petitioner in his pro se brief?

Ira Michael Heyman:

That’s correct Your Honor.

William J. Brennan, Jr.:

He didn’t go on to say, “And we also have examined the record to see if we can find any other possible points and we discovered none”.

Ira Michael Heyman:

I can not — I just don’t recall that Mr. Justice Brennan.

I suspect the Court probably did say that but I’d have to reread its opinion.

Hugo L. Black:

Suppose another lawyer had been appointed?

Ira Michael Heyman:

Yes, Your Honor.

Hugo L. Black:

And he had made a similar report, what would’ve been the judge’s view here?

Ira Michael Heyman:

If he had made a similar report?

Hugo L. Black:

He had reported that he had been appointed, a second lawyer been appointed and he gone over the record and could find nothing to argue.

Ira Michael Heyman:

Well, my — in my view Your Honor is that the system should be so constructed that the lawyer should come forward with the best argument that he can make under the circumstances.

And there are very few instances, at least I’ve seen in my relatively short career where some points can not be argued in good faith with respect to the representation of a client.

My worry with the California procedure that’s under consideration here is that it makes it too easy for appointed attorneys to withdraw from cases thus leading to appellate consideration without lawyer representation.

And that if the law was such that indigents, if they so desire, had to be represented by counsel then the bar which in many instances fills the appointed positions clearly would know its duty and clearly would go forward and make the best possible case for the indigent client.

Abe Fortas:

Are there in theory two possibilities here in your point of view?

One, that the Court would be required to appoint successor counsel or in this kind of situation or alternatively that the court might have to make findings as to why a successor counsel should not be appointed.

I take it that here, the California Court of Appeals in its — undertakes itself the arduous job of going through the record and writing the opinion about the assistance of counsel, but it does not address itself to the question whether successor counsel ought to be appointed.

Ira Michael Heyman:

That is correct Your Honor.

That’s one of the problems that I find with the California procedure that at no time does a court address itself to the question of whether the substance of the case is such that an attorney ought to be appointed to represent the indigent, rather the Court will go straight to the merits to determine whether or not the conviction should be affirmed or reversed.

Byron R. White:

So its standard is really just the ordinary appellate standard of just affirming or reversing based on whether they think there’s merit in the point.

Ira Michael Heyman:

That’s what I believe Mr. Justice White.

It’s awfully difficult to tell because the —

Byron R. White:

At least they don’t say points are frivolous.

Ira Michael Heyman:

That is correct.

Byron R. White:

Then the —

Ira Michael Heyman:

That is correct.

Byron R. White:

So they think they’re good enough to warrant writing an opinion about it.

Ira Michael Heyman:

Well that’s correct.

Of course it gets somewhat tautological here, is (Voice Overlap) —

Byron R. White:

That’s right.

Ira Michael Heyman:

We could recognize.

Byron R. White:

Well I must say though Mr. Heyman, I think I’d be more concerned if the practice, that’s why I asked that earlier question

Ira Michael Heyman:

Yes sir.

William J. Brennan, Jr.:

If the practice then is simply to take the points advanced by the untutored petitioner and answer them and say they (Voice Overlap) them.

I should think that’d be more reason for more concern when if in fact they went through it and looked for —

Ira Michael Heyman:

Well Mr. Justice Brennan, I’m pleased that they go — and I expect they do, that the California Courts go further than the specific intentions that or at least desire to go further than the specific contentions raised by petitioner.

I’m sure that often happens as a matter of fact.

My argument is that that’s not enough and that what the indigent — what to get under the standard of the Douglas case is an attorney who will represent him and not an attorney who files a no-merit letter.

William J. Brennan, Jr.:

— a judge has not always have put a lawyer for the petitioner (Voice Overlap) —

Ira Michael Heyman:

I think that’s correct.

Earl Warren:

Is there any statute or rule that requires him to scrutinize the entire record in such circumstances?

Ira Michael Heyman:

Not to my knowledge Your Honor.

There are three alternatives — well, I think I’d prefer to just compare very briefly the procedures in Douglas and the procedures here.

As I’d indicated before, two interrelated reasons underlay Douglas, one, the adversary system point and the other, the discrimination point between indigents and non-indigents.

In my view, the infirmities and the procedure that were reject — procedures rejected in the Douglas case are not cured under the procedure here where counsel is appointed but can withdraw with ease resulting again in appellate court consideration without benefit of briefs and argument.

First of all, only one side is represented on the appeal and that’s the point to which I’ve been giving most of my attention so far.

And in that situation, as a matter of fact, the one side the state being represented on the appeal, the indigent is not only not represented but he’s in a situation in which he has his attorney rather, his appointed attorney has made a statement that there is no merit to his case.

In my view, the discrimination problem in the Douglas case is not very ameliorated by the procedure in this case.

In fact, in my view it’s potentially worse because under the pre-Douglas procedure the Court, District Court of Appeal, screened the cases to determine whether counsel was appropriate.

Under this procedure presently existent in California, counsel who might have a number of reasons for not wanting to brief and argue, or at least for seeing himself in the position of amicus rather than advocate.

In a real sense, does the screening, he makes the determination whether or not the defendant shall be represented on the appeal.

And so, in my view, the upshot is that the procedure like that in Douglas lends itself to producing appeals which involve non-frivolous issues in which the indigent in fact is not represented and this against his will.

Your Honor, I should like to reserve the balance of my time for rebuttal.

Earl Warren:

You may.

Mr. Roth.

George J. Roth:

Honorable Chief Justice, and may it please the Court.

I would first like to start with an explanation of the appellate system in California because I believe there’s a little misconception perhaps, and I’m sure it’s unintentional with actually what happens as a practical matter.

First of all, traditionally in our state, the attorney’s obligation to the client ends at the trial level stage after the judgment is entered, after the man in this case, was sent to prison.He was represented by the public defender of the county of Merced.

Traditionally, this is true with paid clients as well as indigent clients.

Then, after the judgment is entered under our statute, rather under our rules I should of court —

Byron R. White:

Can I ask you just (Voice Overlap) —

George J. Roth:

Yes Your Honor.

Byron R. White:

Are there motions for new trial?

George J. Roth:

There are motions for new trial Your Honor, they are made — they’re not required for the appeal.

They have nothing to do with the appeal except in one case where a man is committed —

Byron R. White:

When you say the obligation ends, I take it that a new trial motion is — aren’t required at all.

Who would normally make the motion for new trial, trial counsel?

George J. Roth:

Trial counsel makes the motion for new trial Your Honor.

If and —

Byron R. White:

In appointed cases, do trial counsel ever make to the Court?

George J. Roth:

Oh, yes Your Honor, many times.

What happens is we find, in looking at records in paid counsel cases as well as appointed counsel —

Byron R. White:

But you do know in many cases, the appellate court does know in many cases I suppose from the record what counsel thinks some new trial points are, or the points for recon (Voice Overlap) —

George J. Roth:

No question Your Honor, they get a full record, they get a transcript of all of the proceedings.

Byron R. White:

Was that true in this case?

George J. Roth:

That was true in this case Your Honor.

Byron R. White:

Was there a motion for new trial?

George J. Roth:

No motion for new trial on my knowledge Your Honor.

Now, many times — to follow up on Your Honor’s question, we find with paid counsel as well as with appellate counsel, they will say to the Court, “I would like to make a motion for a new trial on all of the statutory grounds”, and they offer no other points.

This did not happen here to my recollection Your Honor.

What happens after the judgment is entered and the obligation of the trial lawyer has ended.

The man himself in the old days used to file a notice of appeal which could be in a very simple form or letter to the trial court and the notice of appeal goes to the trial court.

Today, under recent cases, there’s probably a further obligation on trial counsel to see that his man gets a notice of appeal filed if he wants one.

That automatically starts the procedure whereby the clerk’s minutes are transcribed and the complete report as transcript is made.

That under today’s procedure a normal record even includes instructions given and received.

There is an extra normal record —

Potter Stewart:

But by today’s procedure, you include the procedure followed in this case or not?

George J. Roth:

It’s been changed to add normal record without even requesting it to include instructions Your Honor.

In the old days, when this case was before the bar, the procedure was and it’s still is with everything except instructions that the appellant or his attorney later on, when he’s appointed and I’m going to get to that, can request extension of the normal record.

Most of the time, it seems that the Court’s grant it.

In this case, I think the Court concede the man got almost everything that they had.

And so, then what happens is the mechanical process of transcribing the record goes along.

George J. Roth:

When it’s finally completed three copies are made by the rules and this is whether the man is poor or rich, everybody gets the same treatment.

There’s no charge for it.

No charge to appeal.

The — one copy of the record goes to the Court, one copy goes to the appellant if — or his attorney if he has an attorney, and one copy goes to the Attorney General.

Then after that, when the record gets to the appellate court, they immediately are aware that there is no counsel in an indigent case.

The general practice with most of the District Courts of Appeal, there are presently five Courts of Appeal composed of 13 panels of three judges altogether.

And the general practice in most of the districts at the present time, and it goes back some years, I can’t say exactly when, is for the clerk to notify the appellant that the appeal is before the Court.

That he has received his transcript.

They notice he has no attorney, and they ask him, “Would you like an attorney appointed?

You are entitled to one if you cannot afford it”.

They usually send some type of a pauperis statement that’d be filled out under penalty of perjury, and it comes back like an affidavit.

Then if the man says he wants counsel and he’s an indigent, to my recollection, I think there’s only one case I know of in the last four or five years where they even doubted the man’s statement.

I happen to be in court at the time accidentally where I saw the Court’s questioning the man orally.

He was out on bail and they wondered about it.

But otherwise, to my knowledge any —

Potter Stewart:

They asked his indigency?

George J. Roth:

Yes Your Honor, that was the only case I know of.

Otherwise it’s practically automatic.

As soon — and then some of the Courts even without asking the man will automatically assume if he’s in prison that he’s indigent, they won’t even send this form out and they’ll appoint counsel.

Now, after counsel was appointed, he gets his record from the client.

Many times the client has the record he’s in prison, the lawyers will come into the Court’s office and look at the Court’s copy of the record or they’ll come to our office and borrow our copy.

However, he has the record.

Now if there’s any error at all, and this is to a paid counsel or counsel for indigents, then counsel’s obligation undoubtedly is to point that error out to the Court by writing a brief and putting his client’s best foot forward.

We have no quarrel with that at all we think it’s done practically all the time depending again on the ability of counsel to recognize error in the record, after that’s done, if a brief is written of course we get into the normal type of an appeal.

Now, the matter is set for hearing.

It’s been my experience watching appeals for about seven years very closely, six years, that oral argument in the District Courts of Appeal at least in Los Angeles particularly where about 60% of all appeals are handled is actually more of a fiction than a fact, and this is true with paid counsel as well as indigent counsel, because we find — I personally, I just thought about it last evening have handled about 450 appeals in three years.

I don’t believe I have orally argued more than possibly 50 out of those 450, and many of those included paid counsel.

Now we do find as a practical matter that when somebody comes in and it’s a very notorious case perhaps where they have gone out and hired the best counsel their money can buy, we find that those counsel will come in for the rich man and they will make an argument.

But it’s a make wait argument, but it’s done perhaps more to impress the client than the Court.

And it’s my —

William J. Brennan, Jr.:

How much time for that Mr. Roth?

George J. Roth:

Arguments where — received in the District Court of Appeal a maximum of a half hour aside Your Honor.

As a general practice, when cases are argued, I would say oral argument for each side rarely goes over ten minutes.

Many times, oral argument consists of a counsel standing up and saying that, “Unless the Court has questions, we will submit it on the briefs and on the record”.

This is true in many cases that are just set for oral argument.

William J. Brennan, Jr.:

But did I understand Mr. Roth that the largest proportion of all appeals were submitted on the brief in the record?

George J. Roth:

I would say that is true.

Now in different parts of the state, in some of the smaller areas, they encourage oral argument a little more.

And I really think it’s a question — I don’t know whether the Courts really encourage it, perhaps you could sometimes tell from the tone of voice of the judge, the presiding judge, whether they want to hear your argument or not.

And I know that in some of the Courts, we have more argument but they have a lower case load.

We are running now this fiscal year, we haven’t got the full figures projected, about 2000 appeals a year.

Last fiscal year, there were 1634 criminal appeals and felony cases in California.

It’s increased about 25%.

Of that 2000 appeals in round numbers, I would say that we get about 10%, well perhaps let me take it a different way.

Of that 2000 appeals, about 20% are paid counsel, of 400 appeals, the rest are indigent counsel.

And of the 1600 indigent appeals left, we probably run about 10% of appeals where they say no merit in a letter like this, although this is becoming less frequent, or they write what I call a straw man brief where they set up the points involved if they think might be arguable, search and seizure or perhaps the Escobedo Rule or something like that.

And then they show how their case does not come under those rules and then the conclusion is there is no merit.

I think that’s a lot worse, but that seems to be the District of Columbia policy.

William J. Brennan, Jr.:

Now, I would —

George J. Roth:

Yes Your Honor.

William J. Brennan, Jr.:

Were the — let’s see, I gather you said only about 10% of the no-merit, who are the counsel in (Voice Overlap) —

George J. Roth:

Alright, now I’m going to asked that Your Honor.

What happens is this that the bar has undertaken throughout the state to aid indigents in trial and in appeal.

There is no state public defender system for appeal.

We do have it in many counties for trial.

William J. Brennan, Jr.:

Well you do have it in Los Angeles.

George J. Roth:

Not for appeals Your Honor.

William J. Brennan, Jr.:

I see.

George J. Roth:

Not for appeals.

The public defender of the County of Los Angeles will appeal cases of his clients that he feels might affect the law and change the law.

George J. Roth:

Otherwise normally he will not handle it.

The bar throughout the state with rare exceptions the talent for this appellate counsel comes from volunteers.

Most of the volunteers are attorneys who have never had an appeal and they want to get some experience.

And they take one, and then they two and three and before they know it they’ve taken quite a few.

And I guess then they get busy and then it switches around.

And this is actually what happens.There are a number of attorneys who are experienced practitioners who take appeals and we see them filing appeals two, three a month.

In fact, there’s one attorney I know who had retired and took about 30 appeals and had them all running, and now the writ writers in the prisons are complaining that he’s taking too many appeals he can’t handle their case properly.

So this is practically what happens in our state, the —

Potter Stewart:

Are these volunteers on some sort of a list available to the Court (Voice Overlap)

George J. Roth:

Yes, usually it’s on a list, on a rotation list.The clerk usually call somebody up and says, “I have a case for you.”

William J. Brennan, Jr.:

Instead, they don’t get paid?

George J. Roth:

They — there’s a statutory provision Your Honor, they get a token fee.

It runs — it’s up to the discretion of the Court.

It runs from about $50, maybe $25 in some cases to possibly $200 or $250.

Let’s say the average is about 150 or 125 depending on the length of the record.

It really doesn’t depend on whether they write a brief for it, whether or not they write a brief.

They write a no-merit letter depends on the record.

I think the Court feels it’s dealing with volunteers.

It has faith in the integrity and the ability of the people who it appoints and this is a situation that results from.

Now, it’s very easy to say, “Well, if the first lawyer doesn’t think there’s any merit, give him another lawyer”.

And that’s what Iowa suggesting tomorrows case Ensminger, but Iowa had 60 appeals last year, we had 2000.

It’s a problem to get lawyers for appeals and as I say, most of them are volunteers.

In Los Angeles —

Yes, but —

George J. Roth:

Your Honor.

Tom C. Clark:

Many of them do it for the compensation for that?

George J. Roth:

I don’t know if the compensation would justify.

I think this Your Honor, that some lawyers just starting out undoubtedly do, but they find that the time that they put in on it is not the compensation.

And those lawyers who possibly do that may not continue volunteering for too long.

Tom C. Clark:

You said some volunteers for 25 to 30 days?

George J. Roth:

I know of numbers Your Honor, one lawyer — and this is within a short period of time.

This particular attorney I’m thinking of is retired.

In fact he’s a former member of our staff and he’s very competent and very capable to handle this type of matter.

Now on the other hand I know of an attorney who is in private practice and who specializes primarily in federal income tax cases, and he in Los Angeles sets up seminar classes for volunteers and handles enumerable appeals himself throughout the year.

And he has people from our office as well as learned defense counsel from the area come and actually have lectures and so on to his people to try and help them.

But then we come to this case.

And this case I think is different than any other cases I’ve read.

I think it’s different than any of the cases that I know about.

I learned about the Swenson case this morning and I think it’s different from the Swenson case, because in the Swenson case, the attorney appointed for the Missouri defendant in the trial went through the trial and filed a very specific motion for a new trial that showed what the points were and showed there was error.

But in this case, we come to the cardinal problem of what do you do when a competent counsel looks at the record and he says, “There is no error”.

And we know from our experience that it’s running somewhere about 10% of the cases (Inaudible) the cases only that are appealed.

And so I think we have to say to ourselves what does due process require.

I think it requires a meaningful appeal.

I don’t think it requires an attorney to make up error when he knows there is none.

And there’s bound to be some cases of this large group where there is no error, and if the Court has faith in its bar it can accept the attorney’s word, but they go further in California.

Even though they have faith in the bar, the Court itself very carefully goes over that record.

Now the Court in California does not only look, into my knowledge, to the points raised by the defendant.

There’s almost a rivalry betweenthe law clerks for the Courts and the Deputy Attorney Generals to see if the lower courts for the Courts can pick up some point that the indigent counsel didn’t find.

Every once in awhile and of course this is not as an advocate but as amicus the Attorney General in California will raise a point to the Court even if there’s paid counsel which we find was ignored.

We have about 70 deputies handling criminal matters alone in California and that’s how vast the volume is.

There are also about 2000 post appellate writs a year coming out.

And some of these are subject to appeal and some are not.

In coram nobis they are, in habeas corpus they’re not.

Now —

Abe Fortas:

Can you give me some idea (Voice Overlap) —

Byron R. White:

Do you have any procedure on appeal where the Attorney General’s office can move for dismissal of the appeal?

George J. Roth:

Your Honor, we can move for dismissal.

Let me say this, we can move in any case but — and sometimes we do but it’s frequently not granted to specifically get to, I think what you’re driving at.

There’s a certain type of an appeal where we can move to dismiss by statute, and that is an appeal where somebody has pleaded guilty.

We’ve just changed the California law that points out now that where a man pleads guilty, he must get a certificate of probable cause from the trial court before he can take an appeal from the plea of guilty.

George J. Roth:

Other than that, we —

William J. Brennan, Jr.:

There really is no procedure (Voice Overlap)?

George J. Roth:

There’s no procedure Your Honor.

Sometimes we have made motions to dismiss for extreme frivolity and the Courts just deny our motion.

And it has nothing to do with the appeal as it does in the other states.

Byron R. White:

Well, this appeal wasn’t then subject in the normal — under your normal procedures to a motion to dismiss as frivolous.

George J. Roth:

No Your Honor, no.

This appeal, if the petitioner had not written anything would have still been studied.

Now in California, our judges on these panels use the conference system.

They have — each one has a research clerk.

I presume the chief in each particular panel assigns the cases equitably among the justices and they work their cases over.

The judges and the research attorney assigned to the particular case give it a thorough fly specking, and then the rest of the Court gets that memorandum.

They have a conference on it, and if there’s oral argument, they have oral argument, they have another conference.

As I say, in most of the case or the cases are submitted without oral argument.

Now, as —

William J. Brennan, Jr.:

That would be true of the paid appeals that you’ve just described?

George J. Roth:

Yes Your Honor.

They used this conference system for all appeals, and of course the 2000 appeals I was talking about were only criminal appeals.

There are a tremendous number of civil appeals as you can well imagine.

Was there another question?

Earl Warren:

Was any case ever come within your experience where privately retained lawyer ever came to the Court and said, “My client has no case and I therefore won’t file a brief for it”.

George J. Roth:

No Your Honor, and I don’t think he ever could because he’d be violating the confidential communication between attorney and client.

Earl Warren:

Well, isn’t the man who’s appointed to — doesn’t the man who’s appointed to represent an indigent have the same responsibility to his client?

George J. Roth:

But if he doesn’t write a brief because of the fact that there is no error, then Your Honor, I agree he has the responsibility but the confidentialness does not exist in this situation because he has to tell the Court something so they know what to do so they can either tell the man to write your own brief or if the Court — and if the court gets his brief and they think there’s merit.

I know of cases where they have appointed other counsel and — or if the Court looks at it itself without appointing other counsel, without any brief from the indigent.

I know of cases where the Court has appointed other counsel.

Earl Warren:

I know but it would seem — wouldn’t it seem a little strange that if 10% of the lawyers who were appointed to represent indigents should come in and say, “My client has no case and I don’t want to file a brief or pursue it further”.

Whereon the other hand, no man who is privately retained ever comes in and make such a statement.

Is that —

George J. Roth:

I think that’s true Your Honor.

Earl Warren:

Is that difficult?

George J. Roth:

I think that anybody is privately retained.

However, we must remember this, we don’t know how many lawyers have told that client, “there is no merit to your case and I won’t take your money”.

And this comes to another point because I think that we tend to look at the rich and the poor and we ask for equality not of talent perhaps, but equality of treatment.

And I think that when we stop and realize, there’s some — I looked at the figures downstairs in the law library earlier today and they had a 1964 California criminal statistics book that showed something like 30,000 felony trials a year and 21,000 which convictions were obtained.

Now out of 21,000 that took 20,000 convictions, you only have 2000 people appealed.Most of those can get a free lawyer.

The other people can pay for it, but I firmly believe that we can conclude from this and I don’t think that it’s improper to do so that we can conclude that the great bulk of the people who don’t appeal are the poor — I call them poor, they’re the middle-class people with a mortgage and three kids and a lot of debts and they have too much money so they’re not considered indigent and they don’t have enough money to go wasted.

And they go to their client and — or rather they go their attorney in private practice and he says to them, “Look, I’ve looked at your record and I don’t want to take your money”.

Now, I don’t think this is strange.

I practice privately in a small community for ten years and I have this experience.

And I’m sure some of the justices on this bench in their early years may have had the same experience.

Earl Warren:

Well, I’m just wondering you said awhile ago that it was the usual thing for a young lawyer who had never had an appeal to take these indigent cases.

Don’t you think that there is very likely to be an injury done to some clients where you have — we have lawyers that inexperienced and then have him come to the Court and say, “I don’t find anything in the case” or “I won’t write a brief”.

George J. Roth:

No.

Earl Warren:

Or “I won’t present the points that he wants to (Voice Overlap)”.

George J. Roth:

To answer Your Honor’s question, I don’t think that an injury practically will result and I would like to state why.

The young lawyer, whoever he is whether he’s young or old, when he gets his first appeal he’s inexperienced.

But after he takes a few, he’s experienced.

And what happen — I mean even people who come before this Court, the first time they come they’re inexperienced arguing before this type of an appellate court.

However, once they’ve had the experience, they’re experienced attorneys.

To follow it through a little further, when the attorney says there’s no merit and whether he’s young or old if he’s inexperienced, he’s a volunteer we must remember.

He’s trying to do this to learn.

He’s trying to do this because he feels for the underdog.

He wants to help the indigent persons and he exerts his best efforts.

I think that we do a great disjustice to the bar when we say that the bar is lazy, that the bar has feelings that they want to be amicus.

That the bar has feelings of sloppiness in handling the record because of the fact that — and this is pure supposition, because of the fact that I think that the basis of justice in this country is solid if and only if we have one thing and that is a faith in the integrity of the people who are handling the cases for the clients.

Hugo L. Black:

May I ask you?

George J. Roth:

Yes Your Honor.

Hugo L. Black:

May I ask you if you’ve been talking practically here, the facts of the matter that — what do you suggest —

George J. Roth:

Well —

Hugo L. Black:

— that we should do with a case like this?

George J. Roth:

What I suggest in a case like this Your Honor is that this Court after it determines just where the position of the American Bar should be when there is no merit in the brief that this Court then make some promulgation so that the due process standard, whatever it may be, and I think that this one certainly satisfies it, that the due process standard would be equal throughout the United States.

Not only in the state courts but in the federal courts as well, and it seems to me that to take a case, this particular case, and compare it to a case in a court where they don’t trust their bar and they’ve said so in one way or another, and then they take memorandums from the bar primarily to see if the lawyer has done his homework.

And depending on the strength of the memorandum, they dismiss the case without even looking at the record.

I think perhaps that at least, I don’t want to say that’s a bad standards, but I say our standard is at least as good as that one Your Honor.

And I’m specifically referring to some of the federal jurisdictions.

Now I think one thing more that I — interest me greatly, and that is, what is an appeal?And I believe it’s different than a trial.

Trial, we say is a search for truth and an appeal is a search for error.

And the appeal is something that’s measurable.

It’s confined all around.

It’s got some record.

If it’s not in the record, you don’t have an appeal.

You might have a collateral attack in habeas corpus or some other matters.

You do not have an appeal, it’s something that only a trained person can look at and evaluate.

As I say — said before, said at my brief, we can’t give everybody Clarence Darrow, but by the same token, we give them lawyers who are trained, technical people.

And I don’t think it matters that the man in the prison feels bad or has some idea that there’s something wrong with his case.

I think his lawyer should consult with him to find out what he has in mind.

But he can not evaluate that record unless he’s the trained expert that the lawyer is.

And it’s this mesurement, and it’s this objectivity to me that distinguishes regardless of what the client says in the prison, the error either is or is not in the record.

And if the lawyer looks and says, “There’s no error” and then the Court looks and does not find any error, it seems to me rather futile to say that the Court should appoint another attorney to go out and look and see if there’s more error.

And it’s like the old principle about carrying the cow at the county fair.

How far do you go?

When do you stop?

Does due process require — due process requires two lawyers to look then due process requires 20 lawyers to look until somebody comes up with some type of an argument that may or may not carry any weight just because of its novelty.

Earl Warren:

Let me put a hypothetical —

George J. Roth:

Yes sir.

Earl Warren:

— case to you.

We’ve had a number of cases in this Court where it is alleged that there has been systematic exclusion of chores in the Negro cases.

And we’ve had the representation made and some instances it hasn’t been denied that no lawyer in the community would raise — no white lawyer in the community would raise that question.

Now, suppose the lawyer in those cases does as you do in California, says, “I’ve examined the record.

Earl Warren:

I find no error”.

And the case comes to us and the question is never raised and so forth.

What would you think our duty would be there?

George J. Roth:

Well, I think that it would be obvious that this matter would come up — it comes up to Your Honors through a different route too.

And it comes through habeas corpus, for example, through the federal courts or it comes through direct certiorari from the appeal and the representation is made.

And I think in those situations that the Court should order a reference to find out what the true situation is if it doesn’t appear —

Earl Warren:

Well, should we have to let a man remain in jail for a couple of years before he —

George J. Roth:

Well —

Earl Warren:

— comes to us on habeas corpus, and if perhaps he wasn’t guilty?

George J. Roth:

Well of course today, he can go right directly to the federal court immediately as I understand the law.

And he doesn’t have to wait a couple of years, and the federal judge can make that determination.

Earl Warren:

Well, he has to wait in some states for a couple of years to have his appeal determined.

He can’t go to — to go on a habeas corpus until his (Inaudible) —

George J. Roth:

True.

Earl Warren:

— appeal is determined.

George J. Roth:

That’s true Your Honor.

Earl Warren:

He has to exhaust his remedies.

George J. Roth:

But — to answer Your Honor’s question in a different way and as many counsel have done in the last several days, that doesn’t happen in California, that particular hypothetical question.

Earl Warren:

I know but — I’ve been rather proud of the procedure in California too myself for many years but I’m just wondering if there isn’t a great gap there insofar as these lawyers who come in and some of them vary in experience who say, “I find nothing in the case and I won’t do anything for this man”.

Now should there be some way this man can have something done for him?

George J. Roth:

Your Honor, it seems to me that the appellate court in its integrity, and I think narrower on the level of the integrity of the appellate court, that the appellate court in its integrity will look at that record, and if it at least — it has to be in the record in order to be raised in an appeal.

And if it’s in the record, I think the appellate court will find it under the California system in the point —

Earl Warren:

Rather than an investigation of that kind by a judge and his law clerk is not the adversary proceeding.

George J. Roth:

No, I agree it’s not.

Earl Warren:

It is not.

George J. Roth:

But —

Earl Warren:

And so to that extent, isn’t he deprived of the adversary preceding that he — that other people are entitled to?

George J. Roth:

Well Your Honor, this would have to appear in a record however in order to be brought up on appeal.

You — and under our system —

Earl Warren:

But he can’t —

George J. Roth:

Well, this record is —

Earl Warren:

— he can’t make a record himself, what–

George J. Roth:

But it —

Earl Warren:

— follows in the penitentiary and has no lawyer.

George J. Roth:

No.

True, but Your Honor, his record is made by the trial counsel in the trial court.

And if it’s not made there then his remedy is not on appeal, it’s by habeas corpus.

And I — I saw at least — as I look at the appeals, the appeals are from records and if there’s something outside the record, you have to go in a different way and make a different record.

Earl Warren:

But my point is this.

When the lawyer abdicates and says, “I won’t do any more for this man.

I see nothing in his case”.

The adversary proceeding stops right there doesn’t it?

George J. Roth:

I think it does, yes.

Earl Warren:

You think that.

George J. Roth:

I think this so —

Earl Warren:

You think that’s equal justice?

George J. Roth:

If there’s nothing there, yes Your Honor.

Earl Warren:

Yes, if there’s nothing there, I agree with you.

George J. Roth:

Well, I can —

Earl Warren:

But the adversary proceeding is supposed to bring out whether there is anything there.

George J. Roth:

Whether there is and I agree Your Honor.

And what is the attorney to do?

This is the problem as I see it.

What is the attorney to do who conscientiously studies the record, talks to his client?

He can be the best attorney in town, he’s got an indigent client then he can’t find anything.

Now —

Earl Warren:

Well, how do we know though that he is conscientious in doing that in this case, he didn’t even make the motion for a new trial?

George J. Roth:

With — but it’s a different attorney Your Honor that —

Earl Warren:

Well —

George J. Roth:

— at the trial level —

Earl Warren:

Well, I know but this man hasn’t had the benefit of a motion for a new trial.

George J. Roth:

But the point is Your Honor that had there been one there, we assume that his trial lawyer would’ve made that.

Again, we’re now —

Earl Warren:

Well, supposing this man had been the trial lawyer and hadn’t made a motion for new trial?

George J. Roth:

This happens in many cases Your Honor, and yet people still appeal.

Earl Warren:

Yes, this man can’t appeal though.

George J. Roth:

Huh?

Pardon?

Earl Warren:

This man can’t appeal.

George J. Roth:

But he still gets his appeal Your Honor.

Earl Warren:

No, he doesn’t get any hearing.

He doesn’t get any hearing before the Court at all.

George J. Roth:

Well he has the Court look at his record completely.

That the —

Earl Warren:

That is true, but isn’t that — wasn’t that (Voice Overlap) —

George J. Roth:

And we have to assume that the Courts have integrity when they look.

Earl Warren:

Oh, yes.

George J. Roth:

And if the error is there, well, I — just to give you an example, I saw one person, an attorney who had a paying client, we’re in court and he said to one of my colleagues, “My client is an ex-convict who is charged with carrying a gun.

Do you think that I should just throw in an argument that perhaps under the federal constitution, this impairs his right to bear arms?”

And he said, “I’ve got a paying client”.

To have maybe might sound good, now he knew this was the type of a point at least that he didn’t have any faith in.

And this is the problem.

What is the attorney to do when he looks at a record and his professional judgment there is nothing to argue about?

Now, this is it, what does he do?

Does he say to the Court, “Gentlemen, there’s a statute that says the judge’s robes must be eight inches off the floor and I notice that one of the judges had a robe on that was 16 inches off the floor”.

You know, it’s one of these things that it’s a make way to argument, or does he say, “Well my client was questioned by the Police Department ten years ago and that questioning led to his trial.

That happened after the opinion of this Court recently in people against Johnson, and therefore he plead guilty or it happened after his trial and therefore his case should be different and the United States Supreme Court decision should be reversed”.

I don’t think counsel’s obligations —

Earl Warren:

One fellow —

George J. Roth:

— to do that Your Honor.

Earl Warren:

Well, one fellow got an awful long ways in this — that manner, Gideon versus Wainwright.

George J. Roth:

Yes.

Earl Warren:

He got a long ways on —

George J. Roth:

True.

Earl Warren:

— on a thing of that kind.

Now, but — didn’t some lawyer who’s never had any experience and he just said, “I have no — my client has no case so I — that whole doctrine wouldn’t be at existence today”.

George J. Roth:

It could very well be Your Honor.

Thank you.

Earl Warren:

Mr. Heyman do you have (Voice Overlap) —

Ira Michael Heyman:

Well, I guess just one thing Your Honor.

Earl Warren:

Yes.

Ira Michael Heyman:

I think that respondent brings up a point with some validity, Your Honor, that what is the lawyer to do?

I’d like to put it this way.

I think there will be instances if the Court, this Court requires that indigents who desire be represented by counsel in a meaningful way on appeal.

There will be instances in which a counsel is very hard put to make an argument.

But I would submit this that there will be many more instances where counsel will make arguments which are meritorious in the sense that they certainly bear consideration by the appellate court.

Where those arguments would not be made under the present California system, and balancing those two off, it seems to me that I would proceed by assuring counsel rather than the contrary.

Thank you Your Honor.

Earl Warren:

Very well.