Banks v. California

PETITIONER:Banks
RESPONDENT:California
LOCATION:Circuit Court of Mobile County

DOCKET NO.: 670
DECIDED BY: Warren Court (1969)
LOWER COURT: State appellate court

CITATION: 395 US 708 (1969)
ARGUED: Apr 23, 1969
DECIDED: Jun 16, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 23, 1969 in Banks v. California

Earl Warren:

Number 670, Fred Banks versus California.

Mr. Klitgaard.

Thomas J. Klitgaard:

Mr. Chief Justice may it please the Court.

This is a criminal case from California.

It involves the application of the harmless error rule to comment and instruction on petitioner’s failure to testify of trial.

The crimes involved were robbery and attempted robbery.

The only issue was one of identification.

Mixed in, in the totality of the circumstances was a show up, a line up and a showing of photographs by the prosecution to witnesses before trial.

Also involved was the use of petitioner’s silence against him in another way that is to the use of adoptive admissions to the use of petitioner’s silence in the place of accusations.

At trial procedurally, petitioner was without counsel and defended himself in pro per.

On appeal, there was a partial denial of counsel as we will see.

The case begun in 1962, petitioner was convicted in the Alameda County Superior Court of two counts of robbery and one count of attempted robbery.

He appealed counsel was appointed.

Counsel briefed and argued the case.

The District Court of appeal affirmed the conviction.

Counsel, the next day, after the affirmance wrote petition letters saying he was withdrawing from the case.

It was no evidence anywhere that counsel sent a letter of that — a copy of that letter to the Court of Appeals.

Petitioner then went ahead and filed the pro per petition for hearing in a California Supreme Court.

The Court denied the hearing and petitioner then came here.

He filed the pro per petition for cert and in 1966, the Court granted the petition.

And in a per curiam remanded the case to the District Court of Appeal for further consideration in light of Griffin against California.

Alright the court, the case gets back down to the Court of Appeal.

Petitioner writes the court and asks for counsel, someone to brief and argue his case.

The court denies petitioner counsel, it says, he’s still represented by the original attorney and if he wants to file a brief, better get one in promptly.

Petitioner eventually filed the brief in pro per.

The State Attorney General sent a paragraph or a page and a half letter to the court saying that, the evidence was overwhelming against petitioner and besides petitioner and his pro per petition had not made any factual showing to show a miscarriage of justice.

The Court without oral argument about two weeks after receiving the state’s letter entered — filed an opinion that incorporated its first opinion by reference.

Referred briefly to the evidence and then said that in view of the overwhelming evidence of petitioner’s guilt.

It was not reasonably probable a different result would have been obtained absent to comment on his failure to testify.

Petitioner again in pro per filed the petition for certiorari in this Court.

Thomas J. Klitgaard:

The Court again granted the writ.

This time it remanded the case to the Court of Appeal with instructions to reconsider the case in light of Chapman, the harmless error rule.

Again, petitioner requested the court appoint counsel for him.

He did this twice and again the court refused.

Petitioner eventually filed the brief in pro per in the Court of Appeals.

The state didn’t file a brief.

It just sent in a two-paragraph letter saying that it incorporated by reference, everything that it said before and it did have anything further to add.

Without hearing argument, without hearing anything from counsel for petitioner, he never filed anything on any of the remands.

The Court of Appeals, the second time around, entered a two-page opinion said it, it considered the case a couple of times before, it incorporated its first opinion by reference and then went on to say just in the sentence.

After further consideration, we declare a belief based upon the conclusive evidence of guilt that the comment an error and the comment on the failure to testify was harmless beyond a reasonable doubt.

After that petitioner again came here, he filed a petition in pro per, again asking the Court for a hearing.

The Court granted the petition last October, appointed counsel and set the case down for argument.

In January, this Court denied a motion by the state to dispense with printing the record.

Now, the state contends that the — at this point that on the totally of the record, the comment and instruction on petitioner’s failure to testify were harmless beyond the reasonable doubt.

It also raises two issues never raise before in the Court of Appeals or it — or before on this Court — in this Court, eventhough, it answer each petition for certiorari.

First, it says that petitioner waived his Fifth Amendment rights by the manner in which he depend himself in pro per during the trial.

During trial, petitioner in cross-examining asks a couple of questions that were less and articulate and it looks like he might have been testifying.

The Court corrected him.

He got back on the track and continued on.

At the end of trial during oral argument after the prosecutor had already commented on his failure to testify and rack them up on that as his final clinching point.

Petitioner came back and made a few statements that a lawyer would make he said, he was innocent.

The Court corrected him said, he can’t say that.

Petitioner said, alright judge and then, he followed the Court’s instruction and went on, and made his argument to the jury as best he could.

Now, the state claims that’s a waiver.

He waived his Fifth Amendment rights.

I think the evidence will show as we go along that there was no such waiver.

Neither the trial court and the prosecutor or any of the lower courts reviewed this case.

Everyone suggested there was a waiver and not once during argument to the jury or at anytime during trial did the judge ever tell petitioner that he was in danger of waiving his Fifth Amendment rights.

The other issue is a jurisdictional point is raise for the first time.

The state now says, the court can’t hear the case.

Thomas J. Klitgaard:

It made a mistake.

The state says that, the Court should not have remanded the second time for further consideration in light of Chapman and it shouldn’t have granted cert this last time.

The reason as according to the state is that because after each remand, petitioner didn’t come back and file a petition for discretionary review in the California Supreme Court.

As to that point, suffice to say that at the very outset of these whole proceeding, petitioner in pro per went to the California Supreme Court.

He was denied a hearing under California law that judgment then became final.

After that, this case was bouncing back and forth between this Court and the Court of Appeals.

What petitioner was seeking when he came back here each time was enforcement of this Court’s mandate, enforcement of the directions of this Court to give him a hearing, the court below and for that it was proper that he come back here to the Court that issue the mandate rather than to a stranger court.

Now, the state —

Abe Fortas:

Well, our mandate didn’t say he should be given a hearing, did it?

Thomas J. Klitgaard:

He said for further consideration proceedings in light of Griffin against California —

Abe Fortas:

And so the question that you’re presenting to us really as on your theory of the case is, what should those proceedings be a more specifically was the petitioner entitled to counsel —

Thomas J. Klitgaard:

That’s — that’s one —

Abe Fortas:

— for purposes of those private proceedings that this Court ordered on remand, that’s number one.

And number two, you’re raising a question of the standard to be applied with respect to the determination of harmless error, am I right?

Thomas J. Klitgaard:

Yes, Mr. Justice.

What I’m saying is the petition is never had a hearing on his Griffin comment and when I went to the record that thing turned out to be a veritable can of worms.

It was used by adopted admissions against petitioner and this consisted at trial now that prosecution adduced evidence at the time of petitioner’s arrest.

The police officer said, “There been some robberies and buddy you fit the description.”

And petitioner remained silent, he didn’t do anything.

At trial —

Abe Fortas:

I notice — I notice in your brief you’ve got very elaborate brief and you argue a lot of points but aren’t those two points that I stated the points that are before us?

Thomas J. Klitgaard:

The point —

Abe Fortas:

That is to say one, whether on the further proceedings ordered by us for purposes of considering Griffin against California’s application to this case, counsel should have been appointed.

And two, whether the court below properly applied the harmless error standard —

Thomas J. Klitgaard:

Correct, Your Honor.

And in properly appointing the harmless error standard, we look at the totality of the evidence introduced against petitioner at this trial and for that reason we get into how the comment, get into the overall —

Abe Fortas:

Well, do you concede then that the proper standard for determining whether the error was harmless.

Was whether the — it is not as court below said, it is not reasonably — it is or is not reasonably probable that a result more favorable to Banks, the petitioner, would have been reached in the absence of the error.

Do you believe that’s a correct standard?

Thomas J. Klitgaard:

No, I don’t.

Thomas J. Klitgaard:

I — and I’m — I hope I have it.

Abe Fortas:

Why don’t you tell us as succinctly as you can, if you don’t mind about what you think the standard is?

I was reading from page 333 of the appendix.

Thomas J. Klitgaard:

Yes, sir.

The standard —

Abe Fortas:

If you don’t think the reasonable probability of a more favorable result standard is correct what do you think is the correct standard?

Thomas J. Klitgaard:

I think the correct standard is the one this Court announced in Chapman that the Court must be able to declare beyond the reasonable doubt that the area was harmless.

Byron R. White:

But what that means?

Thomas J. Klitgaard:

That means that the Court has to look at the evidence.

It has to look at it, the record.

It has to look at the overall context of the trial.

It has to be able to say that this comment did not contribute to the conviction beyond the reasonable doubt and as to that the burden is on the state.

Mr. Justice, after going through this record and it seems to me that how can you ever say comment on failure to testify is harmless.

That goes to the basic issue in the whole case, guilt or innocence.

And no appellate court can see the impact on the jury when that comment is made.

It can’t — it can’t see the widening of the jury’s eyes.

Now, I know you ruled already against this point that you can apply the harmless error rule in the comment cases.

But what I’m saying right now is that when you get into the harmless error on comment and failure to testify, you have to start in and reweigh the whole case.

You have to look at the facts, look at how they split in.

Potter Stewart:

But when this — certainly the Court of Appeal for the First Appellate District of your state, when the case was before for the third time not the second time,–

Thomas J. Klitgaard:

Yes, sir.

Potter Stewart:

— this is what Justice Fortas read, but for the third time, after it has been remanded in the light of Chapman.

Thomas J. Klitgaard:

Yes, sir.

Potter Stewart:

First, it was really granted as I understand it the light of Griffin.

Then it was remanded in the light of Chapman and this brief opinion appears on 341 or 342 of the appendix indicates that the Court at least purported to be applying the rule annunciated in Chapman, isn’t it?

We declare belief that such error was harmless beyond the reasonable doubt.

That’s exactly what you said the standard ought to be —

Thomas J. Klitgaard:

It —

Potter Stewart:

— and was said to be in the Chapman case?

Thomas J. Klitgaard:

Mr. Justice, what the Court of Appeal did was repeat the language in the Chapman test but how could the Court of Appeal decide this case without hearing a lawyer argue the facts.

Potter Stewart:

Well, that’s some – that’s a depth question but I’m talking about the standard that they verbalized.

Thomas J. Klitgaard:

Should the standard verbalize this — the one that this Court is conducting.

Byron R. White:

Does the standard enter the light for you under Chapman?

Thomas J. Klitgaard:

Yes, sir.

Byron R. White:

What it means to me based on the conclusive evidence of what the Court is saying that if you look the record and see the evidence that took the evidence of guilt —

Thomas J. Klitgaard:

Yes, sir.

Byron R. White:

— other than the comment.

If it’s conclusive enough, its harmless error —

Thomas J. Klitgaard:

I don’t believe that.

Byron R. White:

Well, isn’t that what they said?

Thomas J. Klitgaard:

That’s right.

That — that was how they — that’s their phrasing here based upon conclusive evidence.

Byron R. White:

If you look at the other evidence and is conclusive enough, you — it doesn’t make any difference about the error.

Is that — do you think that what’s Chapman means?

Thomas J. Klitgaard:

I would hope not.

I would mean it — I would think the Chapman means that you have to look at — you don’t just look at — you’re not just weighing the number of balls in a cannon in one side and the balls — number of balls on the cannon the other side.

You look — Chapman means that you look all the evidence, not just the evidence that point towards this one result.

Now, it is a fact the jury convicted the man is —

Byron R. White:

How do you ever charge — decide harmless error?

How can there ever be harmless error in that?

Thomas J. Klitgaard:

That’s —

Byron R. White:

How can there ever be a harmless error rule if you don’t — if you don’t look at all the evidence to decide that it’s so conclusive that this erroneous piece of evidence didn’t make any difference.

If you don’t do it that way how can you possibly do it?

Thomas J. Klitgaard:

I think you’re agreeing with me, Mr. Justice, you have to look at all the evidence.

Byron R. White:

Well, I know but it is that — I think that’s probably what this Court purported to do.

Thomas J. Klitgaard:

That’s would it — that’s would it —

Abe Fortas:

Well, how would you state it —

Thomas J. Klitgaard:

— appear to you.

Abe Fortas:

How would you state it?

Would you say for example that if there is any basis on which the jury might rationally conclude that the defendant was innocent?

Thomas J. Klitgaard:

No, sir.

Abe Fortas:

But then it’s not harmless beyond reasonable doubt?

Thomas J. Klitgaard:

No.

The way I think and I verbalize the test is the test has to be applied upon the basis of all the evidence in the record and if there is slightest —

Abe Fortas:

Well, the Court did that —

Thomas J. Klitgaard:

— if there is a slightest doubt that this comment might have convinced one juror, one juror to be the evidence against the defendant and that — when you can’t show that that error was harmless.

Abe Fortas:

I see.

So what you would say is that if there’s a basis in the record for thinking that a single juror might have refused to vote for the defendant’s guilt, then you can’t find harmless error.

Thomas J. Klitgaard:

That’s right.

Let me put to you this —

Potter Stewart:

And you further say that whenever you have comment on his failure to testify, there is such a basis?

Thomas J. Klitgaard:

But why is the prosecutor making the comment? He’s not up there just beating his.

Potter Stewart:

Exactly.

Thomas J. Klitgaard:

That’s right.

Potter Stewart:

But that I thought was my point of view in the Chapman case and I would hold by myself, you know?

Thomas J. Klitgaard:

Well, I — you got somebody with you standing over here.

Potter Stewart:

But we have to overrule the Chapman case?

Thomas J. Klitgaard:

I don’t think you have to overrule Chapman to get it — to get the reversal in this case because in this case there is all kinds of doubt the petitioner was the robber.

In fact, they had three robberies at night.

You had two Chinese men coming in testifying.

They’re all excited.

One of them said, he went for the line up and he couldn’t identify the petitioner.

He said that two weeks before trial.

The prosecutor brought around a photograph but the police brought around a photograph, a mugshot, and say, is this man the man who held up your store?

And the witness looked at the photograph.

On the back of it was the description of the defendant, age, height, size, weight, name.

On the front was the numbers across the chest.

The photograph showed the man like it appeared in Court without his hat.

Two weeks before trial, a District Attorney gets a hold of the two guys who are least certain of identification at the line up.

He calls them into his office and says, “I want you take a look at the picture here.”

Thomas J. Klitgaard:

“Picture of whom?”

“Picture of the defendant we’re going to try.

And while we’re at, let’s take a look at his clothes.”

Clothes in his run that we took from the night of the crime, then the witnesses come into Court and they say, “Sure, we identify the defendant.”

And all these came out at trial.

I mean any right thinking juror will have a little bit of doubt about the validity of this eyewitness evidence where the police bring in photographs and shown to the witnesses just before trial.

I mean, crying out loud.

Why were they doing it?

It wasn’t just for the fun of it.

Now, the — and again, to show you what kind of evidence the state was using against petitioner which would cast a doubt that on the fact that he was a robber.

To have this man who says, he has identified he could have recognized the robber again if he saw him in the next 100 years.

Never forget his face, (Inaudible).

This man comes in and tells that — tells the jury that he didn’t remember whether the robber had any grease on his face for example.

Then he tells the jury, didn’t remember whether the robber had any lip glisters.

Petitioner had a decorative lip glisters under his lip.

The man who says he recognize petitioner a hundred years, also tells the jury that he was hot when he went to the line up.

He was mad.

He didn’t want to go to the line up.

He had work to do.

The police told him to come down and see if he can pick out the suspect.

He got him down here.

You got all these witnesses who are all over the place and there testimony.

And if you look in the brief, you’ll see they describe a man of all different colors and sizes.

The most important thing, Mr. Justice Stewart, this will show you where the real bite of this promissory rule comes in.

Here, the District Attorney when the case was on remand took the clothing out of the files of the superior court and the destroyed the clothing that was used in evidence against petitioner.

So, there’s no way that an appellate court could ever look at that clothing and see if it were being properly described during trial.

He also took the diagram that was used against petitioner trial.

What happened was that the District Attorney had someone come in from his office and make a rough sketch not one to scale and says, “Well, this is the locations of the various robberies and so forth.”

And then, when this Court remands the first time, not the second time, when it remand the first time for considerations under Griffin.

The DA goes into the files takes that evidence out, takes that diagram out and destroys it.

Thomas J. Klitgaard:

He also destroyed most of the other exhibits and it was only by good fortune that petitioner had copies and we’re able to get some of it to show what was in the record.

They denied they have the exhibits.

They have to go up there and fight to get the exhibits.

Potter Stewart:

Where was the — you’re not suggesting are you any deliberate wrong doing of the —

Thomas J. Klitgaard:

No.

I’m suggesting the case dragged on.

The judgment became final in the Court of Appeal.

Potter Stewart:

Certainly and the conviction was affirmed and we — it was remanded by us only for reconsideration in the light of Griffin which involve comment on his failure to testify.

It didn’t involve anything else?

Thomas J. Klitgaard:

No.

There — they’re nice guys.

I mean they’re trying to do their job.

I’m sure when they — if it’s ever thought that they’re violating this Court’s mandate they wouldn’t have done it.

But the fact remain is —

Potter Stewart:

What joint?

Thomas J. Klitgaard:

— the evidence isn’t there?

Then when —

Potter Stewart:

When it was remanded in the light of Griffin, it was simply remanded in the light of case that it said that you can’t comment on the defendant’s failure to testify and it was limited remand but however, that’s — that’s — I just want to make clear —

Thomas J. Klitgaard:

Oh, no.

No.

Potter Stewart:

— what you were charging —

Thomas J. Klitgaard:

No.

In fact, no.

Abe Fortas:

What your — let me see if I can understand this.

The standard adopted by the Court was that the Court arrived at the conclusion that there was conclusive evidence of guilt and therefore, the error was harmless beyond the reasonable doubt.

And are you suggesting to us that that is different from the Court to examining this to see that — examining the record to see whether there was a possibility that a juror might not be persuaded that beyond the reasonable doubt that this man was guilty.

Thomas J. Klitgaard:

Yes, I am.

Abe Fortas:

You’re saying that — that is the advice in this standard.

Thomas J. Klitgaard:

That is the exact advice in this standard.

I think when you try a case you can just see the jury sometimes that they — their eyes widen at certain evidence, where was the missing witness.

Thomas J. Klitgaard:

You can always see the jury’s eyes widen at that and that’s the frustrating part about the harmless error rule.

You just can’t measure the impact on the jury when come up on appeal.

You can kill by a single bullet.

That comment at the end of trial as in this case at the very end of the prosecutor’s argument when he was winding up.

The point he used against petitioners.

He hadn’t got up on the stand and testified.

Then petitioner got up in his argument and he said, “You’ve tried to go through the facts and went through about showing a photographs and so forth.”

And said, he hadn’t testified because he didn’t think the Government had proved its case and so on.”

The prosecutor got right back up after that and said to the jury, “Look here he said, you can’t expect all the witnesses to agree in what they saw and besides the line up showed to you is guilty.”

Pick him out right there these people and beside that there’s lot of circumstantial evidence in this case, lots of it.

Let’s look at the circumstantial evidence.

The prosecutor said, “This is the whole last part of his argument to the jury, closing argument.”

He said, “Petitioner here was cool — cool, you saw him in Court.

How cool he was defending himself.”

Well, the robber was described as cool.

You saw that — heard the evidence that there was some crumpled money in petitioner’s pockets, that’s circumstantial evidence.”

Other circumstantial evidence is that when petitioner was accused of being the robber by the policeman at the time of the arrest and one of the witnesses said to him in the line up quarter, “that’s the man”, when petitioner remains silent there.

That’s evidence, that’s circumstantial evidence of guilt and you can take into consideration of fact that petitioner didn’t testify.

And the courts going to tell you and I’m telling you now that you — if he could have denied it, you’ll be instructed that that you can infer that he wasn’t able to deny it and you can take his failure to testify in consideration.

Now, petitioner’s defense basically was — it was former.

He earned his money.

He’s been working in Pittsburgh, a little town outside of Concord, outside of Oakland and if prosecutor got up and he said, well, we know that as his last punch of petitioner after this other failure to testify business.

He got up and said, well, you know petitioner says he earned his money and so forth.

But we all know lots of people have bills and things like that and we don’t know that the money of the petitioner had in his pocket was the same money he earned because he hasn’t got to understand and told you.”

And then he says petitioner asked why people rob?

He said, you can ask lots of people why people rob.

Lots of persons you could ask that question too.

And then he says to the jury at the very end winding up, you can take in consideration not just the direct evidence but look at all these circumstantial evidence, who have just been talking about.

You can reach your verdict on that and then the Court went on to instruct on this accusations that that was something jury could consider in his admission of guilt, instructed on a failure to testify.

The state makes a big deal out of petitioner coping somewhere from the California standard instruction book in the long hand, an instruction on the failure to testify and giving it to the judge.

Thomas J. Klitgaard:

The judge had already told petitioner he’s going to give the instruction.

The judge didn’t give the instruction, petitioner tried to write out to give a far more damning one.

They told the jury that if petitioner was in the position to understand all these and know the facts and then deny him.

Then the jury could take that into consideration.

There is one point, the other point I want to test — bring up not testify to and that’s the denial of counsel of trial.

Now, petitioner had been represented by the public defender at the preliminary hearing and at the arraignment.

And as you can see from the bringing of briefs there are three crimes it was important that if he could as a tactical matter.

The petitioner would be tried separately on each of those crimes because any avoid that overlap and the modus operandi argument that the like the prosecutor made.

So, petitioner goes to your — to the arraignment and that public defender tells the judge, he wants to make a motion for separate trials.

Alright, but then instead of arguing the motion, he tells the judge, we’ll take it under submission.

Next week or so, they come back to Court for a hearing and the judge turns to the public — to the prosecutor and says, what do you have to say about this motion for separate trials that prosecutor, the DA makes his speech.

Then petitioner, his lawyer gets up and says, “Well, the pleadings are defective.”

That’s about it and the Court overrules the motion for separate trials.

Petitioner then the next time they go to Court, petitioner asked that public defender if he can ask the Court a question you — it says the judge, “So Your Honor, I don’t think its constitutional, if the (Inaudible) at the same time for these crimes and instead of defending the standing up for his client.

The public defender says the judge, “Well Your Honor, you said the — this is the same thing I raised before a couple of weeks ago and you already ruled against petitioner on it.

He’s just raising the same point now on put on a different constitutional ground.”

And then the defendant says, “I think it’s reasonable but so forth, and the judges out hearing from the DA simply goes ahead and denies the motion.”

Two weeks later petitioner comes back before the judge for a hearing to set a trial date.

He says to the judge butts in, it says, Your Honor, can you take care of this constitutional thing for me.

And that — and on similar facts and the public defendant says, “I don’t know his talking about now” to the judge.

He says, “You’ve already ruled on the motion for separate trials.”

And then the judge denied, the judge law is talking about separate trial in each of the three counts and the motion is denied.

And then petitioner said, “I don’t want to be represented anymore by the public defender.”

The Court looks at the charges so you can’t put a serious crimes can’t waive it, can’t waive a defense.

But the petitioner says, I don’t want to be represented by this man anymore.

It doesn’t look to me like public defender’s office is any match for the DA around here not qualified.

That will and the judge says, alright, you can go to trial by yourself but we’ll have someone from the public defender’s office sit inside the courtroom with you behind there and will help you out.

And just then the public defender apply his evidence says, “Wait a minute, Your Honor.

Can I be heard?

Looks this guy looks like a wise guy.

Thomas J. Klitgaard:

He’s trying to pull something off and his trying to look like a poor little man infront of the public, infront of the DA being picked upon.”

If one of his legal points bounces on him, it’s going to be real tough.

He says, “I don’t want any part of this mixed merit.

Either we go — either he goes along or he goes with us.”

And the Court then said to the public defender, listen, you have someone here in Court.

So the next day — about two weeks later, petitioner comes up for trial before a different judge.

This judge hears about petitioner wanting counsel and he requires in the petitioners background.

He finds out that he’s got a record, a young man in Illinois have been convicted for murder.

He’s been out for parole in California.

Working as a plumber up in Pittsburgh, sixth grade education, mentally defective, he’s been in the hospital for mental treatment and emotionally upset about the charges.

The judge says, “Look!”

He says, “You can’t defend yourself.

This is — no man should defend himself in felony charge.”

And petitioner says, “I’m not going to stick with this public defender.

I want someone that qualified, someone I have confidence.”

The judge says, “Well, take the public defender or nobody.”

Meanwhile, while all of these are going on of course.

There’s an assistant public defender listening to it, happens at trial what was being said.

The case comes back, the judge says, “Well alright, you have to go by yourself.

I can’t give any help.

Then petitioner in the real flash of brilliance says the judge, “Well, I look better on appeal if I go up without counsel.”

And the judge jump up and said, “What do you mean by that?”

Petitioner said, “What I mean is, I think I still have a right to counsel that points some other than the public defender.

So, he goes before the next judge.

He disqualifies the judge, he asked for change of venue to go back before the first guy.

He gets back before the first judge, the one who heard the public defender call him a wise guy.

Petitioner and this judge says, “Well, you can still have the public defender.”

Petitioner says, “I don’t want the public defender.

Just appoint anybody from the open bar, just anybody, other than a public defender.

Somebody I can believe in.”

Thomas J. Klitgaard:

The judge says, “Go to trial as a public defender without anybody.”

And then he says, “Well.”

Then petitioner says, “Well, how about this guy who’s been sitting here, the assistant public defender.”

The assistant public defender was present during the second proceeding when all this come out of our petitioner’s background and so forth.

He didn’t say a word to the judge about that.

He just kept his mouth shut.

So the third judge, I mean with the first judge, who heard petitioner call the wise guy was it — finally the judge who tried this case but the public defender who was in between him, both didn’t report back to this — to the trial judge the way heard at the prior proceeding.

The petitioner had a sixth grade education and he was all — he was a plumber and so forth, and so petitioner goes to trial.

And the first thing the DA —

Byron R. White:

(Inaudible)

Thomas J. Klitgaard:

Well, if you read — if you see what the judge said during board there Mr. Justice.

Petitioner is conducting his word at the jury see, here he is all alone.

The judge he says to the jury, he’s trying to explain what separate defenses are.

If the jury can keep it straight and if one of the jury says, “I don’t understand the question.”

The judge says the juror, “Well, you can come over here and join me.”

And then another time during the board hearing the judge — petitioner is asking the jury about juvenile delinquency and I’ll shut up right after this.

But he asked the judge about — he’s asking about juvenile delinquency and the judge says to the petitioner, “You look a little bit old to be talking about juvenile delinquency, ha – ha – ha.”

And there’s petitioner taking it on the chin.

Thank you.

Earl Warren:

Mr. O’Brien.

Edward P. O’Brien:

Mr. Chief Justice, may it please the Court.

The initial point that I wish to bring to this Court’s attention is that of this Court’s jurisdiction to review the present case.

This Court’s jurisdiction in reviewing state courts’ decisions is of course limited to those judgments rendered by the highest court of a state in which decision could be held.

After this Court remanded, the Banks case to be reviewed in light of Chapman.

The Court of Appeals of California rendered its position on October 2, 1967.

The petitioner did not thereafter petition for a hearing in the California Supreme Court.

It is well settled that the judgment of an intermediate appellate court is not that of a highest state court where discretionary review is available and not sought.

That is precisely the situation here under California Constitution and laws.

The California Supreme Court has discretionary power to review the Court of Appeals.

And therefore, the judgment in this case is not of the highest court of state.

Edward P. O’Brien:

The petitioner —

Hugo L. Black:

Can we ask the Court of Appeals for counsel?

Edward P. O’Brien:

Yes, Your Honor.

On the remand, he sent a letter into the Court of Appeals stating that he wished a second counsel or a different counsel and gave as his reason that the counsel, his appointed counsel on the original appeal decided in 1964 did not raise the Griffin constitutional issue.

But the Court of Appeals answered petitioner’s letter and pointed out to him that he was not in effect that he could not expect counsel to anticipate that to be clairvoyant to spot the Griffin issue in 1964.

Indeed, this Court has said as much in the O’Connor versus Ohio case and he gave no other reason to the Court of Appeals as to why he should be entitled to a second or different counsel.

In the reply brief and an effort to avoid the —

Thurgood Marshall:

Is there anything the record for the lawyer?

Edward P. O’Brien:

I beg your pardon.

Thurgood Marshall:

Is there anything in the record from the lawyer?

Edward P. O’Brien:

The appointed counsel Your Honor on — at the time of the remand did not file a brief.

Thurgood Marshall:

Did he do anything?

Edward P. O’Brien:

Ah, he filed nothing —

Thurgood Marshall:

You just said.

Edward P. O’Brien:

He filed nothing with the Court, Your Honor.

Thurgood Marshall:

Did he argue?

Edward P. O’Brien:

No, Your Honor.

There was no argument in the case.

Thurgood Marshall:

Well, did he have counsel?

Edward P. O’Brien:

Yes, Your Honor.

He did.

He had —

Thurgood Marshall:

How?

Edward P. O’Brien:

He had been appointed counsel, Mr. Chapsky, by the Court of Appeals and on each remand.

The Court of Appeals informed both the petitioner and his counsel that if they wish they could submit additional written argument on the Griffin and the Chapman issue.

Thurgood Marshall:

But did he have counsel in any effective way?

Edward P. O’Brien:

Yes, Your Honor, in the sense that he had appointed counsel and then it was a choice by counsel as to whether or not to file a supplemental brief on the Chapman case.

Thurgood Marshall:

Well, wasn’t the case set back for that purpose?

Edward P. O’Brien:

To — for the Court of Appeals to review in light of Chapman.

Yes, Your Honor.

Thurgood Marshall:

And I would assume that counsel on both sides to prepare to argue on that point.

Edward P. O’Brien:

Yes, Your Honor.

They would be.

Thurgood Marshall:

And in this case, petitioner had no counsel on that point?

Edward P. O’Brien:

Oh, yes.

I am — well, I dispute Your Honor.

I think that the petitioner —

Thurgood Marshall:

Well, show me something that he said, wrote or did, the counsel?

Edward P. O’Brien:

He did not write anything to the Court, Your Honor.

Thurgood Marshall:

Did he say anything to the Court?

Edward P. O’Brien:

No, Your Honor.

He did not.

Thurgood Marshall:

And yet you said that he had counsel?

Edward P. O’Brien:

Yes, Your Honor.

The question being in other words we can take a case in which the cases before the Court and while it is before that Court a decision by this Court or perhaps by the California Supreme Court comes down.

And the question would be, is there a duty on the part of counsel whether retained or appointed to file a supplemental brief on this case which has impact on that appeal.

Now, I think in that situation that due process does not require an automatic brief supplemental brief to be filed in that situation.

That’s what we have here.

He had counsel on the initial appeal and agreed —

Thurgood Marshall:

What you really mean if he is so guilty, he doesn’t need it?

Edward P. O’Brien:

Oh, no.

Your Honor, that’s nothing to do with this, is —

Thurgood Marshall:

Well, you don’t take the same position the Court did, do you?

It is just because he’s guilty, nothing will save him.

Edward P. O’Brien:

No, Your Honor.

I don’t believe the Court took that position in this case.

Thurgood Marshall:

What was there last sentence and opinion?

Edward P. O’Brien:

Your Honor, I believe the Court applied the standard laid down by this Court in Chapman that the question is whether or not the error — in doing the error whether or not the Court could declare a belief that the error was harmless beyond a reasonable doubt.

Now, in applying that standard laid down by this Court.

Certainly, a review — a Court of review must take into consideration two factors — two factors or more.

Edward P. O’Brien:

One is the nature of the air and the extent of it; and secondly, the nature of the case.

And that I believe is what the Court of Appeals did in the Banks case.

Abe Fortas:

Well, here you had some sort of a proceeding and this — when this case was before the Court for the third time.

Did Mr. Chapsky file a paper or enter an appearance so said in addition — I assume his appearance had been entered before, had it?

Edward P. O’Brien:

Yes, earlier.

Yes, Your Honor.

Abe Fortas:

And if you consider this as part of the same record as this as one might.

You would assumed nevertheless in this — that counsel would file some sort of paper and say, well I’m still counsel to petitioner, I have nothing further to say if that was —

Edward P. O’Brien:

Well, Your Honor.

There have been a series of cases before the California appellate courts involving the man from this Court and all possible variations occurred.

Namely, the counsel do not file a brief but they do file a brief and that some are argued.

Abe Fortas:

Well, that’s exactly —

Edward P. O’Brien:

And the results also vary where in some cases there is no argument or brief nevertheless the case may be reversed depending on the nature of the case.

Abe Fortas:

Very well — I’ve seen a lot of those cases in that’s I guess one of the reasons for a good deal of interest in this case from heart.

Edward P. O’Brien:

Well, yes Your Honor.

However, —

Abe Fortas:

You see what I mean.

Edward P. O’Brien:

Yes, Your Honor.

But I would point out that the courts have depending on the nature of the comment and various facts and circumstances.

They have both reversed and affirmed in the individual cases.

Thurgood Marshall:

Don’t we have the procedure in California?

And all would say upon the briefs and argument?

I know it’s in the order here but you couldn’t have such an order here.

You couldn’t file an order that said that the Court upon consideration of the case, the briefs, and arguments orders?

Edward P. O’Brien:

Oh, no Your Honor.

In fact, the —

Thurgood Marshall:

You couldn’t say that, do you?

Edward P. O’Brien:

No, Your Honor.

The more common order I would say is merely that the cause is submitted.

Thurgood Marshall:

Well, would you commit it?

Edward P. O’Brien:

And in the — in the letter —

Thurgood Marshall:

Was this submitted?

Did the petitioner ever submit this case to the Court?

Edward P. O’Brien:

Yes, Your Honor.

Thurgood Marshall:

How?

Edward P. O’Brien:

Ah —

Thurgood Marshall:

The only letter that I saw was the letter asking for a lawyer.

Edward P. O’Brien:

No, Your Honor.

Well, there was also a brief filed by the petitioner Your Honor.

Thurgood Marshall:

Did he say they submitted and then won’t argue?

Did he waive argument?

Edward P. O’Brien:

No, Your Honor.

He did not.

Thurgood Marshall:

But why wasn’t he permitted to argue?

Edward P. O’Brien:

Your Honor.

He was — for the simple reason that he had counsel, Your Honor, and that in such a situation.

The defendant does not present the argument.

Thurgood Marshall:

And so the counsel can waive his rights?

Edward P. O’Brien:

Oh, clearly.

Yes, Your Honor.

In other words, I would say that the practice and in courts on whether or not you argue a case on appeal after is his — the choice made counsel.

In other words —

Thurgood Marshall:

It is?

Edward P. O’Brien:

In many cases Your Honor, in which the —

Thurgood Marshall:

Well, if — well, assuming that the paying client says I want you to argue, what happens?

Edward P. O’Brien:

Well, Your Honor that would —

Thurgood Marshall:

Well, if the paying client says, I’m giving you $25,000.00 more dollars, I want you to argue my case.

You mean counsel submits without argument.

Edward P. O’Brien:

Yes, that would be up the individual counsel.

Thurgood Marshall:

Sure would.

Thurgood Marshall:

But in this case, these men have almost non-existent counsel.

Edward P. O’Brien:

Well, Your Honor.

In the situation of retained counsel that you speak off, retained counsel on occasion both in criminal and civil cases make a determination not to orally argue the case.

Thurgood Marshall:

Well, he didn’t argue this anyway.

Edward P. O’Brien:

No, Your Honor.

Thurgood Marshall:

Is it orally or written?

Edward P. O’Brien:

It was originally argued by counsel Your Honor before the Court.

Thurgood Marshall:

But in this one that’s before us now, counsel didn’t argue anyway, anyhow, anytime, anyplace.

Edward P. O’Brien:

He did not argue the Chapman issue Your Honor.

He did argue the entire case before the Court of Appeals when it was before them.

Thurgood Marshall:

This time?

Edward P. O’Brien:

No, Your Honor.

On the —

Thurgood Marshall:

I’m talking about this time.

This is the one that’s before us now.

Edward P. O’Brien:

Yes, Your Honor.

Thurgood Marshall:

He did nothing.

Edward P. O’Brien:

However, when the case is remanded it’s back before the Court as a current appeal.

Thurgood Marshall:

And his counsel did nothing.

Edward P. O’Brien:

He filed no documents with the Court, Your Honor.

Thurgood Marshall:

Did he do anything else in the Court?

Edward P. O’Brien:

No, Your Honor.

Abe Fortas:

Now, I wonder if you’d tell us whether there is a rule of the District Court of Appeal with respect to oral argument and if so, what is it?

Edward P. O’Brien:

Your Honor, as all I know the question of oral argument is that it is not required in every case and that as a matter of practice oral argument in the Court of Appeals in California in many cases is not conducted.

Abe Fortas:

I understand that but I wonder whether there was a court — whether there was a rule of court that would indicate who has the option of making that decision.

Edward P. O’Brien:

Well, Your Honor the —

Abe Fortas:

Well, I suppose —

Edward P. O’Brien:

No, I think it merely states that it may be done and does not particularize and in practice.

It is done quite often to even phone calls.

Abe Fortas:

Do you mean just by the court even without asking the parties.

Abe Fortas:

The Court dispensed this deciding a case without asking the parties whether they want to argue or not.

Edward P. O’Brien:

Well, in this type of situation Your Honor, namely when we’re dealing with the equivalent of a supplemental brief on a particular point as distinguished from the initial original appeal.

I would just merely — in referring to the jurisdictional —

Hugo L. Black:

Assuming that you’re wrong when you addressed without the lawyer what do you say about the rest of this case?

Assuming that you’re wrong and the court might think well in that every lawyer can argue that point which is a reason of the position, I’d say.

Edward P. O’Brien:

Yes, Your Honor.

Alright, but then the next question is that of the affect of the comment in this case.

Now, it is necessary to look both at the comment and the evidence in this case and particularly in this case.

Unlike most cases before this Court and the California courts, we have the unusual situation that the petitioner in effect attempted to testify to the Court on certain matters throughout his cross-examination the — of various witnesses.

The petitioner made testimonial statements concerning his actions on the night in question and also concerning statements of witnesses.

The Court — the prosecutor objected and the Court admonished the jury to the effect that petitioner had not taken the stand and that the statements could not be considered as testimony.

Now, this Court has held in the Cameron-Eddie cases and later cases that the privileges against self-incrimination can be waived when a defendant elects to testify.

And indeed this Court approved a comment by the Court in the Cameron-Eddie that the jury could consider the defendant’s failure to explain acts than incriminating nature that the evidence established against him in reaching their conclusion as to guilt or innocence.

Now —

Abe Fortas:

But that’s not the basis on which the decision below has rested by the Court.

Edward P. O’Brien:

No, Your Honor.

But it is before this Court as to whether or not the comment in this case was erroneous and —

Hugo L. Black:

Well, are you sure about that?

I rather thought it was a question of whether they are right or wrong.

Or we should hold them right along and that conclusion that this was harmless error.

Edward P. O’Brien:

Yes, Your Honor.

And in considering —

Hugo L. Black:

Now that requires a consideration of evidence, does it?

Edward P. O’Brien:

Yes, it does Your Honor.

Now referring to that evidence, the evidence shows that there were within the space of one hour.

It was an attempted robbery two completed robberies and an aborted robbery committed within one hour in Oakland.

Hugo L. Black:

Where?

Edward P. O’Brien:

In Oakland, in East Oakland, California, all within the same basic geographical area.

The first attempted robbery occurred in approximately 11 p.m. at Vince’s Liquors which involved the Roger Wong and Harry Jack.

The plaintiff walked or the petitioner walked to the rear counter and standing three feet from the witnesses, lifted his right hand in his coat pocket in this manner and said, “Give me all your money.”

Edward P. O’Brien:

He then rep — he then said, “Do you want to die?

Give me all your money.”

When Wong heard this, he looked at petitioner and he saw the pocketed hand on the counter.

Wong meant to pick up a 38 pistol from under the counter, reached over and he struck the petitioner on his pocketed right hand.

Wong then ordered the petitioner to hold his hands up and the petitioner said, “Go ahead and shoot me.”

But Mr. Wong testified that he just could not shoot the man and the petitioner then left the store.

Fifteen minutes later at about 11:15, the petitioner entered the Three-Point Liquor Store, approached the clerk, Mr. Perry, and again with his right hand in his pocket, simulating a gun said, “Hand over the money.”

When Perry did not respond, petitioner said, “If you don’t want to jeopardize your life, hand over the money.

I’m not kidding.”

Perry then —

Hugo L. Black:

You said petitioner said that who identified him.

Edward P. O’Brien:

Mr. Perry, the witness to whom he was demanding the money identified him and two other witnesses, Mr. Griffith and Mr. Jones who were in the store.

Now, Mr. Griffith was standing right beside the petitioner and as the petitioner then left, Mr. Jones came and in fact, bumped into him.

Now, both Mr. Perry and Mr. Griffith identified the petitioner and there’s no question about there identification at the trial level.

They also identified him at the line up and were — Mr. Perry was quite positive in his identification.

Hugo L. Black:

How many people identified him?

Edward P. O’Brien:

Well, Your Honor, there is again additional he then robs, the petitioner then robs the Linden Liquor Store at about 11:30.

And at that point, the store is owned by Mr. Polititch.

He again simulates a gun in his right hand, contained in the pocket —

Hugo L. Black:

Besides nothing that was used to —

Edward P. O’Brien:

Yes, Your Honor.

And demands the money, and he obtains a $165.00 including $30.00 to $41.00 bills.

As he was — as the petitioner was leaving a cust —

Hugo L. Black:

Now, how many identified him there?

Edward P. O’Brien:

The owner Your Honor, Mr. Polititch.

Finally, 15 minutes later approximately 12 before midnight —

Earl Warren:

Excuse me, is there any question about the identity then?

Edward P. O’Brien:

No, Your Honor.

I’ll bring that out in — it in that the robbery occurred at 11:30.

He then goes to Sobic’s Liquor Store and goes into the store and asked the proprietor, Mr. Smith, whether he had a gun.

Edward P. O’Brien:

Smith says, “Why do you want to know?”

And petitioner says, “Well, I might want to hold you up.”

Just then Officer Neilson walks into the store.

Smith tells Neilson what petitioner had said.

Neilson informs him that there had been some robberies in the area and says to Banks’ buddy, “You fit the description.”

The officer then arrested him and in searching for a weapons.

They discovered various currencies in 1’s, 5’s, and 10’s in his pockets.

The officers then bring the petitioner to the closest store, Linden Liquors which Mr. Polititch owned.

Potter Stewart:

How about the — there were three robberies?

Edward P. O’Brien:

Yes, Your Honor.

There was one attempted robbery, two completed robberies, and one aborted robbery.

Potter Stewart:

Right.

And there were —

Edward P. O’Brien:

And there was a total of six witnesses at the first three stores.

There are two in the first store, three in the second store, and one in the last store.

They then bring him back to the —

Hugo L. Black:

Did anybody deny that what was then the alibi to him?

Edward P. O’Brien:

No, Your Honor.

No alibi.

The only defense and it was a very weak defense presented in this case is that he had earned money at a prior time.

And even that when examined the — when the witnesses are examined, they are confused about the dates and about the amounts of money.

Hugo L. Black:

Is there any testimony from the defendant offered by the defendant from witnesses not from himself as to indicate where he was at the time these robberies occurred?

Edward P. O’Brien:

None whatsoever Your Honor.

After he was then — the petitioner was then taken to the last store and Mr. Polititch identified him stating, “That is the man”.

He was then taken to the Oakland Police Department.

The officers found more money in various pockets in his wallet.

For a total of a $176.00 including 31 one dollar bills, similar to the amount described by Mr. Polititch.

Hugo L. Black:

As having been taken from him?

Edward P. O’Brien:

That’s correct Your Honor.

Then when Neilson asked petitioner where the money came from.

Edward P. O’Brien:

Petitioner responded that he had cash a check that day.

He never attempted to show the cash to check that day at trial.

Officer Neilson still concerned about the gun since each of the witnesses had mentioned the hand covered in the pocket said, “What did you do with the gun, Fred?”

Petitioner responded, “I didn’t have a gun.

If I had one I would probably have killed somebody tonight.

Guns make me very nervous.”

Now, we then looked at the comment in this case.

Hugo L. Black:

Now, before you get to the cause.

Is that evidence which you have given us, all the evidence that appeared with reference to his guilt or innocence and is that the evidence on which the Court found that the error and the comments was harmless?

Edward P. O’Brien:

Yes, Your Honor.

There were other corroborating circumstances which I should inform the Court of.

One was that as you recall, Wong at the time he was being robbed, reached over and hit the Banks on his hand with a gun because he couldn’t bring himself to shoot the man.

After he positively identified Banks at the line up, he have requested the officer to look at his hand.

He looked at his hand and there was a black spot right on his right hand.

Hugo L. Black:

That was the hand he had used in holding the gun, holding whatever?

Edward P. O’Brien:

That was the right hand that he was simulating the gun in the robberies.

The other point would be the 31 one dollar bills similar to the money Mrs. — Mr. Polititch described.

The others, the statement previously mentioned that he made to Mr. Neilson and of course quite important is the seventh witness, namely the witness to the aborted robbery.

Now, there this can possibly be no question about the identification there for the simply reason that while he’s starting in on it, the police come in and he again had made the statement to Mr. Smith.

“I might want to hold you up.”

When he — in relation to his question whether he had a gun.

And that is the evidence to this —

Hugo L. Black:

And addition to that, does the State make any arrest that the judgment of each judge that this error was harmless is entitled to any consideration here?

Edward P. O’Brien:

Oh!

Yes, Your Honor.

Clearly, for the simple reason that in this case the appellate court has reviewed this question, in light of Chapman and it has come to the conclusion that it was harmless beyond the reasonable doubt.

It has expressed its belief as required by this Court.

So that this is not of course a question of initial review or the question of the application of the standard as was posed to this Court in Chapman.

Would this Court have to decide both the standard and then apply it?

This case, the standard has been applied by a court of review and it has come to the determination that in this case the comments were harmless beyond the reasonable doubt.

Thurgood Marshall:

Mr. O’Brien, is this the same judges that heard that evidence?

Edward P. O’Brien:

Your Honor, I —

Thurgood Marshall:

I guess I find you — I understand.

Edward P. O’Brien:

I believe that there would have been — there may have been — no, Your Honor, I believe they are all the same.

Thurgood Marshall:

The names are in here.

The name —

Edward P. O’Brien:

They would be the same Your Honor.

The change did not occur until after that time.

Thurgood Marshall:

I see.

Potter Stewart:

The court was the first appellate district?

Edward P. O’Brien:

Second division.

Yes, Your Honor.

Potter Stewart:

Second division that is what area of the state?

Edward P. O’Brien:

That is the basically the San Francisco Bay area.

Potter Stewart:

And if this — this trial was in San Francisco, in the city?

Edward P. O’Brien:

Alameda, Your Honor, Oakland, right across the bay.

Potter Stewart:

Across the bay.

And the judges were Judges Shoemaker, Aggie, and Taylor?

Edward P. O’Brien:

That’s correct, Your Honor.

Potter Stewart:

And is that Division II —

Edward P. O’Brien:

Of the first district —

Potter Stewart:

And does that consist of only three judges?

Edward P. O’Brien:

Yes, Your Honor.

Potter Stewart:

So, unless there was a change in personnel, made entirely personnel —

Edward P. O’Brien:

All — no, there’s not been a change at that time.

There has been subsequently but not on these decisions.

Abe Fortas:

I suppose that there is some doubt as to whether the Court applied the correct standard from plaintiff by Chapman, the question is whether a harmless error is harmless — is harmless error in terms of a judgment of the Court that there was conclusive evidence of guilt which is what was done here or whether the courts tasks is to determine whether beyond reasonable doubt no rational or reasonable juror could have felt that could arrived that a different conclusion absent improper comment.

Edward P. O’Brien:

Your Honor, I believe that the Court of Appeals in this case applied that standard and —

Abe Fortas:

Applied which standard?

Edward P. O’Brien:

Pardon?

Abe Fortas:

The Court of Appeals here applied the first standard that is to say looked at the whole record and said, “From the whole record we find that there is conclusive evidence of guilt.”

But I’m suggesting the possibility that may not be the same thing as if the Court of Appeals had looked at it to determine whether a single juror might have declined to find the defendant guilty in the absence of the —

Edward P. O’Brien:

Well, then Your Honor, we then get into a question of what these courts stated in Chapman and the — in that situation, this Court stated that it was merely a restatement of the original of Fahey standard.

Namely, whether there is a reasonable possibility the evidence complaint of might have contributed to the conviction.

And I think that is the standard that was applied here and that it is the — that Chapman contemplated a review by the reviewing court on that question whether or not —

Earl Warren:

Mr. O’Brien, do you think that when this Court sends the case back for reconsideration in the light of a certain case that the Court can just say without more — we’ve consider it and we adhere to our — we adhere to our former opinion and that exactly what happen in this case.

It says, now we’re again directed after appellant’s petition to the United States Supreme Court to render and reconsider our determination in view of its decision in the light of Chapman versus California.

In the Chapman case, United States Supreme Court announced that before a federal constitutional error can be held harmless the Court must be able to declare a belief that it was harmless beyond the reasonable doubt.

We have given further considerations to this cause in the light of Chapman.

We approved and adopt as part of this opinion and corporate hearing by reference our original decision September 16, 1964.

But that’s all they did.

Edward P. O’Brien:

Oh, Your Honor — Your Honor as a minute the most significant part namely they final sentence, namely as to the error and commenting instructing on defendant’s failure to testify.

We declare belief base upon the conclusive evidence of his guilt that such error was harmless beyond the reasonable doubt.

The right of the — the Court here complied with the remand by this Court namely to consider the Chapman standard.

This Court did not say reverse this case.

Earl Warren:

No, not at all but my point is this.

Do you think that when we send the case back to be reconsidered in the light of another case that all the Court has to do is to say without more?

We’ve reconsidered it and we adhere to our former opinion.

Do you not think it cause for some review of the situation through counsel or through petitioner some way to satisfy the mandate of this Court?

Edward P. O’Brien:

Your Honor, I think that the reviewing Court makes that determination and in some cases may determine to proceed in that matter.

But in other case would proceed in the manner in which it did here namely sending a letter to counsel and petitioner asking whether or not they choose to submit additional written arguments.

As far as the manner in which they treated in the opinion, I think they have applied this standard.

Now, it would seem to me to be a manner of discretion with the state courts as to whether or not they go through an extended opinion pointing out the precise nature of the comment, the circumstances surrounding it and then referring to the evidence.

Could I ask you a question.

Edward P. O’Brien:

Yes, sir.

Since Chapman, have there been cases in your Court where there’s been a remand from this Court where your court has invited counsel to participate in the argument in the reconsideration?

Edward P. O’Brien:

Oh, yes, Your Honor.

There have been?

Edward P. O’Brien:

Yes, Your Honor.

Are those listed in your brief?

Edward P. O’Brien:

No.

There are not —

Do you understand my question, don’t you because it’s prompted by your suggestions that it was discretionary of the state court to invite counsel to submit a brief or submit an argument or having looked over the record to as they know.

There’s nothing out here to warrant that procedure.

Edward P. O’Brien:

Well —

And my question is whether they have ever done that in any case since Chapman?

Edward P. O’Brien:

Well, Your Honor, I would actually say that they have done it in every case that I’m familiar with namely, send —

Invited counsel?

Invited —

Edward P. O’Brien:

Send it — yes, Your Honor.

Sending letters stating that the case has been remanded.

Now, quite often counsel on the case will not receive the documents from this Court of remand.

They go to the Court of Appeals and are not necessarily the counsel on the case is not necessarily advice to that.

Depending on whether or not of course he was on the petition for certiorari but the —

Did the Court act on its own initiative in that kind of a case?

Or do they — if counsel doesn’t — if counsel doesn’t make a motion for an argument.

It is simply dealt with by —

Edward P. O’Brien:

No, Your Honor.

It is basically by way as in this case, by way of a letter advising him of the situation and then asking whether or not they wish to submit additional written argument.

That is the basic practice that I’m acquainted with in both the both the first district and for that matter other districts.

And was there such a letter in this case?

Edward P. O’Brien:

Yes, Your Honor.

Hugo L. Black:

There was a letter that went to the lawyer?

Edward P. O’Brien:

Yes, Your Honor.

There’s a letter to the lawyer which states precisely that.

Potter Stewart:

Is that — is that in the appendix?

Edward P. O’Brien:

Yes, Your Honor.

Would you lay your hands on it quickly?

Edward P. O’Brien:

Yes, I can Your Honor.

Page 326 Your Honor would be one example in which the — a letter to Mr. Banks with a cc: to Mr. Chapsky states, the United States Supreme Court is vacated the judgment of this Court and the above entitled case and it is remanded the case to us for further proceedings in light of Griffin versus California.

Edward P. O’Brien:

This Court wishes to know whether the jury desire to submit anything further to the Court by way of written argument before we proceed to decide the case pursuant to the directions the United States Supreme Court —

Abe Fortas:

Wouldn’t that before the second not the third —

Edward P. O’Brien:

Well, yes Your Honor.

There is a similar letter on the current one in which it states.

Enclose is a copy of an order vacating the submission granting you 30 days within which to file a supplemental brief.

Abe Fortas:

What page is that?

Edward P. O’Brien:

That is page 337 Your Honor.

In as much as this case has been restored to our lists of active cases by order United States Supreme Court.

Mr. Robert Chapsky continues to represent you and no other Attorney will be appointed as place.

If Mr. Chapsky desires to file a further brief in your behalf, he will be permitted to do so.

Thurgood Marshall:

Well, in this page 335 (Inaudible) did ask to argue, Banks did ask to argue them?

Edward P. O’Brien:

That is correct, Your Honor.

Thurgood Marshall:

And he was denied that right?

Edward P. O’Brien:

Yes, Your Honor.

As — in other words, the letter I just read is in reply to that that Mr. Chapsky is his counsel.

Thurgood Marshall:

And he can not argue for himself?

He cannot argue pro se.

Edward P. O’Brien:

Not when he’s represented by counsel Your Honor.

In other words, the basic case is hold that you have a right to one of two things either a right to counsel or right to defend a pro se.

One or the other you are not entitled to a high breadth of those two.

Thurgood Marshall:

Does he have a right to fire his counsel and argue himself?

Edward P. O’Brien:

Yes, when there’s a substantial reason given Your Honor.

Yes.

May I ask you, if you are here yesterday —

Thurgood Marshall:

Substantial reason?

Edward P. O’Brien:

Yes.

I beg your pardon?

May I ask you if you are here yesterday, when a man was here with counsel that he’s been appointed by him by this Court and he asked the Court to let him talked, can the Court refuse to do so?

Edward P. O’Brien:

No, Your Honor.

I was not here.

Edward P. O’Brien:

If I have been here, I would have called it to this Court’s attention.

And certainly, there are cases before this Court decided by this Court without any briefing or argument on a given point.

Certainly, the recent case of Robert versus Russell is an outstanding example wherein this Court had neither brief nor argument before deciding that particular issue.

Now, what’s that?

You mean the brief?

Edward P. O’Brien:

I beg your pardon Your Honor.

No —

Oral argument?

Edward P. O’Brien:

No brief discussing the issue of retroactivity or oral argument.

I should — to be more correct that there is no — the basic decision in the Roberts was that proving would be retroactive.

Abe Fortas:

What do you think Chapman meant by the reference to the burden — burden on the party which had one below?

Edward P. O’Brien:

Well, Your Honor, the burden is clearly on the prosecution in effect to show that the —

Abe Fortas:

Well, what does the prosecution do here?

Edward P. O’Brien:

In this case, Your Honor?

Abe Fortas:

You’re on the third go round.

Didn’t do anything, do you?

Edward P. O’Brien:

Yes, Your Honor.

It submitted a letter —

Abe Fortas:

Saying, we don’t care to brief it anymore.

Edward P. O’Brien:

That’s correct Your Honor.

Abe Fortas:

That’s the point one.

Point two, what do you think about the bearing of the statement in Chapman which is quoted from Fahey on this case.

The question is where there’s a reasonable possibility that the evidence complained of might have contributed to the conviction.

Do you think that’s the same thing that was stated by your Court that is your Court said that we conclude that there’s convincing evidence of guilt, is that right?

Edward P. O’Brien:

Oh, Your Honor, this Court was the one —

Abe Fortas:

You think those are the same standards?

Edward P. O’Brien:

Yes, Your Honor.

For the simple reason that this Court said that the standard laid down in Chapman was nothing in effect, it was in effect a rephrasing of the very standard in Fahey and I don’t think that in the —

Abe Fortas:

Unless you what the Chapman says “from Fahey”.

Do you think that that’s the same thing as saying that base upon the conclusive evidence of his guilt?

Abe Fortas:

Do you think that’s the same thing as saying that to paraphrase the standard in Chapman taken from Fahey that same thing is saying that there is no reasonable possibility that the evidence or here the comment complained off might have contributed to the conviction.

Do you think those are the same thing?

Edward P. O’Brien:

Yes, Your Honor.

For the simple reason that — that the — that in Chapman, this Court was merely in effect was rephrasing it stating that it was the — stating there’s little — if any difference between our statement in Fahey and the standard beyond the reasonable doubt.

And I think that it is not incumbent upon each —

Hugo L. Black:

Did they use — did they use that words “the standard beyond the reasonable doubt?”

Edward P. O’Brien:

Yes, they did Your Honor.

Hugo L. Black:

Is that a sufficient standard in going to Chapman?

Edward P. O’Brien:

I believe it is Your Honor, for the simple reason that otherwise, this Court would then require every appellate court in this — throughout the nation to state not only beyond the reasonable doubt but further there is no reasonable possibility that the evidence complained of might have contributed to the conviction.

Then we would — then this Court would then be requiring — it would seem to me merely a semantic paradigm by the reviewing courts throughout this nation to comply with this Court’s decision in Chapman.

And I for one think that this Court was rather clear in Chapman.

And that the courts in California have attempted to comply with this Court’s ruling and I think that the Banks case is no exception to that.

I would just as my time is —

William J. Brennan, Jr.:

Before you sit down Mr. O’Brien.

I notice Mr. Klitgaard’s reply brief suggests but what it says, it was doubtful.

The State’s Supreme Court could have granted review that is on either remand.

Even headed one or two, citing two California decisions.

Edward P. O’Brien:

Yes, Your Honor.

That statement is clearly incorrect.

The state of the — the law itself that every decision of the Court of Appeals in California.

You have a right to discretionary review.

The two cases decided by counsel merely state that the Supreme Court has no jurisdiction to review a Court of Appeals after the statutory 60-day period is expired.

Obviously, that is true of any basic review including the certiorari of this Court.

William J. Brennan, Jr.:

What — what actually happened here when we sent back first time on the Griffin?

All of the record show is an opinion which ends with judgment affirmed.

Now, its mean by judgment affirmed.

That’s a judgment of conviction, isn’t it?

Edward P. O’Brien:

That’s correct Your Honor.

William J. Brennan, Jr.:

The initial judgment of conviction.

Was there any new judgment entered at all at that time?

Edward P. O’Brien:

Either not — not of the trial court Your Honor.

This is merely —

William J. Brennan, Jr.:

No.

No — no.

Was there a judgment under the — even in the Court of Appeals?

Edward P. O’Brien:

Oh, Yes, Your Honor.

William J. Brennan, Jr.:

There was?

It’s not in the record, anyway?

Edward P. O’Brien:

Yes, Your Honor.

It’s the decision that rendered by the —

William J. Brennan, Jr.:

Well, that’s a decision.

That’s — I’m asking a judgment —

Edward P. O’Brien:

Well, that is —

William J. Brennan, Jr.:

— for a separate judgment —

Edward P. O’Brien:

— that is the judgment Your Honor which became final with a 60-day as to the state court, 60 days after its rendition.

William J. Brennan, Jr.:

In other words, the practices, not in the Court of Appeals when it affirm a judgment of conviction to enter an independent judgment of affirmance of the convictions.

Edward P. O’Brien:

No, Your Honor.

The only thing is at the time it becomes final, a remittitur is issued to the trial court which occurred in the — on — well, all three occasions in this situation.

The time of initial affirmance —

William J. Brennan, Jr.:

Are those remittiturs anywhere in this circuit?

Edward P. O’Brien:

Yes, Your Honor.

I believe they are.

William J. Brennan, Jr.:

Well, what —

Edward P. O’Brien:

But its by law, they are issued — when the case becomes final which unless the Supreme Court grants a hearing, 60 days after —

William J. Brennan, Jr.:

Well, when you petition for a hearing in this — in your Supreme Court, what is that you petition from?

Edward P. O’Brien:

You petition from — you actually petition from the judgment of the trial court.

In the sense that if the petition for hearing is granted then the —

William J. Brennan, Jr.:

Well, may I ask if the petition from the judgment of the trial court on this second go round.

He did attempt to get — to go the Supreme Court from the initial —

Edward P. O’Brien:

Oh, he did go there Your Honor and a hearing was denied.

William J. Brennan, Jr.:

That was denied.

Now would he — the second time, would he go back again a petition from the same judgment of conviction?

Edward P. O’Brien:

No.

Well, Your Honor, on that — no, perhaps I misstated that.

He petitions for hearing based upon the decision of the Court of Appeal.

In other words, the common thing in the petition for hearing is to point out why the decision of the Court of Appeals is incorrect.

William J. Brennan, Jr.:

Well, then if the form — I petition from the judgment of conviction for error and the decision of the Court of Appeals, is that it?

Edward P. O’Brien:

That’s correct, from the decision of the Court of Appeal.

The only — the reason I had perhaps misspoken is that if the Supreme Court grants the hearing, it then in effect negates the decision of the Court of Appeal.

But the petition for hearing is from the decision of the intermediate —

William J. Brennan, Jr.:

But you are telling us that both the second time and the third time, he might have done when he attempted unsuccessfully do the first time.

That is to go to the Supreme Court for a hearing on the decision of the —

Edward P. O’Brien:

Oh yes, Your Honor.

There is no question here that the he clearly have the right to seek review in the Supreme Court.

William J. Brennan, Jr.:

If you — there’s been a lot of remands to the District Court of Appeals in this Court in the last couple of years.

Do you remember anywhere after the remand in the action by the Court of Appeals?

There actually was a petition to the Supreme Court of California —

Edward P. O’Brien:

Oh, yes, Your Honor.

William J. Brennan, Jr.:

— which — which was granted?

Edward P. O’Brien:

Well, I know one case in which People versus Boyd, I believe it is.

In which this Court re — while the conviction was affirmed in 59, it was then — he reinstituted it based on Douglas in 64, came up here and was remanded in light of Chapman.

William J. Brennan, Jr.:

To whom?

Edward P. O’Brien:

To the District Court of Appeal.

There the petitioner — petition for hearing, he was denied.

He then petitioned for a certiorari in this Court and this Court denied the petition for certiorari.

Now, that is —

William J. Brennan, Jr.:

Well, I know but he — you don’t know whether the district — whether the Supreme Court denied a hearing because it couldn’t hear it or because it wouldn’t hear it?

Edward P. O’Brien:

Oh yes, Your Honor.

It’s clear that the —

William J. Brennan, Jr.:

I know, you say its clear but I should — but why is that — if might — it is just might be very helpful —

Edward P. O’Brien:

Alright, Your Honor.

William J. Brennan, Jr.:

There was that — there was actually an instance in which this — which the Supreme Court actually reviewed a case after remand.

Edward P. O’Brien:

Well, Your Honor, I think I can forward to this Court in case in which the Supreme Court did review it.

The only thing I don’t know about that particular case is whether or not it was done pursuant to a remand from this case.

But it did involve a Chapman type issue and a hearing was granted on it.

As to the question of the California Supreme Court’s being able to review the — this judgment.

I think there’s no question about it based on the Constitution and laws that set forth in out brief.

Earl Warren:

Mr. Klitgaard, you — your time has expired but in view of the long time we’ve taken here.

You may have five minutes after lunch if you wish to summarize your case.

Thomas J. Klitgaard:

I wish to, thank you Mr. Chief Justice.

Earl Warren:

Klitgaard, you may proceed.

Thomas J. Klitgaard:

Thank you Mr. Chief Justice.

Mr. Black, Mr. Justice Black, you asked about the evidence at trial pointing to the petitioner.

There was lots of doubt the petitioner was robber.

In petitioner’s pocket, the police found a $176.00 within half an hour.

The robber had obtained the $235.00 to $265.00 in cash.

Furthermore, the last robbery, the one involving Polititch and that had some 20’s, twenty dollar bills.

When the police search petitioner, they didn’t find any twenty dollar bills on him.

He didn’t have any.

At the last liquor store where petitioner was arrested.

There was absolutely no attempt to rob that liquor store.

The clerk on duty testified during trial that there was no attempt at all, and made it to rob the liquor store.

The petitioner had not done anything except make that comment.

There was one witness who saw the robber come out of the last liquor store and he saw the robber come out the store, and go down the street.

He walked out after the robber and followed him, saw him get into a car and drive away.

That man was called to testify at trial.

He could not identify the robber.

He did not identify the petitioner as the robber.

He couldn’t identify anyone.

Significantly, that one witness was the only one of all the states witnesses that wasn’t shown a photograph of petitioner before trial and it didn’t take part in the suggestive line up outlined in our brief or in the show up.

Thomas J. Klitgaard:

He was the only one who hadn’t been exposed to petitioner before hand.

Potter Stewart:

Mr. Klitgaard.

Thomas J. Klitgaard:

Yes, sir.

Potter Stewart:

Would for just a moment.

Get back to this threshold question we seem to have in this case.

Justice Brennan asked your brother counsel about the statement in your reply brief saying it was doubtful that State’s Supreme Court could have granted review even had it want it too in citing those — citing two cases.

Do those cases really standard for it?

Thomas J. Klitgaard:

Yes, sir.

I’m glad you ask the question because here’s what they stand for and these are cases in the California District Court of Appeal where after its judgment became final, the 90 days passed.

The Court of Appeals modified its opinion like the Court did here.

It didn’t modify the judgment.

The judgment still stayed the same but it modified the opinion in it.

And from the modification of the opinion, there was a petition of the California Supreme Court for a hearing and here’s what the California Supreme Court said.

It said, a different situation would be presented if the modification by the District Court of Appeals had been solely with regard to its opinion such a modification would not have affected the judgment which would in that event had become final and that Court on the date specified.

And the Supreme Court wouldn’t have barred to grant review.

Potter Stewart:

Of course in this case, we set aside a judgment twice but we’re talking about the final the last time.

Thomas J. Klitgaard:

Right.

Potter Stewart:

And they set aside a judgment remanded it to the Court so that it started everything doing again —

Thomas J. Klitgaard:

Well, the judgment —

Potter Stewart:

It doesn’t — it was vacated?

Thomas J. Klitgaard:

Yes, Your Honor.

But the judgment was still basically the same as it had been in the case to all the time.

William J. Brennan, Jr.:

So they may begin?

Thomas J. Klitgaard:

Something had to be done to it, it had to be reentered.

Under the California rules of appeal Mr. Justice, even had the petitioner file the petition Rule 29 of the California Rules prohibits a California Supreme Court from reviewing just on factual questions.

And under that rule, the California Supreme Court will not look behind the statement of facts or the dealing with factual matters by the Court of Appeals and its opinion.

Now, let’s not cite any of the briefs but it is upstairs in one of these west books, its rule 29.

William J. Brennan, Jr.:

Well, there’s nothing to grant to suggest that the manner — the petitioner will matter —

Thomas J. Klitgaard:

As —

William J. Brennan, Jr.:

— these cases.

Thomas J. Klitgaard:

— as I thought, these cases here ended the matter when the California Supreme Court says, it’s as long as the judgment remains the same if the opinion is modified that doesn’t start the time running again.

But as an additional ground, there are these additional grounds that kept the Court’s own rules prohibit review.

William J. Brennan, Jr.:

Oh, yes.

But if one of your arguments is whether or not the standard used to in terms of harmless error was used by the District Court of Appeals was correct or not, that sounds like a pretty — pretty clear question of law which you could have taken it to California Supreme Court.

Thomas J. Klitgaard:

Well, you must remember Mr. Justice that this time petitioner didn’t have any lawyer.

If you’re going to say the petitioner already have to go back up and down, then it becomes important to decide whether petitioner had a right to help him on that discretionary review.

He have no right to review —

William J. Brennan, Jr.:

You mean — you mean, when you never got a lawyer — when you haven’t got a lawyer what — you don’t need to get the judgment within to the highest Court of State.

Thomas J. Klitgaard:

I’m not saying that.

I’m saying the petitioner went to the highest Court of the state.

The Court denied him review.

At that point, the judgment under California law became final by anybody standards.

When the case came back down again, there was no tampering with that judgment.

The judgment remained the same.

William J. Brennan, Jr.:

You just set aside, so?

Thomas J. Klitgaard:

It was vacated.

William J. Brennan, Jr.:

Yes, it was no longer in effect until it was reentered some time.

Thomas J. Klitgaard:

It was reaffirmed.

William J. Brennan, Jr.:

And what did we set aside?

Which — what judgment did we vacate?

Thomas J. Klitgaard:

You vacated your older decision — you vacated the judgment of the Court of Appeals.

William J. Brennan, Jr.:

That’s right.

We didn’t vacate the judgment of convictions?

Thomas J. Klitgaard:

No, he didn’t vacate that.

That remained in effect.

William J. Brennan, Jr.:

How about — thought about –you could not have gone for the first time to the Supreme Court of California I gather, until that judgment which we vacate was entered by the Court of Appeals, is that right?

Thomas J. Klitgaard:

I’m sorry, I didn’t follow your question Mr. Justice.

William J. Brennan, Jr.:

Then — what went to the Supreme Court at the time the petitioner attempted the —

Thomas J. Klitgaard:

Oh, the first time out?

William J. Brennan, Jr.:

Yes, that was the judgment of the Court of Appeals, wasn’t it?

Thomas J. Klitgaard:

I believe it was the judgment, if not let me answer this way because there’s necessary question here in California.

Now, once the California Supreme Court takes his discretionary review and it can do it on its motion or on petition.

Once it does that, the whole Court of Appeals proceeding becomes another nullity as though it never existed.

The opinion can’t be cited for anything as no authorities present or anything else.

So in that case, when it goes up to the California Supreme Court is then reviewing the judgment in the trial court.

William J. Brennan, Jr.:

But now it denies hearing —

Thomas J. Klitgaard:

That ends it.

William J. Brennan, Jr.:

And that means, if the judgment — the final judgment — appellate judgment in the case, is the judgment of the Court of Appeals —

Thomas J. Klitgaard:

Correct.

That’s right.

William J. Brennan, Jr.:

— and isn’t that the judgment of the Court of Appeals that we vacated?

Thomas J. Klitgaard:

That’s right.

William J. Brennan, Jr.:

And then, when the new opinion was filed what happened?

A new judgment of Court of Appeals or a reinstatement of the original —

Thomas J. Klitgaard:

It’s the reinstatement of the original judgment.

I mean, it wasn’t any change in the judgment.

Thurgood Marshall:

But on page 342 it says, judgment affirmed.

Thomas J. Klitgaard:

Well, then Mr. Justice, the judgment was affirmed.

That’s right, the judgment of the trial Court.

But where was petitioner during this time when the case is back down again.

He was still in jail.

The judge in the trial court was still in effect.

Sure you that of course —

Thurgood Marshall:

As you say this judgment could not go to the Court of — the Supreme Court?

Thomas J. Klitgaard:

I beg your pardon.

Thurgood Marshall:

Do you say that this judgment could not go to the Supreme Court?

Thomas J. Klitgaard:

If I were a lawyer in California advising petitioner at this time.

I would say, you did not have to go to the California Supreme Court because of the two cases I cited and because of my knowledge of the California Rules, Rules 29 which says that the California Supreme Court can’t look into these factual matters.

Thurgood Marshall:

Well, do you consider these factual matters?

I don’t see any facts in there at all.

Thomas J. Klitgaard:

The whole harmless error rule Mr. Justice is one of fact.

You’re looking at the overall —

Thurgood Marshall:

It’s applying a rule to the fact, right?

Thomas J. Klitgaard:

Yes, every case involves that.

Earl Warren:

Mr. Klitgaard, you may take few moments to — on the evidence if you wish to continue that —

Thomas J. Klitgaard:

Well, let me just come back to Mr. Justice Marshall’s point.

Mr. Justice, those two cases that I cited in my brief I think on why the California Supreme Court couldn’t do it but want it to point up the whole heart of the matter.

Now, as to the argument on appeal as to whether there should have been oral argument.

The California statute says, “That a California appellate Court in a criminal case cannot reverse a judgment unless it’s his argument, that Section 1253 of Penal Code.”

Now, counsel has informed me that in Douglas against California which is the — remember the right to counsel case on appeal.

There was a remand to the DCA for further consideration in that case that after the DCA appointed counsel.

There’s another issue brought up about counsel at trial and then the Supreme Court granted a hearing.

California Supreme Court granted a petition on that different issue on light of counsel at trial.

But here you weren’t having in this case, different issues coming up, your still having the same rule issue each time.

William J. Brennan, Jr.:

Is that fairly stated counsel?

Thomas J. Klitgaard:

But while it was merely Your Honor in reply to Justice White’s question.

There is the Douglas case is an example where after this Court remanded it to view in light of this decision.

The District Court of Appeals affirmed the case, petitioner or appellant at that point, petition the California Supreme Court for a hearing.

Their number of issues and they granted a hearing.

It went off in that point to the question of whether or not he was entitled to separate counsel at trial but they granted the hearing and reverse the case, to reply Justice White’s question.

Earl Warren:

But what is that rule of — rule that says that the Court of Appeals cannot reverse a case unless the cases are good.

Thomas J. Klitgaard:

Penal Code Section 1253, Mr. Chief Justice.

It says, “The judgment may be affirmed if the appellant to failed to appear.

But can be reverse only after argument though the respondent failed to appear.

That’s your question to state law —

Thomas J. Klitgaard:

That’s right.

Well, you — the question that you were concerned about was the oral argument.

There are some inquiries about the rules and I just bring that up to be —

Earl Warren:

Yes.

Thomas J. Klitgaard:

–helpful.

Edward P. O’Brien:

Mr. Chief Justice, just in connect with 1253.

I would call that to the Court’s attention for the simple reason that it says may be affirmed, if the appellate fails to appear but can be reversed only after argument, though, the respondent fails to appear.

In other words, that is the situation wherein the respondent state in the criminal case have a — may argue the case but there isn’t the equivalent situation with regard to the appellant and the 1253 therefore does not govern in this situation.

Earl Warren:

Have you finish Mr. Klitgaard?

Thomas J. Klitgaard:

Yes, unless the Court has some additional questions.

Earl Warren:

Very well.

Thomas J. Klitgaard:

Thank you.

Earl Warren:

Mr. Klitgaard, I want you to know that the Court appreciates your acceptance of our assignment to represent this indigent defendant, that’s a real public service and we’re grateful to you for it.

Thomas J. Klitgaard:

Thank you Mr. Chief Justice.

Earl Warren:

Mr. O’Brien, we appreciate too, the immediate manner in which you represent the People of State of California.

Edward P. O’Brien:

Thank you.