Chessman v. Teets – Oral Argument – May 13, 1957 (Part 2)

Media for Chessman v. Teets

Audio Transcription for Oral Argument – May 13, 1957 (Part 1) in Chessman v. Teets

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George T. Davis:

May it please the Court.

I think I have found — discuss it quickly that will clarify — just a —

Hugo L. Black:

You want to make use of the rest of your time.

I thought you said you want to save your time for rebuttal.

George T. Davis:

I did, sir.

But there is a matter of question that was asked and I have to take it in order to be clear about it, if I may.

I understand I have only a few minutes but let me —

Hugo L. Black:

Five minutes.

George T. Davis:

May it please the Court.

In connection with one question that was asked with reference to when Mr. Chessman learned that Stanley Fraser was related to Mr. Leavy.

There’s a series of — of pieces of information about this.

The — there was a letter and I — it’s in the petitioner’s Exhibit Number 12.

There was letter written to Mr. Chessman in — in July of 1948.

This letter — I’m not sure that this letter was — was allowed in evidence but I believe I know it’s in this file at least for identification.

And in connection with this subject, it was a letter from Emily Matthews who was the wife of the man who sat as an adviser during Chessman’s trial.

In the course of that letter —

Hugo L. Black:

Adviser to whom?

George T. Davis:

As an adviser to Mr. Chessman.

In the course of that letter, she said, and it appears just above in the middle of this handwritten page, “The record is in sad page, they have the third man on it now, and Al is quite elated as he is M. L. wife’s cousin.

Now, this is clarified by a later statement by Mr. Chessman.

They have the third man on and he is M. L. wife’s cousin.

Subsequently, a letter was written to Mr. Chessman on October the 12th, 1948, which incidentally was after that letter that had been sent by Mr. Persons (ph), that court reporter, who said that these notes were undecipherable.

This came to Mr. Chessman from Al Matthews and he says, “The judge told me when the record was completed he was going to bring you down here for the purpose of having an agreed settlement of the record.”

Now, that was a letter from Mr. Matthews.

I must say in fairness to Judge Fricke, that Judge Fricke did testify that Mr. Matthews had apparently misunderstood him.

But that, of course, was not known to Mr. Chessman in anyway because that’s the letter that he received from Mr. Matthews.

Now, I go to Mr. Chessman’s testimony in the hearings before Judge Goodman.

And at the time he was testifying, Ms.Asher who was interrogating him said to him, “Did you at that time” — speaking now of the July, 1948 letter from Emily, “Did you at that time relate that reference to M. L.’s wife’s cousin to Stanley Fraser?”

Chessman said, “I had never heard the name Stanley Fraser in my life so I was unable to do so.”

“When did you first hear the name Stanley Fraser?”

George T. Davis:

Answer “Some time shortly before, so far as I can recall, the transcripts were filed.”

Now, I am referring not to the augmented record but to the original transcripts under the original contract which was in 1949.

I don’t remember exactly.

“Now, Mr. Chessman, when did you first learn of the relationship between Mr. Stanley Fraser and Mr. J. M. Leavy?

Answer “Some time in May of 1954.

I was at San Quentin and I had a date.”

And I am reading incidentally from pages 572 and 573 of this record, Volume 7.

“I — I was at San Quentin and I had a date for execution in a few more days.

I had retained Berwyn Rice as counsel who was the first attorney I’d had since these proceedings began.”

He told me he’d just returned from a trip to Los Angeles.

During the course of the investigation down there, he asked me first, did I know that the reporter who had prepared this record was related to the prosecutor.

And I told him no, that I didn’t.

And he said well, I have information that he is.

Now, Mrs. — Ms. Asher proceeded to ask him one further question and asked him whether he knew or whether he didn’t know when that original letter said that he was M. L.’s cousin that he was referring that — that Emily was referring to Miller Leavy.

And he answered, in the course of his questioning, that he didn’t know that because he assumed, he said here — he said that he assumed from the letter that this was the third man working on the notes.

He didn’t know that that was the man who actually was retained or would be retained to transcribe the notes.

And so, he didn’t put it together and, of course, M. L.’s cousin meant nothing to him so far as Fraser was concerned until his own counsel told him about it for the first time in 1954.

Then I — I call your attention to Volume 6, the testimony of Mr. Fraser —

Hugo L. Black:

Your time is up but you go ahead.

George T. Davis:

Yes.

Testimony of Mr. Fraser on this particular question by me.

Question “At the time — just to digress for a moment, at the time he went to see Judge Fricke in his chambers — did you tell Judge Fricke that you were related to Mr. Leavy in any sense or degree?”

And his answer is, “No, I did not.”

And it develops that he never made that disclosure —

Hugo L. Black:

What page?

George T. Davis:

— to Judge Fricke.

That is page 322, Your Honor, of — of Volume Number 6.

Now, in that same volume and I don’t wish to take the time to read it, but I would call your attention that his testimony is in that volume regarding those police officers, (Inaudible) and he says, that he went to see them to get all the light that he could about —

Hugo L. Black:

What page is that — what page is that?

George T. Davis:

That’s page 417, 418 and 419.

George T. Davis:

And the direct examination on that question appears at page 396 in the same volume where Mr. Bennett asked him if he’d seen anybody else and he said yes, (Inaudible) and then stopped.

Now, I ask Your Honors also, if I may, I direct your attention to that same volume to pages 321 and 322, and 331, and 339 were he discusses the relationship between himself and Mr. Leavy with reference to these notes.

He says, he took him over to Mr. Leavy’s home to where —

Hugo L. Black:

Do you have any other reference?

George T. Davis:

That is all Your Honor.

I had a reference to page 203 where he refers to his outside —

Hugo L. Black:

Same page, same volume —

George T. Davis:

Sir?

It’s in the — it’s in the preceding volume.

Hugo L. Black:

In Volume 5?

George T. Davis:

In Volume 5, Your Honor.

Page 203 where he referred to his contacts with Mr. Leavy and with the judge and also to page 329 where he says —

Hugo L. Black:

Same volume?

George T. Davis:

That’s the same.

That’s Volume Number 6, Your Honor.

In that 329, where he says that although all other documents are still available, he destroyed the rough draft notes.

Now, we have consumed our time and I’m —

Hugo L. Black:

I — I want to ask you just one question —

George T. Davis:

Yes, Your Honor.

Hugo L. Black:

— you can answer it yes or no.

George T. Davis:

Yes, Your Honor.

Hugo L. Black:

So that you discussed considerably the fact that he — these people talked to the police to the witness?

George T. Davis:

Yes, Your Honor.

Hugo L. Black:

Do you know whether or not, the record shows that this — that Chessman’s made an objection for the accuracy of the transcription of these witnesses testimony?

George T. Davis:

Oh, I’m certain that it does because —

Hugo L. Black:

And you — and you’ll later refer us, not now.

George T. Davis:

Yes, Your Honor.

Hugo L. Black:

You’ll later refer us to those objections and what action was taken by the Supreme Court of California, the trial court and to those who can.

George T. Davis:

May we do that in our reply brief.

I understand we have seven days to make a brief, to get — or answer a brief or do you wish it before then.

Hugo L. Black:

That would be fine.

Yes.

George T. Davis:

Because while I’m certain that he complained bitterly that the whole thing had been lost in the final transcription.

Felix Frankfurter:

I — I want to ask you one question.

George T. Davis:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible)

You just said the rough notes were destroyed?

George T. Davis:

Yes, Your Honor.

Felix Frankfurter:

Now, are the rough to your phrase — the rough notes cover the same material as what does referred with the — before he says, the raw record?

George T. Davis:

Yes.

That is correct.

Felix Frankfurter:

All right.

George T. Davis:

There apparently were — was sequence of — of raw records plus a raw record — plus a raw record and then a final record.

Felix Frankfurter:

The phrase have made something that recall a raw record?

George T. Davis:

That is right.

That is right, sir.

Felix Frankfurter:

To call off with — on the basis of which is the record — which the Court had between all that.

George T. Davis:

That is correct.

Felix Frankfurter:

But the underlying data are not inexistence.

George T. Davis:

They had — he said, himself, that he had destroyed the underlying data.

And I — I think, Your Honors, I’m sorry I can’t make a peroration now and to explain, but I suppose that if Mr. Justice said —

Hugo L. Black:

Do you consider that the —

George T. Davis:

And may we —

Hugo L. Black:

Do you consider that thing?

George T. Davis:

May we offer, sir, Your Honors, to, of course, to submit to — any further questions that occur before we close because, of course, this is life and death to our client and —

(Inaudible)

William M. Bennett:

May it please the Court.

Because we are concerned with the question of counsel here and a very long and a very voluminous record, we must look at the totality of the facts.

And the first thing I’d like to discuss is the method by which the record was prepared, a method approved incidentally by a California court in construing a California statute in the California rules upon appeal.

Now, when reporter Perry died, he being the reporter who had lived during that trial and taken all the notes, the California court was confronted with a most unique situation.

William M. Bennett:

A new trial was impossible for the reason that the grounds for new trial in California are purely statutory and no new trial was permitted.

The California Supreme Court has so stated.

Discharge of the prisoner, maybe that occurred to somebody, but that was impossible.

This was a — a most serious charge and kidnapping had been found against him on two counts and a death penalty had been imposed, so that was impossible.

Now, there was a third thing that might have been done and that rested with the petitioner himself, Mr. Chessman.

Under the California Rules upon Appeal, he had the right under Rule 36 to make application to Judge Fricke to prepare a settled statement.

That was not done.

There was no way then, and I know of no way now by which he could have been compelled to do it.

So, there was a remedy available to him which he did not exercise.

What does that mean, compare a settled statement?

William M. Bennett:

Under Rule 36 of the Rules on Appeal, Your Honor.

If for any reason, the stenographic notes are not capable of being transcribed, the party affected, it may make application to the Court for permission to prepare a settled statement of that which occurred at the trial, meaning the —

Does that apply to capital cases?

William M. Bennett:

That applies to capital cases and our Supreme Court has so held in People against Chessman 35 Cal.2nd at 455.

It’s so stated in that opinion but Mr. Chessman did not do it.

Now, the fourth thing and the only thing then that remained to be done, discharge being impossible, know new trial, he not electing to —

Felix Frankfurter:

I just want to enter a caveat.

I — I don’t think it’s axiomatic that if a trial had — has been passed and something beyond anybody’s control what the lawyers called an act of conflict effects, in another time it’s precluded.

I just stating so —

William M. Bennett:

Well —

Felix Frankfurter:

— did California said so and then I’m bound by it but —

William M. Bennett:

Yes.

Felix Frankfurter:

I wouldn’t treat it as axiomatic, for me it has no difference and that if the (Inaudible) he couldn’t go on, he could have another trial.

William M. Bennett:

Well, it’s a very interesting point but —

Felix Frankfurter:

All right.

William M. Bennett:

— it has been decided.

Felix Frankfurter:

Perhaps, it hasn’t settled?

William M. Bennett:

Yes, it was settled by —

William J. Brennan, Jr.:

That was in the first — that was in the 35 California.

William M. Bennett:

It’s been settled in 35 California Second by the Californian Supreme Court.

William M. Bennett:

They —

Felix Frankfurter:

It can’t be settled for me until you pass, I want to say why it could.

It’s accidentally hasn’t necessarily interested by that when it can’t be settled until there is a trial and on the conviction itself to be double jeopardy.

William M. Bennett:

Well —

Felix Frankfurter:

Or — I just —

William M. Bennett:

Yes.

I — I won’t dwell upon it —

Felix Frankfurter:

You started that it was –-

William M. Bennett:

Yes, all right.

Felix Frankfurter:

— accident of nature because I don’t believe it could be so.

William O. Douglas:

Well, that’s what the California court held as a matter of California law.

William M. Bennett:

That — that is correct, Your Honor.

William O. Douglas:

I think the judge had been — dissented in the —

William M. Bennett:

Yes.

There were —

Felix Frankfurter:

I’m suggesting that it couldn’t be held as adjudication because that was not the issue to that case.

William M. Bennett:

Very well.

It — it was dicta.

I admit it but they did say it.

Felix Frankfurter:

All right.

Well, I’m just wondering not to have that from your own challenge as both been acting a natural law that you care for a new trial if you can’t possibly have an appeal when the law allows you to.

William M. Bennett:

Very well.

William O. Douglas:

That’s California law as I understand it?

William M. Bennett:

I’ll state —

Felix Frankfurter:

I take your word for the jurisdiction, that’s enough —

William M. Bennett:

I’ll state the proposition this way, the California Supreme Court in construing our Penal Code, the Section which provides for new trials and criminal cases, and I’m answering Justice Douglas, said that under the Chessman case where the reporter died —

Felix Frankfurter:

When did he tried?

William M. Bennett:

— no due trial was permitted.

Felix Frankfurter:

(Voice Overlap) — I just would want to —

William M. Bennett:

Yes.

Felix Frankfurter:

— take it inseparable —

William M. Bennett:

All right.

Felix Frankfurter:

— because nobody attended the case.

William M. Bennett:

Yes.

So — so that being so and because an automatic appeal was conferred by California upon Chessman in the death penalty case, a complete appeal, of course, would require a record.

The State had the judgment of conviction, death penalty in two instances.

But the interest in the appeal was to Chessman’s benefit to have a record before that Court so that any errors which might lead to a reversal might be exposed.

Felix Frankfurter:

Let me ask you this, Mr. Bennett.

Suppose it has to be possible to make up this question, suppose nobody, suppose Fraser and everybody else as I can apparently carries hieroglyphics, what would have happened?

William M. Bennett:

Well, Your Honor, I can refer the Court to the case of Miller against United States which was referred in 317 U.S. and I don’t have the exact page, but in that case, the reporter for the Court was also the secretary to the judge and she was so busy, it’s stated in the opinion of this Court, that she could not transcribe the notes.

It was quite lengthy.

Now, I believe it was a habeas corpus proceeding.

Application was made to have the Government transcribe the record and it was resisted by the Government and the Court then pointed out that a bill of exceptions would lie and that in preparing it, the — one making up the record was entitled to rely upon the notes of the judge, consult with the witnesses and go to any other source from which veracity could be established leading into this record.

Felix Frankfurter:

I wrote an opinion saying —

William M. Bennett:

Yes.

Felix Frankfurter:

(Inaudible)can probably note just in case —

William M. Bennett:

And so that’s what could have been done —

Felix Frankfurter:

Suppose it couldn’t , suppose the — suppose there were — I was — totally the other day by a colleague of mine that a lot of federal judges have never heard of judges notes and he thinks there.

Suppose there were no — have to know judges notes, suppose human recollection wasn’t equal to reconstructing what the phrase was being — impeach trial or — or a month tried, what then?

William M. Bennett:

Well, I suppose then, Your Honors, that if it got to that point, it would someday come to this Court and under Griffin against Illinois, you might say that it would not be equal protection to take his life because no record was there for review.

Now, I can’t predict what the Court would say in a case like that.

Felix Frankfurter:

I can’t imagine — I can’t imagine that if there’s no way of bringing to the Supreme Court of California a reliable record, a reliable reconstruction of what took place at the trial in lieu of stenographic minutes that it can’t be done that your Court will hold of being conceivable, that therefore, there can’t be an appeal and therefore the conviction must stand.

I can’t imagine.

William M. Bennett:

Well —

William O. Douglas:

Well this case, the Court held that the record wasn’t filed.

William M. Bennett:

Yes.

That is not this case and — and I —

Felix Frankfurter:

I understand that —

William M. Bennett:

I think we’re —

Felix Frankfurter:

But maybe that this has such vises that it’s the equivalent of an absence of the record.

William M. Bennett:

Well, Your Honor —

Felix Frankfurter:

And I’m not bound by the Supreme Court of California —

William M. Bennett:

Yes.

Felix Frankfurter:

As you know.

William M. Bennett:

I know that Your Honor but let’s also realize this, that if that situation were to obtain under Rule 36 of the California Rules on Appeal, the defendant himself could apply to the Court to prepare a settled statement.

Felix Frankfurter:

Well I’m —

William M. Bennett:

Now —

Felix Frankfurter:

I can assure you my mind is innocent of a conclusion in this case.

William M. Bennett:

Yes, very well.

Felix Frankfurter:

And you were here and Mr. Davis is here, this Court brought the case here because it appeals a very important question to arise in connection with the method by which this record was made up and not foreclose by what the California report said by way of dictum and not to foreclose by what is cited on a different record than we now have before us.

William O. Douglas:

Well, there are some of us who would like to hear you.

William M. Bennett:

Yes, Your Honor.

Thank you.

Now, I was talking about the method adopted and I think I got to the point where I can now state correctly that the method adopted was the method compelled to be used.

Because the benefits of the appeal —

Felix Frankfurter:

Well, then argument then — and I’m going to ask you questions for enlightenment because it seems to be drawn, it seems to be relevant to us.

William M. Bennett:

Yes.

And I’ll be happy to —

Felix Frankfurter:

(Inaudible) that you say that commend of an adult.

This is the best record there is and when you’ve got all the record you can at the end of the matter, then it’s the end of the matter.

William M. Bennett:

But, Your Honor —

Felix Frankfurter:

Is that your position?

William M. Bennett:

I’ve only been talking to three minutes and I have much to say and — and surely —

Felix Frankfurter:

Very well, that’s why I asked you questions in order to indicate the difficulties that I for one have it.

William M. Bennett:

And my position has not in the least wise yet been fully stated either, I realized these difficulties.

Yes.

Felix Frankfurter:

But we also have questions to Mr. Davis before —

William M. Bennett:

Yes.

Felix Frankfurter:

— I began to speak.

William M. Bennett:

And I welcome the questions, Your Honor, and I hope I can answer.

William M. Bennett:

But in any event, this was a method that was compelled under our rules on appeal as construed by our courts and our state court has held that this method adopted under California law was a fair method.

Now, when we talks in term for so — fairness, I think we’re talking in terms of due process at least at this beginning stage of the case.

And so, the method adopted, the method compelled was a method that has been held to be valid under California law, California law which conferred the appeal in the first instance.

Now, as to the manner in which the trial transcript was prepared, that — that just wasn’t happenstance that Mr. Fraser was employed.

He wasn’t walking down the street and he wasn’t selected out of a crowd to do this job.

When reporter Perry died, the seriousness of the problem confronting the appellate aspects of this case were apparent to all, the judge and the prosecuting attorney and to Mr. Chessman, himself, who asked that the proceedings be dismissed.

And so, the notes were given to other reporters in the Los Angeles County Court House Building and a reporter by the name of Gerni (ph) read them and she voiced the opinion that they were capable of being transcribed.

She would not undertake the test, however, because she had daily duties to attend to and she didn’t want to get involved in this.

Now, Mr. Fraser was selected, first of all, because he had formerly works in common employment with Mr. Perry, the dead reporter.

He had even lived with him for a time.

They had talked shop the way lawyers do and the way reporters do and each had read the notes of the other each was a pitmanic reporter.

And that’s why Mr. Fraser was selected and he was —

Hugo L. Black:

What kind of reporter?

William M. Bennett:

Pitmanic, Your Honor.

That — that style of shorthands — rule of shorthand.

And that’s why he was selected.

And he was selected upon the recommendation in the first instance of this (Inaudible) Gerni, the other reporter who had first read, the dead reporter, Perry’s notes and said they were capable of transcription.

Now, before reporter Fraser began, these facts must be taken into consideration.

Before he died, reporter Perry had dictated on to a recording device, the first 646 pages of this transcript.

The first 646 pages of the transcript were transcribed as they always had been in the past by his long time transcriber one Grace Peter Michael.

So that whether reporter ,Perry, had lived or whether he had died, the first 646 pages would have been transcribed in the same manner as appears in the record before this Court and as was reviewed by the California Supreme Court.

Felix Frankfurter:

But he dictated it to the lady?

William M. Bennett:

No, Your Honor.

Felix Frankfurter:

He would read the notes?

William M. Bennett:

He dictated to a machine —

Felix Frankfurter:

Yes.

William M. Bennett:

— and she listened to his —

Felix Frankfurter:

Yes.

William M. Bennett:

— voice —

Felix Frankfurter:

She couldn’t read the hieroglyphics?

William M. Bennett:

Apparently not.

Felix Frankfurter:

You don’t think any ambiguous remark by being —

William M. Bennett:

No.

Felix Frankfurter:

— hieroglyphics, that’s what they are.

William M. Bennett:

I know.

I realized that.

So that the 646 pages are important because they show that if — if nothing else existed we have a key to the penmanship and the style and a pitmanic system of the dead reporter.

And it incidentally, within the first 646 pages, is found the testimony of the two kidnap victims.

Their examination and their cross-examination by the defendant.

That’s in the first 646 pages taken from the voice, if you please, of the dead reporter Perry.

Does that include Chessman’s testimony?

William M. Bennett:

No, it does not, Your Honor.

It does not.

Now, there’s another thing that must be said here and it’s this.

There was a question about the competency of Fraser by Mr. Chessman in his long continuing series of attacks upon the man’s character and ability.

But this Court specifically directed an inquiry into the question of fraud and collusion.

And Mr. Fraser was exposed to all of the questions and all of the examinations of Mr. Davis.

And he was attacked as to ability and to character.

And all that I’ve just related came out.

To begin with, Mr. Perry’s style of penmanship was what we call “copperplate”.

Those are the words of a man, named Paul Berdict (ph), who testified as an expert before Judge Goodman and who said that his notes were of the best quality and quite legible.

Now, Mr. Fraser testified before Judge Goodman as to his prior experience with Perry in reading his notes, how they had been life long friends, how they had worked for a common employer in Seattle, and how they had a room together.

And after all of that was done, they even examined the method by which Mr. Fraser prepared these particular transcript pages.

And they found, true, that he consulted the notes of Judge Fricke.

Well, that was approved in the Miller case decided by this Court.

He did talk to some of the witnesses.

That apparently is approved by the Miller case, decided by this Court.

And he used other sources of material.

And after all that that was done, the Court found that the record was prepared, not only by Mr. Fraser but with the assistance of Leavy and Fricke in an eminently fair manner and that Mr. Fraser was especially confident and qualified to prepare the record.

Now, before the page was closed on a preparation of the record, there was another man who made his entry into the preparation of it and that was Mr. Chessman himself.

William M. Bennett:

Mr. Chessman was furnished a complete copy of the reporter’s transcript, he being at San Quentin State Prison.

And he read it.

We have to presume he read it because here was a man who knew that his fate is continued, right to live would depend upon whether or not he could discover some material errors in the transcript that was delivered to him at San Quentin State Prison.

And so, he read it and he forward it to Judge Fricke, a document, legal size, double-spaced comprising approximately 28 pages, and there, he set forth all of his objections to the transcript as prepared by Fraser.

William J. Brennan, Jr.:

Mr. Bennett, may I ask?

Was there an open court hearing and to settle the record before it was sent to Chessman?

William M. Bennett:

On February 11th, there was a proceeding in Judge Fricke’s court and, of course, the courtrooms are always open to the public and it was reported and it was transcribed.

And at that time, the first portion of the transcript was presented to the Court.

Later on in April, there was another proceeding transcribed again at which it was adopted.

Now, at the first proceeding before Judge Fricke, the clerk was directed to send the transcript to Caryl Chessman at San Quentin State —

William J. Brennan, Jr.:

Was there any notice to Chessman that that proceeding was being held?

William M. Bennett:

No, Your Honor.

There was not to my knowledge.

William J. Brennan, Jr.:

Was there a later proceeding?

William M. Bennett:

Yes there wa, Your Honor.

As to whether or not, he was informed as to the exact date, I cannot say.

William J. Brennan, Jr.:

Well, was he given any opportunity as what I’m trying to find out.

William M. Bennett:

Well, Your Honor —

William J. Brennan, Jr.:

Did that appear to be represented at either of those?

William M. Bennett:

We can approach that this way, and I’d like to take a little time to answer that question.

The allegation has been made that from language contained in an affidavit of J. Miller Leavy, the prosecutor at the trial of this case, stating that the transcript would be delivered to Chessman in Court, that from that, he inferred a promise that he would be present.

Now, that affidavit was filed with the California Supreme Court in order to gain more time to file a brief or the transcript to complete it on November 3rd, 1948.

On April 3rd, 1949, before the transcript had been filed, there was an affidavit filed by Chessman himself for the California Supreme Court in which he sought time, further time to read the transcript.

And in that affidavit, he said that he had been duped by Judge Fricke and prosecutor Leavy into thinking that he would be present at the hearing before Judge Fricke to settle the transcript.

Now, if there is sought to be established any state action from that, to begin with, it wasn’t a promise from Leavy to Chessman made in his presence.

It was language taken from an affidavit.

Secondly, if it is any kind of a promise, there has to be some reliance upon it.

Now, if Chessman knew on April 3rd, 1949 that he would not be present in Court and he must have known it because he said in the affidavit that he had been duped into thinking he would be present, then, it was his duty, if time were remaining, to take legal steps to compel his presence in Court to take those steps.

He said on April 3rd, 1949, he had been duped.

The transcript was settled on June 1st, June 2nd, and June 3rd of 1949 so that he have the time period from April 3rd, 1949 to June 1st, 1949 within which to make application to some California court to order his person produced before Judge Fricke, and he did not do so.

William M. Bennett:

He applied once to the California Supreme Court to be produced and they denied it without prejudice.

And he, by this time, knew full well but without prejudice manner.

Now, further, he could not, for a moment, have entertained the notion that he would be produced or that the transcript would be delivered to him in Judge Fricke’s court for the reason that it was in fact delivered to him at San Quentin State Prison.

That’s where he took delivery.

So as to that fabricated promise and as to this notion of reliance, the facts disclosed that it just is not so.

Hugo L. Black:

What — what is the general factor connection the settlement of record of that kind as to the notice and as to the presence of a question?

William M. Bennett:

Well, now normally, Your Honor, and my experience would come from civil cases more than others, each side would be represented by counsel, each would share the statement of what occurred one with the other.

Of course, it would have to be filed with the Court, and the Court would have the hearing to allow or disallow that which was set forth as being true so far as the record is concerned.

Hugo L. Black:

My answer to Justice Brennan’s question can find interest in having you stated what you thought — I don’t want to consume your time, for which you thought about settling it without having it —

William M. Bennett:

Well —

Hugo L. Black:

And having to refuse to permit him to the (Inaudible)

William M. Bennett:

Your Honor, we’ll approach it this way, and again, we have to go back to the days before the trial proper commenced.

Now, at that time following arrest and arraignment, Chessman was represented by the deputy public defender, the first public defender’s office in United States was established in Los Angeles, by the way.

And later on, before the trial commenced, 48 days before the trial begin, as a matter of fact, this took place in the courtroom.

The Court, “Are you a good lawyer?”

Chessman, “I think so.”

The Court, “Few lawyers say they are good.”

The defendant, Chessman, “I think I am a good enough lawyer.”

The Court, “You don’t want to trust it to a lawyer?”

Chessman, “I don’t want to do it.”

And then some more, and it’s quite clear from that, that he insisted upon representing himself.

And then again he said this, at another p oint in the transcript.

This is Chessman speaking, “I wish to point out that it is my intention to act in propria persona at this time and to continue to do so until such time as it is legally established that I am not qualified to do so and that I will not accept a court appointed attorney.”

Now, that’s how the trial began, Chessman representing himself.

And if there’s any question, whatsoever, of — of a competent rejection of counsel or if you want to put in terms of labor, consider this, this is not an ignorance, or an illiterate, or an uninformed, or misguided, or coerced individual.

On the contrary, here’s a man of intelligence so described by Judge Goodman.

In fact, Judge — Judge Denman said that his briefs would do credit to an experienced criminal practitioner.

That’s the man who pushed away the aid of counsel at the beginning of the trial.

Now, when he did that, he was unnoticed of what California law was.

And California law guaranteed, if you please, his presence at the trial.

William M. Bennett:

Not a word any place in the California Constitution or statutes or other States that we can find saying, if you are convicted and if you represent yourself, you thereby acquire the right to leave the prison gates to make an appearance.

So that it is our position that when he elected to defend his own cause, he had before him the possibility of conviction or the possibility of acquittal.

And the possibility of conviction entailed with it the disability of being unable to represent himself if imprisoned in a state prison.

And further —

Hugo L. Black:

Now, would the — that gets off, doesn’t it, pretty close to the heart of the decision?

William M. Bennett:

Yes.

Hugo L. Black:

(Inaudible)

William M. Bennett:

Now, we’re —

Hugo L. Black:

— but yet denied due process.

William M. Bennett:

Now, we’re coming to the case, Your Honor.

Hugo L. Black:

Would you permit to represent himself who was denied the truth of being present in Court when the transcript was such?

William M. Bennett:

Well, and again I’d like to answer it this way.

In Price against Johnston, this Court weighed what I thought was the obvious.

In other words, the public safety which is a — a paramount requirement here as against the rights or I prefer to call them privileges of the individual.

In the Johnston case, the Court was dealing with the habeas corpus case of course and the question was whether the prisoner was entitled to make an oral argument upon appeal.

And this Court said that in that case, it was discretionary.

Now, of course, if it’s discretionary, it cannot be a matter of right.

And if that is the rule that is to obtain in the federal courts, and the courts now were talking about the Sixth Amendment release the trial process, certainly, no higher rule should obtain in the state courts where we are not operating under the Sixth Amendment although California does furnished counsel in these cases.

No doubt about it.

Felix Frankfurter:

Is it on the facts that appeals in criminal cases go automatically to your state court?

William M. Bennett:

Is it a fact, Your Honor.

The Penal Code provides that in death penalty cases and appeal is automatically taken.

Felix Frankfurter:

I suppose Chessman had written a letter for the registrar or the clerk.

The Supreme Court say, “We don’t talk of that case because I don’t want to hear.”

William M. Bennett:

Well, as a matter fact, Your Honor, Chessman did exactly that but in another way.

In his —

Felix Frankfurter:

What would — what would be the results?

William M. Bennett:

It would be ignored.

Felix Frankfurter:

Ignored.

William M. Bennett:

Yes.

Felix Frankfurter:

And why is that?

William M. Bennett:

Because we have basic concepts of what is fair and what is right, I believe.

Felix Frankfurter:

You mean if the public interest which transcend the expression of choice by the convicted capital offense?

William M. Bennett:

That is correct, Your Honor.

That is correct.

Felix Frankfurter:

As far as I’m concerned, would you mind telling me, I have no public (Inaudible) with the refusal to let him appear in person.

That does not exhaust the problem.

William M. Bennett:

Well —

William J. Brennan, Jr.:

Mr. Bennett, may I ask one other question as to the fact?

Does it appear that Judge Fricke gave any — does it appear affirmatively in the record that we have before us that Judge Fricke gave consideration to whether or not, Chessman should be represented either by counsel or in person at the settlement hearing?

William M. Bennett:

Yes, Your Honor.

And I can —

William J. Brennan, Jr.:

What — what appears in that regard?

William M. Bennett:

I can’t quote the exact words.

William J. Brennan, Jr.:

Well, paraphrase it, don’t bother though.

William M. Bennett:

But he did say in the reporter’s transcript to those proceedings.

And now, we find the situation of this that the defendant having rejected the aid of counsel, he finds himself in a situation where — where it is either possibly or something like that, possibly should be represented by counsel and he doesn’t have one.

That’s what Judge Fricke said.

But of course, that — that observation is not conclusive if the right just was not there.

William J. Brennan, Jr.:

No, but do you read that — do you read that as in the fact saying that having refused of the assistance of counsel during his trial, we must assume that he would still refuse the assistance of counsel?

William M. Bennett:

Well, Your Honor, we we’re in a — as I see it and — and are now in a very peculiar position here, here’s a man who said, “I don’t want a court appointed attorney.”

William J. Brennan, Jr.:

Is that — that during the trial?

William M. Bennett:

Yes.

William J. Brennan, Jr.:

Well now, does it appear that he said repeated that in connection with the — these proceedings or was that really assumed.

William M. Bennett:

No, Your Honor.

Affirmatively, he never said that in those words.

But we don’t have to express what he have within us by words alone.

This man at the outset of his trial was told of his rights to counsel, he didn’t want them.

Now, that knowledge was with him when he was at San Quentin Prison and never, at any time, did he asked the Supreme Court or any other court to appoint an attorney to represent him.

William J. Brennan, Jr.:

But no one ever asked him whether he changed his mind?

William M. Bennett:

No one ever asked him —

William J. Brennan, Jr.:

That’s in the settlement of this record?

William M. Bennett:

And he, being the intelligent man that he was, he never asked for counsel either —

William J. Brennan, Jr.:

Well, I’m trying to find out —

William M. Bennett:

Yes.

William J. Brennan, Jr.:

No one ever asked him whether he changed his mind.

William M. Bennett:

No, Your Honor.

The record doesn’t show if anyone ever asked him.

Now, there’s also this, could California compel an attorney upon this man?

This Court has said that if a man wants to plead guilty, that’s his right to do so.

Felix Frankfurter:

But it was said that he didn’t want an appeal, you disregard it because of the public interest.

William M. Bennett:

That’s —

Felix Frankfurter:

The public interest took hands though.

William M. Bennett:

That’s correct, Your Honor.

Felix Frankfurter:

Justification for sending a man to death.

And why there’s a public interest to see that the record on the basis of which he will only go to jail has been appropriately settled in the way which the lawyer settled that by an adversary proceeding.

William M. Bennett:

Well, Your Honor, because overwriting all of these discussion now, apparently is the premise that Chessman wasn’t there and that he should have been there, but let’s look —

Felix Frankfurter:

I — you’ve heard what I’ve said.

William M. Bennett:

Yes.

I’ve heard what you said.

Felix Frankfurter:

I, personally, do not think the due process requires that California should bring him into Court after trial —

William M. Bennett:

Yes.

Felix Frankfurter:

I do not think —

William M. Bennett:

All right.

Now —

Felix Frankfurter:

— myself without.

That doesn’t exhaust the problem as I understand that, namely, that there’s a public interest to be represented whether Chessman chooses or not.

Just as much so, that there’s a public interest that your Supreme Court could hear an appeal although Chessman tried him, through have — I handle that he doesn’t he want to have the appeal.

William M. Bennett:

Well, but Your Honor, if we would trust an attorney upon a man, a state appointed attorney, if you please, would that — wouldn’t that man have the right to assert his right not to have such an attorney represent him.

He — whether its trial or appeal?

Felix Frankfurter:

He can — he can to the extent in saying, “I want my attorney to be there.”

And of course then the State, the trust upon attorney would deal but he has no right to foreclose a public interest to be so great, that you hear an appeal although he protest against having them.

William M. Bennett:

Well now, in answer to Justice Brennan’s question and to show the consistency of the position of Chessman so far as rejecting the aid of counsel is concerned, after the record was filed and it was forwarded to the Court, the competency of the manner of preparation was reviewed by the California Supreme Court, and in that proceeding, Chessman wrote a brief.

And in his opening brief, which we have quoted on page 27 or our brief, he again asserts his position to appear personally.

That has always been his position.

He has never, until loss this Court created the argument for him, he has never said, “My position is, I should be there or an attorney should represent me.”

His position has always been, “Only I, can defend my cause.

Only I should be present.

Now, of course we’ve got a new attack in the case, an attorney should also be present, but that has never been his position up to now.

So that whether or not anybody asked him if he wanted an attorney, really there was no need for it.

This man was so vociferous about what he wanted that nobody had any doubt that he would not accept the services of an attorney.

And of course, on death row, these things aren’t sacred in California or in any other state prison.

He knew that all he had to do was asked the Supreme Court to have an attorney appointed and that would be done.

The fact of the matter is he did not do it.

His only interest was in prohibiting the proceeding or in representing himself.

Now —

Felix Frankfurter:

Doesn’t in here take what you call the — the Court suggested it for him.

William M. Bennett:

No he doesn’t, Your Honor.

His position hasn’t changed.

Now, so far as — again, coming back to his right to be present, we do have to balance the public safety requirements as against Mr. Chessman’s privilege or desire.

Here was a man convicted of two very serious charges which entail the death penalty.

The distance from San Francisco to Los Angeles is 800 miles, round trip.

Now, supposing the man’s name were Delinger or something else that carries a lot of evil connotations, is a state judge within his sound discretion saying, “Open the gates, exposed him to the public for 800 miles.”

Now, is there any difference because his name happens to be Chessman?

You know what the record chose in this case.

We think that the California court had the right not to let him out.

The California Supreme Court said that that was the case and every single court that has reviewed this question without exception has said that he does not have a right onto the due process requirements or under equal protection or under any other theory to be present.

And the reason for that is quite obvious.

He is now been a judge, the menace to society.

Now, getting back to what occurred before Judge Fricke, if the transcript had been prepared, if it had not been given to Chessman, if he had not have the time and opportunity to read it, and if he not submitted a long list of written objections which were then filed before this Court, that would be a far different case.

William M. Bennett:

The record would have been settled without his voice being heard, but his voice was heard and here’s the interesting about all of his objections.

We say, well he didn’t put a certain objection in — in the courtroom adverse of that, and a way to believe that knowing that his life was at stake in this proceeding, if an objection didn’t occur to him or if for some reason, he was playing a cat and mouse game with his own life that — that is something we cannot control.

But every single objection that he put into his list of omissions and inaccuracies was allowed or disallowed by Judge Fricke and then most minutely reviewed by the California court and they said, allowing everyone of his objections, it would not have affected the result upon appeal.

What is the document where we’ll find his objections and on what the Court deal with that?

William M. Bennett:

It’s a document, Your Honor, which is contained in the supplemental first transcript and Chessman’s document is entitled motion to correct and augment record, perhaps, this is reporter’s transcript.

And then, the document, legal size, entitles defendant, appellants, list of inaccuracies and omissions in the record, reporter’s transcript.

And Judge Fricke, by the way, at the time of adopting or settling the record said, as the trier of fact that there were facts here that he had given due consideration to all of Chessman’s objections.

Now —

Felix Frankfurter:

Mr. Bennett, I’ve been through a point.

May I ask you to comment on what the Chief Justice’s judgment is there?

In his standing, the copy I have is — you happened to have the petition with the appendix.

At page 9 — October 19th, there are two things that I’m going to ask you about, Judge Denman said, no one in question that Chessman would have been entitled for a reversal if he had been able to maintain his contention.

But the judge instructed the jury that if they found that he has committed the attorney charge, they must render a verdict for the best interest although such is going on, et cetera.

And secondly, he enforced in this they had to claim the two record and show those with prejudicial statements made by the prosecutor as to requirements of the judging judge.

The last shall be first stating that in the trial first, is it — is it on facts.

Mr. Davis — and I say to the facts why do we change it?

It is one for retention.

Is it a fact that one them, with Chessman’s objection to the accuracy of the record was that they were omitting and that was reported to be the his examination or cross-examination interjected in a lot of remarks trying to prosecute.

Is that a fact?

William M. Bennett:

Your Honor, you mean, is it a fact that they were omitted?

Felix Frankfurter:

That suggested the claims —

William M. Bennett:

— or settled?

Felix Frankfurter:

— claims that there was omission of remarks by the District Attorney during the course of his — being on the witness stand.

William M. Bennett:

Well, Your Honor —

Felix Frankfurter:

Judge Denman said so.

William M. Bennett:

Judge Denman says so but — and Chessman does claim omissions but he does not pinpoint them, if so that if he doesn’t pinpoint them, I can’t really say —

Felix Frankfurter:

But I mean not — not what they are but is there a great claim they were such?

William M. Bennett:

Yes.

He claims — well, it’s — it’s called here list of omissions-inaccuracies, yes.

Felix Frankfurter:

Yes.

Felix Frankfurter:

But that means — but specifically —

William M. Bennett:

Specifically, he points to nothing.

Felix Frankfurter:

But if there are categories with their class of omission consisting of alleged interjection to a statement, call him what you will by the prosecutor while Chessman was on the witness stand which he claims were omitted from the previous transcription —

William M. Bennett:

Well, Your Honor, to be honest about it, I don’t know.

Felix Frankfurter:

Now, what about the first part of Judge Denman’s remark that he claims that the judge in fact instructed the jury that they must bring in capital offense?

William M. Bennett:

Well —

Felix Frankfurter:

And that according to your law, that isn’t so.

William M. Bennett:

I have already —

Felix Frankfurter:

You said it was that law.

William M. Bennett:

Well, the judge may not give such instruction under California law.

Second —

Felix Frankfurter:

Did Chessman say that in fact he did?

William M. Bennett:

Well, yes.

I — I can answer that most fully, Your Honor, in this way.

It was never said until 1954, and then in a petition for writ of habeas corpus for the first time, the claim was made that Judge Fricke had told the jury they must return the death penalty.

That was the allegation.

We denied it.

And subsequently, that was sent to Judge Goodman along with the fraud and collusion.

And Judge Goodman had in his courtroom Judge Fricke, two lady jurors, who sat in the original trial, Cecile Oskin (ph), the county clerk, who sat throughout the entire trial, Leavy, the prosecutor, who was there throughout the entire trial.

Everyone of those witnesses, without exception said, “No such instruction was given.”

Now, on the other side of the table, there was not produced a single witness who said that he or she had heard such language.

And so, that language of Judge Denman’s, while it appears is — is grossly inaccurate.

The proof of that allegation in Chessman’s petition has never come forward nor frankly will it because it wasn’t said.

Felix Frankfurter:

Now, he hasn’t yet said it that (Inaudible) didn’t reach the inscription of the deputy in charge.

It’s —

William M. Bennett:

Reporter Perry?

Felix Frankfurter:

Perry, I mean.

William M. Bennett:

No, Your Honor, he had not done that.

Felix Frankfurter:

He had not done that?

So that, while in fact counsel who tried to judge him charged the jury writing those symbols

William M. Bennett:

Yes.

Yes, Your Honor.

Felix Frankfurter:

And if there is any controversy as to whether those symbols did or didn’t implicate that.

Isn’t it?

William M. Bennett:

No, Your Honor.

There is — well, yes.

There is a —

Felix Frankfurter:

I mean, human —

William M. Bennett:

A stated controversy, certainly.

Felix Frankfurter:

— a proof that it would and would be a reliable transcription of those symbols?

William M. Bennett:

That’s correct, Your Honor.

Felix Frankfurter:

And what his challenge is simple and reliable transcriber.

William M. Bennett:

That’s correct sir.

But again, talking about the symbols, the man who transcribed them, adjudged to be competent by a federal court.

Felix Frankfurter:

Well, I — I don’t know why you say that because Judge Goodman, I think, would concede justification and said, I’m not to pass on that issue.

William M. Bennett:

Oh, but Your Honor, he — he did pass upon that issue.

Felix Frankfurter:

Well, but he also said several times that he was going to.

And he was going to miss the argument.

William M. Bennett:

Well, Your Honor, now let’s — let’s talk about that a moment.

I don’t think this has too much to do with the case but it must be said.

Felix Frankfurter:

Well, don’t take your time if —

William M. Bennett:

Well —

Felix Frankfurter:

— it has nothing to do with it.

William M. Bennett:

There was actually an offer made from Judge Goodman to Mr. Chessman to have Fraser’s ability tested on the stand to the extent of the reporter going into chambers and transcribing and the offer was refused by Mr. Davis.

You can draw your own conclusions.

Felix Frankfurter:

Well, but am I not also entitled with all the conclusions from the statement of a judge, include that I have reliable statements taking and thinking Judge Goodman here for this sense of relevance, who, unless you tell me the quotations are inaccurate except the things that are set forth on page 34 and 35.

The Judge then said I don’t care if you it move it up to the hills.

It wouldn’t affect me.

How — how dependable are these by me if they’re not found.

William M. Bennett:

Well, but Your Honor, if — if we’re talking now by Judge Goodman’s language, he said no question that Chessman would have been entitled to reversal if it’s — it’s preceded by an “if”.

William M. Bennett:

He doesn’t say this —

Felix Frankfurter:

All right.

William M. Bennett:

— occurred.

He says, “if it occurred.”

Felix Frankfurter:

I’m talking about the cross of page 34 and 35 in this issue.

But the mere accuracy of it, it could be — it could be 75% wrong and he couldn’t raise any federal questions.

William M. Bennett:

Well, the reason Judge Goodman was doing that, of course, was because he was — he was limited.

Felix Frankfurter:

I — I advise you to suggest.

All I’m saying is that when he — on page 34, I don’t think the Supreme Court is going to be spending 4 days leave to determine the accuracy of his good grounds.

Whether they did or not, I’m not going to do it.

William M. Bennett:

Yes.

But Your Honor —

Felix Frankfurter:

What kind of a judicial mind have you for the determination of an issue if the Judge says, I’m not going to be concerned with that issue.

William M. Bennett:

But, Your Honor, the fact to the matter is, as one of the other justices said, that there was almost no limit upon what Mr. Chessman could prove in that proceeding before Judge Goodman, if he could.

And we talked about the notes being accurate and what Judge Goodman permitted.

Let’s look at it this way, the charges made that Judge Fricke said, “Bring in the death penalty.”

Now, to demonstrate that he didn’t say it, proof was taken in the Court.

Now, the notes, as transcribed, don’t contain it.

And on top of that, we have five or six witnesses in Judge Goodman’s court who say, “They didn’t hear it.”

So, isn’t there some basis for concluding, well, if the notes don’t say it and if the witnesses say they didn’t hear it and if Mr. Chessman produced nobody who says he did hear it, that therefore possibly, the notes might just be right.

Felix Frankfurter:

There other considerations if — if we’ve correctly informed that what are for the transcribed notes of the final — the final notes that the underlying transcription by Mr. Fraser’s not available.

William M. Bennett:

Well, but Your Honor, isn’t the answer to that is this that if there’s — we could talk about this forever but there has to be a time in a judicial proceeding when proof has to start marching forward.

And if the contention is made that this was so and if they didn’t produce a single witness to establish it, we could talk about it endlessly but the fact to the matter is, the State has proved that it did not occur in a federal court.

We presented the witnesses.

Felix Frankfurter:

Your answer proves it and — as a matter of — of authority of a document as what is colloquy, if I’m presented for the document which you represent a lot of underlying data what is essential is that the underlying data in order to find out what is the final form of the transcription represents the underlying data —

William M. Bennett:

Well, the underlying —

Felix Frankfurter:

That would be the problem here.

William M. Bennett:

The underlying data, if the Court please, are the legible shorthand symbols of deceased reporter, Perry.

I think that’s the beginning answer of that.

Felix Frankfurter:

Well, that might be.

Felix Frankfurter:

We now have, what Mr. Fraser said is the transcription, although, he first did some raw things, some rough notes we could destroy — but I don’t understand.

William M. Bennett:

Well, if the Court please, that the reason there were notes is because I’ve got notes here for an argument, I have notes for a brief and I just don’t say them after I’m finished in those part.

Felix Frankfurter:

Well, speaking of the determination of the weight to be attached to your argument is not your own notes.

William M. Bennett:

That’s correct, Your Honor.

But all I can say again is that, well, I’d like to go into another point if the Court please.

Now, so far as the due process is concerned, we’re dealing here with — with an appeal and this Court have said that the State need not confer an appeal but just so it’s conferred equally to all — the requirements of the Federal Constitution are met.

Now, I cited the case of Avery against Alabama in the brief in the — that presents an instance where a man who was arrested, arraigned, tried, and convicted within a period of four days.He was represented by a court appointed counsel.

They had asked for additional time to make a better defense and upon conviction, that became the basis for a motion for a new trial.

And this Court said in the Avery case that because on the motion for a new trial, there was no showing made that a different or better defense would have occurred, therefore, there was not like a due process.

Now, let’s relate the philosophy of that case to the present situation.

The California Supreme Court had said that even allowing all of the inaccuracies and omissions of Chessman, the result upon appeal would not have been affected.

Judge Goodman reviewed the somewhat startling claims of fraud, collusion, conspiracy, improper use of notes, improper consultation with witnesses, and he found a reporter eminently qualified, he found no such mandatory death penalty, instruction had been given, and in short, that the best possible record was prepared.

And In fact, there was no showing ever made that the record that’s prepared wasn’t in fact a better record than would have been prepared by the dead reporter, Perry.

So, that we have here, in addition of those things, the voice of Chessman himself at the settlement hearing in the document which I just picked up, all of his list of objections and things that should be disallowed.

Now, never at anytime throughout the nine or ten-year course of this case has he been able to do anymore than say, “I have the right to be present but don’t call upon me to prove what different result would obtained, and I have made allegations in the past which have been upon scrutiny by the courts destroyed.

But I still assert that I have the bare right to have the entire proceeding reversed, why, because I was not there even though I can’t show a different result.”

Now, we don’t think that’s the law.

The California Supreme Court in reviewing his record and his list of omissions said that they were looking to the record on appeal to determine any substantial errors which would call — cause a reversal.

Now, this Court in the due process cases, particularly dealing with counsel reverses only when there is some error has been made out.

And if there hasn’t been error made out to the prejudice of the defendant, the result is usually affirmed.

Now, we’re dealing here with a process which admittedly is unique but it’s created by a State.

And we concede, perhaps, it isn’t ideal although there’s no showing made that it isn’t perfectly suited to the role that you’d fill on appeal, and perhaps, it doesn’t need every conceivable hardship.

But recall now that this remedy was taken by California or this procedure because among other reasons, Chessman himself elected not to furnish to the trial court his version of what went on.And so, we were compelled to do it.

Now —

William J. Brennan, Jr.:

Well, right there was he ever asked to submit his version?

William M. Bennett:

If the — now, if the Court please, under Rule 36 of the Rules on Appeal —

William J. Brennan, Jr.:

Oh, yes.

I’m sorry.

I see you have reference to that.

William M. Bennett:

Yes.

William J. Brennan, Jr.:

On the settlement of the record, he was never asked, as I understand it, to submit anything, was he?

William M. Bennett:

Oh yes, Your Honor.

He was.

William J. Brennan, Jr.:

Prior to the settlement?

William M. Bennett:

Yes.

William J. Brennan, Jr.:

Prior to the questioning.

William M. Bennett:

Yes, Your Honor.

Prior to settlement.

That’s what —

William J. Brennan, Jr.:

What was he asked to do prior to the settlement?

William M. Bennett:

Well, let’s make that clear.

The transcript was filed in the Court on April 11th, 1949.

It was immediately mailed to Chessman at San Quentin State Prison.

At San Quentin State Prison, he had the period of time from April 3rd, 1949 to June 1st, 1949 within which to read the record with a critical eye, which he did.

He asked for one extension of time and in the affidavit seeking the extension, he said to the California Supreme Court that he was quote “exhaustively studying the record for error.”

And then on the settlement dates on June 1st, 2nd, and 3rd Los Angeles, this document I have in my hand was there, mailed there by Chessman from San Quentin and this document contains a list of every error he claimed occurred, every omission that was there and all the rest of it.

And so —

William J. Brennan, Jr.:

And each of those was considered was it —

William M. Bennett:

Absolutely, Your Honor.

William J. Brennan, Jr.:

(Voice Overlap) — well, incidentally I think, you told us earlier, there was a transcript taken out of the proceedings in those three days in view?

William M. Bennett:

Yes.

William J. Brennan, Jr.:

Is that in the record?

William M. Bennett:

That’s on file before this Court in one of the many boxes down the basement, Your Honor.

So that Chessman was there.

His views were presented.

Now, again getting back to this due process and the — the bare of assertion of the right without a showing of any prejudice, what may we ask more could he do with reference to this transcript then point out those things he thought which were in error

Well that’s what he did in this document and he had to do it in writing before the judge could consider it.

Now, the proceeding before Judge Fricke was not a trial into the — the guilt or the innocence of Chessman.

It wasn’t that at all.

It’s true —

William J. Brennan, Jr.:

Mr. Bennett, in the preparation of what it was that was sent to him for comment.

In addition to the witnesses, the police officers who were consulted, as I understand it by Mr. Fraser, whom else did Mr. Fraser consult?

William M. Bennett:

To my knowledge, that was all, Your Honor.

He used Judge Fricke’s notes.

He used reporter Perry’s notes.

He talked to these two police officers and their testimony where the most part is in the first 646 pages.

And I don’t know of anybody else with whom he consulted although —

William J. Brennan, Jr.:

Well, that’s — I have taken that he did not consult from the jurors, did he?

William M. Bennett:

No — no, Your Honor.

He did not.

William J. Brennan, Jr.:

Did he consult this adviser?

I understand those attorney who sat with Mr. Chessman —

William M. Bennett:

Al Matthews sat throughout the trial, his legal adviser and Al Matthews was at the settlement proceedings, as a matter of fact.

And — in one of those proceedings, an affidavit from Al Matthews was offered in something that occurred.

William J. Brennan, Jr.:

Well now, that’s — he was — was he consulted by Mr. Fraser in the preparation of the original transcript?

William M. Bennett:

No, I — I don’t believe he was, Your Honor.

William J. Brennan, Jr.:

Now, you say he participated at the settlement proceeding.

Would that be the one in June?

William M. Bennett:

That was an earlier one, I think, in February 11th of 1949.

William J. Brennan, Jr.:

But he was not there in June when — I gather the final settlement was concluded?

William M. Bennett:

No, he was not there in — in June.

Felix Frankfurter:

Mr. Bennett, do you happen to remember whether in his — in his specification, alleged errors and inaccuracies in the proposed transcript, did he make any complaint about the charge within this trial?

William M. Bennett:

No, Your Honor.

That — that was a freshly concocted —

Felix Frankfurter:

I don’t mean this particularly.

Did he make any complaint with regard with his accuracy as transferred to the trial?

I can — we can hook it up but I assume we got (Voice Overlap) —

William M. Bennett:

Well, I — I have to search for it, Your Honor, to find out.

Hugo L. Black:

Is that — do we have a copy of that here?

William M. Bennett:

Yes, Your Honor.

William M. Bennett:

This is your copy I’m using.

Hugo L. Black:

Only one?

William M. Bennett:

It’s the only one, I believe, you have.

I have one in my files.

Now —

Felix Frankfurter:

Do you remember that thing in place?

William M. Bennett:

Yes.

I certainly will, Your Honor.

Felix Frankfurter:

(Inaudible)

William M. Bennett:

I’ve realized that.

Now, again, returning to this idea of prejudice, I think it’s correct to state that aside from the claim that he should have been present, it’s not the claim that he should have an attorney there because he did not want one and he hasn’t even seize that idea yet, as I understand it.

Felix Frankfurter:

Then what happens exactly condition of this fellow to prepare for the (Inaudible)

William M. Bennett:

Well, he is called a legal adviser.

It’s a term new to me until I get into this case.

But apparently, he — he did consult with Chessman.

He did advising.

Felix Frankfurter:

Authenticated?

William M. Bennett:

Well, he didn’t cast him out.

He is part of the public defender’s office.

William M. Bennett:

He is part of public defender’s office and he was there.

He at — was incidentally who —

Felix Frankfurter:

What is sort of a public defender is he like?

William M. Bennett:

Some — somewhat like that.

But he was to advise Chessman incidentally to do nothing about appearing a record on appeal but rather to oppose it.

Now, there is another thing that must be set here, of course, if the Court please, and — and that is the interminable litigation.

The meaning of Brown against Allen to all of these claims, stale or newly can try and it’s our position that because this matter was never raised in the state court, it’s not properly before this Court.

Now, I realized we’re here, however.

But I — I do say that if the Court is to be true to what is the apparent meaning of repetitious and stale claims and habeas corpus actions that they should mark some finality to these proceedings because if — it does not become final ultimately.

I suppose we could be here next year and the year thereafter because he thinks of a new idea.

Now, I say this most sincerely to the Court.

William M. Bennett:

If this were the kind of a case were we had a method not approved just to fairness by a Court, a manner not approved just to fairness by a federal court, a transcript not given to him or he didn’t have time to write down all of his objections, if these were a trial process at which his present was necessary and vital, then we’d have a far different case.

But this is strictly an appellate proceeding.

The federal courts have — have so held it, and they pointed out the — the duty of a State with reference to an appeal and it’s not a Griffin against Illinois situation.

On the contrary, unlike Illinois, we paid an exorbitant rate to have a transcript prepared for this man, why?

So that somebody could find an error and reverse his conviction if possible.

That’s what California did for this man.

The invalidity of the many, many attacks upon it must be apparent by now because not once, not once and fortunately we’ve got a trial before Judge Goodman has a single one been sustained.

Now, the State of California feels that we’ve done everything compelled by law.

We don’t feel that we’ve violated any due process requirements.

We don’t feel that we’re at liberty dealing with the people of our State to cast out upon them, even under lock and key and under guard, a man so dangerous as this.

For example, we’ve got a man in California who recently killed 13 people and is quite proud of it.

Now, is any judge when to take upon himself, the risk or the presumption to release that man into society for an appellant proceeding?

As I said before, this Court doesn’t compel the federal courts to do it in oral argument but why should a higher rule be placed upon a State?

And so far as the cases in due process talk about state procedures that are setup that aren’t perfect and all that sort of thing, I would like to know what — what answer can be furnished by way of remedy to the situation when the reporter dies under a California Rules other than that which we did.

William J. Brennan, Jr.:

Well, tell me Mr. Bennett, didn’t you tell us earlier that if he had not wanted an appeal taken, nevertheless, one would have been considered under your automatic procedure?

William M. Bennett:

Yes, Your Honor.

William J. Brennan, Jr.:

In that circumstance, would the Supreme Court have appointed counsel for him to argue the appeal on his behalf?

William M. Bennett:

If his brief did not spell out.

William J. Brennan, Jr.:

Well, he does nothing.

He decides, “I don’t want to be heard.

I want no appeal.”

Yet, as I understood you to answer a question earlier, you said, nevertheless an appeal would be taken undetermined.

William M. Bennett:

Yes.

William J. Brennan, Jr.:

Well, who would argue it for him that he wanted no part of it?

William M. Bennett:

Well, Your Honor, that’s not uncommon in California where an automatic appeal was taken or any other kind of an appeal after conviction, imprisonment and the brief is improper and —

William J. Brennan, Jr.:

No, no.

Suppose I’m taking the situation of an individual sentenced to death and he says, “I want no part of it.

I’m willing to go to my death.”

Nevertheless, as I understood you to say earlier, there would have been a consideration of an appeal.

William M. Bennett:

The Court research clerks would have done the briefing on it as well as the justices, the thing would have been reviewed and affirmed or set aside.

William J. Brennan, Jr.:

But there would have been no — no assignment of counsel or —

William M. Bennett:

No assignment of counsel —

William J. Brennan, Jr.:

— to advocate for reversal?

William M. Bennett:

No — no assignment of counsel unless requested.

Unless, of course, the case were of some unique or great magnitude, something like that but —

William J. Brennan, Jr.:

Well, have there been situations like that on which California has assigned counsel to advocate the appeal even though the prisoner doesn’t wanted her —

William M. Bennett:

No.

I — I can’t — I — I don’t of any, Your Honor.

I don’t think it has been done.

I think we recognized the rule, the — the right of a man to represent himself.

Now, there’s another thing about that —

Hugo L. Black:

Who do you think represent him in his appeal?

William M. Bennett:

Nobody, Your Honor, just himself.

Hugo L. Black:

How did he appear?

William M. Bennett:

He did not appear.

The practice in the California court is —

Hugo L. Black:

I notice his — his name is found to (Voice Overlap) —

William M. Bennett:

Yes.

But there was no oral —

Hugo L. Black:

Did he appear —

William M. Bennett:

No —

Hugo L. Black:

— in the brief?

William M. Bennett:

Oh no, he —

Hugo L. Black:

It’s not in the brief?

William M. Bennett:

He filed a brief, Your Honor.

At the oral argument, there was no oral argument that the California Attorney General’s office does not argue cases when the imprisoned defendant is not there to argue his own cause nor does the Court — I don’t know whether it’s mandatory but the Court does not entertain it either.

Both sides must be present so that on that proceeding, there was no disadvantage there.

He didn’t argue nor did we.

Felix Frankfurter:

Mr. Bennett, would you be good enough to state your view of the relation to the enforcement, the importance of the two police officers who were privately can summon by Fraser and the district attorney in order to be able to put on the paper what basis of transcription?

William M. Bennett:

Well, Your Honor, one of those officers was in a squad car and he ultimately apprehended Chessman after a chase about the streets of Los Angeles.

William M. Bennett:

The other was a chemist then he testified concerning certain hairs found in one of the cars involved in the crime scene.

I suppose all the testimony and trials are important but I wouldn’t classify this is the most important —

Felix Frankfurter:

Was is — was the officer — the officer on — whose testimony presented the introduction of (Inaudible)

William M. Bennett:

We attempted to find it at the noon recess and we couldn’t find such, Your Honor.

And I — I’d like to say this along those lines.

The two counts were really concerned with your — our counts 711, the death penalty counts.

Regina Johnson testified within the first 646 pages.

She was cross-examined by Mr. Chessman.

Mary Meza, the other kidnapped victim and subjected to the sexual acts of degradation, she testified within the first 646 pages prepared by — from Perry’s dictation.

She was examined on direct.

She was cross-examined by Chessman.

Now, that’s the important testimony in this case so far as the death penalty counts are concerned.

And if we retain but those two, it doesn’t matter as to the rest.

And the balance of the testimony following the 646 page is necessarily devoted to most of the other counts.

Tom C. Clark:

Was there any objection to the accuracy of that transcription?

William M. Bennett:

I’ve —

Tom C. Clark:

The brief states, as I recall it that there was a statement by Chessman we — we correct.

William M. Bennett:

I obtained Mr. Chessman’s brief in the California Supreme Court and he does make the statement in there — in there that the testimony of Mary Meza and Regina Johnson, one or both, is correct.

Now, to be fair —

Tom C. Clark:

And — and it claimed that it failed to show even taking that evidence.

It failed to show that he had permitted personal violence —

William M. Bennett:

That is correct.

Tom C. Clark:

— upon the person.

William M. Bennett:

To be fair about it, what he’s saying is this.

It’s correctly transcribed but I’m not the man they’re talking about but as to the credence of the transcription, that, he agrees to.

Harold Burton:

What was the — when the police testimony in the page 646?

William M. Bennett:

Some of it was, Your Honor, and some of it was in the balance.

We could furnish that to the Court.

If — if the Court wishes, I can —

Harold Burton:

Well, I thought perhaps you —

William M. Bennett:

No, I don’t know.

Well, I will submit the case and —

Hugo L. Black:

Mr. Bennett, we had these same questions already.

William M. Bennett:

Yes.

Hugo L. Black:

And I — by Mr. Davis’ consent, I think, you should have 10 more minutes, they should have 10 more minutes.

If you desire.

William M. Bennett:

Well, thank Your Honor.

There is one thing I — I would like to say about the counsel cases.

Sometimes it’s hard to grasp a rule from the counsel cases coming from this Court, but when they do read due process into those cases, they find prejudicial error.

That’s my language, as I understand the cases in those situations.

I haven’t yet found a case in which this Court has reversed on notions of due process where no different other or better result would obtain and that’s this case.

Now, I can only emphasize to the Court again the State determinations of the contentions here, the prior federal determinations and if California had any notion that what we did was less than completely fair here or if we have any notion as to guilt, we’d be the first to say so.

But we consider that under the standards of this Court as to state procedures that there can be no valid criticism of that which we did.

Let’s again go back to the idea that Mr. Chessman had a — a right, an avenue which was open to him and he didn’t take it.

And so we prepared the record for his appeal.

Now, —

What do you say to this proposition?

That as a result of the habeas corpus proceeding, this present proceeding, there’s been a developed material which everybody seems to recognize, it was not in Chessman’s possession at the time of the state court review of this record.

And that therefore, the state court has never passed upon the settlement of that record in light of (a), the interviewing of these witnesses by the prosecutor and — and the stenographer and (b), the relationship between Chessman between the stenographer and the prosecutor.

William M. Bennett:

Well, Your Honor, at what point that came out to me frankly becomes somewhat immaterial except as we’re concern about Brown against Allen in the application to have the right to raise question from the state court.

But to the merits of those contentions, the relationship that has been fully going into before Judge Goodman and this Court can decide that argument on the merits upon his findings of fact that the relationship did not taint any of the trial transcript.

The allegation made for the first time in 1954 that Judge Fricke said, “You must bring in the death penalty.”

I cannot conceive that the closure —