Douglas v. California – Oral Argument – April 17, 1962

Media for Douglas v. California

Audio Transcription for Oral Reargument – January 16, 1963 in Douglas v. California

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Earl Warren:

Number 476, William Douglas and Bennie Will Meyers or Meyes, Petitioners, versus California.

Mr. Marks.

Burton Marks:

Thank you, Chief Justice and Associate Justices of this Honorable Court.

This case involves a dual question of the denial of effective — of consistence of counsel to two indigent defendants at trial and at the appellate level, and as our contention that the petitioners were denied assistance of counsel and thus due process of law and equal protections of the law at both stages.

Now, there are two different problems arising.

And as far as I’m concern, only one problem as to each defendant as were arise.

I think the ultimate question which is going to be involved is whether or not appellate justices are lawyers.

And I think the answer to that question in the sense that I might define lawyer would be no.

To go back to the original premises that at the trial, there was a very — and I’m just going to go through that situation very briefly.

An attorney who is appointed for both the defendants stood up and announced to the court that number one, he was not prepared to go to trial.

He had interviewed the defendants twice.

I believe these were 13 felony accounts charged against the defendant.

And secondly, he declared that there was a conflict of interest, I believe the — Mr. Mitchelson’s explanation of why there was a conflict of intere — interest at a later date, well, he illuminated to the court.

However, I think there’s no argument in the court that the Fifth and Fourteenth of Amend — Amendments of the Constitution as they include the Sixth Amendments define what effective assistance of counsel means.

One is that you must be, as a counsel, prepared to defend your client.

And I think that was enunciated in our California courts, People versus Madison, which is cited in the brief.

And second is that you are — to be effective counsel, you must be able to devote your entire zeal, energy and devotion to the cause of a single client and if there — if you cannot do that then you cannot give effective assistance of counsel.

Now —

Earl Warren:

How long — how long did this public defender have to prepare?

Burton Marks:

My understanding is that he had approximately 45 days.

It was went from the 18th of one month to the 30th of the next, if I’m correct about the arraignment.

Earl Warren:

You wouldn’t say that was an abnormal time, would you, so far as shortness is concerned?

Burton Marks:

I would see that it isn’t — not an abnormally short time.

However, it is not a very long time considering what the amount of cases at the Public Defender’s office has and I — I am not a public defender but I have — I have pretty close connection, association with their office.

I do know that they are constantly in court each and everyday.

They do have at least one case a day if not at trial a day.

After they are finished with their trials, they go to the county jail and interview their clients for the next day.

That’s about the best they can do.

Earl Warren:

Well, I suppose in the absence of a gross — gross — abuse of discretion, but that is a discretionary matter with the court, is it not to — to say whether a man is — is that ample time to prepare?

Burton Marks:

Well, I don’t know whether the question of — whether to question of having ample time to prepare or the statement that he is not prepared.

Burton Marks:

Now, if the attorney is not prepared and has a good and valid excuse then I think a reason for not being able to be prepared and that is an extraordinary case load then I think that it would be an abusive discretion for the court to say that he was prepared.

Earl Warren:

It’s a pretty — pretty common thing for lawyers to say they haven’t had time to prepare.

Burton Marks:

Well, as I say that each situation is different but with the public defendant —

Earl Warren:

Yes.

Well, that’s what I say.

Burton Marks:

Yes.

Earl Warren:

This was a matter of discretion for the — for the trial court.

Burton Marks:

I would say it was.

But I — let say it was — is an — of discretion that is — wouldn’t be very easily abused.

Earl Warren:

Would you say the evidence here is such that it was abused?

Burton Marks:

Very definitely.

Earl Warren:

What was the evidence?

Burton Marks:

Well, I think the evidence is there’s no conflict.

Mr. Atkins, who was the Public Defender, did a very extraordinary thing as far as this counsel is concern in defending or representing his client’s statement.

The first statement he made to the court was I’m not prepared.

I’ve seen them twice and there are certain defenses which we have not been able to develop certain witnesses which we have not yet been able to investigate.

And he also stated there’s a conflict of interest.

Now, this is at the outset —

Earl Warren:

No, let’s —

Burton Marks:

— but he didn’t back off.

Earl Warren:

— let’s just don’t take the conflict of interest.

Burton Marks:

Correct.

Earl Warren:

Yes.

Let’s just take everything on whether or not he was in — the court was entitled to put him to trial the counsel in — in the situation he was.

Is there anything else besides after he said he wasn’t prepared?

Burton Marks:

No, his only statement that I — that he has had a case today, that he saw the defendants twice.

Earl Warren:

Yes.

Burton Marks:

Now, two times on an interview to see two clients who were charged and with 13 felony counts which involved eyewitness identification and possible alibis to meet.

It’s not seemed to be adequate amount of preparation for a case regardless of whether or not there were transcripts available of prior trials where the prior evidence was introduced.This —

Earl Warren:

Is this Los Angeles County?

Burton Marks:

This is Los Angeles County.

Earl Warren:

They have rather large office there, don’t they?

Burton Marks:

They have — I think about 60 public defenders.

Earl Warren:

About 60?

Burton Marks:

Approximately.

And I think that the average number of cases that a public defender handles everyday is, for each deputy, is about three or four, perhaps more depending on whether they’re in a calendar court or in a trial court.

But they obviously have to be expeditious in trying to dispose of cases the best way they can when in their opinion, they have a guilty situation and you’re trying to work a deal just like any private attorney would be to get a lesser offense or —

Hugo L. Black:

How many prosecutors there?

Burton Marks:

They’re above equal.

I think there are few less public defenders than there are prosecutors.

And of course, the Public Defenders have a multitude of jobs as to the prosecutors but the Public Defenders have a few more.

They have — in civil cases, they may retain and defend an interest — defendant where he’s being sued and he doesn’t have any money or where — where he needs to sue somebody to get money and he makes less than $100 a month.

I think that’s part of the requisites.

But in any case, the Public Defender also appears in arraign — arraignment mis — misdemeanor — I’m sorry, the municipal court where the preliminary hearings are held.

And it takes some of their trial time away from the various deputies.

In any case, whether or not — in my opinion, I think it is a bad record for the fact that Mr. Atkins backed off.

I think it was a natural human thing to do because he stated that he wasn’t prepared and then the defendants jumped on him, stating they didn’t want counsel who was not prepared, which I think they would have the right to say.

And thereupon, he backed down and came around the other way and said, “I am prepared but I’m not.”

In other words, I could go to trial and be prepared as I go to trial.

And I don’t — that wasn’t satisfactory explanation to me.

I don’t think it was satisfactory to the defendants as seen from the record because this is — was one of their constant arguments that they were not prepared.

And of course, there was the argument by the prosecutor, Mr. Carr that time that — well, they’ve been through two trials already, the defendants, not the attorney.

And this is the third time around with the same witnesses and the same cases, so obviously they must be prepared.

But this isn’t so obvious because — and I wasn’t going to discuss it but this — the first two trials were murder case, where both defendants were tried on a charge of murder.

And these 13 robberies or good number of them were very subsidiary to the issue of murder.

They were introduced for the sole purpose of showing motive, lying in wait so that they could produce a first-degree murder charge against the defendants.

Now, if you’re going to defend the murder, you can’t go in and also try it and produce all your alibi witnesses or whatever you might have to defend 13 other miscellaneous felony charges which are throwing in for just one specific point.

William J. Brennan, Jr.:

(Inaudible)

Burton Marks:

No.

William J. Brennan, Jr.:

— various time —

Burton Marks:

No.

William J. Brennan, Jr.:

(Inaudible) unsuccessful prosecutions for murders.

Burton Marks:

There was one unsuccessful hung jury.

The second one was successful as to Meyes and not as to Douglas.

William J. Brennan, Jr.:

(Inaudible)

Burton Marks:

Meyes got second-degree, right.

William J. Brennan, Jr.:

And all — are of all the (Inaudible) which had been (Inaudible) remind the way police officer is good.

Burton Marks:

Right.

William J. Brennan, Jr.:

Then the way the subject was (Inaudible) —

Burton Marks:

Right.

William J. Brennan, Jr.:

— when on that where the offenses, 13, were they offenses over a period of time or (Inaudible)?

Burton Marks:

The assaults were offenses of — the three assaults or the two assaults with an attempt to commit murder, as my understanding, are offenses which —

William J. Brennan, Jr.:

(Inaudible) they had non-capital offense?

Burton Marks:

Non-capital.

However, they were associated with the — couple of the robberies, two or three of the robberies, but there were a period of, I think, eight or nine robberies which were over a period of time.

William J. Brennan, Jr.:

(Inaudible) months or —

Burton Marks:

About four or five months, six months prior to the murder.

Earl Warren:

Pardon me.

Burton Marks:

Four months prior to the murder which is — another subsidiary point is the fact that in this case, reading of the testimony, the assault to commit murder is a charge with — which I believe they threw in it.

To me, there would be nothing here more serious than assault with a dangerous weapon or deadly weapon because I believe it was a hitting, no — no firing of any gun, I think, at the victims.

Hugo L. Black:

How long was it after they were appointed, after the defender was appointed?Was it until he was called on actually to try to the case?

Burton Marks:

Well, the procedure, and I could check the record, they — the defendants were arraigned on August 18th, 1959.

And on the date of arraignment, ordinary procedure is to continue the matter for plea for about three days for the Public Defenders so they can read the transcript.

Hugo L. Black:

Well, was the defender, public defender appeared that day —

Burton Marks:

Yes.

Hugo L. Black:

— and was he designated to defend?

Burton Marks:

Not this particular public defender but the Public Defender of the county was appointed and his deputy was there in the court and the Public Defender was appoi — appointed.

Then the case was continued over for plea, I believe, for — to August 21st, three days and at that time, it was set for trial on September 30th.

Hugo L. Black:

How many days was that?

Burton Marks:

That would be 39 days.

Hugo L. Black:

How many?

Burton Marks:

39 days.

Hugo L. Black:

Why did they claim 39 days?

It was not adequate to get ready for criminal trial.

Burton Marks:

Well, as I see, it is the case load of the Public Defender.

Each individual deputy is assigned to a court and they — ordinarily, there are two deputies to each court.

Now, the number of cases assigned to that particular court has nothing to do with the number of public defenders and there’s just the number of courts that are available so — because each defendant must be brought to trial within 60 days unless he waives time for trial.

So the — in the calendar court, the court assigns each a trial date into a particular court on a particular date.

Now, the Public Defender who is in that trial court is the trial deputy who picks up the case.

Hugo L. Black:

When did this particular man pick up this case?

Burton Marks:

Well, I would say from the record, and this is just on my own personal experience, that Mr. Atkins may have looked at the transcript of the trial of the preliminary hearing and maybe the previous transcripts, something like five days before the trial because he had each and every date other cases which were set in the same department which he not necessarily would have to devote his attention to of those.

Hugo L. Black:

How long had he been a public defender?

Burton Marks:

This, I do not know.

Hugo L. Black:

How long had he been a lawyer?

Burton Marks:

I also don’t know Mr. Atkins’ personal background.

I do not believe he had been in too long.

He’s now on private practice.

Hugo L. Black:

Of course —

Burton Marks:

And I —

Hugo L. Black:

— there are many lawyers who are not public defenders, who try cases everyday of the week.

Burton Marks:

That is correct.

Hugo L. Black:

And sometimes they walk in and try one if they’ve never seen or heard of before that day and sometimes, they are better than a man — other man that they could get who has had a long preparation.

Burton Marks:

I’ve had that experience myself to go and try a case on the day be — before I’ve never seen the — the trial and there is no question that it can be done although it’s not good practice.

In some cases, it must be.

Hugo L. Black:

It is a constant practice, isn’t it with very busy lawyers?

Burton Marks:

With very busy lawyers, I’m sorry to say this, a constant practice and I know some of the attorneys in Los Angeles who do practice in wait.

They can’t help it.

It’s just one of those things that must be done because they have no way that it’s impossible to prepare for one trial interrogation of the rights of another clients, so you have to — what you do is allot your time and do the best you can for them under the circumstances.

Hugo L. Black:

What was peculiar about this case that made it more difficult (Voice Overlap) another?

Burton Marks:

What was peculiar about this case was the — as I understand from Mr. Mitchelson was the fact that the 13 robbery counts which were alleged against the defendants were counts which involved witnesses of not the greatest repute.

Burton Marks:

As a matter of fact, the robberies were supposed to have been — of crap games.

In other words, the — if the defendants did do these robberies which — at this point, they are judged guilty of them, they were gamblers who playing craps and they — they would come in and take the crap players moneys away.

And then these people were found out by the police and came in and testify then some of their testimony was not too reputable.

And as I understand from Mr. Michelson, a great deal of cross-examination was involved in these witnesses to discredit them and impeach them.

And it seems to be supported by the fact that the prosecution’s theory of murder by lying in wait because of these enormous number of prior robberies and the defendants knew they were going to be apprehended and therefore, they were lying in wait to kill the police officer didn’t materialize.

Apparently, the jury just didn’t buy that theory of — the prior robberies.

Now, if you’re going to go into these new 13 felonies and you’re going to have to be very well-acquainted with the prior cross-examination of the witness is in also the fact of alibis if the defendants have them and how you could confirm the alibis by other independent witnesses.

And that’s why I say it’s more difficult because there were 13 counsels altogether, different things — different robberies of different occasions.

Earl Warren:

Is it unusual in Los Angeles County to try a defendant within 39 days of his arraignment?

Burton Marks:

No, it’s not usual, it’s not unusual.

Each case must be separate, done separately.

Earl Warren:

Yes.

Burton Marks:

I will say this.

The court knows there wasn’t much said about this 170.6 motion which was made and which is very new to California in which it was the first motion made where they approached the bench, on page 29, and 170.6 is a new code of civil procedure — proceeding which is called an affidavit of prejudice in which you can disqualify any judge, one side and disqualified any judge immediately without any reason consisted.

You just sign an affidavit or the defendant’s suit of the judge’s prejudice.

Earl Warren:

And the criminal case as well as a civil case?

Burton Marks:

Criminal as well as civil.

Now, at that — that time, it had to be a written motion made five days in advance.

That has been changed now.

Now, Mr. Atkins, we assumed he’s a very good lawyer, the respondents admit that.

Now, if — apparently he didn’t come to the defendants within five days because he didn’t present the affidavit or the motion for continuance until the date of trial.

And I assume that he knew the law so that means he must not have presented that motion in time otherwise the — Judge Rhone who tried the — the first murder case would never had been sitting in the robbery case.

But they couldn’t get him disqualified because of this technicality that they hadn’t noticed the motion at that time within five days nor file the affidavit of prejudice.

So, I — this maybe some indications to the court that Mr. Atkins had not seen the defendants or prepare for the case within five days prior to date of trial.

And as I say, I don’t know for sure.I would like to get on to the —

Earl Warren:

I suppose that they opened this to another inference too that — that they just thought of that when they couldn’t get a continuance.

Burton Marks:

Thought of, what sir?

Earl Warren:

Of disqualifying the judge.

Burton Marks:

Well, that was the first motion made, the very first motion that Mr. Atkins made was to disqualify the judge.

He asked, “May we approach the bench?”

Burton Marks:

And page 29, Mr. Atkins, “Your Honor, we have filed the affidavit.”

And that is the very first motion he made so it couldn’t have been a secondary thought.

I’m sure it was a first thought in the defendant’s mind.

When they talked to Mr. Atkins, they didn’t want to have Judge Rhone try the case because Judge Rhone had tried the first murder case and I understand that there had been some sort of conflict going on between prosecution and defense at that time.

Now, getting to the second portion, our judges, appellate judges and lawyers, I referred to Mr. Goertzen, the respondent’s brief where he states on page 46, “The safe to assert that counsel for petitioners would,” that’s me, “If you were an indigent defender rather have his trial record reviewed for possible error by a group of experienced appellant justices where conscience is to a fault.”

That was my words.

And have the said record assigned to a private practicing counsel whom he treats as court appointment with irritation and undue hazed as many do.

Now, I take great — I’m abridging that and I disagree greatly because I sincerely believe that I would rather have a novitiate attorney review my record on appeal, if I were in that position, than any appellate justice.

The reason for that is because appellate justices are not advocates.

They are not out to look at the record to determine error and find the error.

They are there to — they — there’s a different slant.

They’re judges and they don’t advocate a cause.

And I’ll also — I will take another abridge of the fact that private practicing counsel treat a court upon with irritation because in Los Angeles County, we volunteer into the appellate courts, so we submit our names and we are appointed from this list and the situation which occurred is this.

A court will — a court clerk will call us up and say, “Would you like to take a look at a particular case?”

And you say, he’s certainly send over the record.

So, either we pick up the record or they send it over and then we spent some time or eye view.

I look over the record very carefully to see whether or not I can find any error which I think might be risk and I’m not looking for suspicious error and I’m not trying to — if there is anything which I think could be raised, I will then write to the court and say, “Please appoint me because I’m going to take it” or just call the clerk as it maybe.

If I think that the record is error free or if I think that there is possibly part of the record that isn’t apt that might contain error, I may ask for that.

In any case, if I don’t think there is any error, I will so inform the court and ask that I’d be relieved as appointed counsel and ask for no fee.

If I think there’s error, I write a brief and maybe I’m wrong, which I usually am, and it’s affirmed however then you will ask for reasonable fees to be paid.

But I do not think that this same practice is employed by an appellate justice no matter how conscientious he maybe in reviewing a record because he is looking at it from a judges’ view point.

He isn’t looking for error.

And I think an outstanding example of that fact is that error which to me was patent and egregious that is a conflict of interest, it’s denial of counsel.

On that ground alone was — was completely passed over by the appellate justice who reviewed the court — review the record and only brought up by the Attorney General.

As a matter of fact, and after it was brought up by the Attorney General, never mentioned the end of the decision of the court.

And again, when the defendant took his petition for review up to the California Supreme Court, I know that he didn’t have this specification of the error in it.

Perhaps, the Supreme Court might have reviewed it on that ground but it wasn’t there — it wasn’t presented in a proper form.

It’s true that the brief covered practically everything, every legal point that you want to consider but it was a hodgepodge of legal justification such as a grand jury indictment which is not applicable in the state courts.

Earl Warren:

May I ask, just a matter of information?

How long has the State been compensating the assigned counsel?

Earl Warren:

Is it quite recent?

Burton Marks:

No, the practice of — of, as far as I know, of appointing counsel has been quite recent about five years, five to six years.

Now, that’s all they’ve been practicing.

Earl Warren:

But compensating — but compensating them.

Burton Marks:

Right.

Earl Warren:

Yes.

Burton Marks:

That’s all I’ve been practicing and as I recall in the first year of practice, I did not get any assignments.

Earl Warren:

Yes, that’s what I (Inaudible).

I thought it was quite recent?

I didn’t remember it.

Burton Marks:

Although the — the statute is old, so far as I know, in allowing compensation, there just wasn’t this practice of appointing counsel.

I think it really came into full bloom after the Griffin decision and the Hyde decision of the Supreme Court where they, our Supreme Court, where they decided to either let a lawyer review it or a judge decide if a lawyer was not needed.

And it’s a second advice which I think is a denial of due process of law because if you are going to grant that the defendant has a right to have a transcript on appeal, if you’re going to grant the right he has the — needs effective assistance of counsel then the two go hand in glove.

You can’t have effective assistance of counsel and — or — or the transcript is worthless unless you have somebody looking at the record who knows what an appeal is all about and how to raise error.

Many times, you can look in an appeal and find to your chagrin that there’s a beautiful error there but it was never preserved for the record as far as the appellate court and you have to pass it up, unless it’s so patent and egregious that they say you waived either pay or to object was waived.

I —

Isn’t this man dismissed the Public Defender, this is his lawyer?

Burton Marks:

Which man?

There were two defendants.

Well, the petitioner who’s up here.

Burton Marks:

They dismissed their public defender after he stated that he was not prepared, after he stated that there was a conflict of interest.

Now, we have two different situations.

We have Mr. Douglas who had previously been represented by a private attorney and then ran — assume ran out of funds, who would obviously have the right to have a private counsel appointed for him if there was a conflict of interest.

I don’t think that the inquiry should go any further than that.

Now, assuming that he had the right to have a private counsel appointed for him and Meyes didn’t, still, Meyes and Douglas would have the right to have a short continuance and they weren’t asking for a long continuance.

I don’t think anywhere in the record that shows that they — these tactics were dilatory because in one portion of the record, they said one week would be alright but give us a chance to prepare or give us — our attorney a chance to prepare.

And so they were asking for a short continuance in order to prepare.

And nowhere in the record could I find any place where the people were objecting that the continuance would put them to a disadvantage because already this case had been going out as I believe over a year and a half since the first inception of the murder trial.

So a short delay wasn’t going to effect their prejudice to people’s point and that was never the argument of Mr. Carr.

His argument was not that we’re going to be pre — prejudiced but the — the defendants are trying to be dilatory and they’re raising these suspicious motions for defense.

Burton Marks:

I think the judge just — maybe he took abridge of the fact that an affidavit of prejudice was filed against them.

Although, it’s never intended that specific way some judges do but maybe his back was up.

In any case, with re — the last point is, with respect to the transcripts on appeal, again, we have a very peculiar situation and especially, with respect to the appellate review and how it happened.

Now, Mr. Meyes was filing briefs.

They both asked for counsel on appeal.

They both asked — well, Douglas asked for a separate transcript.

And he was 119 miles away from Meyes.

Now, if he had been given counsel, the counsel could have got the transcript.

He could have gone up to the appellate court and taken their transcript.

Or if he’d been given the transcript, maybe he could have prepared his own brief.But he wasn’t given any either.

And he was a 119 miles away in a different prison.

And although, respondent is very blight to say they — there wasn’t much trouble in getting transcripts, I submit that there is a great deal of trouble in a prison to get anything.

And there’s no way that you can demand it.

The only thing you can do is write out letters and make petitions and make prayers for things.

In the meantime, Meyes was very busy preparing his own appeals with — and which Douglas said, “I don’t want to adopt” which itself indicate some sort of conflict between these two defendants.

And that’s all he could do was petition the court for this additional transcripts.

Now, as far as an additional transcript is concerned, in the beginning, it — it only means that a — the reporter need insert an additional page, copy in his typewriter in order to produce another copy.

Now, they both filed separate appeals.

And it would seem that they both have the right to transcripts on appeal.

And as I say, taking Griffin versus Illinois at its full meaning, it has no meaning, unless you say that the transcript, if a defen — indigent defendant has the right to a transcript where an opulent, defendant would — then the same manner, he must have to have the right of counsel because the transcript has no meaning without the use of the counsel.

I suggest that the holding in the Hynes case which is a federal case that the Sixth Amendments affords to write a counsel that even to determine whether or not a forma pauperis appeal would be available.

It is more inline with this Court’s decision than — than the — our Supreme Court’s decision that a — an appellate justice can look at the record and by looking it over, determine whether or not there is a need for counsel on appeal because after all, he only has the appellate record there that is sent up in the ordinary course.

Now, if you need additional record, he is not going to go any problem — trouble to move the court for additional record to see the instructions for instance that were given whereas a private counsel would if he were at all conscientious.

And I don’t think that any counsel who is appointed by the court is irritated by that appointment because we actually volunteered for the appointment and that finishes —

Earl Warren:

Would you mind — would you mind stating to us what the record shows about conflict of interest?

Burton Marks:

The record — as I see, this was Mr. Mitchelson’s first of the argument but I do state this —

Earl Warren:

Oh, was Mr. Mitchelson involved?

Burton Marks:

He — he was going to unrebuttal because we understand that the — the one of the major portions of the brief of the respondent is that they — there was no showing of conflict of interest, point out to the court the various aspects of conflict because Mr. Mitchelson was the trial counsel for Douglas in the murder case.

Earl Warren:

Well, it — isn’t it rather an order to have that —

Burton Marks:

Well, I —

Earl Warren:

— file rather than rebuttal (Voice Overlap) —

Burton Marks:

Very briefly, the conflict of interest is this.

If I were an attorney for a defendant, the — the major conflict that appears is that, one defendant is going in there with a record, prior robberies, prior murder charge involving the same situation and one defendant who is free and clear of any charges whatsoever.

Now, they’ve both been through the same trial.

I can think of — one situation is that the defendant need not take the stand in a murder case or in any case to testify.

Now, in California, you have the comment rule.

Now, if I’m sitting here with two defendants, one on my right and one on my left, I may decide that it would be better not to have defendant Meyes take the stand because if he takes the stands, he can be impeached and quite seriously, by the murdered conviction and the prior robberies and defendant Douglas can’t.

Now, how can I, as a counsel, who must conscientiously devote myself, my entire zeal and energy in devotion to one client, stand there and talk about Mr. Douglas as being a nice, clean young man who really has no record and say, “But look, on the other hand, Mr. Meyes, I — you just can’t do it.”

You cannot say this man is good and is bad and represent them.

It is a conflict of interest.

The —

Earl Warren:

Does these defendants have any other criminal records?

Burton Marks:

Defendant Douglas had no prior criminal record.

I understand he had a misdemeanor conviction for insufficient funds.

Earl Warren:

Insufficient what?

Burton Marks:

Insufficient funds, checks which is —

Earl Warren:

Passing a check without —

Burton Marks:

Right.

Earl Warren:

— bad check.

Burton Marks:

Bad check in which on misdemeanor may either mean under $50 or may mean that the court made a misdemeanor by sense.

Earl Warren:

That’s all in the reason that — that you’ve been point to as — on conflict of interest?

Burton Marks:

I can point to the fact that Mr. Carr and his direct examination of the — well — may I ask Mr. Mitchelson to take over that portion, if it would be alright.

Earl Warren:

Yes, yes.

You may have it.

Mr. Mitchelson.

Marvin M. Mitchelson:

Mr. Chief Justice and the Associate Justices, let me state this as to the Court’s question as to whether or not there’s a conflict of interest.

I have the occasion to represent Mr. Douglas in two murder trials.

One was a hung jury.

One was an acquittal in his behalf.

Now, all these witnesses that testified in this robbery trial and these witnesses, they were cross-examined by anyone.

Marvin M. Mitchelson:

They all testified in those murder trials and they were thoroughly cross-examined Your Honors.

And it’s even admitted in the transcript, we have before us, by Mr. Carr, the prosecuting attorney that all of these witnesses were thoroughly cross-examined.

And I state to this Honorable Court that many of these witnesses were impeached.

Now, Mr. Carr’s theory that there was no conflict, Mr. Carr, the prosecutor that is, and he was also the prosecutor in the three murder cases, is that both of the defendants denied participation in any of the robberies.

Well, they both denied the murder charges, too, Your Honors.

But yet, they were separate of counsel for each defendant.

And one received an acquittal and the other one received a conviction.

Now, I say to you, Your Honors that the conflict simply is, that the stigma of Meyes’ conviction for murder rubs off on Douglas.

And I know from my own 12 weeks experience in trial that many of the witnesses identified one party but they did not identify the other.

Now, he did the same thing in these robbery trials.

So perhaps, Douglas might want to find himself in this situation where he de — denies that he had anything to do with Meyes.

I’m not trying to prejudge Meyes’ guilt but maybe his testimony is just like it was in the murder cases that — that he could’ve — he had alibi witnesses for example in the murder cases on the date that the robberies were supposed to be committed.

Judge Rhone even has this in the transcript as Your Honors have seen.

So therefore, if he can produce an alibi witness for example at the robbery trial and Meyes cannot, how can an attorney representing both of these people be arguing and advocate for one of them when he can’t do it for the other one?

The case is cited here and I believe it’s the Matson case and also the Robinson case, state that an attorney must have his mind free and cluttered — free and uncluttered, excuse me.

He must not be worried about being embarrassed when he argues for a second party.

And if he can be embarrassed in his argument, he cannot effectively represent both men.

Now, this is exactly the situation we have here.

How can both Meyes and Douglas be effectively represented by the same man when in a — in a proceeding earlier in two proceedings, one of them has received an acquittal for heinous crime that involved as a motive all these robberies and the other has been convicted?

So I submit to Your Honors that this is conflict.

If I ever seen conflict in a case.

Now, earlier, Chief Justice Warren, you inquired to Mr. Marks as did some of the other justices about the lack of preparation and I would like to state —

Earl Warren:

Before we get — before —

Marvin M. Mitchelson:

Yes.

Earl Warren:

— we get to that, would you please point out to me in the record how the conflict was presented to the court.

Marvin M. Mitchelson:

Yes, Your Honor.

Earl Warren:

What was — what was said to the court at that time?

Marvin M. Mitchelson:

Yes, Your Honor, I think I can point that out to you.

Page 36 would be one instance.

Earl Warren:

36, right.

Earl Warren:

What part of the page there?

Marvin M. Mitchelson:

At the top or the starting at the top of the page, “I do not see why counsel cannot bring to the court’s attention where any beliefs a conflict will occur”, Mr. Atkins.

Earl Warren:

35?

Marvin M. Mitchelson:

Oh, no, 36, Your Honor, in the transcripts of records.

Earl Warren:

Oh, oh.

Marvin M. Mitchelson:

And this — Mr. — where Mr. Atkins begins to speak about line four.

First off, I may make something clear.

I’m not asking for dismissal.

I’m asking for continuance.

Past history proves that no conflict appears.

This is what Mr. Carr said, “What has happened since then?”

said Mr. Atkins.

“Well, something has happened since then Your Honor.

Douglas was acquitted and Bennie Meyes was convicted.

Now, I can defend both of them but I am in a disadvantage in that if I defend both of them, the stigma of the murder conviction as to Bennie Meyes, I have to talk out of one side of my mouth as to Bennie Meyes and out of the other side of my mouth is to Mr. Douglas.”

And the court says, “I don’t know why.”

Well, how obvious can anything be?

And this is certainly brought up in the record.

Now, Mr. Atkins goes on as Your Honors can see that he feels Mr. Douglas, he should have an attorney who would represent him and him alone who can make the best use of the fact that an acquittal was earned on his behalf in the murder trial.

That is a conflict.

I submit that that this a conflict present in this case which should be obvious to anyone that two lawyers are necessary.

Then again, on page 67, at the top of the page in the transcript, there is a discussion that is taking place in the impaneling and the Board hearing of the jury that concerns — again, he really brings up this question of conflict because you can see that there’s going to be a conflict again between a prior conviction that Meyes is (Inaudible) going to not have to take the stand and sit mute and Douglas might like to get up and defend himself and you know state that he have nothing to do because he doesn’t have to fear being impeached by having a conviction of a prior felony.

But he can’t — but they want to see an attorney going to argue for both of the petitioners at the end of the trial.

Why did one get up and testify?

Why did the other one sit still and not say anything?

Earl Warren:

Well, is that articulated to the Court?

Marvin M. Mitchelson:

Well —

Earl Warren:

Or is this just your — your argument to (Voice Overlap)–

Marvin M. Mitchelson:

Well, this is my inference from — from the apparent problem that is brought right up in the transcript.

Now, I — I think I can point out to the court numerous other —

Earl Warren:

But where — where in is that pointed up to the court in that citation there on page 67?

Marvin M. Mitchelson:

67.

One moment, Your Honor.

Well, the court says the only problem that worried me in all juries when the jurors asked whether or not they would consider the testimony of this one or that one any differently.Jury has not seen or heard any testimony.

Well, Mr. Atkins talks — I think the question is perfectly proper because the consideration of a previous conviction by the defendant shouldn’t no way influence their determination weighing the evidence.

The point is Mr. Atkins there is where during the juror on previous conviction because he knows.

He knows he has to bring it up as to Meyes if he allows Meyes to get up and take the stand.

But he doesn’t have to do as to Douglas.

Now, the same attorney representing both men here asking a question like this, about — would the fact that are — it was a previous conviction, the previous felony conviction prevents you from — you know even considering that are giving a just verdict and they, of course, they answered that it wouldn’t but either fact that even brings it up because he knows that this is what is going to happen as soon as he starts conducting the trial.

This stigma which is clearly pointed out to the court because it is a colloquy between Mr. Atkins and the court is going to reverberate against Mr. Douglas.

And Mr. Douglas says, “I don’t want to have any of that stigma.”

He doesn’t want to have a lawyer talking about a man who has a felony conviction and at the same time talking about a man who has a clean record, who has an acquittal for — in the murder case.

Now, I say that Mr. Atkins can’t properly and with full heart as the Robinson case asked him to do, talk for both of these men at the same time.

Now, that I — I submit to you as ample evidence of a conflict between these petitioners.

Now, going onto the questions that were directed as to the preparation, well, I’m just wondering Your Honors but I don’t put these in the form of a question.

Your inquiries were directed as to how much time was available for the Public Defender to prepare his case and some 39 or 40 days I think was available.

Well, are the defendants to be charged with the lack of preparation by the Public Defender?

What’s the first thing this public defender says when he’s called for trial?

He says, “We are not ready.”

Is that all he says?

Judge Rhone have us believe —

Earl Warren:

Where are you reading from now?

Marvin M. Mitchelson:

Well, I’m reading from page 31 in the transcripts.

Excuse me Your Honors, I go back — I start page, earlier, 29.

The first words of Mr. Atkins, “We are not ready for trial.”

Now —

Earl Warren:

That is where?

Marvin M. Mitchelson:

That’s on page 29 in the transcript above the one, two, three, four sentence down, Your Honor.

Now, Judge Rhone have us believe that all the Public Defender wasn’t prepared for was the fact that he didn’t cross index the earlier transcripts.

Your Honors, I submit to you, this is an untruth because Mr. — Mr. Atkins has consistently, I’m going to point out to you page-by-page now, stated that he was unqualifiedly unprepared.

Marvin M. Mitchelson:

Now, I refer Your Honors to the following statements by Mr. Atkins.

It isn’t just a matter of not cross indexing Your Honors and before I point that out, I just want to say that that is no small task.

There were 12 weeks of murder trials.

There were several hundred pages of transcripts.

So that — that was a considerable job that not had done prior to coming into court that morning.

Now, first, he says that he is not prepared, on page 29, and he goes on to be more ex — explicit.

He says that he hasn’t had a time to make a complete investigation.

That’s in the fifth sentence down, the next sentence down.

He says, “For that reason, we have not been able to complete the investigation, contact these people, these robbery witnesses and interrogate them, asking their reasons for remembering dates.”

Well, he has stated, “This is a lot different than not cross indexing prior transcripts”, is it not Your Honors?

When a man says “I’ve not investigated.

The Matson case, and I refer you to the petitioner’s brief, page 12, the footnote, Matson — People versus Matson and this is so important where a federal due process requires appointment of counsel, the state court’s appointment must be effective.

It must afford counsel time and opportunity and impose upon him the duty.

Now, here’s the crux of this case.

There is a duty on this public defender to be ready for trial.

Are we going to charge the defendants, Meyes and Douglas with the fact that their counsel wasn’t ready just because he had 29 days to prepare?

Your Honors, these two men are sitting up on the county jail.

They can’t walk into the courtroom earlier to make a motion, much is made of the fact that they made a delayed motion on the time actually set for trial.

I’ll point out to the Justices that there was no prior continuance of this case at all?

This was a cumulative impact on the defendants.

They realized just as time drew near for trial that their counsel wasn’t getting them any attention.

That he hadn’t come up to see them.

He admitted that he says he came up for three hours.

They say it was less than that.

Three hours, Your Honors, are not enough to prepare a case that involves almost a thousand pages of earlier transcript plus the other investigation.

So here, the court talks about the Matson case imposed a duty upon this counsel to investigate and prepare for this trial.

What duty is the court imposed upon him?

Now, if he says that he was unprepared and later qualified to say that I could go ahead and try this case but I haven’t done certain things, he said much more than that.

Here’s what he said, on page 29.

Now, let’s turn to page 31.

Marvin M. Mitchelson:

I refer you to renewal for motion for continuance and denial thereof.

That’s drop down to the sentences.

Since now, in talking to these two defendants, there’s a problem arouse only yesterday amongst other problems when I discussed with them the final — talking to them to prepare to come in to court today.

He speaks there about the fact that these problems just arouse the day before the trial which is a very good indication of the fact that he wasn’t prepared to go to trial.

Now, page 32, now, listen to this statement.

I never heard a more statement that contradicts itself, on top of page 32, “On my own part I feel that I’m prepared.

However, I have not been able to state in the transcripts of the previous trials which are voluminous and through the press of all the other businesses that our office handles, I have been handling a case today like every other deputy.

I have not been able to give this the time that I think I should devote to it at present.

So, for that reason, I, myself, feel that would like some more preparation.”

Now, you can’t equivocate your statements like that.

You can’t say “I’m prepared, I’m not prepared”.

An attorney is prepared or he is not prepared.

And it — again I say, it was the duty of the court to — to see if this man was ready for trial before he sent these two defendants on the — have tried the case alone and the record being replete with objections give us a week continuance, give us more continuance.

Now, let’s turn to the —

Earl Warren:

Suppose this — suppose this was a private counsel employed by — by the defendants, will it make any difference in your case?

Marvin M. Mitchelson:

It might make a difference — it might not, Your Honor.

I say to Your Honor that the court, if the defendants are standing vicariously objecting to the fact that their lawyer is unprepared to try their case and they are not ready to go to trial then had no previous continuances, the court would have a duty to give them some kind of a continuance be it ever so short to remedy this problem.

But we must take all the circumstances here.

Earl Warren:

You mean no matter how much time they’d have — the lawyer had to prepare before hand.If he hadn’t prepared and came in to court and said that he was not prepared that the judge would be obliged to give him a continuance?

Marvin M. Mitchelson:

Not necessarily.

I think it would depend on all the circumstances particularly the way the defendants themselves would react to this sort of a situation.

I think most defendants unfortunately sit mute.

I mean, they don’t — they don’t get up and say, “I want to dismiss my attorney”, because after all they give that attorney money and they go along with them and now, they’re too embarrassed to get up and — and they feel their attorney knows what he’s doing.

Earl Warren:

Now, let’s say that they did want to get — they did want a continuance and — and even though they had paid for this counsel, would the court be obliged in these circumstances to — to give us continuance?

Marvin M. Mitchelson:

In these circumstances —

Earl Warren:

Yes —

Marvin M. Mitchelson:

— you’re asking me up Your Honor?

Earl Warren:

Yes.

Marvin M. Mitchelson:

I don’t think that can receive a categorical answer, yes or no.

I think it depends on all the circumstances.

Earl Warren:

No, what difference does it make whether it’s a public defender or a private counsel?

That’s what I’m trying to get at.

Marvin M. Mitchelson:

It makes a great difference because we’re talking about due process under the Fourteenth Amendment, effective appointment of counsel.

We’re talking about two defendants incarcerated in the county jail with no opportunity to come into the courtroom and to raise the motion and say, “I want to change my counsel.”

We’re talking about a cumulative situation here when you take all the facts into consideration that dawned on them as they were going to — to trial.

There — they realized the last moment, the last two or three days, it would be impossible because their man hadn’t come up to talk to them long enough.

He told them, “I never read the transcripts.”

I see your point Your Honor and I do not mean to deviate from giving you a direct answer but I feel that it would depend on all the circumstances and we must take these two defendants and the circumstances, we find them in the county jail with an appointment of a public defender who unequivocally states that he is not prepared.

Now, I — I turn to page 36 again.

I just want to point in the transcript at the bottom of the — the page, the court says, “Well, this matter has been on calendar before and there have been three continuances before, three motions working on this before.

I cannot hear these matters piecemeal.”

There has been no motions for continuance before.

This is a misstatement by the court.

Earl Warren:

(Voice Overlap)

Marvin M. Mitchelson:

And this is the first time this man had ever asked for a continuance.

Earl Warren:

Where are you reading from now?

Marvin M. Mitchelson:

The bottom of the page Your Honor.

The word says, “The court”.

The last four lines from the bottom of page 36 of the tra — of the transcript.

Earl Warren:

Where does counsel say that — that there never has been a motion for continuance?

Marvin M. Mitchelson:

Well, the court is saying that this matter has been in the calendar before.

There has been three continuances before and there has never been one continuance before.

Earl Warren:

Is that in the record?

Marvin M. Mitchelson:

It certainly is.

Earl Warren:

Well, what — where — where, right there?

Marvin M. Mitchelson:

Well, there’s a record here in — in the record, Your Honor, of — of all the motions that have gone up before the court.

Earl Warren:

How do we know it?

Marvin M. Mitchelson:

On page 9, on the arraignment and the plea on page 10, sets the date for trial, so there’s been no continuances whatsoever.

Earl Warren:

Well, counsel didn’t call up the attention of the court or did he —

Marvin M. Mitchelson:

Well —

Earl Warren:

— at that time?

Marvin M. Mitchelson:

Even if counsel didn’t call to the attention of the court, the court has erred by its own record in — in seeing that there had been no continuances whatsoever brought before this court before.

Now, Your Honor, I — I might say this to you, I think that some place in this transcript, he does call to the judge of the court.

I just like saying he does and then start searching the record and taking valuable time.

But I think that he brings it up because he set over and over again.

They we’re just asking for one continuance.

This is the first continuance and words to that effect.

But perhaps, I will come upon that.

Now, I direct Your Honors’ attention to page 38 and 39.

Let’s take page 38, about two thirds through the page.

Mr. Atkins, this is following — Mr. Atkins says, “I am not prepared to go to trial, Your Honor.”

Well, what more of a — an equivocal statement can that be?

“I am not prepared to go to trial”, page 39.

What is Mr. Atkins say, following words in the middle of the page where he says, “Discussion at bench between the court and the counsel?”

I express the feeling to the court, for lines down, that I, myself, wish more time to prepare this case.

He has taken that to me that I’m unprepared and the manner of speaking, I, myself would like to have, would rather be a good deal more prepared than I am.

Well, you see if this stays again, Your Honor, there’s a lot of pressure being put upon this public defender.

His clients now are just standing up practically screaming and saying, “We don’t want him.

He hasn’t read the transcripts.

He’s unprepared.”

Well, upon this time, any men is going to defend themselves and this is exactly what he’s attempting to do at this time.

He is trying to say, “Well, I’m somewhat prepared and I’m not prepared.”

But he unequivocally, several times in his transcript, states he’s not prepared.

Page 43 is probably his strongest statement, “I have certainly gone through them a little at this point”, meaning the transcript.

This is about halfway down, “But not sufficiently in my own mind”.

Page 45, this is perhaps his strongest statement, right at the top of the page, Mr. Atkins starts talking, about three lines down, “It is my opinion that I do not and have not had enough time devoted to this case to adequately prepare me for trial.”

Now, Your Honors, if two defendants don’t have a right at that stage in the proceedings to stand on their constitutional right as annunciated by the Pal case and a hundreds of cases since that time to have effective counsel appointed, prepared counsel appointed and say, “Well, we cannot have this man represent us because he states, he isn’t prepared to try this case.”

I don’t know how much greater they could protect the record nor how much more their constitutional rights should be enforced in that statement.

Now — excuse me?

Hugo L. Black:

What — what is the ground here, not decide (Inaudible) that he kept saying that he was not prepared?

Marvin M. Mitchelson:

I’m sorry Your Honor, I didn’t —

Hugo L. Black:

Did not decide (Inaudible) that doubts but that he kept saying he’s not prepared.

But what were the specific reasons designed for him —

Marvin M. Mitchelson:

The specific —

Hugo L. Black:

— for not being prepared?

Marvin M. Mitchelson:

He just —

Hugo L. Black:

He didn’t of course claim as because he won’t be able to try it when he got into the courtroom.

Marvin M. Mitchelson:

Justice Black, he was unprepared and he cited the reasons that he had not read nor study nor investigated the transcripts of the prior murder trials as to the portion that concern themselves with every witness had testified at this trial.

Then he doubtedly didn’t read them and didn’t have in my mind the cross-examination that I have — so laborious gone through for 12 weeks but he did not make an investigation as to the alibis that were brought up as to those robberies and as to every other thing that concern those robberies.

Hugo L. Black:

But the alibis to be the same in this case as the other, witnesses to the alibi?

Marvin M. Mitchelson:

Undoubtedly, Your Honor, and even more because you see in the other case, we’re merely preparing for — you know this is a motive question that was brought up, and the main issue was the murder trial itself, so undoubtedly, we would have put greater preparation into defending the robbery case when this would become the main issue.

But there was so much material.

There were 800 pages of cross-examination.

I can still hear myself referring to the jury.

I’ve never seen a collection of witnesses like this.

They — one of them couldn’t see 15 feet, didn’t have their glasses on it at the time of the alleged robbery.

It — they’re talking about an incident that happened 200 feet from her, positively refuse to identify Douglas.

There are so many things that were brought up there that if a man had prepared and had read those transcripts and it gone out and investigated, Your Honor, ask him what didn’t they do?

They didn’t investigate, he didn’t read, he didn’t talk to any witnesses —

Hugo L. Black:

But I assume the investigation —

Marvin M. Mitchelson:

— he didn’t have any witnesses —

Hugo L. Black:

— I assume the investigation that had already been made previous case as to the alibi witness.

Marvin M. Mitchelson:

Some investigations have been made.

There were no witnesses under subpoena, Your Honor.

There was a one witness under subpoena.

There was no investigation.

He says so himself.

There was no preparation.

There was no reading.

He had been in trial everyday.

Marvin M. Mitchelson:

He wasn’t ready for trial.

Earl Warren:

I don’t think he said it made no investigation.

I think on page 29, he said that — that we have a great number of witnesses for which subpoenas were issued — no, that’s — that’s Carr.

Marvin M. Mitchelson:

He did, Your Honor.

Mr. Carr had a great number of witnesses.

That is true.

Earl Warren:

He said, “There are so many that it is difficult to check each one and develop the people who might have known these men and who might for one reason or another be able to remember certain days.

For that reason, we have not been able to complete the investigation, contact these people and interrogate them, asking them their possible reasons for remembering certain days.

We have just not been able to complete that investigation.”

He didn’t say he never made an investigation.

Marvin M. Mitchelson:

Your Honor, let me —

Earl Warren:

At least there, he did.

Marvin M. Mitchelson:

— let me back track slightly.

He didn’t — that he didn’t make any but I interpret that statement that after he says we have not been able to complete, he says what he didn’t do.

Contact these people, interrogate them, ask them their possible reasons for remembering certain days.

I think he’s saying there that he didn’t do any of these things.

It isn’t that he didn’t do anything at all, of course, not

Earl Warren:

He says, “There are so many that it is difficult to check each one, each one.”

Marvin M. Mitchelson:

Well, again, I’ll say to Your Honor that taking all of the Public Defender statements.

And there are many in this transcript.

There are so many, there are unequivocal that state that he wasn’t prepared, that he didn’t feel ready to go trial, that he couldn’t do his best for these two boys under the circumstances, that he needed more time to read and study.

Could not the court have granted him one week continuance on his first motion for continuance?

Even Douglas stated that he said, “I would go for it if I — he — I had a week.

I’m prepared, he isn’t.”

If he had a week, he’ll be gladly to have the Public Defender represent him.

So I say to Your Honor that when you take this record as a whole, it is a most complete record and it replete so many times stating lack of preparation with continuous objections by the defendants.

You know, the respondents urged the court to — to think that they’re trying to — stole this case.

Well, what motive would they have for that?

They are in the county jail.

It isn’t like they’re buying a few more days of freedom.

Marvin M. Mitchelson:

Douglas wasn’t serving anytime at all except he — after he was acquitted on the murder case, he would have been able to go out to the court, the streets of freeman.

Mr. Carr brings up something about being him on probation from a check but that’s not true because the court at the end of murder trial said that he already done his time while being in custody for the murder trial as a violation of probation.

So he was perfectly free.

So there’s no reason why Douglas want to continue this case and want to delay it.

On the contrary, they want it heard.

They just wanted their counsel to be prepared for their case and give their full benefit of their advocacy.

Hugo L. Black:

I guess you would assume quite a burden.

Marvin M. Mitchelson:

Pardon me, Your Honor?

Hugo L. Black:

I guess you’d assume quite a burden of — for all the inference undoubted from the fact that this man is out of — he’s not on — he’s not in jail that he all reports a criminal case tried (Voice Overlap) —

Burton Marks:

Well, that — that’s true, Your Honor but —

Marvin M. Mitchelson:

— (Voice Overlap) — good criminal lawyer.

Burton Marks:

Well, Your Honor, I only can say that I see no reason to serve on behalf of the respondents why they didn’t want to delay this case.

Prosecutor talks about their grant standing for a newspaper.

Well, that’s sort of ridiculous because what could be gain by that?

I see my time is up, Your Honor.

Then I better sit down.

Earl Warren:

Mr. James.

Jack E. Goertzen:

Mr. Goertzen first, Your Honor.

Earl Warren:

Oh, pardon me.

Yes, Mr. Goertzen.

Jack E. Goertzen:

Right.

Honorable Chief Justice and may it please the Court.

With the Court’s indulgence, I’ll address myself to the points of the trial error and Mr. James will reserve argument on the right to counsel on appeal as a part of due process.

Now, Mr. — Mr. Marks and Mitchelson collectively have talked at great length on the preparation and Mr. Chief Justice and Mr. Justice Black comment on this preparation, so I’d like to turn to that first off.

California has Penal Code 1050 which states the over — overall philosophy I think of many states that these people of the State of California are all interested in speedy trials and criminal cases and for continuance.

The Judge will not allow a continuance unless there is affirmative proof of cause and on reasonable notice.

Now, we turn to this case where the first notice of the continuance was on the very day of trial.

And frequently, both counsels can vouch for this.

Defense counsel, when they – when they know they’re going to hit for a trial unprepared, if they are, and really in good faith, continue it, they can advance the cause on the calendar and so move if that was done in the Kirkwood (ph) case cited by Mr. — Mr. Marks in his brief.

Now, let’s look to the actual preparation.

Jack E. Goertzen:

Was Atkins himself prepared or did he feel himself prepared?

Well, I think this Court can take judicial notice that when counsel is — desires to put off a case a little bit, he — he can tend to try to bluff the judge so to speak and — and advance reasons here and there.

And the judge is on the burden, the trial judge of making a decision, well, does he really have good reason for continuance?

And it submitted that Judge Rhone did put into this test.

And the only reason that is in this record for the desire on the part of Mr. Atkins for continuance was so that he could cross index those prior trail records and preliminary to the instant case.

And I’d — I’ll have more to say about those records in a minute.

In support of this, at pages 75 and 76 of the record, I wrote this out so I don’t know exactly what — starting at the bottom four lines, “I have not had the opportunity through no fall on my own to prepare this case in the manner which I would like to be prepared.”

Hugo L. Black:

Is that 76?

Jack E. Goertzen:

Starting at page 75 bottom four lines, Mr. Justice Black.

Hugo L. Black:

75.

Jack E. Goertzen:

“I have not had the opportunity through no fall on my own to prepare this case in the manner in which I would like to be prepared.

I have at this point not have the opportunity to cross index all of two trials and one preliminary transcript of all the witnesses who will appear in this trial.

For that reason, I feel I would like to be better prepared than I am now.”

Now, let’s look at those transcripts and look at that reason.

Earl Warren:

Then what — he went a little further, didn’t he?

And then — then he said —

Jack E. Goertzen:

Oh, right.

Well, this brings up another point, Your Honor.

He said that — in other words, there was an illusion made by Mr. Marks in the record that he felt that he could prepare as he went along the whole trial.

That’s not true at all.

He felt that as the trail progressed, he could cross index.

He could sit there and pull the record of the — the witnesses testifying.

And as Your Honors know, trial judges frequently after a witness has testified on direct, allow 5, 10-minute break.

The — a lot of times, they take their recesses right then in there and that’s when counsel usually orients his — impeaching testimony if any there be.

But we’ll — we’ll get to that point also on whether or not Mr. Atkins should have or was actually prepared on that — on those prior records.

Mr. — getting back to Mr. Atkins’ statements, true, he made various equivocal statements about the preparation.

But at page 81, when they had already dismissed unqualifiedly the Public Defender, Mr. Atkins was under no more pressure so to speak that was supplied if you please by the defendants themselves.

And he said at page 81, after Mr. Carr, the prosecutor, offered or offered a thought, why not, the trial judge says they dismissed Mr. Atkins, why not, he asked the trial judge, appoint Mr. Atkins in an advisory capacity which had been done in a prior case, the Chessman case.

And Mr. Atkins was not happy about this thought.

He was under no pressure so to speak by anybody really at this time.

Jack E. Goertzen:

He said, at page 81, Mr. Atkins’ last speech at the bottom, “Your Honor.

I oppose that motion.

I do so for this reason.

If these defendants want an attorney to represent them, I am here qualified and ready to try their case for them.”

A little further down, the bottom three lines, they have an opportunity to get an attorney who, and my humble estimation, is equal to the task.”

He of course was speaking of himself.

I referred in my brief to several of the — of the or other quotes that I’ve been going into.

Also, at page 70 — page 75 —

At what stage was the — Mr. Atkins asked or did the defendants indicate they wanted — they didn’t want to be represented by Mr. Atkins.

What stage were all these?

Jack E. Goertzen:

I think —

After the motion for the continuance or denial?

Jack E. Goertzen:

They first had a motion — they — they first had an affidavit under 170.6.

That was the very first order of business.

Affidavit of prejudice?

Jack E. Goertzen:

Right, against the trial judge.

The second, that was the time they filed, the second one was the motion for continuance for more time to investigate the alibi witnesses.

Then the third — the third motion was the conflict.

The conflict was not developed fully at that time or the argument.

They went back to the 170.6.

I think Mr. Atkins voir dire the jury, let’s see, I think at page —

(Inaudible)

Jack E. Goertzen:

Oh, Mr. — yes, Mr. Douglas, at page 37 —

(Inaudible)

Jack E. Goertzen:

Okay, right, that’s true but —

William J. Brennan, Jr.:

And they — they were (Inaudible)

Jack E. Goertzen:

Right.

That’s right.

They started — they started opposing the — the objection right away.

I didn’t mean to mislead you.

Jack E. Goertzen:

Mr. Atkins was in fact kept on until after voir dire.

William J. Brennan, Jr.:

— (Voice Overlap) — at page 81?

Jack E. Goertzen:

About page 77 but as we’ll develop, Your Honor, there was absolutely no reason for them to discharge this man.

William J. Brennan, Jr.:

Apparently — whatever the justifications were, they have it very clear from the very beginning they want to have contracts.

Jack E. Goertzen:

Right.

That — at page 30 —

That was after the motion for continuance had been denied, right?

Jack E. Goertzen:

Right.

But I think as I develop my argument both on the risk of preparation and on conflict, Your Honors, they weren’t entitled to dismiss this man.

Also, recall this.

This man had been — first of all is in the State Attorney General’s office and District Attorney’s offices and — and lot of public offices, a deputy — when they say the Public Defender, the deputy speaks as a pubic defender.

When they appoint the Public Defender’s office or when the Attorney General’s office comes in on a case, the deputy handle that speaks at that person.

Now, the Public Defender was appointed in August 18, no objection.

August 21st, they were back in court for arraignment, no objection.

September 30, there had been no advancement of the cause or attempt to advance the cause for trial to raise any objections.

They come walking in and hit — hit the judge with these motions.

Now, another thing I’d like to bring up at this time, Your Honors, it was alluded to in the briefs and this is more or less a good faith offer of proof.

We found out after our briefs which maybe a confession of some negligence on our part, we found out that — that Mr. Carr, the prosecutor, had a copy of the preliminary.

That preliminary I — I brought along.

We are prepared the logic with the court.

That shows that on August 34th, prior to the 18th, they were —

Earl Warren:

August what?

Jack E. Goertzen:

At August 34th of 1959 prior to the 18th, they had the preliminary hearing.

Every one of these witnesses was called.

The Public Defender represented both of them.

It was a 227 page document.

141 pages as cross-examination of every — any possible kind you could want.

They — he did everything in his power to impeach the witnesses etcetera.

And then the — the information was filed on August 11th and then on August 18th, they had the formal appointment of the Public Defender.

But the — the Public Defender’s office was not new to this case.

Jack E. Goertzen:

Also recall the public —

Hugo L. Black:

What public defendant did that?

Jack E. Goertzen:

That was a public defender by the name of Salter, also from the same office.

Also recall this Mr. Justice Black that the Public Defender’s office was not strange to this case because Mr. Brackenridge, defended Meyes throughout the two murder cases on court appointment and he’s from the very same office.

Now, let’s turn to the murder case.

This has been brought up in — in counsel’s briefs.

And there was much made of these voluminous transcripts of the murder case.

The murder case, I handled the appeal from the Attorney General’s office on a murder case and at the time of the filing of — of Mr. Marks’ brief, a hearing was still open.

And Hearing has since been denied in that.

There was 3819 page document.

Now, of that document or of that transcript, 267 pages dealt with these robbery witnesses, evidence of 11 of the 13 counts in the instant case were submitted.

Now, Mr. Mitchelson has stated there was no reason to cross-exam or there was no reason to really get worked up and find alibis for those particular witnesses at that time, it’s only at this time.

However, Your Honor, the only theory of the prosecution in that murder case of that police officer was that these defendants knew they were being — they were being sought after for the — for the — being sought after for these instant robberies in this case.

And that when the officers knocked on the door of the apartment, the — the defendants ran into the room, hit out and when the officer walked in, they shot him and killed him.

Now, I submit that Mr. Mitchelson would be acknowledging negligence on his part as a practitioner.

If he didn’t hammer out every possible alibi he could for those robberies where that’s the sole theory of — of the prosecution eminent.

And I submit that Mr. Mitchelson did a whale of a job in cross-examining these witnesses, bringing out the fact, their – their bookmakers and their — their inability to or their perceptive ability to identify.

Much the same thing as Mr. Salter did at the preliminary hearing later on the robberies themselves.

There was every motive to develop every possible thing they could at those murder trials to — to exploit those robberies.

They did offer one alibi witness for Douglas.

And Meyes categorically deny involvement and he — he handled his alibi via his own testimony by stating that he had jobs at those times, his working nights.

That would have conflicted with the possibility of committing those robberies.

He offered no outside alibi witnesses.

But there was time, there was — there was ample warning of — of or ample identification of the type of offenses that might later have been lodged and which were lodged.

And the Public Defender’s office, having been in all stages of this case prior to the instant case and being one office, these transcripts were available.

And as I say, there was only 267 pages of that 3800 page document that were really material.

Now, Mr. Marks in his argument stated — he argued — now, the first two trials were murder case.

The robberies were really subsidiary to a murder.

Mr. Mitchelson expand — expand on this theme also.

Now, we’re saying this, the murder or the bulk of that 3800 page document is subsidiary to the robberies.

Jack E. Goertzen:

See, the other side of the coin.

And all Mr. Atkins really had to be familiar with was that 267 pages plus a short preliminary transcript and he was ready for trial on the robberies because that’s all it was charged.

Now, Mr. — Mr. Justice Harlan, I believe, asked Mr. Marks if it was not a fact that — that these defendants had dismissed the Public Defender, it was true.

And that time, Mr. Marks in his — in his answer to Mr. Justice Harlan said, “All they really wanted was a continuance.

They weren’t asking for much a week try to get another — another counsel.”

Right, so the counsel could be prepared was one of the other things.

At page 78, Mr. Atkins’ last speech at the bottom of that page, “Well, now, suppose that this case were continued until Monday”, recalling this is September 30th, a Wednesday prior to that Monday, “And I had that much time to prepare, would you still desire to have me relieved as your counsel?”

Defendant Meyes, “Yes, Mr. Atkins.”

And he went on to say, “Well, if he can have his own counsel, he’d be satisfied.”

There was no indication in this record that these men in really good faith felt Atkins wasn’t prepared.

At page 77 also, Your Honors, Mr. Atkins ex — expressly denied that he ever told these defendants he wasn’t prepared or told him that he hadn’t read the transcripts for which they were basing all their complaining about.

How old are these two defendants?

Jack E. Goertzen:

Meyes, I believe, was about 20, 21 or 2 at the time of trial and I mean Douglas was 22 or 3 at the time of trial and Meyes was 34.

And education-wise, Douglas had gone through the 11th grade and Meyes had gone through — he’s finished high school in the marines and — and came back and had a year and half with L.A. State College of Social Sciences.

Hugo L. Black:

(Inaudible) are on trial?

This actual case we — we’re concerned with?

The September 30 — I — I believe three days.

The jury came in on October 7th.

Hugo L. Black:

And how long was the murder case?

12 weeks, I believe, Mr. Mitchelson said.

Hugo L. Black:

With that view, the difference in the number of witnesses?

Well, recall this, Justice Black.

It really was a subsidiary case.

They — the bulk of the witnesses called at the murder trial were actually witnesses in the apartment, police officers and everything to establish the circumstances of the — of the actual arrival there by the police, the — the attempt to find these — these two men.

What — what the officer surviving recalls is that the officer going down the hall and this and that.

There were ambulance attendants called and then there — there was lengthy evidence on admissions and confessions given.

And I believe Mr. Mitchelson can vouch for this that that aid up quite a bit at the trial, the actual admissions on the — on the murder case itself.

The robberies were just that offered on that specific theory to show that that was why the officers were going there and that the defendants knew of it.

In fact, Meyes made damaging admissions at the murder trial that he did know or equivocally but from the record, you — you got feeling that he did know that was why they were there and things like that.

But that was all the robberies were offered for.

Hugo L. Black:

How long did it —

Jack E. Goertzen:

The bulk of the evidence was in the murder itself.

Hugo L. Black:

How long did it take the defendants offered there that it’s in the murder trial and how long did it take an offer in the robbery trial?

Jack E. Goertzen:

Well, the —

Hugo L. Black:

The defendants.

Jack E. Goertzen:

— the defendants offered no evidence at all in the — in this robbery trial, the instant case.

Hugo L. Black:

Did the whole —

Jack E. Goertzen:

At the murder trial, the witnesses were thoroughly cross-examined.

And I might say in — at that —

Hugo L. Black:

I mean, how long did they offer testimony in the murder case?

Jack E. Goertzen:

On the robberies?

Hugo L. Black:

On anything in the murder case.

Jack E. Goertzen:

Oh, both the — both defendants took the stand and testified at great length in the — in the murder case.

Hugo L. Black:

I was interested in the fact that it took 12 weeks to try one and three days to try the other.

Now, I was interested to know how the time that the defendants use compared in the two cases.

Jack E. Goertzen:

Oh, I’d — I would say this that I think Mr. Mitchelson can vouch for that that both Meyes and Douglas testified at very great length in the — in the murder trial.

They were on the stand quite a while.

I think he can —

Marvin M. Mitchelson:

Yes, they were, Your Honors.

There were on the stand at a great while and there were — but there were two trials, also.

So, it was not just 267 page in the transcript, it was 500 because there were two trials and there was different testimony in each trial.

Earl Warren:

Oh, the two trials took 12 weeks?

Marvin M. Mitchelson:

Yes, Your Honor.

Earl Warren:

Right, I see.

Jack E. Goertzen:

Oh, I didn’t know that myself.

I thought the second trial took 12 weeks.

Marvin M. Mitchelson:

I might say the second trial took about 8 weeks, I think Your Honor.

The first, it took about 6, somewhere in (Voice Overlap) —

Hugo L. Black:

Well, I was asking you the question on this basis.

They claimed that they were not properly represented.

Hugo L. Black:

And here, you have a case where (Inaudible) referred to as being very much the same, took 8 weeks — 4 weeks to try the two murder cases.

Three days to try their robbery cases where the defendants did not have lawyers.

Does the fact that they did not have lawyers have anything to do with that?

Jack E. Goertzen:

No, Your Honor, I submit this.

In the two murder cases, recall, they’re trying them for murder.

There was no count as to the robbery.

The murders were being offered solely as or the robberies were being offered solely as motive.

And therefore, I think if you — if you — in other words, if you divorce the robbery try — the robbery testimony from the two murder cases, you would have transcripts about as long as the instant case if — if the defendants say had testified at the — in the instant case.

In other words, the robbery — the — the actual physical length of the robbery testimony in — in the — offered in the two murder cases is very short.

The murders of course took — took a great deal of length because as I say, there were — there were numerous confessions, there were all kinds of post-arrest activities that were — that came into focus.

The robberies were offered solely for that motive purpose.

And if you laid, I — I would offer that if you lay the — the — extracted the robbery testimony from the two murder trials separately in the preliminary and assuming Meyes and Douglas had both testified unless you’d probably have about four equal transcripts.

William J. Brennan, Jr.:

Well —

Jack E. Goertzen:

And —

William J. Brennan, Jr.:

Am I right about this?

Looking at this transcript, it appears to be about 58 pages of trial testimony at this trial after Atkins had been dismissed.

Jack E. Goertzen:

Well, of course —

William J. Brennan, Jr.:

Now, am I right that these defendants virtually stood mute for the rest of the trial?

Jack E. Goertzen:

Oh, yes, you’re definitely right.

William J. Brennan, Jr.:

They did (Voice Overlap) after that?

Jack E. Goertzen:

After they got rid of Atkins —

William J. Brennan, Jr.:

They didn’t cross-examine the witnesses?

Jack E. Goertzen:

Right, they didn’t do a thing.

William J. Brennan, Jr.:

They didn’t summon up to the jury?

Jack E. Goertzen:

They didn’t do a thing.

William J. Brennan, Jr.:

They offered no witnesses of their own?

They didn’t expand?

Jack E. Goertzen:

Absolutely nothing.

William J. Brennan, Jr.:

And I take it that’s why you took apparently about 9 or 10 witnesses here and their testimony takes only about 58 pages.

Jack E. Goertzen:

And they did absolutely nothing, nothing.

Jack E. Goertzen:

And our — our whole basic contention is they had no right to dismiss that public defender.

And I submit that — that the — the citations in the record that I have given Your Honors, adequately support —

William J. Brennan, Jr.:

I take it even the three days includes all of the proceedings up to the time of Atkins dismissal, does it?

Jack E. Goertzen:

Yes, the three days include everything.

William J. Brennan, Jr.:

The trial itself, when they finally got — they’re taking testimony, took how long?

Jack E. Goertzen:

I believe that took a day, maybe, there is a — a trial day, let’s say.

Now, I like to say this in respect to your questions or your com — comments, Mr. Justice Brennan.

These men were inarticulate defendants.

I —

William J. Brennan, Jr.:

(Voice Overlap) —

Jack E. Goertzen:

— submit you read that record and patently these men might be able to get — there were just kind of show, a t least amaze.

He used some pretty, pretty large words there.

And he — he knew what –what he was doing, I submit.

William J. Brennan, Jr.:

Well, it doesn’t follow.

They knew how to defend themselves.

The counsel —

Jack E. Goertzen:

No, I —

William J. Brennan, Jr.:

— I thought — like I thought could be it.

Jack E. Goertzen:

Right.

But on the other hand, if — if Judge Rhone was right in insisting, they had no grounds for continuance, insisting they had no right to separate counsel or — or stop the trial and get new counsel.

Then Judge Rhone had no other course.

He said that they were adequately warned.

I submit that at or about page 77 through 81, Judge Rhone impressed upon them, their counsel took them into lock-up and impressed upon them.

The counsel set for the record, “I implore these men not to go to trial.

It — it’ll be a parse or it would be a parse.”

We’re not saying these men are lawyers by any stretch.

Although, Mr. James may have some proof for that when he offers the briefs they filed.

Hugo L. Black:

What you really have is, isn’t it that they declined to take this man?

Jack E. Goertzen:

Right.

Hugo L. Black:

And they insisted that they want to continue it.

Jack E. Goertzen:

They didn’t decline to take him.

They took him on August 18th.

Hugo L. Black:

I mean, they declined to let him continue the reference (Voice Overlap) —

Jack E. Goertzen:

At the day of trial, that’s when they started to —

Hugo L. Black:

And the court exercised this judgment and decided that they could take him and have nobody.

Jack E. Goertzen:

That’s about the complexion of things.

Hugo L. Black:

— (Voice Overlap) — about like people without a lawyer usually would.

They didn’t argue the case, isn’t it?

Jack E. Goertzen:

No, they didn’t.

Every time they —

Hugo L. Black:

— (Voice Overlap) — no question.

Jack E. Goertzen:

Every time our witness was finished, they jump off and yell they wanted counsel and that they were being (Voice Overlap) —

Hugo L. Black:

In regards to that, it violated due process, is it not?

I presume looking at it in this difference having happen.

It might have been better if he’d waited few days and see if they can get a lawyer, wouldn’t it?

Jack E. Goertzen:

Well, he had this in the record, Your Honor.

He had Mr. Atkins represent at page 36 at the behalf of Mr. Douglas.

Oh, at page — yes, page 36, Mr. Atkins stated, “Your Honor, on behalf of Mr. Douglas, he has asked me to make a motion for a continuance so that he may retain the attorney, which he talked to, whose name is Leo Brennan and has made —

William J. Brennan, Jr.:

Brennan?

Jack E. Goertzen:

Brennan.

I’m sorry.

We found out later that that should have been an A, sir.

William J. Brennan, Jr.:

Oh, I see.

Jack E. Goertzen:

Leo Brennan.

And has made arrangements to have him come in and defend him.

And he wishes me to bring that up and bring that to Your Honors’ attention.

He has been in touch with Leo Brennan and has made arrangements to have Leo Brennan defend him.

Now, I submit that if — if on that basis, I — I wou — would go along with you, Justice Black, at that time or — or later on.

He should have said, “Well, maybe this guy did have Brennan.”

But later on —

Hugo L. Black:

Is what the judge said they’re correct?

Had there been three continuances?

Jack E. Goertzen:

No, I — I’d like to clear that up.

What page did that happen?

Hugo L. Black:

Page 36, right after that statement you read.

Jack E. Goertzen:

Finishing that other — just that one other item.

I was going to say that later on, Douglas stated he had talked to Brennan on the phone and that Brennan had promised to come in and see him.

In other words, you can glean from the record that there was no actual arrangement of any representation for Douglas at all.

Hugo L. Black:

What we have to believe from the record, they were not from all his words, they didn’t want this man and they wanted to transfer and get somebody else.

Jack E. Goertzen:

I think we can believe that but, Your Honor —

Hugo L. Black:

I’m not saying that decides your case.

Jack E. Goertzen:

Right.

I’m submitting that there’s — there’s numerous state cases.

I don’t know what the — the federal — I don’t think there’s a federal case on course with these.

But there’s numerous state cases in California by our Supreme Court that say, “A man doesn’t have a right to come into court and change counsel in a middle of a trial or at the beginning of a trial where witnesses have been subpoenaed and — and things are all set to go.

If there hasn’t been a good showing or — or there is an adequate reason to dismiss this counsel, there is an adequate reason for preparation.”

I submit that — that Judge Rhone obeyed the State Penal Code in — in this case by going ahead in the manner he did.

Hugo L. Black:

Now, he had — had been a motion to disqualify which he denied on the ground, they were too late, isn’t it?

Jack E. Goertzen:

Right.

Now, on — on relation to that motion, Mr. — Mr. Marks stated that apparently, this is some reflection on his — on — on Atkins’ preparation.

Well, first of all, I answered your question.

I don’t think that the evidence that they wanted to exercise a preparatory challenge in and off itself supports any legal reason that, any legal reasoning so to speak or — or law that — that Judge Rhone was — was unfair with them.

I really don’t.

They — in other words, they knew Rhone advanced through the — the first mistrial murder case with them.

And they — they had reason, apparently, from that that they wanted to dismiss him on the other hand after — once they have — understand this that 170.6 is a preparatory challenge.

You can do that, period.

You don’t have to have any cause.

170 in California Penal Code is still in effect for cause.

You can dismiss the judge.

Anytime you — you can show cause.

Jack E. Goertzen:

Now, apparently, there was no great discrepancy between this man and Judge Rhone or they or having laws on 170.6.

Mr. Atkins would have turned around and try the 170 and — and spell out to the court.

The difference that to me is in 170.6, you don’t have to allege any reason at all.

You can just orally state, “I — I don’t want you.”

On the other hand, on 170, you have to tell a court why you don’t want him to sit, why you think he is prejudice.

Now, Atkins apparently didn’t have any reasons for that because he at least didn’t advance him.

William J. Brennan, Jr.:

You start to say something an explanation of —

Jack E. Goertzen:

On a continuance —

William J. Brennan, Jr.:

— the judge’s statement of —

Jack E. Goertzen:

Yes, sir.

I think you’ll find it — well, this matter has been on the calendar before.

And there had been three continuances before and then he corrects himself, three motions for continuance before.

I can adhere these matters piecemeal, a motion is denied.

In other words, at this time, Atkins came back with a suggestion that he had Leo Brennan and — and that — that morning already Judge Rhone, who by this time was probably getting a little hurried, had heard three other mixed motions for continuance on various grounds including Douglas’ mother illness and — and things like that.

He meant that morning.

There’d been three motions for continuance.

There had not been any continuances.

Now, I think, unless Your Honors have other questions on the preparation point, I might turn to the conflicts.

As a spearhead for this, Mr. Marks stated that some evidence of Atkins’ lack of preparation was the fact that he should — he undoubtedly knew or should have known that five days prior to the day of trial, you had the file list preparatory challenge under 170.6 or it wasn’t timely and which was so held in this case.

Therefore, if Mr. Atkins knew that, he also knew that the highest court in our State, State Supreme Court, has held that where two defendants desire to — whe — where defendant desires to dismiss the judge under 170.6 where a codefendant has dismissed the judge under 170.6, the code — the — the defendant then desiring to exercise, it much show a conflict of interest or an adverse interest to the one exercising it.

What I’m saying is this, that in — in California, as I’ve submitted in the other state, there are numerous judges that either defendants or plaintiffs or — or both don’t particularly desire to have their case heard in front of or the feeling they’re summoned to prejudice of some kind.

Mr. Atkins had available here, two challenges, if there was a conflict of interest between Meyes and Douglas.

He could have had Meyes execute this — this one and then save the other one in case he got into some other judges’ court he didn’t like then Douglas could have done it.

He would have had two shots, he didn’t.

They filed a joint affidavit of prejudice.

And I submit that — that this launches us into a discussion.

I’m not saying that’s a lot of evidence at all.

I’m just saying that utilizing Mr. Marks’ argument about that 170.6.

It is a good focal point to turn into the actual conflict.

Now, assuming this Court desires to impose the rule of — the federal rule of Glasser upon the States, they will — they can do so through the Fourteenth Amendment and hold at any given set of facts, the denial of separate counsel and analogizing to the Betts-Brady type situation.

Jack E. Goertzen:

In a given situation if the facts are there, denial of separate counsel where there’s a conflict of interest might be a denial of due process.

Is this such a case?

I submit, no.

And for the following reasons.

Hugo L. Black:

Well, would it have to be put on that sole ground?

Jack E. Goertzen:

Well —

Hugo L. Black:

Would that — would that not be enough to consider along with other circumstances in reaching the conclusion where there’s been denial of due process?

Jack E. Goertzen:

Are you referring — you mean —

Hugo L. Black:

What I meant was if you say we — we want to transfer the federal rule of conflict directly there but that would assume that the conflict is the only thing which would justify a holding that maybe these people had not given the count —

Jack E. Goertzen:

Oh, no, I — I don’t mean to say that Ju —

Hugo L. Black:

— right the count.

Jack E. Goertzen:

— Justice Black.

What I’m saying is now turning from the preparation point and I submit that the record su — supports Judge Rhone’s valid exercise of his discretion.

I am just isolating the point of conflict for argument only, of course not.

I don’t mean to say that.

But if — if there are no other circumstances and we’re left with a conflict, let — I’d like to address myself just to that conflict point alone and see whether there’s any substance to it.

Now, what is Mr. Atkins showing for a conflict and the only showing, remembering the principle or remembering the — in the facts in the Glasser case where Mr. Stewart showed or stated orally and stated that he had filed an affidavit that there had been conversations where Glasser wasn’t present.

There were, in other words, witnesses that would — would have testimony that wouldn’t affect Glasser but would affect Kretske, in other words, a substantial trial tactical conflict between the interest of Kretske and Glasser.

Let’s turn to our case.

Mr. Atkins made only one real statement and that all he did was bring up the murder trials.

He said, “What has happened since then after Mr. Carr asking to show what the conflict is?”

Recalling that Mr. Carr had told the judge, “Our evidence will be related to the — relating to the 13 counts that these men both rob so and so, both rob so and so, both the solid so and so (Inaudible).”

And then later, he said — he said, “As to the robbery transactions, I enumerate in the court, that evidence was introduced on both of these homicide matters.”

The defendants testified concerning those robberies and their testimony made a general and categorical denial as any participation of those robberies.

They didn’t try to throw the blame on the commission of the robberies.

Douglas didn’t attempt to throw it on Meyes.

Meyes didn’t attempt to throw it on Douglas.

They got up, offered independent alibis.

Douglas offered one — one witness only as to one of the dates and otherwise just categorically denied and Meyes did likewise offering no other witnesses.

Now, that is all the showing.

Jack E. Goertzen:

He just says, “Now, I can defend — what has happen since?

Well, something has happened since then, Your Honor.

Douglas was acquitted and Bennie Meyes was convicted of this murder.

And that’s all really, subs — substantively that he — he brought up.

Now, go — going back to what Mr. Marks stated, he — he has stated that in — in talking about another point that the — the robberies were subsidiary to the murder.

And we say here, this murder is subsidiary to the robberies.

Those men were tried on a murder.

One was acquitted and one was convicted.

But getting — staying away from the prior record aspects, first, going right to the actual trial conflict, the tactical trial conflict, there was non-showing from that as in Glasser.

I submit that, there — there was none.

The only conflict, and I’ll turn to that in a minute, that Mr. Mitchelson raises it all is the — is the fact that these two men were — had to go to trial and one had some — one had three priors and one had an allegedly clean record.

We submit and —

Hugo L. Black:

Well, when one had been convicted of a crime which ruled out of the identical transaction which the two are being tried on their second trial and the counsel claimed was that the man who represented the one who had then acquitted but suddenly, they’ve tried to use that for the decided advantage of proving the purity of his witness —

Jack E. Goertzen:

Well —

Hugo L. Black:

— if defendant is against the other.

Jack E. Goertzen:

The only thing I can —

Hugo L. Black:

I haven’t seen you that for this reason, that’s —

Jack E. Goertzen:

I think he’d —

Hugo L. Black:

I don’t know how much we have a right to consider our own views, dispute.

Jack E. Goertzen:

I think he’d be —

Hugo L. Black:

But I was hesitated about taking a case for both defendants under those circumstances whether that rises to due process or to different thing.

Jack E. Goertzen:

Well, I think he’d be a heck of a magician if he could on that basis alone, Your Honor.

He had —

Hugo L. Black:

— (Voice Overlap) — talked about a private lawyer.

Jack E. Goertzen:

Alright, fine.

Hugo L. Black:

— (Voice Overlap) — pages, I would doubt if many would do it.

Jack E. Goertzen:

Well, the — the only point is and — and again with our offer of the — of the preliminary transcripts, we can also offer if — if it gets down to that point as you’ve just stated to lodge this murder transcripts also.

The point is this, that these witnesses as to the robberies were tied down as to what their testimony is.

And I submit that while there’s — there’s variances here and there as to what one was wearing and one wasn’t wearing and this and that and other thing.

Substantially, their testimony in the crucial particulars in the robberies, in — in the second murder trial and the preliminary and in the instant case is across the board.

Jack E. Goertzen:

There is — there is nothing like existed in Glasser.

Hugo L. Black:

Forgetting Glasser.

Jack E. Goertzen:

Okay.

Hugo L. Black:

As a lawyer, what would be your main argument if you are representing the man who has been acquitted?

You were standing up before the jury representing him alone.

What would you drive on the most physical?

Would you ignore the fact that he has been acquitted?

Jack E. Goertzen:

Well, your — no, I wouldn’t Your Honor but on the other —

Hugo L. Black:

Would you emphasize it?

Jack E. Goertzen:

I think I would but on the other hand, remember this, that the murder trial, the murder trial can only come in here in a very, very limited way.

Hugo L. Black:

But it did there.

Jack E. Goertzen:

Yes, but in — it’s such a very limited way.

In other words — first of all, the only reason that — that the murder could be offered in respect to these robbery trials at all was just to show that at the time they were arrested, they attempted to evade arrest as a reflection on their — their feeling of guilt.

And also Douglas, at that time, acknowledged that he committed these robberies along with Meyes.

And in — in other words, that was — that was the sole point.

The main point they’re going to have to get around is regardless of — of the acquittal and the conviction, what about these eight — eight witnesses who has combined total is eyewitness identification of these fellows as perpetrators of the instant crimes charged all the way down the line as — is joint an equal participants.

Hugo L. Black:

That’s a question of guilt or innocence.

Jack E. Goertzen:

Well, I think you’re right, sir.

But on the other hand, what I’m attempting to show is that — that the murder aspect of it was still — is still a very minor part.

And I don’t see how a counsel can really — in other words, you’re not — I — I don’t think if you got that case, you’re going to say because it was acquitted of the murder automatically, jump for joy and say that, “I’m getting off these robberies easy” because he wasn’t acquitted of the murder —

Hugo L. Black:

— (Voice Overlap) — suggestion if you defended it.

You would emphasize that thereby in your —

Jack E. Goertzen:

Well —

Hugo L. Black:

— defense of him alone.

Jack E. Goertzen:

I think —

Hugo L. Black:

But you couldn’t do it if you represented both, could you?

Jack E. Goertzen:

Well, there’s some question in my mind as to whether — as to how much — whether they could really and truly get the murders in — in that degree where you’d be able to tactically take advantage or not take advantage of them really.

I don’t think you could get enough for that murder trial in that it would give you a true conflict and — and a true advantage or disadvantage and — and either having them convicted or acquitted.

Hugo L. Black:

Do you think the court could keep that effect if one had been acquitted and one of them convicted?

Jack E. Goertzen:

I think so.

Hugo L. Black:

You do?

Jack E. Goertzen:

I sincerely do the —

Hugo L. Black:

That’s true.

That would make a difference.

Jack E. Goertzen:

Alright, in one — there’s — with — with one — with one qualification if — if Meyes has offered as a witness then they can bring out a prior murder conviction but not that — I don’t think they can identify it as that murder conviction for killing Police Officer Nash who — who shot him when they were arrested.

They can only bring out the name of the felony for purposes of impeachment, the — what the felony was and whether he served time on or something like that.

And that’s all.

They can’t identify that felony.

Hugo L. Black:

I presumed that there had been many questions asked in the cross-examination.

Did you testify the murder trial against these people or would you say there, wouldn’t it?

Jack E. Goertzen:

Well, that’s — that’s —

Hugo L. Black:

I could escape there.

Jack E. Goertzen:

I don’t know if they — no, I’m — I’m not too familiar in this aspect because I’m not a trial lawyer per se.

But I — I think — I don’t think they could identify as a murder trial.

I think they could say, “Did you formally testify in court and give the date?”

And — and the — the court and — and then read –read his testimony or let him read it and then say, “How does square with your version now so to speak?”

But —

William J. Brennan, Jr.:

(Inaudible) have any suggestions of severance?

Jack E. Goertzen:

Right.

That’s another point.

Anytime you go to trial and this gets — this gets in to the idea of trying two men, one with a clean record and one with a bad record, this is in grounds for severance.

And I — I can’t see that it’s a grounds for a — also, excuse me, one minute.

I just thought of something — Mr. Justice Black, in relation to your question, don’t forget, I — I don’t think Mr. — Mr. Atkins, the Public Defender, really spelled out the conflict when you look at this record to — to Judge Rhone.

He — one’s being convicted and one’s being acquitted, I — I don’t think he really went in — went in to it and attempted to — to demonstrate as — as Mr. Stewart did in the Glasser case, just what the ramification to this worried, just at once —

Hugo L. Black:

But he strenuously argued, didn’t he that there would be a conflict and he didn’t —

Jack E. Goertzen:

Oh, he strenuously argued a conflict.

Hugo L. Black:

That he, as a public official, a public defender, did not want to try to represent both of them at the same time.

Jack E. Goertzen:

Yes, he —

Hugo L. Black:

He —

Jack E. Goertzen:

Well, now, I don’t know how strenuous that — that is because of the various things I couldn’t prepara —

Hugo L. Black:

Well, I — I’ll withdraw that word.

Jack E. Goertzen:

Right.

And in other words, he — he was pretty equivocal about that.

And then on page 81 as I read, he said, “No, as my humble opinion, they’ve got a lawyer who’s ready, willing and able to try their case for him.”

That’s not very equivocal.

But in any rate —

Hugo L. Black:

Both lawyers tell him that, wasn’t it?

Jack E. Goertzen:

Maybe.

Hugo L. Black:

You don’t have to be a trial lawyer and all that.

Jack E. Goertzen:

I’ll try — I’d like to try and close and leave Mr. James some time on this right to counsel on appeal.

And I’ll close with this.

The only other — the only other point brought out it — that might — we — we might examine as a possible conflict is what about this, where a man is put to trial with another man and they both have priors.

I submit that there are many, many types of people that are put to trial together and — and may have one counsel, may have two counsels.

They probably just didn’t even want to be — be in trial with that person.

In other words, the fact that a man has priors alone is enough reason to say not to want on your own prior as a defendant to be tried with him because even if he’s got separate counsel, there’s a chance that that might rub off or if he stays up the stand, the jury is going to draw a bad anyway any way against him.

And I don’t think that — that this in and off itself either as a matter of due process or as a matter of substantive law is enough.

Now, I will say this that this record shows adequately that the trial judge, Mr. Atkins, too, before he was dismissed and the prosecutor drove home to the jury and on the basis that Mr. Atkins undoubtedly intended to place Mr. Meyes on the stand, drove home the effect that this jury should pay those prior convictions.

I have reference to page 65 by Mr. Atkins.

No excuse me, page 65, Mr. Atkins.

He stated if it came to your knowledge that one of these defendants had been convicted of a very serious felony in the past, first, I will ask you that part.

First, would you be able to keep that felony conviction separate and apart from the other defendant in the case?

Again, I’m going to go down the line on it.

By that question, I mean I am just asking you if you think you would be capable of not letting that conviction taint the other person in anyway, in other words, the “birds of a feather attitude”.

The judge inter — interrupting at this point said, “Well, before you do that, I think that those who have not set on a jury case before should understand that a witness maybe asked if he has ever been convicted of a felony and it can be — that can be asked only in one basis and that is for the possible impeachment of him as a witness and that could be the only basis it can be considered.

It cannot be considered for any other purpose.

All 12 jurors answering they could keep that fact of mine.

And it might be added that it’s — it’s a standard ins — instruction.

And if Mr. Meyes had actually taken the stand in this trial and had not — never denied his prior as if he did not or if he had never admitted his priors, if he admits his priors, they won’t be brought up again except on the impeachment basis.

But if he took the stand and they came up on that basis then the — the judge would have instructed the jury later that evidence has been received of other crimes and he had told them exactly what they were supposed to consider it for.

And we can only assume and hope that jurors follow those instructions.

Jack E. Goertzen:

And with that, I’ll turn the argument over to Mr. James.

William E. James:

Honorable Chief —

Earl Warren:

Mr. James.

William E. James:

Honorable Chief Justice and Associate Justices of the Supreme Court, I will devote what is left of the argument to point number two which has been advanced by these petitioners.

Mr. Goertzon has covered the aspect of due process and the claim of denial thereof at the trial.

These petitioners also complained that they were denied due process and equal protection on the appeal because the appellate court did not appoint counsel to them and therefore, they were discriminated because of their poverty.

We, of course, submit that there is no basis in fact or substance to this claim and that these defendants as are all indigent defendants in the State of California are accorded a full effective appellate review, required both by the State Constitution and the provisions of the Federal Constitution.

Now, the claim in this regard is presented in two aspects.

The first aspect is the claim that one of these petitioners did not get himself an individual copy of the reporter’s transcript and the clerk’s transcript.

And therefore, he was denied some right to present anything to an appellate court.

And 1the second aspect is that both of these petitioners were denied appointment of counsel by an appellate court and therefore, because of their indigency, they were denied a right.

Well, inherent and implicit in this particular attack upon the judgments of the California court is the claim that California’s appellate procedure, as it relates to defendants both indigent and those who are wealthy, is discriminatory because of the particular financials status of the appellant.

And as we will point out in the time remaining, the entire appeal procedure in the States was thoroughly in accordance with state law.

And it is only be by holding that the rules of appeal in the State of California and the provisions of the Penal Code of that State are a denial to indigent defendants of equal protection that we can strike down these particular judgments on the basis of this claim.

First, we should perhaps examine just what happens in California when an appeal is taken by the — by a defendant in a criminal case from a judgment of conviction in the Superior Court.

In California, a — an appeal is instituted by filing a written notice of appeal within 10 days after the judgment or order from which the appeal is taken with the clerk to the Superior Court.

There’s no fee required for the filing of this notice.

It can be a handwritten document as where the documents in this particular case, delivered to the clerk.

California, in aid of indigent defendants, while the rule is generally that this 10-day period is mandatory and jurisdictional has held that where an indigent is in prison and because of the mailing conditions of the prison is unable to timely file his notice of appeal.

It will be presumed that there was a constructive filing and he is allowed his appeal regardless of the timeliness of the filing of the notice.

Now, this institutes the appeal.

And certainly, this is not a denial to an indigent defendant of any right.

Now, when the appeal is instituted, there is prepared, as a matter of course, what is denominated a normal record on appeal.

And these consist of the clerk’s transcript, consisting of the pleadings, the motions, the clerk’s minutes, the judgment and the notice of appeal.

In addition, there is a reporter’s transcript which is prepared at county expense, not at the expense of the particular appealing party but prepare at the expense of the county.

This contains the oral proceedings on the taking of evidence, objections made and the rulings of the court on the objections to introduction of evidence and it also contains the oral proceedings taking at the motion for a new trial.

In addition, the appellant may request that if he shows good cause for an additional or augmented record and this was done in this case.

These particular petitioners requested an augmented record and their request was honored and granted and the court made an order granting these defendants more than the normal record on appeal so that they could have an effective appellate review of the proceedings that took place in the trial court and it —

Potter Stewart:

Mr. James, am I right in my understanding that California prepares a record on appeal for appellants of criminal cases whether or not they’re indigent?

William E. James:

That’s correct, sir.

Potter Stewart:

At the expense of the county?

William E. James:

At the expense of the county.

And that has been in effect for quite some while (Voice Overlap) —

Potter Stewart:

And this is done automatically when — when a notice of appeal is filed?

William E. James:

It’s done — automatically, the normal record is prepared in a capital case.

In addition to the normal record, there is the automatic appeal where the entire record of the proceedings at the trial court has prepared.

In the non-capital case as such as this one, it’s the normal record, unless the trial court authorizes the preparation of an augmented or additional record.

Potter Stewart:

And that’s done upon motion, I suppose you should —

William E. James:

Yes, that’s done upon the —

Potter Stewart:

— in the trial court.

William E. James:

— regular motion in the trial court.

And as a result to that motion in this particular case, these appellants received, in addition to the normal clerk’s transcript, a transcript of the clerk containing the instructions given by the trial court.

In addition thereto, in the reporter’s transcript, they obtained and received a copy of the boarder examination, the jurors, the opening statement of the District Attorney and the argument of the District Attorney to the jury.

So obviously, the — this is not comparable to other cases where access to in a court of an appeal is foreclosed indigent defendant.

These defendants, these petitioners were accorded access to the courts.

In addition to that, they were furnished a complete transcript, additional transcript from the normal transcript so that they could present to an appellate court for review the proceedings in the lower court.

We submit that this is a means whereby indigent defendants are effectedly — are effectively granted adequate appellate review.

And so that this is not a case where there has been a denial by the State of California of any effective appellate review to indigent defendants.

Now, as to the preparation of a record, in other than a capital case in California, there is the original record that is prepared and filed with the District Court of Appeal, the reviewing court.

In a capital case, the original record is prepared and filed with the Supreme Court.

And in the capital case, each individual appellant receives a copy of the transcript.

In a non-capital case, only one copy to a side is prepared.

And this is provided for in Rule 35 and in Rule 10 of the rules on appeal.

And it provides that the appealing parties or their counsel can make arrangements for the exchange if it’s required of the transcript of the party for the preparation of any documents or appeal briefs.

And —

Where is that rule quoted in your brief?

William E. James:

Pardon?

Where is that rule quoted in your brief?

William E. James:

I don’t recall that is quoted in the brief.

But I have a copy of the —

— (Voice Overlap) — number of (Inaudible)

William E. James:

— rules on appeal and I’m referring to Rule 35.

35?

William E. James:

I could large my copy of the —

Now, I’ll find it.

William E. James:

— rules.

They’re reported in 50 Cal.2nd at page 1 and the — those were the rules on appeal in effect in 1959 when these proceedings were hand in the trial court.

Now, in this particular case, it was petitioner Meyes who received a copy of the transcript on appeal and petitioner Douglas complains that he didn’t get a copy, although he made no showing of why any effort on his part, if he made an effort, to obtain the copy of — of the defendants.

The record on appeal was not hand from his co-defendant, his co-appellant who — with whom he had presented a joint trial strategy in the trial court and with whom he presents a joint appeal in this Court.

Potter Stewart:

Well, now one of these men was (Inaudible) and the other was in Folsom.

William E. James:

That’s correct.

Meyes was in Folsom.

Potter Stewart:

What are they?

119 miles apart?

Isn’t that what (Voice Overlap) —

William E. James:

About approximately 119 and 120 miles apart.

Potter Stewart:

And neither one was represented by counsel?

And under your Rule 35, there is only one copy of the record made available to both to these men together?

William E. James:

Yes, correct.

Potter Stewart:

— in fact the matters.

William E. James:

That’s correct, Your Honor.

Potter Stewart:

And all they have point — they appeared jointly as petitioners, there one whole concept of their cases if there was a conflict of interest between them.

William E. James:

Well, if there was a conflict, they had great difficulty in presenting it in the trial court as we’ve already presented.

And I believe on this appeal, their presentation is joint.

They have no conflict.

And as it will be evidence from the brief such we have copies of here were filed — the opening brief was filed presumably by — prepared by petitioner Meyes.

But it indicated that it was also on behalf of petitioner Douglas and though at a later time, he — Douglas attempted to renounce the filing of brief on his behalf, a petition for rehearing in the District Court of Appeal as well as the petition for hearing in the Supreme Court.

Its fair by Meyes on behalf of himself and on behalf of his co-defendants so that on the appeal in the State Court, there was this joint effort and these petitioners presented their matter and Douglas was not denied any effective appellate review.

Now, there has been some statement made by counsel today that what he — you need is an advocate apparently not only at the trial but on the appellate level.

Well, we submit that on the appellate level, it’s the review and that’s what this Court referred to in — in Griffin versus Illinois as I recall that it was affording indigent — indigent defendants in effective appellate review.

William E. James:

And certainly, an effective appellate review is provided when there is a record prepared and file with the District Court of Appeal, the appellate court.

The review is in the appellate court.

The review isn’t done by the counsel or by the particular individual defendants.

Hugo L. Black:

Was that (Inaudible) —

Potter Stewart:

The claim it’s traditionally made in the trial of a case with a — criminal defendant is not represented by a lawyer, if the claim was made then well, you have a very fair judge who’s going to protect all the defendants’ rights.

That’s basically the same thing you’re making here.

William E. James:

Except that there — there, you had a trial.

And there’d be —

Potter Stewart:

And there you’re on appeal, on a review of a trial.

William E. James:

Well, here, Your Honor, review —

Potter Stewart:

Review of a criminal conviction.

William E. James:

And the review was made by an appellate court.

And I feel that the judges are lawyers.

And that they may examine a record and as they did in this case and this, they do another case with a — in a conscientious manner, “conscientious to a fault”, I believe, was the term used by the petitioners herein.

When there is a conscientious review of a record by an appellate court, we submit that there has been no denial to a petitioner or to an appellant of an effective appellate review.

And an examination of these briefs will disclose that there is a full, an adequate disposition and full and adequate presentation of all of the points.

And in addition, we have here in this case a full and adequate review by the District Court of Appeal.

Must be remembered that this — this District Court of Appeal first examine the record to make a determination whether there should be appointment of counsel.

And then in the court with the provisions of 1241 and also the rule announced in People versus Hyde to which reference has been made, the District Court of Appeal determined on a basis of the record presented to it and it would serve no purpose either to the defendants or to the court to appoint counsel.

And as a consequence and as they’re permitted to do, they denied the appointment of counsel.

And we submit that this was not a denial of equal protection of laws to these particular defendants —

Byron R. White:

Don’t you have —

William E. James:

— that they had a —

Pardon me.

Byron R. White:

Don’t you have others hired counsel?

William E. James:

They may appear by counselor in person.

Byron R. White:

So you —

William E. James:

But —

Byron R. White:

— do what the people is going to afford us — are permitted to have counsel on appeal (Inaudible), don’t they?

William E. James:

If — of recent years, there are probably been a closer to 50-50 break on the appearances of counsel —

William J. Brennan, Jr.:

But they’re also I think it will make an afford counsel and may argue even frivolous appeals, are they not?

William E. James:

Well, I think that actually what we are looking for here is we can’t get equality and the state doesn’t require to make everyone equal.

William J. Brennan, Jr.:

Well, I mean in that sense, I gather the examination by the judges were they decide no purpose of reserving appointing counsel must be on the ground.

I suspect that just no merit in any points raise on the appeal.

William E. James:

That’s correct.

William J. Brennan, Jr.:

Whereas of this paid counsel, paid counsel may take up the time to the court arguing a frivolous appeal.

William E. James:

Well, he would has — his reputation before the court if it is was an actual —

William J. Brennan, Jr.:

Oh, my —

William E. James:

— frivolous appeal and they’ve probably be disposed of either summarily or by dismissal.

William J. Brennan, Jr.:

Yes, but he may — he will be heard in argument.

William E. James:

Well, in these cases, the District Courts of Appeal have examined the record and they write opinions.

And I think that if you have that the state affords an effective appellate review by an appellate court and doesn’t discriminate in giving that review as to those who are in (Inaudible) that there is nothing —

William J. Brennan, Jr.:

Well, whether or not, it’s constitutionally discrimination.

Certainly, it’s discrimination in the sense that the indigent does not have this case orally argued before the appellate judges, does it?

Byron R. White:

Nor have any agents preparing the brief, although people would — had been afforded to that, yes.

William E. James:

Well, if you’ll examine the briefs in this particular case, you’ll find that these are well-prepared briefs, and they’re well-document.

And so these particular appellants did get an opportunity to present their matters to the appellate court.

They had an appellate court that had the advantage of a full and complete record before it to make its review.

They were recorded the rights, accorded to other defendants to have an access to the court without any necessity of a counsel.

Byron R. White:

— other defendants reported have — have counsel to help them.

William E. James:

That is true.

But is it a requirement of due process that a state —

Byron R. White:

And that’s a —

William E. James:

— afford that a — that a state afford to an indigent defendant —

Byron R. White:

(Voice Overlap)

William E. James:

And counsel on appeal in order that it may afford to that appellant equal and effective appellate review.

We submit that there was effective appellate review accorded to these particular petitioners.

And they were denied nothing because of the fact that were indigent because the state furnished them with the means of getting before the appellate court with the record to present their case to the appellate court and with a review of their record by that appellate court as demonstrated in the opinion.

Hugo L. Black:

But does the record show —

Byron R. White:

Do you have any evidence of the record that the one defendant ever saw the briefs that were filed or ever saw the record or ever knew what could be said on his behalf?

William E. James:

I know that there was communication as to these —

Potter Stewart:

(Voice Overlap)

William E. James:

— petitioners.

Earl Warren:

Well —

William E. James:

My time is up.

Earl Warren:

— I didn’t asked the question.

William E. James:

As I understand the record doesn’t show anything except that there were briefs filed that the — there was a brief on behalf of the appellants, denominated as an opening brief which was signed by Meyes and also contained Douglas’ signature that the appellate court treated the matter as being presented to it jointly by these particular petitions.

Byron R. White:

Did Douglas sign that brief?

William E. James:

His name was on it.

It was prepared by Meyes.

And there was Douglas’ name on the brief.

William J. Brennan, Jr.:

But not a signature?

(Voice Overlap) —

William E. James:

There was no signature except Meyes.

Byron R. White:

But there was no evidence he ever saw the brief or ever —

William E. James:

No.

Byron R. White:

— what is being said on his behalf.

William E. James:

No, there is not.

Hugo L. Black:

Does the record show who wrote it?

William E. James:

Well, it — it bears the address of — of petitioner Meyes, as I recall.

And I believe it contains his signature, the opening brief as well as the reply brief and the re — rehear petition on rehearing and also the petition in the States Supreme Court.

Hugo L. Black:

Your time is up but I want to ask just two brief questions.

William E. James:

Yes.

Hugo L. Black:

The record shows that Douglas asked the court after he’d been convicted by the jury and before he was sentenced to appoint him a lawyer in order to make a motion for new trial and that the judge refused, what do you say about that?

William E. James:

That — he asked I believe as did Meyes for the Public Defender.

And it —

Hugo L. Black:

He asked for the court to appoint a lawyer to prepare a motion for new trail, he said he wanted to make one but he didn’t know how to do it.

And he asked the court to appoint him a lawyer.

William E. James:

Of course, this was — as I recall, the motion was considered on all statutory grounds under 1181.

Hugo L. Black:

I thought the statutory grounds, what — what do say about that court’s refusal —

William E. James:

I think the —

Hugo L. Black:

— to give him a lawyer to make the motion for new trial?

Do you think his insistence that he didn’t what Atkins carried over to that time so —

William E. James:

This was all a part of the —

Hugo L. Black:

— the court still refused to appoint a lawyer?

William E. James:

This was all part of the trial proceedings, Your Honor.

And I don’t believe that the trial court was under any obligation that this time as — because of the fact that in this case, the Public Defender had been specifically dismissed.

Hugo L. Black:

But he didn’t —

William E. James:

The defendants then proceeded.

Hugo L. Black:

— he did at that time, asked him unequivocal to appoint him a lawyer if the judge told him he had — he had one and he had discharged that lawyer and he said he wanted a lawyer to have him prepare motion for a new trial.

William E. James:

It’s my recollection that they both asked for the appointment of the Public Defender again.

And of course that was the only lawyer that the court could have appointed and that’s the lawyer of the court did appoint and that’s the lawyer they —

Hugo L. Black:

The lawyer —

William E. James:

— specifically —

Hugo L. Black:

That’s right.

That’s the lawyer —

William E. James:

— discharge.

Hugo L. Black:

— they did not wanted to try that case because he was not prepared.

But I judge, he would have been prepared to make a motion for new trial.

I see no reason why he wouldn’t.

William E. James:

Well, he didn’t participate —

Hugo L. Black:

(Voice Overlap) —

William E. James:

— he didn’t participate —

Hugo L. Black:

(Voice Overlap) —

William E. James:

— in any of the trial after the voir dire of the jury.

So, he wouldn’t have been prepared —

Hugo L. Black:

But a lawyer could do it better than a layman of course.

Now, one other question, I notice in the argument to the jury, the State’s attorney referred to the fact that they murdered the policeman, what do you say about that?

William E. James:

I would have to refer my — refer to that portion of the transcript again.

It is my recollection that there had been references to this possible con — this possible conviction.

William E. James:

It had been raised in the voir dire of the jury by the Public Defender anticipating of course —

Hugo L. Black:

On page 162 in the argument, the State’s attorney to the jury said that evidence was introduced in the brief, show consciousness of guilt on the part of the defendant.

The officer comes to arrest him for crime.

They shoot the officer and only be considered by you for that specific and particular purpose.

I’d understood that the murder trial played no part in the robbery trial.

William E. James:

No except that — of course one of the witnesses who testified as I recall here, one of the police officers was the companion or fellow officer with Sergeant Nash who went to effect the arrest of these particular defendants.

And it was at this time that Douglas made the particular admissions to the officer.

Hugo L. Black:

Was the jury —

Potter Stewart:

But this man — excuse me.

Hugo L. Black:

Was the jury told that Douglas has been acquitted or that Meyes has been convicted?

William E. James:

I don’t believe so.

It’s not my recollections.

Potter Stewart:

Did these petitioners request counsel on their appeal?

William E. James:

Yes.

Potter Stewart:

Fairly, they did request?

William E. James:

Yes, Your Honor, they requested in the court as it’s indicated in the record I think at page 192 to 193, which is a copy of the opinion of the District Court of Appeal recites the proceedings and the determination made by the presiding justice of the District Court to deny the counsel.

But suppose the Public Defender of the — request had been honored would have the counsel or would been appointed it?

William E. James:

On the appeal?

Not necessarily.

The Public Defender under the statute does not have to accept these appeals and particularly would not where he did not try the matter.

And in this case, there would have been appointment of counsel if the court had determined there was going to be any merit or any benefit to defendant or the court to appoint counsel would have appointed other counsel.

That’s right.

William E. James:

Thank you, Your Honor.