Eskridge v. Washington State Board of Prison Terms and Parole

PETITIONER:Eskridge
RESPONDENT:Washington State Board of Prison Terms and Parole
LOCATION:Alabama State Capitol

DOCKET NO.: 96
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 357 US 214 (1958)
ARGUED: May 19, 1958
DECIDED: Jun 16, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – May 19, 1958 in Eskridge v. Washington State Board of Prison Terms and Parole

Earl Warren:

Number 96, Tom Eskridge, versus Washington State Board of Prison Terms and Paroles.

Robert W. Graham:

Mr. Chief Justice —

Earl Warren:

Mr. Graham.

Robert W. Graham:

— and members of the Court.

The question presented to the Court on this review is, I think, simply stated, while this petitioner who was a pauper, an indigent person denied adequate and effective appellate review under the rule of this case in Griffin versus Illinois by the State of Washington because of his poverty in that first, he was denied a statement of facts whether that statement of facts be in the form of a stenographic transcript or otherwise.

And secondly, in that he was not afforded the assistance of counsel on appeal.

In brief statement, the facts before this Court are as follows.

The action is here on certiorari to review the judgment of the Supreme Court of the State of Washington denying the writ of habeas corpus sought by this petitioner.

Under the record, an information was filed back in 1935.

The petitioner was charged with murder in the first degree.

He was represented by appointed counsel in the trial court, was appointed on October 17th.

A trial of some nine days began on November 4th.

The judgment and sentence following a verdict of conviction was entered on December 14th, and two days later on the 16th of December, he was incarcerated in the Washington State Penitentiary.

There, while in the prison and without the benefit of counsel, he sought by correspondence and subsequent motion filed with the trial judge a “transcript of all the records” in his case and in other references that was designated as a transcript to the evidence — a transcript to the trial proceedings.

The State represented by the prosecuting attorney and the trial judge treated the application or request as an application for a statement of facts, which is a term of art incorporated to the Washington procedural rule in statutes.

The petitioner sought the transcript of records or stenographic transcript or statement of facts, whatever you please to call it, under the provisions of a Washington State statute establishing our official court recorder of system under the terms of which to an indigent defendant, the transcript or stenographic transcript of the trial record which is made by the official court recorder, may be furnished at county expense to the indigent defendant if in the mind or in the opinion of the trial judge, the “ends of justice” will be served.

The application was resisted by the county attorney who went to the point of securing an affidavit from the previously appointed trial counsel.

The application was denied by the trial judge who concluded that the ends of justice would not be served by the furnishing of the transcript.

And thereafter and within the time for appeal, the petitioner sought a writ of mandate in the Washington State Supreme Court requesting that the Supreme Court of Washington be directed to compel the trial judge to furnish the transcript as requested.

Now, in his application, the petitioner’s application for this writ of mandate, he asserted trial errors which are outlined in the brief of petitioner at pages 22 and 23 which on — I shall not state, they were errors, suffice to say which could not be resolved, save and except by a review of the entire trial proceedings.

They were not errors appearing on the so-called clerk’s record which would consist simply of the docket entries for the papers of record.

The State made and does make no assertion that the appeal was prosecuted other than in complete good faith nor is there any contention that this is a frivolous appeal or that the petitioner sought a frivolous appeal.

Furthermore, I think, they’re appropriate to point out that before the trial court, the State did not contend that the complete transcript of the trial proceedings in stenographic form or otherwise was unnecessary to the review by the Washington State Supreme Court of the judgment of conviction.

There was adequate showing made in the trial court and in the Supreme Court of the State of Washington as to the indigence of the defendant and he endeavored in both the application for writ of mandate and in his application for the free transcript to proceed without the benefit of counsel.

There is no waiver of the right of counsel on appeal in the record.

He did advise the trial court that he would proceed pro se, as he indicated.

Charles E. Whittaker:

May I ask the rule of violation of (Inaudible)?

Robert W. Graham:

Yes, sir.

He gave oral notice of appeal which under our procedure, he’s conformed to our statutory procedure.

Charles E. Whittaker:

Oral notice?

Robert W. Graham:

Oral notice of appeal given in open court at the time of the imposition of — of the sentence.

Charles E. Whittaker:

(Inaudible)

Robert W. Graham:

Yes, sir.

The record is quite clear on that.

How is it had taken 20 years for the case to get here?

Robert W. Graham:

The short answer to that, sir, is that this petition or the writ of habeas corpus was filed in the Supreme Court of the State of Washington following the Griffin case, and those are the issues that we seek here to elaborate upon.

Now, this is a post-Griffin case.

Robert W. Graham:

That is correct, sir.

It is a post-Griffin case, however, I think it appropriate to point out that it does not reach — one of the questions that was raised in one of the four opinions in Griffin of the plaintiff so-called “sleeping” on his rights in that he did endeavor in the trial court to get free transcript and he endeavored to get the Supreme Court of the State of Washington to direct it to him.He sought, as I indicated, the writ of habeas corpus below and the Supreme Court of the State of Washington denied his application for writ without opinion.

Unfortunately, that perhaps is in violation of the Washington statutes but I think that’s of no concern to us here.

I would point out that in his petition for the writ of habeas corpus, while he did not specifically request the trial court nor the Supreme Court of the State of Washington to furnish him counsel on appeal, he did assert in his application for writ that the defendants are entitled to right of counsel and he certainly did not waive any such known constitutional right if such be declared.

Now, presumably, certiorari was granted by this Court to in effect review and determine the scope of the Griffin case as applied to procedure in the State of Washington.

Charles E. Whittaker:

May I ask, the (Inaudible) be advise on that the assignments that we urge were those opinions on page 21 of your brief namely, (1), that the information was duplicitous, (2), the petition to drop trial too soon without trying for an adequate defense, (3), the verdict of converse to the evidence and, (4), newly discovered evidence?

Robert W. Graham:

And I think inherent in that fourth one which the Court read, the whole question as to whether the evidence is sufficient to support the verdict which is treated in the decisions noted on pages 22 and 23 of the brief.

I think there is no question as between the respondent here and ourselves as to the requirement that insofar as those assertions of error are concerned, they cannot be reviewed upon the so-called clerk’s record.

They —

Charles E. Whittaker:

Any one of —

Robert W. Graham:

I beg your pardon, sir?

Charles E. Whittaker:

Any one of the —

Robert W. Graham:

That is — that is correct, sir.

Charles E. Whittaker:

That agrees.

Robert W. Graham:

I — I think there’s no issue raised on that in brief so, I cannot, of course, speak for the State, but there has been no issue asserted as to that, if the Court please, and I would point out that even the question as to whether an information is duplicitous or not is one which cannot be raised, save and except by the filing of a statement of — of facts.

Now, I don’t mean to — perhaps I should indicate to the Court that in terms of a statement of facts, which is somewhat of term of art, the statement of facts or formerly have to do with criminal law, the bill of exceptions must have been such as to encompass all of the matters intended to be raised on the appeal.

Suffice it to say at this point, that the clerk’s record which under our then statute was required to be furnished to him free of charge but which was not — was not adequate to raise these errors which he asserted.

Now, I point out that the petitioner requested the so-called — the transcript of the entire trial proceedings.

William J. Brennan, Jr.:

Now, when was that requested?

Robert W. Graham:

I beg your pardon, sir?

William J. Brennan, Jr.:

When was that requested?

Robert W. Graham:

In his application to the trial judge, sir, at — in 1935, in December of 1935, it was repeated in the application for the writ of mandate the following February, if I recall the, rather January when the application for it was filed.

So therefore, he requested a clerk’s record under our statute, he was supposed to get that free of charge but even that wasn’t furnished him.

Robert W. Graham:

He was denied a “statement of facts” I inserted it.

Charles E. Whittaker:

Now, may ask that, what are clerk’s record?

Is that a record problem?

Robert W. Graham:

The clerk’s record, sir, consists under our practice of the — the docket entries, the papers filed, it does not consist of the proceedings before the trial judge, it does not consist of the evidence.

Charles E. Whittaker:

When would consist here of the — of the information which was not to be discuss this —

Robert W. Graham:

That —

Charles E. Whittaker:

And of his petition for a continuance to be made upon.

Robert W. Graham:

That’s correct, sir.

Charles E. Whittaker:

And of course, no newly discovered evidence could appear in — in such or even in the transcript.

Robert W. Graham:

That is correct, sir.

Charles E. Whittaker:

Am I right?

Robert W. Graham:

But — but those errors I point out, the — for example, the refusal to grant the continuance for trial preparation is not a matter under our Court decisions which can be reviewed on a clerk’s record.

The fact that affidavits are in the — physically in the file does not entitle the Supreme Court of our jurisdiction to review those matters unless they have become a part of a statement of facts or bill of exceptions certified by the trial judge as including all of the matters before him.

Charles E. Whittaker:

Yes.

But to get up the bill of exceptions on embracing those matters would clearly be to relate — narrate their contents and ask first the judge certify it.

Robert W. Graham:

Narrate the contents of those items, sir, and all of the proceedings per chance that took place with respect to them.

All of the matters of hearing, motions, affidavits or testimony.

The statement of facts under our procedure is — and may I inquire are we proceeding past 4:30?

Earl Warren:

No, we’re going to continue until 5 clock.

Robert W. Graham:

Excuse me.

Earl Warren:

You go right ahead and do.

Robert W. Graham:

The statement of facts which he requested would normally encompass the bill of exceptions of the entire trial proceedings.He was denied not only the clerk’s record as I say, but was denied of the transcript or stenographic proceedings and so forth.

Now, under our statutes, there is — it is a jurisdictional prerequisite that the statement of facts be filed.

Griffin rules, if I understand it correctly, that the statement of facts may be something less than the total transcript of the testimony of the trial.

The question is not before this Court as to how much less might have sufficed in terms of all of the errors asserted nor does it reach the question as to how anything less than the total stenographic transcript may be arrived at.

The Superior Court Judges Association of our State in the report which I have appended as an appendix to the petitioner’s brief, suggest various methods of answering those questions, as to how much less than a total stenographic transcript may be used to satisfy Griffin.

It also suggests procedures as to how that decision may be arrived at.

I submit that those questions are not here before the Court.The prosecuting attorney in the trial court and the judge in the court below assumed that the entire transcript of proceedings was necessary to the prosecution of this petitioner’s appeal.

There was no question in the trial court as to that.

It was assumed that without the so-called statement of facts or the so-called transcript of trial proceedings that he did not have a right to appeal.

Robert W. Graham:

As a matter of fact, the trial judge and the prosecutor treated the appeal as a discretion or as a discretionary matter.

Now, I’d like to advert, if I might, to the question which is post by the last question and that is whether or not the stenographic transcript was so-called necessary within the rule of the Griffin case.

And I would point out that the state here for the first time, now contends that something less than the entire transcript of proceedings would suffice pointing out that under the procedure of Washington law in earlier statement, may be used in place of the entire transcript of proceedings.

As a matter of fact, the decisions of the Washington Supreme Court indicate that an appellant cannot be required to file an entire stenographic transcript of the record.

There is no question as to that.

I would point out with respect to the same issue raised in the dissenting opinion in the Griffin case that neither in Washington nor in Illinois was the filing of a complete stenographic transcript a jurisdictional prerequisite to get in to the Supreme Court.

Both here and in Griffin the petitioner alleged that it was “necessary” or it was needed.

This Court assumed in view of the statement of the Attorney General of Illinois in argument, that while it was available in Illinois, nobody used it.

This Court assumed that it was needed or necessary.

That issue has been controverted here in that the State has filed and it refers to the application for the writ of habeas corpus and in the petition on certiorari has — has in effect denied that that was necessary or denied that the petitioner has been deprived a constitutional right by the failure of the State of Washington to furnish the so-called transcript of proceedings.

It seems to me that the rationale of the Griffin decision is simply stated that, those are procedure of the State of Washington as in Illinois placed the petitioner at a substantial disadvantage because of his poverty.

In short, with respect to the evidence to an adequate and effective appeal.

Now, I suggest that not only, was a statement of facts either in the narrative form in some fashion, not made available nor was the stenographic transcript to the proceedings made available.

Certainly, the transcript of — of the stenographic transcript of proceedings was in fact necessary to the effectuation of this plaintiff’s appeal.

And a reference to the court rules of the State of Washington in the elaborate procedures which were required of even the most confident counsel would certainly indicate that this petitioner, incarcerated in the Washington State Penitentiary, with the — a theoretical right to furnish a narrative statement could not, certainly in fact, do such.

I would point out that not only did he make however application for the stenographic transcript, but he made application for a statement of facts in whatever form might be appropriate or necessary to comply with the appeal procedure requirements.

This record, I submit, raises an additional question as to the additional obligation on the part of the State of Washington to remove the substantial disadvantage under which this petitioner labored and that he did not have the benefit of counsel in the pursuit of his appeal.

The record, I think, is clear that he certainly did not waive, he did not — contrary to the State’s brief and response – did not discharge his trial attorney.

The trial court discharged his trial attorney.

William J. Brennan, Jr.:

Is there any question of the availability of the transcript that’s only (Inaudible)?

Robert W. Graham:

We have an official court recorder system, sir, under the State of Washington.

The record does not disclose as to the condition of the court reporter’s notes with respect to the trial proceedings in this cause which took place in 1935.

William J. Brennan, Jr.:

Well, has the State ever taken the position that they’re not available or that —

Robert W. Graham:

That does not appear in the record in any place.

William J. Brennan, Jr.:

I gather, all that you’re asking for is that the — vacate what happened in the federal court below and give you an opportunity whatever may be the requirements for the purpose under Washington law, the effect can appeal to the Washington State (Inaudible)

Robert W. Graham:

That is correct, sir.

The only relief to which I submit that the petitioner is entitled, is the vacation of the judgment denying his writ of habeas corpus and such direction to the Washington Supreme Court as will permit this man to take an appeal.

Now, whether the State furnishes a transcript to this indigent in the form of a complete transcript of proceedings, which I submit is the only practical answer to the entire question or —

William J. Brennan, Jr.:

How much is not before us?

Robert W. Graham:

I beg your pardon, sir?

William J. Brennan, Jr.:

On your — what you’re asking for doesn’t require us to determine how much you’re entitled to it’s whatever you’re entitled to under Washington law to protect that appeal.

Robert W. Graham:

That is — that is entirely correct, sir.

The simple answer he was furnished nothing.

Not even the clerk’s transcript which could not, as I indicated a moment ago, couldn’t raise the errors occurring at the trial much less the question as to whether or not his judgment of conviction was completely contrary to the weight of — to the evidence.It seems to me that in terms of a consideration of the remand of — of this matter which is the appropriate relief, I suggest, is that therein here is upon the shoulders of the State of Washington the obligation to remove the substantial disadvantage, I suggest, of the lack of counsel.

I recognize that the Griffin decision has not been delimited in terms of its implications, but it seems to me that certainly, this is a minimum.

And when one looks at the labyrinth of the criminal procedures in our state, it certainly, I think, is illusory to suggest that even if this man had been furnished a complete stenographic transcript of the proceedings, he could have effectively prosecuted his appeal.

He was, as the record indicates, an uneducated man.

He elected to proceed — proceed because (Inaudible) whether the failure to furnish him a statement of — of facts either by complete stenographic transcript, which I submit is the only practical answer, and I think counsel would agree is the only way in which I know appeal is in our Supreme Court.

It seems to me that there is entailed the additional obligation upon the members of the bar of our State and others to participate in the effectuation of the standard which this Court announced in the Griffin case.

William O. Douglas:

I take it from your brief that the clerk’s record is no longer used since the 1938 Amendment of the rule.

Robert W. Graham:

On — whether is an agreed statement of fact, sir, if the clerk’s record, there is no separate clerk’s record where the —

William O. Douglas:

Is a brief statement of facts the conventional way of bringing up the — this point which is present time?

Robert W. Graham:

I wouldn’t say and I agree and where there’s a short — a short — under shortened procedure where the statement of facts may consist of less than the — than the total record.

It is my understanding that the clerk record need not be taken up but unless that is accomplished, then as I understand the procedure, the requirement is opt for the clerk to forward the — the clerk’s record physically, if I understand from the court reporters of our State which is, perhaps, not on the record but physically, the clerk’s record and the so-called statement or the statement of facts are physically incorporated in one document by the court reporter as he sends it up to our State Supreme Court.

Now, I would point out that we recognize that the State of Washington certainly, as this Court recognized in the Griffin case, can and will allow a frivolous appeals.

That issue is not before us.

The —

Charles E. Whittaker:

How of the (Inaudible)

Robert W. Graham:

I beg your pardon, sir?

Charles E. Whittaker:

How (Inaudible)

Robert W. Graham:

The Supreme Court or that is the Congress, with respect to federal in forma pauperis proceedings, has authorized the in forma pauperis procedure unless the trial court certifies that the appeal was not taken in good faith.

Now, our statute which authorized the trial court to furnish the transcript, if in his — if in his judgment the ends of justice would be served does not purport to operate on that premise.

The Remington’s Revised Statute, Section 42-5, which is the statute upon which this petitioner predicated his application, does not purport to deny him that on the grounds that the trial court finds it not in good faith or that’s its frivolous.

That statute authorizes the denial of the transcript or denial of the statement of facts simply because the trial judge thinks the ends of justice would not be served.

In effect the trail judge has got to decide the issue on appeal.

And that I submit is an entirely different question from the good faith test which is the federal in forma pauperis procedure incorporates.

Hugo L. Black:

Construe what that statute mean?

Robert W. Graham:

Yes, sir.

Those decisions are set forth in the memorandum and in short, our Supreme Court has said that the trial judge in his absolute discretion in furnishing the transcript.

I would like to reserve the few remaining moments for rebuttal.

Earl Warren:

You may.

Attorney General O’Connell.

John J. O’Connell:

Mr. Chief Justice, may it please the Court, distinguished counsel.

The facts as outlined by Mr. Graham are substantially correct.

I may add these additional facts following the charge of first degree murder being lodged against the petitioner.

He contacted the firm of Donovan and Donovan Attorneys who for some period of time were cognizant of this case.

These same attorneys at the request of the petitioner when the petitioner could not raise funds, were appointed by the trial judge in this case.

I think a fair examination of the record would indicate that the petitioner in this case is not an illiterate or ignorant man.

I think a fair analysis of the documents he has filed in our Appellate Court would indicate that he is a contentious, aggressive and literate.

When the petitioner in this case requested the trial judge to grant him a transcript of the records in my case the trial judge treated this as a request for a full stenographic transcript under the statute enforced at that time.

The trial judge decided that justice would not be promoted, which is the language of the statute, by granting this petitioner a stenographic transcript.

From this decision of the trial court, the petitioner took a writ of mandate directly on this point.Our Supreme Court reviewed the precise action of the trial judge in this case and decided that the writ of mandate did not lie.

Charles E. Whittaker:

(Inaudible)

John J. O’Connell:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

John J. O’Connell:

Our records submitted to this Court, if Your Honor please, does not disclose the entire record upon which our State Supreme Court acted.

There was a transcript of certain of the proceedings of the trial judge that were — that was filed in the records of this writ of mandate that have not been forwarded to this Court.

But other than that, there is no record.

Hugo L. Black:

You rely on that?

John J. O’Connell:

I do not, Your Honor.

Hugo L. Black:

Is there any reason we should have it to see what’s in there?

John J. O’Connell:

I don’t think so, Your Honor.

I don’t think it would add anything of substance to this matter.

The petitioner setting out as errors alleged four things.

The information was duplicitous, he was brought to trial too soon, he wanted a continuance, the verdict was contrary to the evidence and the instructions, and newly discovered evidence and some allegations of conspiracy of perjury.

This matter or these allegations were before the trial court, they were before the Appellate Court.

Now, the petitioner being denied his complete and full stenographic transcript which we call a statement of facts, nevertheless, had alternative remedies.

His first remedy, specifically by statute, was to act — ask for a clerk’s record which he never asked for.

He preferred to rely exclusively on his alleged right for a full stenographic transcript.

Our statute in existence at that time allowed the clerk’s record which was compiled at the instance of the appellant, in this case the petitioner.

John J. O’Connell:

The petitioner could go to the clerk and say, “I want this and this and this and this.”

Starting out with the information, all the preliminary affidavits, motions and rulings ending up with the instructions of the trial court, verdict of the jury, and the sentencing judgment.

Hugo L. Black:

Would those had — if he had obtain that, would that have been adequate to let the Supreme Court act on the assignments of error he made?

John J. O’Connell:

Your Honor, I must disagree with Mr. Graham in that regard.

Just the call this clerk’s record would probably not cause our appellate court to take any cognizance of it.

In addition, to the court’s record, there must be a bill of exceptions or an assignment of error perhaps more properly called to saying the information is duplicitous in this regard.

Charles E. Whittaker:

In what (Inaudible)

John J. O’Connell:

In my opinion?

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible)

John J. O’Connell:

I would say a mere assignment of error.

Charles E. Whittaker:

(Inaudible)

John J. O’Connell:

Well, perhaps, Your Honor, I might most likely call it a bill of exceptions rather than assignment of error.

But in the transcribing of this clerk’s record to the Supreme Court, there must be some statement by the appellant as to what he alleges occurred as error in the clerk’s record.

And as a matter of fact, that’s done in many, many cases to this day where no evidence at all is taken in the trial court and the matter goes up wholly on the clerk’s record.

Hugo L. Black:

Do the — are the statements made of this page 21 on the brief of counsel correct as to the grounds for appeal that were raised?

John J. O’Connell:

These were the grounds alleged by the petitioner in this case.

Hugo L. Black:

And could those have been passed on by the Supreme Court without a full transcript?

John J. O’Connell:

In my opinion, Your Honor, they could have with the exception of one.

The verdict was contrary to the evidence which, of course ,would require the full stenographic transcript of the proceedings or at least a fairly full narrative statement so that the Court would know what the evidence was.

Hugo L. Black:

Is that a proper assignment of error in your State?

John J. O’Connell:

Yes, it is.

Hugo L. Black:

And the court — if — if court action is invoked on, the Supreme Court was suppose to pass it?

John J. O’Connell:

That’s right, Your Honor.

Hugo L. Black:

It cannot do it without the question.

John J. O’Connell:

That’s right, Your Honor.

Or without the bill of exceptions.

John J. O’Connell:

Or without the bill of exceptions.

Now, This remedy —

Hugo L. Black:

It could mean by that without both.

John J. O’Connell:

Well, in our State, the bill of exceptions is a statement of facts, is a stenographic transcript.

Well —

John J. O’Connell:

The terms are used interchangeably.

William J. Brennan, Jr.:

Well perhaps I misunderstood the direction of Mr. Justice Black.

I thought you said that the assignment, that the verdict was against the weight of the evidence could not be determined without either the full transcript of the proceeded — proceedings at the trial or at least the full narrative statement.

John J. O’Connell:

That’s correct, Your Honor.

William J. Brennan, Jr.:

Now, would either of those be included in the bill of exceptions?

John J. O’Connell:

Yes.

A narrative statement of facts would be a bill of exceptions.Our original statute, if Your Honor please, call this entire transcript or record a bill of exceptions.

The terms “statement of facts” and “stenographic transcript” were used in subsequent rules in the statutes.

Hugo L. Black:

Well, then, the bill of exception has to contain the stenographic transcript?

John J. O’Connell:

That’s correct or —

Hugo L. Black:

In case they’re wrong with that.

John J. O’Connell:

Bill of exceptions has to contain a transcript.

It does not have to, in our State, be a stenographic transcript nor need it be a full statement of all of the evidence and testimony at the trial.

Hugo L. Black:

Does it have to be, if they pass on the sufficiency of the evidence to support the verdict?

John J. O’Connell:

I would think so, Your Honor.However, it is felt that a narrative statement similar to the bystander’s bill of exception either prepared by counsel for the appellant or the appellant himself could contain sufficient narration of extensive enough scope to bring in the question of adequacy of the evidence to support the verdict.

Hugo L. Black:

That has it has not yet been determined.

I assume that there — there is no statute which authorizes that narrative you’re saying?

John J. O’Connell:

A narrative —

Hugo L. Black:

A bystander’s bill, if you could.

John J. O’Connell:

Yes, there is.

That’s my second point.

Number one, he could have the clerk’s record which he did not choose to take.

Number two, failing the clerk’s record, he could file in lieu of a stenographic transcript a narrative statement of facts extracting from the record in narrative form the particular areas of the record he desired to present to the appellate court.

William J. Brennan, Jr.:

Now, how could he do that without having to use a transcript before from which he could take off the narrative?

John J. O’Connell:

Merely, Your Honor, they — hour-by-hour record as during the continuance of the trial.

William J. Brennan, Jr.:

That is his own notes.

John J. O’Connell:

His own notes, the notes of his counsel.

I could assume the reporter —

Hugo L. Black:

— (Voice Overlap)

John J. O’Connell:

— is there and available to him for refreshment or recollection.

Hugo L. Black:

He couldn’t get it though unless he paid for it could he?

John J. O’Connell:

Well, he can talk to the reporter.

Hugo L. Black:

What?

John J. O’Connell:

There were many incidents or — or methods the man in question could have used.

Yes, sir.

Hugo L. Black:

(Inaudible)

John J. O’Connell:

Yes.When he prepares this narrative statement, he takes it to the trial judge and the trial judge settles it according to the position of the other counsel.

Now, this has been used in our State for many, many years and in our brief is outlined to the Court a long line of cases in which the narrative statement of facts or transcript has been used and in fact, in one case, our Supreme Court said that such a narrative style should be encouraged.

Hugo L. Black:

You take your position of this defendant if you answer that comment?

John J. O’Connell:

Yes, sir.

I do.

I would say this.

Hugo L. Black:

And that’s —

John J. O’Connell:

Give it — it depends —

Hugo L. Black:

As — as the Court held (Inaudible) As that it —

John J. O’Connell:

Oh, yes.

Hugo L. Black:

— should be determined.

John J. O’Connell:

Oh, yes.

Hugo L. Black:

The issue has been determined that this particular defendant is competent and able to have prepared a bill of exceptions for himself.

John J. O’Connell:

No, no.

That issue has not been determined.

And if due process as this Court said in Betts versus Brady is a fluid concept to be determined by the totality of all the facts, then the ingenuity, the ignorance, or the understanding, or the intelligence of this defendant is one of those facts, the totality of which will give you due process.

And that is why, I initially said that an examination of the record would see, would show that we’re not dealing with the — an illiterate, ignorant defendant.

Harold Burton:

So no matter how brilliant he is, are you stating that he concluded after 20 years to reconstruct a narrative form or have his notes he has available now?

John J. O’Connell:

I don’t know, Your Honor, but the point is we’re not talking about this year.We’re talking about the latter part of 1935 and 1936 when all of these things were available to him.

Harold Burton:

But he’s asking now for a transcript or for a — for a narrative form and supposed it’s — it’s sent back to get it and there isn’t any, then wants — that will have to be exact?

John J. O’Connell:

I don’t know, Your Honor.

But my point is the narrative statement was available to him in 1935.

John J. O’Connell:

Why should he be — come now to this Court 23 years later and say, “I want a narrative statement or a full stenographic statement.”

Charles E. Whittaker:

(Inaudible)

John J. O’Connell:

It’s creatively enough, Your Honor, and that doesn’t show on the record but I am informed he is still living.

He is a clerk for one of the federal judges in the State of Washington.

He has these notes in his possession and he has informed us at least so I am informed that they are transcribable, but the issue remains the same.

Charles E. Whittaker:

(Inaudible)

John J. O’Connell:

At — in 1935, 60 days.

Now, 90 days.

William J. Brennan, Jr.:

But as I understand that he took it — he took a timely appeal.

John J. O’Connell:

He took a timely appeal, yes, Your Honor.

Hugo L. Black:

What was the situation in that time (Inaudible)

John J. O’Connell:

That’s correct, Your Honor, and that’s our analysis.

Hugo L. Black:

Did he ask for a lawyer?

John J. O’Connell:

He never asked for a lawyer thereafter.

He elected to handle this matter himself.As a matter of fact, he — in the record discloses that he desired to discharge the attorneys that the Court appointed at his request, not any attorney but the attorneys he — he requested.

He desired to discharge him.

The Court would not allow a discharge until motion for a new trial and an arrest of judgment were argued that they are after, they withdrew with the Court’s permission.

We claim therefore, Your Honors, on the second point, the counsel on appeal just briefly.

We contend he did not desire counsel, did not seek counsel, in effect discharged his counsel and waived any right he had in that regard.

We contend this issue was not raised except in this Court.

He was prohibited by a court rule.

We further alleged that there is no case cited by the petitioner in this case or in — in this situation that allows him such relief.

Thank you, Your Honor.

Earl Warren:

You — you need not stop because of the red light, if you — if you have a few more words you’d like to say.

I was going to ask you, if it would, seriously dis-promote either of you — both of you to be here tomorrow morning to finish it up or can you finish it up shortly?

John J. O’Connell:

I can retire right now, Your Honor.

Earl Warren:

I don’t — I don’t want to take your time Mr. (Voice Overlap) —

John J. O’Connell:

No, that’s quite all right, Your Honor but I think —

Earl Warren:

I want you to have your full time.

John J. O’Connell:

I think we have made our position, Your Honor.

Earl Warren:

All right.

Mr. Graham.

Robert W. Graham:

(Inaudible)

Earl Warren:

We’ll — we’ll — yes, we’ll hear you.

Now, you take — you take your time because you’ve come a long way to do this job —

Robert W. Graham:

— (Voice Overlap)

Earl Warren:

— that are —

Robert W. Graham:

I do know that Mr. O’Connell has reservations for home tomorrow and I’m happy that we may conclude tonight so he may — he could schedule, that’s understandable.

In answer to one or two points that have been raised, I would like to observe that under the provisions of our official Court Reporter Act, the notes of the reporters are kept as a matter of law.

It is my understanding, sir, and I was not aware, the record does not reflect anything as to the status of the existing court reporter’s notes.

Charles E. Whittaker:

(Inaudible)

Robert W. Graham:

That would present certainly, a practical matter, I would — I would assume.

I would want to correct one additional observation I think.

Counsel inferred that the petitioner made an election to request a statement of fact or transcript of the entire proceedings and waived his right to request a clerk’s record which might review certain errors of the — I think the record does not support that, if the Court please that this man asked in his own language for the transcript of the entire proceedings including everything in it.

And under our statute, it was the clerk’s obligation to furnish that to the Supreme Court of the State of Washington and that wasn’t even done.

There is an information in this record, but it — it was not certified on his appeal.

I would also like to correct, I believe, if the Court please, a reference to the translate on the — transcript on the writ of mandate.I believe the certification in this record is correct that the proceedings before our State Supreme Court on the writ of mandate, all of the proceeding were — are here in this record.

The — the record upon which the Supreme Court of Washington dismissed this man’s appeal in the criminal conviction and simultaneously, dismissed his application for the transcript or for the writ of mandate to secure the transcript.

Those actions were simultaneously, taken upon a transcript certified up by the county clerk in Spokane County and that record in turn is — is before us.

So I think —

Hugo L. Black:

You stated all that here?

Robert W. Graham:

That is correct, sir.

That — that record on which our State Supreme Court acted on the writ of mandate is incorporated in this record and the certification of our Supreme Court clerk so shows it would be the proceedings before that court back in 1936.

There is correspondence that is not in the file.

The transcript was prepared by agreement between myself and the Attorney General’s Office and I believe that it does include all of the documents of record.

There are certain matters of correspondence that, I think, just as — as counsel the case would not be here material.

There is some confusion, I think, in probably my own mind as well as in terms of this concept of bill of exceptions, statement of facts, and transcript and so forth, I think, it perhaps has been clarified that under the procedures of the State of Washington, to review the question as to whether or not the verdict is not supported by the evidence, the Supreme Court must have before it either in question and answer form, by transcript or the stenographer’s notes or a full and complete narration helps and are not a — not a part on that premise, that the — that the statement of facts may be either narrative or question and answer form, but the fact is it must be of the entire proceedings, all the testimony of the witnesses.

And as the Court will note in the court rules, to which I have referred and which I have incorporated in toto in the appendix to our brief, he not only must file that statement of facts and transcript but also must prepare an abstract.

And the abstract in detail must show the witness, who he was, what he said in all of the proceedings.

My point is simply this.

Robert W. Graham:

This man is in prison in the State of Washington without access to counsel, certainly without access to the court reporter’s notes of the trial judge.

It was — it’s a completely illusory position to suggest that he himself could prepare a statement of facts sufficient to constitute a narrative statement that would warrant the review of the entire evidence in the proceeding.

Charles E. Whittaker:

Do you now support —

Robert W. Graham:

At that time when he was in — as counsel has suggested, that this man in 1936 could — well, he could have made up a statement of facts in narrative form.

Charles E. Whittaker:

(Inaudible)

Robert W. Graham:

Counsel’s position is that he could do it by himself.He points out that legally, under the court rules and the same was true in Illinois and Griffin, that a narrative statement can be prepared and utilized by the Supreme Court.

Charles E. Whittaker:

That’s the bill of exceptions.

Robert W. Graham:

And — and as it — you — you call it a bill of exceptions, sir, on — in the — in your background.

And to us, it’s a –a statement of fact.

It — it’s one and the same thing as counsel has suggested.

But the — the fact is that, in 1936 with this man in prison and without the availability of the stenographic transcript, it seems to me that this Court cannot say that he was not under substantial disadvantage as compared to persons who had means.

I think those, basically, are the issues here as I say whether this Court sees fit to announce a constitutional obligation of the State in all instances to furnish counsel, is perhaps the question we don’t have to decide.

Even I suggest we don’t have to decide whether in each and every case, a complete transcript is necessary.

There are two additional points raised in the brief of respondent.

They are jurisdictional character only.

I simply refer to the reply brief which has been filed to dispose of those two matters which have not been argued by the counsel.Thank you for your time.

Earl Warren:

Gentleman, on behalf of the Court.

I would like to thank both of you for — for what you have done on this case.

You, Mr. Attorney General, for the frank and fair manner in which you have presented the position of your State.

And you, Mr. Graham, for having assumed the obligation of representing this indigent defendant at — at our request.

It’s one thing to do that on the side when you’re home.

It’s another thing to — to come clear across the — the continent to do it.

The Court’s very grateful to you.

So we thank both of you, gentlemen.

We’ll adjourn now.