Gardner v. California

PETITIONER:Gardner
RESPONDENT:California
LOCATION:Souther District Court of Georgia

DOCKET NO.: 73
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 393 US 367 (1969)
ARGUED: Nov 20, 1968
DECIDED: Jan 20, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – November 20, 1968 in Gardner v. California

Earl Warren:

Number 73, Robert Newton Gardner, Jr., Petitioner versus California.

Mr. Rickershauser?

Charles E. Rickershauser, Jr.:

Mr. Chief Justice, May it please the court.

This is a case involving the right of an indigent California prisoner to a free transcript of his hearing out of petition for habeas corpus in the California Superior Court.

That petitioner alleged insufficient access to legal materials and to the courts.

The issue in this case is whether under the facts of the case, petitioner can obtain an adequate appellate review consistent with due process and equal protection under the California habeas corpus procedures where a non-indigent prisoner could have purchased this transcript.

But the appellate procedures in California relating to habeas corpus cases are not conditioned as a matter of law on the availability of that transcript.

Following the hearing, the Superior Court denied the petitioners petition for a writ of habeas corpus.

Petitioner then filed a written motion for a free transcript alleging his lack of funds, his need for the transcript to prove his case claims in the California Supreme Court and to assist him in the preparation of his case.

Petitioner did not then and does not now complain about the hearing, but instead contends the evidence will prove his habeas corpus contentions.

Petitioner in his motion raised the federal questions presented here citing authorities.

The Superior Court denied that motion by written order stating among other things that none of the proceedings in that court would be of concern to the California Appellate Courts.

Petitioner sought review of that denial of his motion for a free transcript by petitioning for writ of certiorari in the California Court of Appeal, which was denied.

Petitioner then sought a hearing in the California Supreme Court which was denied. Both of those denials were without opinion.

Petitioner then petitioned this court for a writ of certiorari, which was granted after a response was filed by the State of California upon request.

This court then appointed counsel, the only time the petitioner has been represented in these proceedings by counsel except at the hearing on his petition for the writ of habeas corpus in the California Superior Court.

It is a transcript of that hearing for the purpose of presenting his contentions for habeas corpus to the California Appellate Courts, this Court and if necessary the lower federal courts that petitioner is here seeking.

It seems clear under various decisions of this Court most recent prominent one of which is Long versus District Court 385 U.S. 192 that if the Californian habeas corpus procedure was a traditional appellate procedure, equal protection would require that this transcript be furnished to petitioner so that he could have the same means of pursuing his remedies as man with means to purchase the transcript.

The difference if any, in this case is that habeas corpus in California is termed as a theoretical matter to be an original writ procedure in each of the court’s of California and theoretically —

Potter Stewart:

You say that is theoretical, that is fact; isn’t it; in other words and it works.

It may work to the benefit of the applicant because if this is not an appeal but rather an original new application for habeas corpus in the second court then the applicant is free to bring in additional material, which he would not normally be free to do, if this were simply a review of the District Court action.

Charles E. Rickershauser, Jr.:

That is true Mr. Justice Stewart but in practice it seems to me we have to look at the California procedure and see how it usually works and I think we will see that is very much like an appellate procedure in the usual case and of course even if it isn’t I think the petitioner has shown his need for that transcript to prepare for the appellate court review, but if I might I’d like to point out that even though the petitioner is theoretically able to proceed and either the Superior Court or the Appellate Courts of California in an original proceedings, as a general matter and the usual practice as established in the State’s brief here as referred to, is that the Appellate Courts will require him to start in the trial court.

So the next aspect —

Potter Stewart:

That’s not unlike the Federal system I expect.

Charles E. Rickershauser, Jr.:

That’s right.

Potter Stewart:

Where I think I’m right in saying that under the statute an original writ of habeas corpus could be brought either to Federal District Court or before a Circuit Judge or the whole Court of Appeals or before any Justice or before this whole Court, but the practice is that it’s authorized by the statute of Federal system to transfer any such applications filed in the particular Circuit Judges or Supreme Court Justices to transfer it to the District Court, is that more or less the California practice?

Charles E. Rickershauser, Jr.:

I believe the more common practice is to deny the application for habeas corpus, it’s referred to a footnote in the State’s brief on the ground that he should proceed in the trial court, absent some unusual circumstances of the trial court would not act.

Potter Stewart:

Of course in the Federal system, there is provision for appeals from denials of habeas corpus and as I understand it in California there’s no appeal from a denial.

Charles E. Rickershauser, Jr.:

There is an appeal by the State if the petition is granted.

Potter Stewart:

No, I’m not appealed for the denial asset of habeas corpus is that correct?

Charles E. Rickershauser, Jr.:

Well, that is correct.

However, in many times the subsequent proceedings in the Appellate Court have the same effect as an appeal, because the Appellate Courts often limit their review to the record before the trial court and that is all that was asked here since there was no complaint about the hearing in the trial court or that it was insufficient or that additional evidence would be required in the Appellate Court.

Potter Stewart:

Well, as I read your trial judge’s order, he may clear that the appellate court if it so minded was free to ask for the transcript of what had gone on in the habeas corpus proceeding in the Trial Court, didn’t I read that correctly, I don’t have it.

Charles E. Rickershauser, Jr.:

That is correct Mr. Justice.

The Appellate Court could have ordered that transcript.

Our position is that in order to get the Appellate Court to take the case is essential to this indigent petitioner to have that transcript available both in aid of preparation of his case and in establishing his case at the discretion of the Appellate Court to take it or not because —

Abe Fortas:

Which transcript was necessary for him to have?

Charles E. Rickershauser, Jr.:

The transcript of the hearing on a petition for habeas corpus in the trial court.

Abe Fortas:

You’re not asking that the Government supply that the State should supply the transcript of the original trial?

Charles E. Rickershauser, Jr.:

No sir.

This petition for habeas corpus contented that he was denied insufficient access to the Courts and to legal materials, which had it been established, I assume would have then proceeded to attack his prior conviction and well he’s in on two different crimes one of which he pleaded guilty to.

Abe Fortas:

Mr. Rickershauser, do you know whether this procedure that my brother Stewart was talking about is peculiar to California whether there are other States and if so how many?

You have the same procedure that is to say that don’t permit appeals and post conviction proceedings, but that do provide for original proceedings in the Superior Court.

Charles E. Rickershauser, Jr.:

I’m sorry Mr. Justice Fortas I do not know the answer to that question.

I’d attempt to supply it if you would desire me to do so.

Abe Fortas:

I would be interested in having that, yes.

Charles E. Rickershauser, Jr.:

Alright.

It stems from the original common law practice so that it’s reasonable to suppose that it exists in other states but I can’t actually answer the question.

Byron R. White:

Well, could you tell me whether I gather from what you say that sometimes there are hearings in the Supreme Court.

Charles E. Rickershauser, Jr.:

That’s correct.

Byron R. White:

When you file a new petition in the Supreme Court instead of appealing, sometimes as a hearing.

Charles E. Rickershauser, Jr.:

It’s correct Mr. Justice White.

Byron R. White:

Now, why wouldn’t you, if they wouldn’t give you the transcript of what occurred in the lower court, why wouldn’t you ask for a hearing, so you could make a record and give the — put the evidence before the Court of -– the Supreme Court of California.

Charles E. Rickershauser, Jr.:

We would ask for a hearing and as depending —

Byron R. White:

But you think that you have — are you claiming the constitutional right not to have to ask for that hearing?

Charles E. Rickershauser, Jr.:

No, I am claiming that in order to get that hearing it is necessary to have this transcript.

Byron R. White:

Why is that?

Charles E. Rickershauser, Jr.:

Because as both in aid of preparation of the petition for the hearing and in proving to the court —

Byron R. White:

You prepared the petition for the hearing, petition without such a transcript in the lower court and got a hearing on it?

Charles E. Rickershauser, Jr.:

That’s correct.

Charles E. Rickershauser, Jr.:

You understand that I didn’t sir.

Byron R. White:

Well, I understand but the petition was filed in the lower court and then a hearing on it.

Charles E. Rickershauser, Jr.:

That’s right, that’s correct.

Byron R. White:

Now, is there any reason to suspect that you couldn’t have got a hearing in the Supreme Court of California, if the Supreme Court of California refused to call up the record from the lower court.

Charles E. Rickershauser, Jr.:

I am not sure I follow your question is, the Supreme Court of California does not have to grant a hearing on the petitions.

Byron R. White:

It’s true, but it’s never been denied yet is it?

Charles E. Rickershauser, Jr.:

Yes, it has.

It’s pending here on certiorari.

Byron R. White:

But did you ever ask them for a hearing?

Charles E. Rickershauser, Jr.:

Yes.

Byron R. White:

And they, so that — you’d come here with, you come here in a situation where they wouldn’t call up the record in those kind of court and wouldn’t give you a hearing.

Charles E. Rickershauser, Jr.:

That is correct.

We do not know what happened at that hearing in the trial court as a result of any subsequent proceedings and neither has there been another hearing in any of the —

Byron R. White:

And neither did the Supreme Court of California —

Charles E. Rickershauser, Jr.:

That’s right.

Potter Stewart:

Where does that show in the record that the Appellate Court denied a hearing on your application?

Charles E. Rickershauser, Jr.:

Well, the only proceeding that’s before the court in this case is the request for the hearing.

I believe the court could take notice of the fact that two other petitions for certiorari are pending in this court at this time relating to the subsequent proceedings in this petitioner’s attempt to obtain habeas corpus —

Potter Stewart:

I thought what we had here and perhaps not quite wrong, I thought what we had here was simply the denial of the trial court to supply your client a free transcript of the hearing to be used by him in his new application for habeas corpus in the appellate court.

I thought that’s what we had before us here.

Charles E. Rickershauser, Jr.:

Well it’s really arguable I guess what you have before you because the petitioner took that denial to the California Court of Appeal by writ of certiorari and then took that to the Supreme Court of California by petition for a hearing, both of which were denied.

He then came here for a writ of certiorari which was granted. Direct to the Superior Court of California although we have treated it in our brief as directed to the Supreme Court, I think it would apply to either case, either court.

Now subsequently he has pursued his habeas corpus remedies in the California appellate courts and has filed some petitions for certiorari.

Those — that is not this case, those cases are pending here.

Potter Stewart:

But this case is an attack, is it not upon the denial of the trial court by request for a free, for a free transcript of the habeas corpus proceedings in the trial court to be used by your client, he says necessary for him to have in order to file an application for habeas corpus in the appellate court?

Charles E. Rickershauser, Jr.:

That is correct Mr. Justice.

Point where I was discussing that the fact that the California procedure has developed appellate similarities, I do not think is required in establishing our case.

We do not ask this court to say that California in fact has an appellate remedy; we’re just showing that it has some of the same aspects and is therefore makes the need for this transcript even greater under those circumstances, and it is not always the tradition to grant separate hearings to consider these records separately.

I think the basic considerations underlying the transcript cases, which are that an indigent prisoner is to be afforded an adequate means of review in the appellate courts as a man with means, require the furnishing of this transcript.

It seems to us that the facts of this case uniquely demonstrate the essential aspect of this transcript.

Charles E. Rickershauser, Jr.:

This petitioner in his habeas corpus petition is asking, is claiming that he is denied access to the courts.

This is obviously a problem with complexity in which the courts must weigh his liberty and his rights against the right of the institutional authorities to run the prison, a complex problem and it is exceedingly — it is almost unbelievable that a man who had means would not purchase the transcript of this hearing in the trial court in order to assist him in the preparation of his papers in the appellate courts.

And also to demonstrate to the appellate courts how it is that he was denied access to, which would certainly be of assistance to a court in determining whether or not there was the kind of denial of access that would be a deprivation of his rights.

It is our view therefore that there is that kind of invidious discrimination between the prisoner of means and the prisoner without means that the transcript cases have discussed.

Abe Fortas:

Mr. Rickershauser, do you know what happens in the Supreme Court of California when a habeas petition is filed, and the court decides to hear it, does the court hear it, suppose the evidence has to be taken, do they ever take evidence before the court, do they appoint a master?

Charles E. Rickershauser, Jr.:

My understanding Mr. Justice Fortas is that a master is appointed or a referee, and that a transcript is obtained of that proceeding, which is then reviewed by the court to the extent necessary to reach a decision.

Abe Fortas:

hey don’t customarily then rely on the transcript of the lower courts?

Charles E. Rickershauser, Jr.:

Well there are circuit court, Court of Appeals cases in which they have relied on it, and I am sure they would in this case had they granted a hearing because the petitioner doesn’t seek to establish anything beyond that transcript.

This isn’t a case where he is asking for the transcript in order to comment for errors that he might then urge on in an appellate court.

I can’t, that’s obviously some speculation as to what they would do.

I would like to mention one or two of the state’s contentions, first one of which significant seems to be that there are not sufficient particular allegations of the need for the transcript.

We feel that a layman with a problem such as this trying to establish that he does not have adequate access to the courts when on the face of it he is in court, has alleged all that any layman ought to have to allege in expressing his need for this transcript, especially when he contends that he is willing to rely on it and that he had a fair hearing in that trial court.

William J. Brennan, Jr.:

I am looking at the appendix page 22 that apparently is the order in the Supreme Court of California, titled petition for hearing, order denying hearing.

Petition for hearing denied and yet our writ page 63 runs not to that order of the Supreme Court of California but apparently to the Superior Court of California.

Charles E. Rickershauser, Jr.:

Mr. Justice Brennan I am not with you on page 22 —

William J. Brennan, Jr.:

62.

Charles E. Rickershauser, Jr.:

62 I am sorry.

William J. Brennan, Jr.:

62 and 63.

Charles E. Rickershauser, Jr.:

I think I mentioned a few moments ago that it is not actually clear from an arguable standpoint as to what is here.

It is true that the writ does run to the Superior Court in the State of California.

William J. Brennan, Jr.:

Now may I just, just ask there looking at page 50, that would appear to be to the denial of the petition for writ of certiorari, is that it in the district court?

Because at page 52, the order seems to be petition for writ of certiorari denied?

Charles E. Rickershauser, Jr.:

That is the order of the Court of Appeals.

William J. Brennan, Jr.:

Now is that what this –our writ ran to, to that order and not to the order of page 62 of the Supreme Court of California?

Charles E. Rickershauser, Jr.:

Mr. Justice Brennan your writ ran to the order of the Superior Court on page 43 of the appendix.

William J. Brennan, Jr.:

43, is that denying a transcript.

Charles E. Rickershauser, Jr.:

That’s correct.

William J. Brennan, Jr.:

And you appeal that order?

Charles E. Rickershauser, Jr.:

That order will take Court of Appeals in California by writ of certiorari under the procedures of that state, on which there is no decision establishing that that’s either the correct or the incorrect procedure.

No clear decision and was then taken to the California Supreme court —

William J. Brennan, Jr.:

That’s where you ask for a hearing?

Charles E. Rickershauser, Jr.:

That’s right.

William J. Brennan, Jr.:

In the Supreme — that’s like petitioning for a writ of certiorari to the Supreme Court of California.

Charles E. Rickershauser, Jr.:

I am sorry.

William J. Brennan, Jr.:

You asked —

Charles E. Rickershauser, Jr.:

In the petition for certiorari, we asked for the supplying of the transcript below and I assume there would be a hearing, now the procedure in the California Supreme Court is a petition for a hearing, which has the discretionary aspects of a petition for certiorari here.

William J. Brennan, Jr.:

In other words this is not something — that petition for hearing in the Supreme Court of California is not something peculiar to the state habeas corpus?

Charles E. Rickershauser, Jr.:

No sir.

That is the way you petition the Supreme Court for a hearing on —

William J. Brennan, Jr.:

That’s all right, now I am getting.

And this wasn’t a petition for a hearing on a writ of habeas corpus?

Charles E. Rickershauser, Jr.:

No sir I may have misled you or not understood your question.

William J. Brennan, Jr.:

No, you didn’t mislead us it’s just that those labels, apparently petition for hearing, it’s just a label describing a procedure of the Supreme Court of California and review of almost anything, is that it?

Charles E. Rickershauser, Jr.:

That’s correct.

William J. Brennan, Jr.:

Discretionary review.

Charles E. Rickershauser, Jr.:

That’s correct.

It is a luxury perhaps that petitioner is here in time on the orders both of the Superior Court and of the Supreme Court.

William J. Brennan, Jr.:

I must say I have a little trouble seeing how our petition runs to that order of — at page 43, rather than to the denial of the order denying a petition for certiorari on the state.

Charles E. Rickershauser, Jr.:

Well it would only be proper on your writ Mr. Justice Brennan if the order of the Superior Court was the last order possible in the state court system and I don’t, if it was final judgment of the final court and would not appeal which is far —

William J. Brennan, Jr.:

Which is the order, at 43, is that it?

Charles E. Rickershauser, Jr.:

Our view is that it’s not the case because it could have been taken out from certiorari, the attorney general questions that in his brief.

But I think it’s correct and I think it would be more appropriate although certainly up to this court to —

William J. Brennan, Jr.:

Well I got it, your point is if what’s before us then, if our writ runs to that order at page 43, then there is indeed before us the question you raised of the denial of the transcript, isn’t it?

Charles E. Rickershauser, Jr.:

That’s correct Mr. Justice Brennan, I don’t think there is any question about that issue being before you if you should have the Supreme Court denial on hearing before you leave it.

William J. Brennan, Jr.:

I see.

Charles E. Rickershauser, Jr.:

That’s the issue that was raised in the request for –

Byron R. White:

If the court was denying the transcript you still have left over the question of whether you really were denied anything if you could get a new hearing on the petition for habeas corpus, a new evidentiary hearing in the Supreme Court of California.

Charles E. Rickershauser, Jr.:

The question really I think Mr. Justice White is whether we needed that transcript in a constitutional sense in an application for that hearing.

William J. Brennan, Jr.:

Just to prepare a —

Charles E. Rickershauser, Jr.:

Prepare and to convince the court and incidentally the California statute requires us to make a brief description of the proceedings below, so that —

Byron R. White:

Why shouldn’t you have to come here with the — after they’ve denied you a hearing?

Let’s assume they bring your petition for a hearing, you filed a writ of habeas corpus in the California Supreme Court and they granted you a hearing on it and you had an evidentiary hearing.

Then I don’t suppose, you’d have any constitutional claim for the transcript in the lower court?

Charles E. Rickershauser, Jr.:

I think that’s correct.

Byron R. White:

Well then why shouldn’t you have to come here having them been denied both the transcript and the hearing?

Charles E. Rickershauser, Jr.:

Well, my reaction to that is that at that point we would have lost our right to attack the order below in the trial court denying the transcript.

William J. Brennan, Jr.:

This well you wouldn’t have to use — but then you could come here and say that we have a petition for habeas corpus, and they won’t give us either a hearing or a transcript.

Charles E. Rickershauser, Jr.:

I think that would be another way to raise the issue.

Earl Warren:

Mr. Rickershauser and I see that we had a number of 894 miscellaneous 1967 term, number 1001 miscellaneous 1967 term which were respectively the petitions for cert in the Superior Court of California apparently denying petition for mandamus and the petition for a cert to the California Supreme Court, and the last one the petition is filed for a writ of certiorari to the California Supreme Court whereas, as best to review the order denying the petition for habeas corpus, isn’t that right?

Charles E. Rickershauser, Jr.:

That’s correct Mr. Justice.

Earl Warren:

And did you say to us that those were filed were timely file.

Charles E. Rickershauser, Jr.:

I did not address myself the timely filing of that one, I said this case was timely filed with respect to the order both of the trial court and of the Supreme Court denying a hearing.

Earl Warren:

I see but those other cases that are before us and have not been acted on, they’re petitions, is that right?

Charles E. Rickershauser, Jr.:

That is correct.

Earl Warren:

So we do have up here regardless of how our writ ran, we do have here a petition for certiorari which has not been acted on asking us to review the refusal of the Supreme Court of California to grant habeas for this petition.

Charles E. Rickershauser, Jr.:

That is correct, that is correct.

I was discussing the state’s contention as to the specificity of the allegations and I think the final state’s point of, that I would like to discuss is that the decisions of this court in the transcript cases talk about the state may provide adequate alternatives.

The difficulty I have with that here is that there is no adequate alternative that we are able to determine to and none has been offered.

The only discussion if any is that the petitioner alleged with particularity what happened at the hearing.

This I think is an undue burden upon him, one that a man with means would not assume and that they’re, therefore that there is the kind of discrimination without alternatives that the transcript cases require in this court and an opinion below should be – the decision below should be reversed.

Thank you.

Earl Warren:

Mr. Weber.

Jack K. Weber:

Mr. Chief Justice, May it please to court.

Permit me to begin by attempting to distinguish Long versus District Court of Iowa and to explain something of our California procedures in the process of doing that.

The obvious distinction between Long and the situation here is that California does have habeas corpus and Iowa had an appeal procedure.

However permit me to emphasize the significance of that difference.

When you have an appeal although it is possible to hear the matter on a clerk’s transcript, in the ordinary case, the focus is on the trial court below, the proceedings there, and the reporter’s transcript of those proceeding and —

William J. Brennan, Jr.:

You are talking about an appeal from a denial of habeas corpus, you are not talking about an appeal from a conviction?

Jack K. Weber:

That’s right, yes sir.

And the focus of the court is to review the proceedings below to determine whether or not there was error and in order to do that you look at the transcript.

Jack K. Weber:

However in California we have an entirely different procedure where the proceedings below are entirely tangential and collateral.

There the court doesn’t necessarily review the proceeding below, it receives allegations from the petitioner and it tests those allegations to determine their sufficiency and because of that, because the court relies on allegations it does not necessarily need a transcript to resolve the issues.

There is another aspect of this difference also.

The habeas corpus procedure has multiple stages, the first stage is a pleading stage, after that the court gets into the process of determining the truth of the allegations that it has not denied the petition.

Thus in this initial stage, the court does not require proof, it does not require evidence, it does not require a procedure for submitting the matter in any particular way.

It can proceed to determine the sufficiency of the allegations just by reading the allegations and this is the normal, the meaningful and the usual way to proceed in habeas corpus matters.

Byron R. White:

Can you file a petition in habeas in the trial court and the allegations being by the trial court such as making a hearing in the trial court, to repeat identical allegations filed either in the Court of Appeals or the Supreme Court either those courts may claim the insufficiency of the —

Jack K. Weber:

That’s correct Your Honor yes.

Well, of course there are differences between judges as to interpretation.

Byron R. White:

That’s the way it works, there is no appeal whether you are right or wrong, what the trial court did or (Inaudible) Court of Appeals or —

Jack K. Weber:

Well, I wouldn’t go so far as to say it’s not reviewable there are rare cases in which the appellate court has determined that there was some error in a collateral attack proceeding in the court below but the usual practice is to treat the whole matter a new and it’s a de novo proceeding and I guess namely it’s just —

Potter Stewart:

Well, in a hearing — concludes in the hearing and fact finding was handed against the petitioner, nevertheless may the petitioner file that same complaint in the Court of Appeals or the Supreme Court and perhaps get another hearing even though this may result in the perhaps a contrary fact find?

Jack K. Weber:

That’s the way it’s done, as a matter of fact, he isn’t bound by the substantial evidence rule or any of the other customary rules relating to appeal.

He isn’t bound by the record below or anything else.

Second time around, he can find some new ways to present the matter to the court, though a new and better allegations.

Justic Marshall:

How can a Supreme Court find an error in the record below if it doesn’t have the record?

Jack K. Weber:

Well of course when it proceeds by allegations it doesn’t need to find error in the court below, they just test the sufficiency of the allegations and determine the original substantive claim anew.

However if the petitioner alleges there was some error below, the court if it desires to do so can get into the business of evaluating what happened below and order a transcript of what occurred there.

Justic Marshall:

How can it determine that he is not entitled to have those allegations considered if it doesn’t have the record upon, which they’re based?

Jack K. Weber:

Well, now we’re getting into the second stage of the habeas corpus procedure which relates to proof, he would go to the appellate court, he would set out his allegations about what went wrong in the court below and if the court deemed those allegations sufficient, then it would get into a question of getting the transcripts and establishing the truth of those claims.

Justic Marshall:

And if it doesn’t find those allegations sufficient, what course does the Supreme Court take?

Jack K. Weber:

It denies the petition.

This is the standard —

Justic Marshall:

Doesn’t have, then it doesn’t have an independent hearing of its own?

Jack K. Weber:

Well, it holds an independent hearing.

If it finds that the allegations are sufficient and that they require an evidentiary test, it doesn’t always go straight to a hearing you understand, the usual procedure of the court is to appoint counsel for the petitioner and to coax the parties into entering into stipulations and to test out whether there’s any real evidential differences between them because hearings are an expensive cumbersome process.

Potter Stewart:

Well if the, if they — Supreme, if this in the Supreme Court Mr. Weber, and it’s finally concluded that there has to be live testimony taken before someone, before whom is it heard?

Jack K. Weber:

It’s a referee, I think I’ve cited the Riddle case in my brief where the court describes this procedure and then a transcript is prepared and the court receives the report of the referee and then it re-determines and reweighs the referees’ findings, giving them great weight but not being bound by that.

Potter Stewart:

Is that also true in the intermediate court of appeals?

Jack K. Weber:

Yes, sir.

Potter Stewart:

Reference to a referee?

Jack K. Weber:

Yes.

Justic Marshall:

Mr. Weber, in this original paper that the petitioner files, I assume the State files a response.

Jack K. Weber:

If the request that, yes, Your Honor.

Justic Marshall:

Well, would the State view the transcript?

Jack K. Weber:

It depends on the nature of the allegations.

If the nature of the allegations are such that a transcript would be necessary to answer them, we’d quite often will secure a transcript and supply it to the Court at that point.

Justic Marshall:

But the petitioner couldn’t get—

Jack K. Weber:

That’s one of those allegations.

Justic Marshall:

— the transcript?

Jack K. Weber:

Well, if he has the, of course if he has the – of course he doesn’t have the means, he can’t buy the transcript, he’d have to make some request to the Court to secure it.

Justic Marshall:

So the State would use transcript because the State I assume has the means.

Jack K. Weber:

Well, we still have a few dollars, and yes.

Justic Marshall:

So the State would use the transcript for its pleadings, but would deny the transcript to the pauper.

Jack K. Weber:

Well, there’s always a process of testing out these claims and when then the Court requests a response, the State could secure a transcript.

But the petitioner has to get his transcripts in effect at the sufferance of the Court if he’s an indigent.

He has to ask the Court for it and he has to establish his need for it to the Court.

It just isn’t practical we feel to let in the Judge —

Justic Marshall:

Isn’t it worse when pauper without a lawyer is up against the weight of the whole prosecuting authority of the State of California plus the transcript?

Jack K. Weber:

Well, I usually feel that the situation is turned around and that the petitioners are the ones who are putting us on the spot through their allegation.

But it does exist this difference, the State does have the power to order a transcript, the indigent has to secure his transcript at the determination of the Court and this procedure I guess comes about because of the possibilities of economic waste involved.

If the indigent could just secure every transcript that he desired at his own determination, there’s concern that many of the prisoners would abuse that sort of privilege.

Byron R. White:

Don’t you do though on direct appeals from conviction?

Jack K. Weber:

Well, as this Court has pointed out there’s a difference between direct appeals and —

Byron R. White:

Well, I know but what about my question?

Jack K. Weber:

We do furnish free transcripts on the direct appeal.

Byron R. White:

Automatically?

Jack K. Weber:

Automatically, yes.

Byron R. White:

Without any —

Justic Marshall:

Whether they have money or not?

Jack K. Weber:

Whether they have money or not, yes Your Honor, California is very liberal in doing that.

Justic Marshall:

Let me ask you this Mr. Weber, if this man had the money and had purchased the transcript, could it have been used in the Supreme Court to determine whether he was entitled to hearing that?

Jack K. Weber:

Well, the court customarily receives any documents that petitioners send it and they will make use of those documents, yes.

Justic Marshall:

Then if he, if he isn’t able to get that then the Court would have used it.

Then he has suffered some deprivation, as he not?

Jack K. Weber:

Well, we don’t deny that there’s some difference between the way that indigents are treated here and between the powers of the State to secure a transcript.

The problem is one of determining whether that difference or discrimination is invidious.

Justic Marshall:

Well, how is that justified, how, on the part of the State?

Jack K. Weber:

The justification for requiring him –?

Justic Marshall:

For the discrimination that you just mentioned.

Jack K. Weber:

Well, the justification would be in the economic cost in furnishing the transcripts without some test or need.

Justic Marshall:

It seems to me in a State like California that wouldn’t be very good argument because if the man is a millionaire and he has a long trial, the State pays for his transcript on appeal?

Jack K. Weber:

Yeah.

Justic Marshall:

Why shouldn’t an indigent have it in a situation like this if a man of means could have the transcript and it would be used by the Court in determining the merits of the case?

Jack K. Weber:

Well, I think that perhaps the best answer to Your Honor’s question is that the indigent has an effective procedure apart from having the transcript, he can describe it all to the Court in his allegations if he feels he wants to do so.

Justic Marshall:

Layman without a lawyer?

Jack K. Weber:

Well, he did file a petition in the Superior Court which gained him the hearing, we feel that that’s an adequate test to demonstrate that he would be able to do the same thing in the appellate court.

Abe Fortas:

Well, his hearing came to a — not in the Superior Court and the Court in some instances, the Supreme Court in some instances will review that transcript to determine whether there was error in it, why shouldn’t he have the opportunity to have that before the court?

Jack K. Weber:

Well, because we need some test to curb waste in these areas and some test —

Abe Fortas:

Curb what?

Jack K. Weber:

Waste in these areas because if we gave all of these transcripts out whether the indigent needed them or not, it could cause a wasteful system.

Abe Fortas:

Just pecuniary matter insofar the state is concerned.

Jack K. Weber:

Well, of course if human resources were unlimited and funds were unlimited, we would be able to provide indigent prisoners with all that they wanted in the way of transcripts in many other problem areas too.

Abe Fortas:

How often does the State Supreme Court have a master upon it or referee upon it, is that a matter of common practice or is it very rare?

Jack K. Weber:

I would say that it’s a fairly common practice, one can pickup almost any volume of the California Supreme Court reports and it will have two or three such hearings reported in it.

Potter Stewart:

Do you know Mr. Weber the answer of the question or not, Mr. Justice Fortas just asked whether other states have the same procedure?

Jack K. Weber:

I made a very quick canvas of laws of the other states and there are a few, I think there’s about five or so that still retain the common law procedure, many of the others have adopted by statute an appeal procedure, some others have converted writ review procedures into something that is virtually or equivalent to an appeal.

I think North Dakota has something that they call a Power of Superintending Control which is in effect a kind of appeal procedure.

Abe Fortas:

But at the time this appellate procedure was established in California, habeas corpus did not have the scope that it has now, did it?

In those days all of — you could prove on, habeas corpus was always necessary for the state to prove, as in a warrant of arrest had been issued and the man had been then arraigned and so forth and if those things had been complied with, the writ is denied, isn’t that right?

Jack K. Weber:

It’s very true Your Honor, the California —

Abe Fortas:

Now, that’s been expanded in more recent years.

Jack K. Weber:

California has directly expanded the writ of habeas corpus to protect the rights of the prisoners.

Abe Fortas:

But this right to a transcript has not been expanded in accordance with that different procedure.

Jack K. Weber:

Well, we feel that the right to transcript is adequate at the present time in order to fully protect the real rights of the prisoners, well at the same time providing some kind of a screening procedure to take off waste and needless requests and so on.

Byron R. White:

A moment ago, a moment ago you referred to what would go on in the Supreme Court of California after the petitioner files his petition for habeas corpus there after it is denied in the lower court.

He makes his allegations and you refer to his alleging what went on in the lower court?

Jack K. Weber:

Yes he could if he desired to do so, write out his own bill of —

Byron R. White:

Well, as a matter of practice, if I petition for habeas corpus in the Superior Court and I am denied after a hearing and then I file petition for habeas corpus in the Supreme Court of California, well in the Appellate Court and then the Supreme Court.

I finally file one at the Supreme Court of California and all I do is make the — put the same allegations in it that I put in the Superior Court, that’s all I did.

Now if the Supreme Court of California thinks those allegations are sufficient to grant the writ if they are true, what do they do at that point?

Jack K. Weber:

The issue in order to show cause usually–

Byron R. White:

And then what happens?

Jack K. Weber:

Appoint counsel for petitioner and then the state will file its return to it and answer the–

Byron R. White:

Well, the Supreme Court of California at that point if they think that they need some that if there is some; they need to find out whether these allegations are true or false.

Do they ever call for the transcript of the lower court?

Jack K. Weber:

I don’t recall any cases off hand where they have called for the transcript.

Byron R. White:

So if their exclusive method of resolving evidentiary conflicts in the Supreme Court on petitions for habeas corpus where the state and the petitioner cannot agree from the facts.

The exclusive method resolving those is by having a hearing there before a referee and they make their own resolution of the facts.

Jack K. Weber:

That’s generally speaking true although it’s possible that one of the parties will supply a transcript of what occurred to the court, so that it can use that in making determinations of the fact.

Byron R. White:

And if, but I don’t suppose that if either party refused to accept that transcript, I suppose there would have to be a new hearing?

Jack K. Weber:

Well, I don’t know of any cases in which the California Supreme Court has dealt with that particular problem overtly.

I suppose that if it was a certified transcript by a reporter there wouldn’t normally be any issue as to its validity, it doesn’t — it’s not something that arises too often.

Byron R. White:

But do you think there is any more or likely that the Supreme Court would grant a petition for habeas corpus filed in that court if the petitioner there can make allegations about what went on in the lower court?

Jack K. Weber:

I think that the likelihood of a hearing in the State Supreme Court would depend on the substantive claims more than anything else.

It would depend whether he has sufficiently stated that he has been deprived certain constitutional rights.

Byron R. White:

What if you were representing an individual petitioning for habeas corpus in the Supreme Court of California after a denial in the Superior Court?

Would you think the transcript of what went on before the Superior Court in that evidentiary hearing there, would that transcript be useful?

Jack K. Weber:

In most cases, I think it would not.

There is some possibility that you could find something in there that might interest or intrigue the Supreme Court, but I think that possibility is sufficiently remote and speculative that it would be out waived —

Potter Stewart:

Hold on Mr. Weber let’s take a rather simple case.

Suppose his allegation is, I was tried and convicted and did not have the assistance of counsel and that’s his petition for habeas corpus in the Superior Court, there is a hearing in the Superior Court or does it, at the conclusion of the hearing the trial judge concludes that the fact that is contrary he did have the assistance of counsel.

Now he then goes in the Supreme Court with the identical petition, I didn’t have the assistance of counsel at my trial and suggesting that in the face of a finding to the contrary that the Supreme Court would be interested with the transcript to go ahead and have it’s own hearing in that petition.

Jack K. Weber:

Well, there if the allegation was sufficient they would call for a rule to show cause and the state well, I suppose it responds, he did have counsel and you would say I suppose you would say —

Byron R. White:

Mr. Justice Marshall you might have the transcript and you could say or without the transcript you could say it was found in the contrary in lower court.

Jack K. Weber:

Well, you could just get the records from Superior Court filed from the original trial.

Byron R. White:

What if you did what if you did get the record and you attached a part of the transcript to your return, so he did have counsel and here is what was found by the Superior Court.

Jack K. Weber:

Well, if the court would normally rely on the Superior Court’s records unless they are disputed by the petitioner in some way, I suppose that if he says that the records are a lie that some sort of a hearing would be necessary to determine the accuracy of the records.

Byron R. White:

So are you suggesting though then that hypothetical case, the Supreme Court might not deny on the basis — deny the petition or deny a hearing on the basis of the hearing in the Superior Court?

Jack K. Weber:

I’ve never known the Supreme Court to expressly deny a hearing based on a hearing in the Superior Court.

Of course, I don’t know of any cases in which they’ve discussed the points at all.

So that it is largely a matter of trying to guess what goes in the minds of the justices there.

Abe Fortas:

Mr. Weber suppose all of the facts stated in the petition in the Superior Court were true; would the Supreme Court — would they be sufficient to grant a hearing in the Supreme Court.

Jack K. Weber:

In this particular case?

Abe Fortas:

In this particular case.

Jack K. Weber:

Well, this is an unusual situation, because between the time that the petition was presented in the Superior Court and the time that the Supreme Court received the substantive allegations, it came down with a major pronouncement in this area affecting inmate rights and that determination was against the petitioner, so that the legal situation had changed considerably and I think that the State Supreme Court could have utilized its very recent decisions to deny the petition without a hearing in this particular case.

Abe Fortas:

So you take the position that even if all the allegations of the petition in the Superior Court were true that he would not be entitled to any relief?

Jack K. Weber:

That’s correct yes Your Honor.

Justic Marshall:

Mr. Weber excuse me —

Jack K. Weber:

Although of course we do dispute –

Abe Fortas:

I beg your pardon?

Jack K. Weber:

We do dispute the truth –

Abe Fortas:

I can’t hear you.

Jack K. Weber:

We do dispute the truth of the allegations in the petition.

Justic Marshall:

If these are actual de novo hearings, independent hearings and in the interest of not wasting money, why take a transcript at all, why do you record it?

Jack K. Weber:

Well —

Justic Marshall:

Except that if a person is wealthy enough he can pay for it.

Jack K. Weber:

Of course if the writ is granted in Superior Court the state would have a right of appeal.

So that would be one situation where a transcript would be necessary.

Justic Marshall:

But that doesn’t help the petition at all.

Jack K. Weber:

Well, some of these procedures help the state occasionally, again the transcript could be used by one party or the other on the–

Justic Marshall:

Does it add up to the transcript is really for the purpose of helping the wealthy petitioner and the state?

Jack K. Weber:

No, I don’t think.

Justic Marshall:

Failure, that’s all.

Jack K. Weber:

I wouldn’t agree with that.

I noticed that the federal courts have a power to order the transcript made up from the reporter’s notes also, so that it does bear on the federal determination as well as the state determination.

Justic Marshall:

We don’t have the state here?

Jack K. Weber:

Excuse me.

Justic Marshall:

We only have the state here, State of California.

Jack K. Weber:

Yes, but the Federal Courts have a power in determining state habeas corpus petitions to order the transcript of this particular evidentiary hearing.

So that would be a situation in which the petitioner would benefit from the preparation of a transcript.

Justic Marshall:

Oh!

So finally he had sufficient legal advice, there is no way the Federal Court was —

Jack K. Weber:

Well we have forms provided for the petitioners and they —

Justic Marshall:

Well I guess I’m taking it too far field but to me it looks like the benefit of the transcript is solely for the State and of course is able to pay for it.

Doesn’t it?

Jack K. Weber:

No, Your Honor I think it goes a little beyond that and that our procedures are adequate to give meaningful habeas corpus to indigent prisoners as well as those who have some funds.

If there are no further questions I will submit.

Earl Warren:

Mr. Rickershauser.

Charles E. Rickershauser, Jr.:

I have nothing further Mr. Chief Justice.

Earl Warren:

Very well.