Griffin v. Illinois – Oral Argument – December 07, 1955 (Part 2)

Media for Griffin v. Illinois

Audio Transcription for Oral Argument – December 07, 1955 (Part 1) in Griffin v. Illinois

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William C. Wines:

— inability of providing the fullest possible review for all persons accused of crime including free transcripts for the indigent at least, including perhaps the very best of counsel.

The question here, as I was stating, is an important one, a deep one but it in one sense a narrow one as due process or the equal protection of the laws require with constitutional authority the affording of transcripts free of charge to those convicted persons who have not the means of otherwise procuring them.

Before I address that question, I shall do my best to answer two questions, factual questions, not factual about this case but about the Illinois practice as to Mr. Horsky by Mr. Justice Reed.

And as I understood it in slightly different fashion by Mr. Justice Frankfurter with respect to the so-called bystanders’ bill of exceptions or the bill of exceptions prepared from someone’s memory in condensed and narrative form and certified to by the trial judge.

As to whether that’s available in Illinois, I can say that everybody out there understands that it is but nobody has heard of its ever being actually used in a criminal case in Illinois in recent years.

I think if you went back before the days of court reporting, you would find some but none today.

And I will say that Illinois has not suggested in the brief that such a narrative transcript would necessarily or even generally be the equivalent of a verbatim transcript of all of the trial.

I should also like to explain, so there can’t be any misunderstanding about it, a little more amply than did Mr. Horsky, although his statements were quite accurate as far as they went, how transcripts are procured when they are procured under the Illinois Post-Conviction Remedies Act.

That Act, if Your Honors please, is a statutory innovation in Illinois enacted, it’s no secret in response to Your Honors decisions in cases from Illinois and other States in which Your Honors declared that the States must afford someway whereby in certain — where there is a substantial claim of denial of due process, prisoners rich or poor must be afforded the means to attack their convictions collaterally by matters (Inaudible) the record when for some reason or other a transcript of the record would not make apparent those errors.

Well, under the Illinois Post-Conviction Remedies Act, a prisoner is required to file a petition.

It must be sworn to at least by himself and accompanied by such other affidavits as are available or his own affidavit as to why such other affidavits are not available.

And if that question — if that petition and its accompanying affidavits, when taken as true, make a substantial showing of denial of a constitutional right — of a constitutional right then it’s within the discretion of the trial court to require a county expense, a transcript of all or of such portions of the record of the proceedings at the original trial as may be necessary to present in whole or to support in part the claims of constitutional denial by the prisoner.

That remedy is available only to those imprisoned in the penitentiary.

We understand it wouldn’t be available to a person who has served his term but wanted relief from some kind of civil disabilities so that he could hold office or vote or something of that kind, its means of restoring liberty and not full civil rights.

Now, then the situation in Illinois with this slight amplification is exactly as Mr. Horsky has described it to Your Honors in his brief and at the bar this afternoon.

Now, we address first the contention — prisoners make two contentions with respect to denial of due process.

The first contention that they make is that equal protection and due process are denied because Illinois does afford a free transcript to all indigent prisoners who have received the sentence of death.

I don’t mean in all cases in which capital punishment might be inflicted but has not given in a particular case.

In all cases where the death sentence has been imposed, Illinois does provide a free transcript.

Well, the petitioners say that as long Illinois provides free transcripts to indigent prisoners sentenced to death, it denies equal protection if it doesn’t provide free transcripts to indigent prisoners who are not sentenced to death.

Frankly, I don’t think that question need detain the Court very long with very commendable fairness.

Mr. Horsky concedes in his brief that that question is not as important as the one whether the review by — of convictions of prisoners who have not been sentenced to death or who have the money to get a transcript denies equal due — protection or due process when no corresponding right is given to non-capital prisoners who have no money with which to procure a transcript.

Your Honors have declared as recently as the last term in Williams against Georgia that in Your Honors own language, “The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant.”

And I think that the differences between a man who is facing death and one who is facing even imprisonment for the rest of his life are of such substantial significance that equal protection or due process is not denied if the one is given — the first is given and the second is not given a free transcript of proceedings.

The cases on the right to counsel alone are sufficient to make that clear.

Beginning with Powell against Alabama, at the latest in cases where the death sentence has — where capital punishment may be inflicted and with Betts against Brady in cases in which the death penalty may not be inflicted, this Court has consistently and steadfastly held, although not without powerful dissent, that the requirement of counsel in a case where the death penalty can be inflicted is categorical, it can’t be withheld unless the prisoner knowingly and wait and understandingly waives it whereas in cases — in state cases I mean, not federal cases in which the death penalty may not be imposed, due process is not denied by the denial of counsel unless there is a special showing of particular circumstances why counsel is needed.

Well, as long as Your Honors hold that the right to counsel is imperative and categorical in capital cases and as contingent upon action will mean.

In non-capital cases, certainly the right to a transcript or gratuitous bill of exceptions is not of anything like the moment or at least has never been felt throughout the civilized world to be of anything like the moment as is the right to counsel.

So I shall not, unless requested to do so, argue further the question whether the fact that we do give free transcripts to those sentenced to death operates to deny equal protection to the indigent defendant, not capitally sentenced who does not have such a record.

I now address the second question in our brief which is this.

William C. Wines:

Illinois conceded —

Felix Frankfurter:

You wouldn’t mean — I don’t know why you’d insisted — why you think that those complicated (Inaudible) Illinois tomorrow could abolish a review of a criminal consistent of appellate review in criminal cases (Voice Overlap) —

William C. Wines:

That’s right.

Felix Frankfurter:

— take away from everybody —

William C. Wines:

That’s right.

Felix Frankfurter:

— they wouldn’t dream of doing it I suppose.

William C. Wines:

No, but —

Felix Frankfurter:

They wouldn’t dream of doing it.

William C. Wines:

No, but they — under Your Honors declarations, they could without denying any federal right.

Felix Frankfurter:

I could say —

William C. Wines:

Yes.

Felix Frankfurter:

— they do.

William C. Wines:

Yes.

Felix Frankfurter:

Well, they wouldn’t dream of it.

Why wouldn’t they dream of doing it?

Because it seems essential to the fair administration of justice, short of it, isn’t it, that’s true?

William C. Wines:

That’s true.

Felix Frankfurter:

And yet you say that there is an obvious discrimination and an obvious differentiation between a fellow who might go to death and a fellow who — he go to get 20 years or 10 years or 5 years or 7 years.

That’s your position.

Is that the fair classification?

William C. Wines:

Yes.

Yes, I think Illinois —

Felix Frankfurter:

I think —

William C. Wines:

I beg your pardon?

Felix Frankfurter:

If I was to think that that what you deem vital to our sense of justice, it is a man who might go to his death is irrelevant in a case of a man short of that, wouldn’t you?

William C. Wines:

Well, let me —

Felix Frankfurter:

Well, that’s what you must say that it’s not irrelevant, a fair thing to give him a capital — a capital offender, the opportunity of having the appellate court look at it but for the rest to leave to the nisi prius court.

William C. Wines:

I think, Your Honor —

Felix Frankfurter:

That’s what your — that’s what (Voice Overlap) —

William C. Wines:

— that’s — that is what I’m arguing — that is what I’m arguing and I — I don’t wish to dissemble the fact.

William C. Wines:

I will put it in a — I’ll put it in this fashion, if I may, with Your Honors indulgence.

I think so far as the Fourteenth Amendment or any other federal constitutional right is concerned, if Illinois chose to do so, it could tomorrow abolish all appellate review except in capital — in cases where the death sentence had been imposed.

And I certainly think it could do something — and I certainly think it could do something else that it might do as it is now all felony cases go directly to the Supreme Court of Illinois with no — with no stop at our intermediate appellate court.

All misdemeanor cases, unless they involve constitutional questions that are substantial, go to the appellate court and then to the Supreme Court.

I certainly think that Illinois could if it chose, if she chose tomorrow, limit appellate review to the appellate courts of Illinois except in cases where the death penalty had been imposed and there give either — give a review by the Supreme Court either after or without the appellate court’s intermediacy.

Felix Frankfurter:

I’m not trying to take that position (Inaudible)

William C. Wines:

And actually, the truth about the matter is in Illinois that the right to a writ of error is a review by the Supreme Court of Illinois on some kind of a record, common law or full stenographic record is absolutely and everything except capital cases because there is no such right in capital cases unless you’ll get a stay of proceedings from the Supreme Court before execution and you are not entitled to that stay as a matter of right and until quite recently it was frequently denied.

So the actual practice in Illinois, I am sorry to say but it is a fact, has been that the fellow who has a transcript and gets life is sure of a review by Supreme Court of Illinois but the fellow who has the transcript and gets death has to get a stay of the sentence and he’s not entitled to it as a matter of right and it has been denied.

Felix Frankfurter:

Well, that simply means the Court has made a reconnaissance review and decides (Inaudible)

William C. Wines:

That’s right.

But it isn’t the full review by all of the justices that you would otherwise get.

Felix Frankfurter:

One thing a judge can decide that Congress says or a court?

William C. Wines:

He has to get the concurrence of four to grant.

Felix Frankfurter:

(Inaudible)

William C. Wines:

Yes, but —

Felix Frankfurter:

(Inaudible)

William C. Wines:

Yes.

Now, I turn to what everybody, I believe, recognizes as the even more serious question here through — rises from the fact that take now only non-capital cases.

The Illinois prisoner who can afford a bill of exceptions can obtain it and if he is convicted of a felony or of a misdemeanor in which there is a question of the constitutionality of the statute or some other substantial constitutional question, he may go by a writ of error directly to the Supreme Court of Illinois and illicit that Court’s review.

On the record, Illinois practice requires that the record be abstracted by counsel but the actual record is also supplied, briefs of counsel and oral argument if requested.

If he is convicted of a misdemeanor with no constitutional question involved, he goes first to the appellate court.

And if he suffers affirmance there, he has a writ of error which is a writ of right to the Supreme — from the Supreme Court of Illinois where he may go without the equivalent of petition for certiorari but by the equivalent of direct appeal.

Now, by and large, there isn’t any way that an Illinois convicted person can — in a non-capital case can obtain a bill of exceptions without paying for it.

Hugo L. Black:

May I ask you a (Voice Overlap) —

William C. Wines:

Yes, Your Honor.

Hugo L. Black:

— if Mr. Horsky is right in saying that under the law, as he has to construe it now, Illinois is bound to provide a full review of trial error in every defendant convicted in the State that has enough money to buy a bill of exceptions —

William C. Wines:

That’s right.

Hugo L. Black:

— but denied it to every person who is too poor to buy it?

William C. Wines:

That last statement is almost correct.

Hugo L. Black:

What’s wrong?

William C. Wines:

The only exception is we’ve mentioned that Mr. — Mr. Horsky and I have both mentioned and that is under the Post-Conviction Remedies Act.

Hugo L. Black:

Well, can he get it under the Post-Conviction Remedies Act?

William C. Wines:

He — if he can make a substantial showing to the trial judge that his conviction was a result of a denial of constitutional rights.

Hugo L. Black:

I understand that —

William C. Wines:

It’s within the discretion of the trial judge to order the entirety or so much as he deems necessary of the transcript at the county’s expense.

Hugo L. Black:

But it is then correct as I understand it, Illinois permits every person who has the money, enough money to buy a bill of exception who has been convicted of a crime —

William C. Wines:

Any crime.

Hugo L. Black:

— outside the capital to get — to take it to the Supreme Court to have trial errors reviewed, both constitutional and all other kinds of it.

But if he’s too poor to buy one, he cannot have trial — any trial error reviewed however grave it is unless it’s a constitutional question.

William C. Wines:

That is correct.

Felix Frankfurter:

Am I right in my impression that this is — not a reasonable impression that is that I think we think before us, on the whole — the overwhelming regarded cases that do go up for review, the equivalent cases do not raise a statute — a constitutional question could go up on error.

William C. Wines:

That’s true.

Felix Frankfurter:

Is that correct?

William C. Wines:

That’s true.

Felix Frankfurter:

Is that — that would — would I still find that if I went to the (Voice Overlap) —

William C. Wines:

I think so, Your Honor.

I don’t know overwhelming might be too strong a word but certainly the majority.

I don’t know whether it would be an overwhelming majority but it would be a majority.

Felix Frankfurter:

Well, I do not claim, if I did I didn’t mean it.

Preponderance to the federal (Inaudible)

William C. Wines:

Yes.

Stanley Reed:

How in this — in this present case, was a relief sought on the constitutional ground?

William C. Wines:

No, Your Honor, this — this petition is — is — presents the question in a —

Stanley Reed:

Well, then what — what is the statement on page 2 of the record mean?

The plaintiff in error was denied a hearing relief for constitutional error.

William C. Wines:

Page 2 of the record?

Stanley Reed:

First full paragraph.

William C. Wines:

I take that to mean and Mr. Horsky takes it to mean from his statement at the bench — at — at the bar this morning that the prisoners do not contend that their conviction up to the time of the return of the verdict and the imposition of sentence was infected with a constitutional error, that it was of a non-constitutional or as that the error of complaint, now, which is nowhere specified, was of a non-constitutional or perhaps you can coin the words sub-constitutional —

Stanley Reed:

Well, let’s say it was a constitutional error which occurred in the proceeding.

William C. Wines:

Well, I think —

Stanley Reed:

You — you interpret that to mean (Voice Overlap) —

William C. Wines:

When they were denied a transcript, I — I take it to mean if they have a constitutional right to present sub-constitutional errors if anybody else has that right.

In other words, I understand the man to say whether my — the error that I’m complaining of is or is not a constitutional error.

If it’s an error at all, I have a constitutional right to a transcript to show it as long as I could get such a transcript if I had the means to procure it.

And at least that’s the way it’s treated by the petitioners in this Court.

Stanley Reed:

Yes, that’s right.

Now, where is the authority that would give them a right to their record if they alleged a constitutional error?

William C. Wines:

Well —

Stanley Reed:

You say it’s in the post — post-conviction statute but I —

William C. Wines:

And the — that — and — and the —

Stanley Reed:

Or is it by a decision of the Court, Supreme Court of Illinois?

William C. Wines:

It’s by decisions of the courts under the post-conviction statute.

Stanley Reed:

It’s not provided for in the statute?

William C. Wines:

Not in so many terms — words, no.

Stanley Reed:

But it is provided for by a decision of the Supreme Court?

William C. Wines:

Yes and by the practice and Mr. — since Mr. Horsky concedes it, I haven’t reach the —

Stanley Reed:

(Voice Overlap) —

William C. Wines:

— the particular cases that — that recognized it but there’s no doubt that it’s there.

Now, Your Honors, addressing the question that I have stated.

It’s an unfortunate fact that in very many respects those accused and convicted of crime suffer palpable and grave disadvantages in proportion to the paucity of their means.

One of the first distinctions recognized frankly in the petitioner’s brief and mentioned in the respondent’s brief is the matter of bail.

But the very Constitution of the United States, the — in its text, not in — it’s glossed by this Court but in its text provides that excessive bail shall not be required.

Well, a man with no money, no friends with money, can’t give any bail, he can’t give a bail of a dollar and there’s many — a literally penniless man picked up on the streets for small offenses no doubt but nevertheless picked up who couldn’t give a bail of 25 cents.

Other gives bail as high as a $100,000, I’ve even heard of a sum of half a million or my memory may claim me false there.

So right in the four corners of the Constitution of the United States is a recognition, a distinction between the impecunious and the opulent.

Hugo L. Black:

Why does that problem, Mr. Wines, might the amount of bail depend somewhat, at least I have thought it did but it would seem a judge would decide it, on how much bail the man —

William C. Wines:

Oh, yes.

Hugo L. Black:

— could give in consideration of his poverty or his —

William C. Wines:

That’s right.

Hugo L. Black:

— life stability.

William C. Wines:

Yes and also his standing in the community.

Hugo L. Black:

And sometimes he gets recognized without bail because he’s unable to make it I suppose?

I’ve seen that happen in the (Voice Overlap) —

William C. Wines:

Oh, I have to.

Yes.

Hugo L. Black:

So I wouldn’t suppose that you could say that that inequality is required by the Federal Constitution provision that excessive bail shall not be (Inaudible).

William C. Wines:

I don’t say that it’s required.

I say that it’s recognized and — and indirectly condoned, certainly by — by the Constitution.

I don’t say that the Constitution says that the — the Court shall discriminate against the poor but it — it recognizes a practice and we all know that as a practical matter, the impecunious have more trouble generally in giving bails than do the opulent.

That is certainly true.

There are exceptional cases where a penniless person is so well-thought of by his community that anybody will give bail for him and somewhere a — a rich man is such a miscreant that nobody would sign his bail.

But I’m not talking about the — the exceptional case anymore than Mr. Horsky is talking about the exceptional case where the American Civil Liberties Union might get the fellow a transcript as they have done in some cases.

But in the — in the ordinary case, certainly, the wealth of a defendant isn’t financial means has a great deal to do with whether he makes bail or not.

Hugo L. Black:

Well, I imagine that usually when that statement was made in this country, it’s probably made whether pretty severe criticism of — of any system that permits that, is it not?

I have heard it said that the charge, frequently that in certain places and under certain circumstances the — the rich have an easier chance to get out in the floor, but I’ve heard others better to deny that under our system that certainly it’s what they intended that way.

Do you think that could recognize that it was accepted among the people whether desirable or governmental practice or one —

William C. Wines:

No.

The desirable, no.

Hugo L. Black:

— or one which will be tolerated if the people could get a chance to speak their voice?

William C. Wines:

The latter, I can’t say so much about what would be tolerated, but the — but the desirable, no.

I — I want to make it clear that to the extent that things — it — it’s regrettable that financial embarrassment can play any part in the assertion or vindication of any right in any criminal or civil case.

I — I don’t want again say that for a moment, but I am — the argument that I’m pursuing is whether the Constitution requires a giving of a bill of exceptions and I have mentioned the matter of bail as one example where the Constitution at least contemplates the solvency on the part of the defendant or his friends as a condition to his release unless the judge happens to want to release him on his own recognizance.

Another distinction that I should like to mention that is certainly tolerated not only throughout the United States but throughout the rest of the civilized world and that is the matter of the expiation of offenses by imprisonment where the defendant doesn’t have the means to pay a fine.

Now, under Illinois law, for example and this is regrettable, fineable offenses are atoned for an imprisonment for a dollar-and-a-half for — a day and a — a days imprisonment for every dollar-and-a-half of the fine.

Well, we have computed that an indigent defendant in Illinois who is fined $10,000 has to serve 17 years in the county jail and I’m not aware of any means for cutting that down.

There may be one sort of a pardon.

But at least —

Hugo L. Black:

The governor has the right to do something, doesn’t he?

William C. Wines:

He can pardon.

He can pardon the man for not having a free transcript too.

William C. Wines:

The governor’s pardon is — is always there to correct any injustice, but I don’t think then of itself suffices to assure equal protection or due process since there’s no constitutional right to pardon.

Now, there are other ways in which the indigent suffer.

We’ll take the case of a man who’s indicted for an offense.

We’ll make it a non-capital offense so we don’t have this complicating factor of a free bill of exceptions if he’s sentenced to be electrocuted and not if he isn’t.

The first thing, Illinois law guarantees that he’d be furnished the names of the — of the jurors, the panel of the jury, so that he can investigate to find out whether there are type or a like to be prejudiced for him or against him or neutral and those investigations are very expensive, particularly if the crime or alleged crime is one that’s attracted a lot of attention and that’s a small county and everybody in the county has read and heard about it.

Well, to the defendants, many of these cases, many of the crimes arise out of labor violence where labor leaders are indicted and they have the — plenty of money behind them.

They investigate every juror.

The man in jail without bond, perhaps a lawyer hasn’t even been appointed for him and isn’t appointed until the term of court where he’s arraigned, commences which maybe some weeks off down state has no means of investigating those jurors, none whatever except to ask other prisoners in the cell block if they ever heard of any them, that’s the limit of his means of investigating, whereas the affluent defendant can employ counsel.

I’m talking only about legitimate investigations, not any — any illegitimate approaches to jurors.

He can — he can employ train investigators.

He can ransack everything from their birth certificates to their eighth grade diplomas and that sort of thing is done and for prying an important criminal trial especially down the State in Illinois.

Earl Warren:

Mr. Wines, what do you have to say about the statement of Mr. Horsky that the mere fact that there are certain inequalities and opportunities of indigent defendants to defend themselves which the State has been unable to iron out and to make equal that that is no reason why we should maintain one that — that is manifestly unfair according to both counsel in this case and that the State can with propriety and with ease remedy?

William C. Wines:

Did Your Honor finish the question?

Earl Warren:

Yes.

William C. Wines:

Thank you.

All right, my answer to it will be direct but it will take me three or four sentences and those sentences are as follows.

And answering your question to which I was just coming anyway was mentioning the fact that the impecunious don’t in general have the means of getting evidence particularly in this connection documentary exhibits that the affluent or opulent has.

Now, as we say in our brief, if you look at it functionally and in terms of its operation and not its characterization, a stenographic transcript is simply one species of evidence.

It’s evidence in the reviewing court of what occurred in the lower court.

It’s like any other documentary evidence.

The reviewing court wants to know what happened in the trial court, evidence to the reviewing court of what happened in the trial court is called variously a bill of exceptions, report of proceedings, stenographer’s transcript or what not.

Now, since it’s not suggested by anyone, certainly not by petitioner to Mr. Horsky in this case, that a defendant is entitled to have any other documentary evidence compiled, may be he can subpoena if it’s there and within the jurisdiction of the Court.

But since he’s not entitled to have witnesses brought from — without the State at State expense or he’s not entitled to have any other kind of documentary evidence prepared with stenographic services supplied free.

He is not entitled, we say as a constitutional one, to have this particular species of evidence, namely, the evidence to the reviewing court of what happened in the lower court compiled rates.

Now, Your Honor has said that the —

Earl Warren:

Well, aren’t you using evidence in two different senses there?

William C. Wines:

Technically, yes.

In — in practical logic, I don’t — I don’t think so, Your Honor.

Now, Your Honor has indicated there, Your Honor —

Earl Warren:

The whole record, this evidence, according to your concept before the — the Court of Appeals —

William C. Wines:

That’s right.

Earl Warren:

— could it deny poor people every record, every bit of evidence of that character?

Could it deny him the indictment or the arraignment proceedings and the other things which we now do provide?

William C. Wines:

Well, my —

Earl Warren:

Constitutionally?

William C. Wines:

— my — the — the logic of my position forces me to answer that question, yes.

We say —

Earl Warren:

That would mean absolutely no review, wouldn’t it?

William C. Wines:

That —

Earl Warren:

No trial at — no —

William C. Wines:

No appellate review.

Earl Warren:

— no appellate review for him at all if he was impecunious?

William C. Wines:

Now, in as much as due process doesn’t require appellate review, I do not — at all I do not see why equal protection requires it to be provided free of charge unless equal protection requires that all other advantages that affluent or opulent defendants enjoy so requires.

And I would like to — still answering the Court’s question at the same time resuming the main burden of my argument.

I would like to call attention to the fact that as shown in the appendix — now, Mr. Horsky has corrected it but in a way that I don’t quite understand.

The appendix in Mr. Horsky’s brief at page 84 contains this heading, the following States provide free transcripts to all paupers convicted of felonies.

Now, he says at the bar that he doesn’t mean felonies and that it — it has to do with all convictions.

Earl Warren:

In — in some cases?

William C. Wines:

In some cases —

Earl Warren:

In some cases?

William C. Wines:

— and at 85, the following stanza states —

Felix Frankfurter:

In all cases, all conviction in some cases, what — what would be in some cases?

William C. Wines:

I don’t understand Your Honor.

In some cases all convictions.

Felix Frankfurter:

(Voice Overlap) cases qualify that except for that — that all paupers to all convictions as an indigent defendant, is that right?

Is that the way directively?

William C. Wines:

I’m not quite sure how he did correct.

Maybe I —

Felix Frankfurter:

(Voice Overlap) —

William C. Wines:

— maybe I could yield him — could I yield a minute of my time so that he could — Mr. Chief Justice.

Earl Warren:

You may.

Charles A. Horsky:

Like I said, Your Honor, was that it applies both to felonies and misdemeanor.

William C. Wines:

In all of these states?

Charles A. Horsky:

Unless as in the — on page 85 or rather 85 at the bottom where the sentence is death or convicted of murder, it’s specifically is limited to a particular kind of a crime.

Felix Frankfurter:

While you’re on your feet, Mr. Horsky, it so happens that I look at the canvas —

Charles A. Horsky:

Yes.

Felix Frankfurter:

— I will be glad to hear that I think you ought to bring the correction on the bottom page 86, (Inaudible) by an Act of 1953 thus furnish transcripts to — in capital cases (Inaudible)

Charles A. Horsky:

I’m happy to have the correction, Your Honor.

Thank you.

William C. Wines:

Well, it appears from page 85 that six States restrict the grant of a free transcript for certain types of cases.

Now, I submit that if there is virtue and merit at all in petitioner’s contention, it must apply not only to all cases of felony.

I submit that if there’s virtue and merit at all in petitioner’s contention, it must apply not of only to all cases of felony but certainly to all cases that may ultimate an imprisonment whether either by direct mandatory sentence of imprisonment or by imprisonment as alternative to an unpaid and unpayable fine.

Now, the Chief Justice’s question, as I understood it and I’m sure he will correct me if I have misphrased the question, indicates that the situation in the particular case of free transcripts is one that might be procured readily or easily.

Let me assure the Court that (Inaudible) is familiar from the case particularly if, as I think the logic of Mr. Horsky’s argument requires, we take into account all cases where imprisonment may eventuate.

In Illinois, there are official court reporters who take down the shorthand but they’ll transcribe without paying them in all felony cases.

Now, Mr. Horsky is mistaken about misdemeanor cases at least in the municipal court of Chicago and in numerous — perhaps not in magnitude of sentences but in numbers of persons convicted, more people are sentenced to some kind of confinement from the municipal court of Chicago, I’m quite sure, than from any other court in the State.

Do you have any idea what your number of indigent defendants annually runs to in your court’s record?

William C. Wines:

No, Your Honor, and there wouldn’t be any means that I would — that I would know of or finding out indigent in this respect.

The fact that a man has a lawyer to represent him on the trial doesn’t necessarily mean that he has the money for a transcript.

So I do know this that lawyers fees being what they are, the number of indigent prisoners after conviction is considerably larger than the number of indigent prisoners before conviction because in between times they pay attorney’s fees.

Felix Frankfurter:

Mr. Wines, this — the first presents (Inaudible) concern in my mind which I should like to put to you therefore it doesn’t put you off or prior to the Attorney General to state.

I should like before you sit down to have you address yourself to a problem of the consequences of a reversal of stating the position of the petitioner, not in this case, not what would happen in this case in (Inaudible) now in Joliet and elsewhere.

William C. Wines:

I’ll do that right now, Your Honor.

It’s very important and naturally it’s a matter to which I have given great thought which does not mean that —

Felix Frankfurter:

You’ve just said that they couldn’t tell how many indigent (Voice Overlap) —

William C. Wines:

No way in the world they could tell —

Felix Frankfurter:

— and therefore that means your answer will be speculative.

William C. Wines:

If we — if we knew the number who appeared without counsel, we wouldn’t know how many of them wanted counsel and how many of them didn’t and if we knew — knew the number who had counsel on a trial, we wouldn’t know how many had — had enough money after paying their lawyer to get a bill of exceptions and they wouldn’t do it and there wouldn’t be any reliable way of finding out.

Now, with respect to the consequences of a — of a reversal —

Felix Frankfurter:

(Inaudible)

William C. Wines:

I’m — I’m sorry?

Felix Frankfurter:

Contention of mine does not necessarily reach the rights and the wisdom, the — the correctness of the position you’re taking on due process and legal protection you made there on — as far as I’m concerned on how you should go about it in case we take a view different from yours.

William C. Wines:

I understand Your Honor.

First, may I say that I think it does bear very cogently upon the constitutional question itself for this reason, that while there are some constitutional commands such as from the Federal Constitution that must have a trial by jury or the private property may not be taken without just compensation that it have to be where the — if the Constitution commands something, that command must abided regardless of cost, therefore, I think everyone knows.

But whether the Constitution does command something, when that is in doubt, may well depend upon practical feasibility because the fact that it can’t be supposed that the framers of the — of the Fourteenth Amendment attended — intended to create any right that they may have known would not be feasible of realization.

So for that reason, I think practical consequences are of constitutional moment on this argument.

Well, Your Honor — if Your Honors should reverse this case and say that every prisoner was entitled either to a free transcript or to his liberty which is what Mr. Horsky asks —

Felix Frankfurter:

He modified that as I understood him.He said he’s entitled to the means whereby to get an effective review.

William C. Wines:

Well —

Felix Frankfurter:

As I understood him.

William C. Wines:

— if you said it means whereby he can get an effective review, he would first get — you would first reach the question what would be equal protection assuming that a bystanders’ bill of exception is available and would satisfy due process that it satisfy equal protection when the opulent defendant can get the full transcript?

But let’s suppose for a moment that he’s entitled to exactly the same thing that the — that the opulent defendant is which is a complete merit whether he needs it or not, then you would have as practical matter, Your Honor, to answer your question as honestly as I can, you would have — I would say several thousand Illinois prisoners, certainly many hundreds who are now indigent — who are now indigent, the times of their conviction would range from two or three weeks ago to as long as 20 years or 30 years ago.

Most of those indigent prisoners would not have made a motion as did these indigent prisoners for a bill of exceptions within the time allowed by Illinois law which is not — is 100 days.

But then you would get to the question if their pauperism deprived them not only of this bill of exceptions but of counsel to advise them of the need for it, you would then get — you would then have this kind of a situation, you would have a prisoner who was convicted in 19 — make it 10 years ago, he was convicted in 1945 and he’s been given life for burglary, at that time he didn’t have a lawyer.

He — the 100 days in which he can ask for a bill of exceptions has long since gone by and he didn’t ask what within the 100 days, but he now says, “Well, I was poor, I was a pauper and I not only should have had a bill of exceptions, I should have had a lawyer to advise me that I have a right to a bill of exceptions and that totals 100 days.”

And you would then get that problem if I make the problem clear without expecting the emanation of any answer to it.

So you couldn’t just say, if you just chopped it off with the right to a transcript, every prisoner who’s been in there more than 100 days and hasn’t move for transcript has waived his rights, but he will say, “Well, I didn’t know I had.

I think the reason I didn’t know I had any was I didn’t have a lawyer and the reason I didn’t have a lawyer was I’m too poor to get one.”

Felix Frankfurter:

Well, I had a lawyer who greatly respected constitutional laws of Illinois.

William C. Wines:

Well, if he had a lawyer of his own choice —

Felix Frankfurter:

Yes.

William C. Wines:

— and that lawyer didn’t advise him, we have an entirely different situation, entirely different.

I’m talking now about the — the —

Felix Frankfurter:

I can see a lawyer — I can see a lawyer saying — now say the Supreme Court of the United States would expect — we didn’t expect every lawyer in Illinois to challenge a law that’s a part of Illinois courts and these lawyers thought was constitutional.

They’re not answering it, but I could —

William C. Wines:

I can imagine that argument too.

So I will say this.

That in the case of many — of the — I’m — I’m dealing with practicalities because as to in the case of many of the men who have been there a long time and whose behavior hasn’t been such as to earn them any parole or consideration from anybody, there won’t be any way to get them a transcript because the court reporter will have died or lost the ability to read notes or the notes will not be available or removed.

The older transcripts — how long you can get a transcript just depends on how long the stenographer is available to transcribe his or her notes, when that’s gone, the transcript is gone for all practical —

Stanley Reed:

Well, what do you —

William C. Wines:

— purposes.

Stanley Reed:

— what do you say about the right to a bystander’s bill in the Illinois courts.

William C. Wines:

Everybody —

Stanley Reed:

Do you — do you accept the argument of Mr. Horsky that the Court has said that they wouldn’t hear it on bystanders’ bill?

William C. Wines:

No, I don’t know of any case where a bystanders’ bill is actually been tendered to the judge, trial judge for approval.

The cases — and I don’t mean to think Mr. Horsky said exactly that, I think what Mr. Horsky said, I’m sure what he meant was this.

There are a number of cases in Carter against Illinois, which reached this Court, was one of them where the prisoners have themselves written out a narrative —

Stanley Reed:

Tell me you’ve cited, what was it, La Fano or La Fada?

William C. Wines:

La Frana, L-A-F-R-A-N-A.

Stanley Reed:

La Frana — La Frana.

William C. Wines:

La Frana.

Stanley Reed:

And since he was precluded by indigence from securing a direct review of his conviction, what do you say to that?

William C. Wines:

Well, that means that he couldn’t get a full stenographic transcript.

I’m quite sure that the Supreme Court of Illinois would take a bystanders’ bill if the trial judge would certify it.

I’m not so certain that the trial judges in Illinois would actually certify it not because they want to hurt poor people but because it’d be very difficult to draw up one that would satisfy the judge as being a complete statement of the case and even if he did —

Stanley Reed:

They mean he — draw it up himself?

William C. Wines:

Well, even if he did that it wouldn’t be the equivalent of a — of a stenographic transcript.

Stanley Reed:

No, but the argument here is not what kind of an appeal you’re entitled to or what kind of a — of a record but that you’re entitled to something, you’re entitled to some way to make your appeal and to have a bill of exceptions to raise the points that you have in mind.

That’s — that’s all I understand they say.

William C. Wines:

Well —

Stanley Reed:

Not — not that you’re entitled to all cases and everytime to have a bill of exceptions.

William C. Wines:

I’m quite certain that if this Court ever held that as long as equal — as long as anybody could get a stenographic bill of exceptions, everybody is entitled to at least a bystanders’ bill that it wouldn’t be long until those bystanders’ bills would be recognized in — by the Illinois courts.

This Court should so hold but at present, as I say, I have never heard it.

I see that my time has very nearly expired unless Your Honors have some further questions, I’ll submit the —

Earl Warren:

Thank you.

Mr. Horsky.

Charles A. Horsky:

I have but one very minor point.

I think I could correct what I think was an inadvertence on the part of Mr. Wines.

You asked Mr. Justice Reed whether the procuring of transcripts under the Post-Conviction Hearing Act was by statute or by decision and Mr Wines, I think, replied that it was by decision.

If you would look on page 77 of our brief, you will find that it appears in the part of the Illinois Code dealing with the duties of the official court reporter, hence, 163 (f) provides in the statute that in cases arising under the Act there specified, which is the Post-Conviction Hearing Act, in which the presiding judge has determined that the post-conviction petition is sufficient to require an answer, it shall be the duty of the official court reporter to transcribe in whole or in part the stenographic notes and so forth, and it provides later on that it shall be paid for by the State.

Charles A. Horsky:

I think that was an inadvertence on his part.

I thought it should be corrected.

Earl Warren:

Mr. Horsky, on behalf of the Court, I should like to thank you for — for your diligence in this matter for having accepted the assignment, for having served this indigent defendant as you have and for the enlightenment you have given the Court.

Charles A. Horsky:

Thank you, Your Honor.

Earl Warren:

That’s all.