Hardy v. United States

PETITIONER:Hardy
RESPONDENT:United States
LOCATION:Apartment

DOCKET NO.: 112
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 375 US 277 (1964)
ARGUED: Nov 21, 1963
DECIDED: Jan 06, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – November 21, 1963 in Hardy v. United States

Earl Warren:

Number 112, Zebedee Hardy, Petitioner, versus United States.

Mr. Ratner.

Mozart G. Ratner:

May it please the Court, Mr. Chief Justice.

Here on a writ of certiorari to the Court of Appeals from District of Columbia, this case presents the question whether an indigent convict confronted with the District Court finding that his appeal or would be appeal is not taken in good faith is entitled to a complete stenographic transcript to unable his court appointed counsel to search for hidden error.

For us, it is both the beginning and the end of the argument that in the federal system, in the first place under rule 52 (b) hidden error is ground for reversal.

And in the second place that a solvent defendant can provide his counsel a complete stenographic transcript to search.

That brings denial of a complete transcript to an indigent squarely within Douglas against California, “Where the errors are hidden, the indigent has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

The Governments says, “So what?”

The gap is only a product of the indigent’s poverty and Government is not required to equalize economic condition.

But when the consequence of poverty is inability to defend a criminal conviction, overcoming the disability is not to equalize economic condition.

It is to equalize the criminal justice under law.

If Government is under no obligation to overcome the disabilities of poverty when it under takes a criminal prosecution or would borrow criminal appeal, why should it have to supply an indigent with counsel or with any record at all?

Government is constitutionally required to do these things because in administering criminal justice, it must overcome disabilities resulting from poverty just as much as it practically can.

In Norvell versus Illinois, this Court held that the State was not obliged to supply a transcript because through no fault of the State, the transcript was simply unavailable.

The inescapable implication is that the transcript had been available.

The State would have been compelled to supply it.

What otherwise could we possibly mean when we claim to provide in our system equal justice under law for the rich and for the poor.

To deny a poor man the appellant review which is available to a convict with money is to mock the very idea of equality, nothing could be more damaging to democracy at home or abroad than the notion that to us, the majestic equality of which the law speaks means only that the rich and the poor alike have no right to sleep under bridges, to beg in the streets and to steal bread.

Mr. Ratner, I suggest that (Inaudible) the fact of this case?

Mozart G. Ratner:

The fact of this case Your Honor, that this poor man was denied a stenographic transcript in which his counsel could search for hidden error which a poor convict identically situated could provide to his counsel to search for error in order to defend against the charge of frivolity.

I submit that the right to take the appeal depends upon the right to search for the hidden error in a complete transcript.

And if that is withheld from the indigent conflict, he is being deprived of equal justice under law.

For whatever right of appeal from a criminal conviction, the lower courts in practice to a rich man, it must in practice and able to poor man equally to enjoy and to deny —

(Inaudible)

Mozart G. Ratner:

I’m sorry Your Honor, I didn’t hear you!

If you have gotten any case and if you (Inaudible)

Mozart G. Ratner:

Your Honor this Court is held that to deny a poor man the right to appeal for one of a filling fee, is to deny an equal justice under law.

I said that to deny poor man appeal for warrant of the opportunity to search the transcript — the trial of which he was convicted is no different to deny him the right to appeal for one of a filling fee because if he had the money to buy the transcript, if he could buy the transcript, he might be find the error and if the error is there and he can’t find it, if he had it and could appeal if he found it, you’re denying him the equal right to appeal.

The Court has also said (Inaudible) that the right to make reasonable steps to protect himself against those appeal of what — there was a contest to this case for equal protection (Inaudible).

Mozart G. Ratner:

Well, let me say at the onset and I’ll return to that in a couple of minutes in more detail, but this dispose it right now.

Mozart G. Ratner:

As far as I’m concerned, any system which makes hidden error a ground for reversal and does it reply a proper observation and notice and preservation of the point below carries with it inevitably the requirement of the opportunity to find the error be accorded.

And when you add to that, that in the federal system, alright, any state system that adds to that the rule that any paying defendant has a right to buy an opportunity to buy the whole transcript then I say juxtaposition this Court is held and I think due process and equal protection both jointly are denied by the denial to the man for indigency of the juxtaposition of those privileges to search in a complete transcript for hidden error.

William J. Brennan, Jr.:

You’re arguing this Mr. Ratner the constitutional question?

Mozart G. Ratner:

I’m arguing at a — all levels Mr. Justice Brennan on the constitutional level, on the policy level, on the level that this is the federal system and not a state system and — and matters of general (Voice Overlap) —

William J. Brennan, Jr.:

Well, I appreciate it what I’m getting to, whether eliminating this to a constitutional argument or also appealing to the supervisor?

Mozart G. Ratner:

Oh I’m feeling to supervisor power this Court as well as view the Constitution.

This argument happens to be pitched to the Constitution because I think the policy notions permeate if not that far, far enough for my purpose.

Hugo L. Black:

The main thing is you’re prevailed?

Mozart G. Ratner:

I’m sorry.

Hugo L. Black:

Main thing is you are prevailed?

Mozart G. Ratner:

That’s right Mr. Justice Black always.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Correct.

Arthur J. Goldberg:

— in order to pursue their obligations (Inaudible)

Mozart G. Ratner:

That’s right.

(Inaudible)

Mozart G. Ratner:

That is exactly right Mr. Justice Goldberg.

As a practical matter, absolutely impossible if the error is hidden, and I mean absolutely impossible if the error is hidden to find it without searching this — the transcript because by definition, if it’s hidden, the trial court doesn’t know about it.

If it escapes the trial counsel when he tried the case, he obviously hasn’t discovered it since the end of trial.

The court reporter on reading it may or may not revealed it, but the chances are he won’t because appellant lawyers know generally that the place you get your idea is by reading and pondering a transcript and not by hearing somebody talked about it.

The consequence is that you just cannot meet the yellow standard.

It’s impossible to meet the yellow for — pointed counsel meet the yellow standard without a transcript.

This is probably good but (Inaudible)

Mozart G. Ratner:

That is — that is correct.

I — my argument is pitched and I tried to indicate that to my answer Mr. Justice Harlan.

My argument is pitched exclusively to those judicial systems in which there is a plain error rule and which a transcript exist automatically for price.

Those are the two — between premises in the argument, I think they carry even a constitutional verdict.

William J. Brennan, Jr.:

May I ask Mr. Ratner, there was no en banc consideration of this on the Circuit, was it?

Mozart G. Ratner:

No Your Honor there was not.

It was a two to one decision judge may dissent.

William J. Brennan, Jr.:

Was there any application made for en banc?

Mozart G. Ratner:

I made not.

William J. Brennan, Jr.:

I’m just wondering this is — at least a part isn’t rather a local administrative matter that I —

Mozart G. Ratner:

I think — (Voice Overlap)

William J. Brennan, Jr.:

I wonder whether there was panel determination necessarily should be just positive, was it?

Mozart G. Ratner:

I think that it’s broader than a local determination —

William J. Brennan, Jr.:

Well I — I can appreciate that it is on the constitutional arguments you’re making that the —

Mozart G. Ratner:

Well, I think it is even — even —

William J. Brennan, Jr.:

Even —

Mozart G. Ratner:

— with respect for the entire federal system but it isn’t localized to the District of Columbia.

There is a Fourth Circuit decision that I went in to the other day that became down in May that carries over ton of implications by the Judge Schwellenbach and then in the opinion of the Fourth Circuit.

They too do not believe that the on counsel for indigent is entitled to a complete stenographic transcript search for error.

I think that the minimum what we invoked here is the — the power of this Court Supervisor Administrative Justice, the Administration of Justice throughout the federal system in the federal courts and not merely the District of Columbia that’s not applied there.

William J. Brennan, Jr.:

Whatever the rule is, it ought to be a common application.

Mozart G. Ratner:

Yes I believe so.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Mr. Justice Goldberg, I confess that I’m not (Voice Overlap) —

Arthur J. Goldberg:

(Inaudible) I know there is some rule that if (Inaudible)

Mozart G. Ratner:

I think that it did — well, the notion that the transcript ought to be denied in the federal system is based on the assumption that somehow converses responsible for this result.

And then I think it’s based done on misreading of 28 U.S.C. Section 1915.

The assumptions are that under that statute, the indigent unlike the solvent defendant either has the one assumed the burden of proving substantiality or to specify errors as a condition of being allowed to appeal in the form of proverbs.

Now, if either of those disparities really existed, if Congress really provided for that, then a serious constitutional question would be presented.

But copied, as we read it put an end to the first idea.

The burden is not on the indigent but on the Government to prove insubstantiality and there is nothing in the second section which lends the slightest support to the second idea.

All that Section 1915 requires is that the convict state in his affidavit, “The nature of the action defense or appeal and defiance belief that he’s entitled to redress.”

If the indigent is not required to specify errors at that stage of the case, how can it possibly be argued that Congress tried the indigents appointed counsel to those portions of the record which relate to errors that the indigent pro se has superfluously specified.

The only semblance of plausibility as we see it in the Government’s argument is that Section 1915 does say that in appeal may not be taken inform of papyrus, if the trial court certifies in writing that it is not taken in good faith.

The consequence of that provision is that where the error is hidden, the indigenous confronted with the District Court finding of frivolity before his appellant counsel has even with a chance to look at the record whereas the solvent defendant cannot be faced with a challenged on frivolity ground until his appellant counsel has either filed his statement of points on appeal or has filed his brief on the merits.

Rule 75 (b), if the federal has criminal procedures specifically provide that no assignment of errors is necessary, we take it that that is true in the form of papyrus case as much than any other.

It is only if the appellant does not designate for inclusion the complete record at all the proceedings and evidence in the action that he’s required to serve with his designation a concise statement of the points on which he intense to rely on appeal.

Mozart G. Ratner:

Now of course, before any paid lawyer would file a statement of points on appeal, he will have coned the entire stenographic record for every piece of reversible error he can possibly find.

Byron R. White:

In this Mr. Ratner, a little — different argument in the — in the plain error or the hidden error argument that you — you’re just saying that if you’re — a new counsel come in to the case at the appellant state must have the chance or the indigent is entitled to have him and look the record to see what points he wants to make?

Mozart G. Ratner:

Well, I don’t know that it’s a really different point.

What I’m — I’m suggesting that even — even counsel would try the case would be entitled to a second crack at the record.

Suppose he hadn’t seen it before, suppose that it hadn’t been prepared until the time of the appeal, he would be entitled at the time he noted the appeal it seems to me or requested leave to appeal when he came in to the — to that stage of consideration of his case.

Suppose he representative throughout, he would be equally entitled to have a complete stenographic transcript to make the initial decision as to whether he’s going to take this case up unless than a complete transcript or he wants a complete transcript because that’s going to determine whether he makes a statement of points on appeal or not.

And then he can’t do until he is studying and finding the transcript and decided what is better in — in this case.

If paid counsel has that opportunity in accordance with the Federal Rules of Criminal Procedure, if he has that and it’s worthwhile that he haven’t — and if for worthwhile he wouldn’t — rules wouldn’t provide to him, that account be withheld from an indigent.

William J. Brennan, Jr.:

Well, this is an argument then Mr. Ratner but it’s not necessary that they’d be asserted, the grounds solvents sufficiency of the evidence.

Mozart G. Ratner:

Well —

William J. Brennan, Jr.:

This is an argument that you can’t even assert that ground until you look at the whole record.

Mozart G. Ratner:

That’s exactly right.

My argument comes precise — on this point comes precisely to that.

It says that the notion that you can require an indigent as a condition of determining either a right to appeal.

William J. Brennan, Jr.:

I don’t know whether — I don’t know whether dollars are necessarily a relevant consideration here but if you get any idea that this would run into dollar?

Was there anybody?

Mozart G. Ratner:

I haven’t but there are some figures in the amicus brief and there are some figures in the — quoted in Poverty and the Administration of Federal Criminal Justice, they reported the Attorney General’s Committee.

But I am not all sure and certainly the amicus brief persuasively argued at least persuasively to me that the financial burden will not be a heavy one.

For me, I don’t reach the question because I just don’t think the United States can weigh dollar, the justice on the same scale.

We submit —

William J. Brennan, Jr.:

But nevertheless.

Earl Warren:

How long did this case take to trials, you know (Voice Overlap) —

Mozart G. Ratner:

I have no idea Your Honor.

I — I did never saw the transcript and they didn’t give it to me and the part I saw of it was very big, it was one volume.

But I can imagine that it may have been — oh there’s no point in my guessing, I don’t know.

Much what I would have known if I had gotten the transcript, I don’t know.

We submit that the minimum constitutional condition of requiring indigents to face a frivolity hurdle at an earlier state then solvent defendants have to face it, is that indigent’s counsel must be provided with the same opportunity paid counsel have to search the record for ammunition to meet such an effect.

That means that the entire stenographic record must be made available promptly to appointed counsel faced for the finding of frivolity.

The Government says this distracts the tracks unduly from the weight that was be given to the District Court’s finding of frivolity, but the Government is very significantly silent about the duty that Ellison poses both on counsel and on the Courts of Appeals to search diligently for error with which to upset the District Court.

It is that word as — we remarked, determined colloquy with Mr. Justice Goldberg which this Court has never envisage it seems to me before in this context in which requires the result for which we contempt.

Mozart G. Ratner:

Restriction of transcripts to indigents explained as a safeguard against the wasteful abuse of the appellant process.

But as long as the plain error rules stand withholding a full transcript from indigents could be justified only if there were some connection between the defendant’s solvency and the potentiality of unnoticed error so that there would be less chance on hidden error in indigent’s cases than in other.

Well, there is a connection, alright, but it works just the other way around.

This Court observed in Coppedge that forma pauperis defendants are generally less ably defended in the trial court than solvent one.

Therefore, it is more not less likely that the records in the case of the indigent will contain unnoticed plain error.

Obviously therefore, to make ability to pay the test for opportunity to search a record for unnoticed error is that their impunity of invidious discrimination.

Of course as I say, our argument would have no relevancy in a judicial system in which no appeal can be taken except for errors noted and preserved the law.

This, we think, is all this Court had in mind when it reaffirmed in Draper versus Washington, Griffin statement that a state did not provide parts of the stenographic transcript which are not germane to an appeal nor our courts need we be concerned about problems which may exist when transcript tuck unavailable, for Congress is to make sure that in the federal system, transcripts are available, and where a transcript is available, Government must supply it.

Every appellate lawyer knows that in searching for hidden error, there can be no substitute for a stenographic transcript.

Thank you.

Earl Warren:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

At the outset, I’d like to bring the case back down to focus if I may and suggest that the question presented here is how likely is it that an injustice will result in these types of cases if a complete transcript is not granted solely on the allegation that the appellate counsel wants to search it for error.

It seems to me, it’s that likelihood or unlikelihood, it must be weighed against the cost and against the probability of a wealthy defendant obtaining the same transcript under the same circumstances.

Earl Warren:

Let me know how long this trial took place?

Louis F. Claiborne:

Yes, Mr. Chief Justice, it’s stretched over three days though the indications to me all that it probably did not take three full days.

For instance, the transcript of the Government’s case which was supplied to the petitioner here is only 49 pages long.

Earl Warren:

49 pages.

Did the defendant put in much of a defense?

Louis F. Claiborne:

Only two witnesses so far as I may — could ascertain which would indicate perhaps no longer transcript of — is portion of the evidence.

In addition to which, the quests includes, however, wider examination of the jury, the arguments of counsel charged of the judge.

Hugo L. Black:

But was this taking stenographical error that they have some kind of dictating machine that can be used?

Louis F. Claiborne:

That I’m not aware Mr. Justice Black.

My impression is that it was taken stenographically but that’s — I think the odds would be in that direction in view of the practice in the District Court in District of Columbia.

I think it varies from court-to-court, with reporter, from reporter-to-reporter.

Hugo L. Black:

Of course there could be a question if use — they took it down where the machine could be a question as to whether Government could be advised to transcribe them.

Louis F. Claiborne:

Yes.

But as I understand my opponent’s argument, however, he would be satisfied with listening to a transcription that — mechanical transcription, if one had been made.

He would insist —

Hugo L. Black:

We don’t have to decide that case?

Louis F. Claiborne:

No, no, it’s correct sir.

But the record in this case is not reflecting what manner of the testimony was transcribed.

At the outset, I’d like to emphasize that the request here for a transcript to search for error necessarily means that a transcript would be available, must be made available to every indigent in every case.

Obviously, if the indigent —

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

Well —

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

It may not be but at least, it is important I think, to — to point out that it’s not only those defendants who claim inability to allege error and who must, therefore, have a transcript to search for error, would be entitled to a transcript.

But surely, those who assign error, should by the same standard of equality, be entitled to the remaining transcript to search for additional error.

The notion that a complete transcript should be made available in every case is clearly contrary to every decision on this subject which this Court has rendered thus far.

Mr. Justice Goldberg point out that the Draper decision, which I cite in support of this proposition, involved the jurisdiction which plain error was not noticeable.

That, however, can hardly be said to distinguish Johnson involving the federal courts and Coppedge which clearly implies that only — it says — that only such portions of the transcript as are necessary to evaluate the claims actually made, need to be finished.

All of that would have been unnecessary I suggest if a full transcript is required in every case.

Likewise Griffin versus Illinois makes it clear that a full transcript is not required in every case.

It is also clearly contrary to the policy of Section 1950 to acquire a transcript, a full transcript in every case.

Technically, I suppose that the granting of the transcript is not the same as the granting of the appeal.

No argument on that basis has been made.

However, the statute insofar as it addresses itself to the question of a record at all seems to talk of the record being granted after the trans — after the appeal has been granted.

Likewise, Section 753 (e) of Title 28, envisages a transcript granted after lead to appear in forma pauperis.

In the court below, seemingly recognizing the — this problem uses the form whereby they grant the appeal to the extent to requiring the Government to furnish such and such portion of the transcript in this case, the whole of the Government’s evidence.

The most important hurdle to overcome it seems to me in Section 1915 is the prohibition on appeals in forma pauperis where the trial judge has certified that the appeal is frivolous and not taken in good faith.

Arthur J. Goldberg:

(Inaudible) where the Government (Inaudible)

Louis F. Claiborne:

Not at — not in all cases, no, Your Honor.

Arthur J. Goldberg:

It’s not all (Inaudible)

Louis F. Claiborne:

No, if it were, I don’t think Government would make any argument about making available their copy or a carbon copy to the — to the indigent.

That Government itself, sometimes later on at the appellate petition stage may for its own information required a transcript which in forma pauperis cases, it usually files in this Court for instance, an opposition to petition.

Yes, it did (Inaudible)

Louis F. Claiborne:

In logic cases.

But I don’t think Your Honor in the case of this sought which took two or three days if there would be any — reform any useful purpose to be said by daily transcript.

Nor do I think that the defense attorney, even with all of his clients’ funds that is disposal would require a daily transcript in this sort of short case.

Earl Warren:

Mr. Claiborne, under the practice in the District of Columbia, is there any alternative procedure by which a — an appointed counsel for an indigent and perhaps ignorant defendant might be able to — to determine whether there is hidden error in the case?

Louis F. Claiborne:

I — he is, of course, free to interview trial counsel, his own client, the judge, the court reporter and he may be able to under some circumstances, have the court reporter read back to it in the transcript the notes or the stenographic recording if there had been one.

I know of no such common practice, take it in this case, no such request was made and the argument made to Your Honors about the petitioner is that that alternative would be inadequate in any event.

Earl Warren:

Do your — do the appointed counsel for these defendants had the right to demand to the court reporter that he takes his time to read back the transcript in each case?

Louis F. Claiborne:

I can only say to Your Honor that there is no statutory provision one way or the other, that to my knowledge, a court reporter has not refused to accommodate the attorney for an indigent when such request was made, but I’m frank to say that I don’t know how often such request has been made.

Earl Warren:

Probably that’s not made because it can’t be obtained.

Louis F. Claiborne:

I’m not —

Earl Warren:

Is that possible?

Louis F. Claiborne:

I’m not sure that that’s the justified assumption Mr. Chief Justice.

William J. Brennan, Jr.:

Mr. Claiborne, we really ask a lot of non-compensative counsel, don’t we?

Earl Warren:

I’ll say.

William J. Brennan, Jr.:

And now, I’ll put on in the burden of going around and interviewing everybody and move the transcript, it didn’t strike me as the soundest argument you have?

Louis F. Claiborne:

Well, Mr. Justice Brennan, we must remember that we’re dealing with an unusual case in which counsel after the interviews which he would undertake in any event that is an interview of his own client and of the trial attorney, I presume he would do that with or without a transcript, still can make no allegation of error which he himself can label as non-frivolous.

Now, at that point, it is not likely especially in the face of the certificate from the trial judge that there is so-called hidden error.

And perhaps, I should suggest that plain error rule is not fully applicable here.

Rule 52 (b) covers errors which are not timely noticed but which may very well in the memory of the trial attorney come to his mind.

He may remember that he should’ve objected at one point when he didn’t and the plain error rule will protect him but it’s not necessary that he referred his (Voice Overlap) —

William J. Brennan, Jr.:

Tell me what happens?

Suppose — suppose he’s got all through this interview process after talking with the defendant, the witnesses, the judge and court reporter, he concludes that there’s a serious question whether the Government had presented sufficient evidence to support a conviction.

He makes that assignment of error.

How does he support it on the appeal without a transcript?

Louis F. Claiborne:

I think — at once, he has made that assignment of error Your Honor.

He will be furnished a transcript —

William J. Brennan, Jr.:

Automatically?

Louis F. Claiborne:

Without opposition from the Government and under the rule of the Court of Appeals for the District of Columbia at least in the Ingram case, his allegation no matter how conclusory, no matter how unsupported, provided it is a specific allegation of error will earn him so much of the transcript as is necessary —

He got that (Voice Overlap) —

Louis F. Claiborne:

— to dispose of their claim.

Didn’t he get that kind of a transcript in this case?

Louis F. Claiborne:

In this very case, the petitioner said —

William J. Brennan, Jr.:

As of — as of the Government’s evidence.

William J. Brennan, Jr.:

Government evidence.

Louis F. Claiborne:

As to the Government’s evidence on the claim of insufficiency of the evidence which normally would be tested out for the Government’s proof.

He did not come back and say, this is insufficient for me to judge the substantial — the sufficiency of the evidence.

William J. Brennan, Jr.:

Well may I ask, is the practice and factors that if counsel with or without interviews, assigns as a ground of appearance, sufficiency of evidence automatically without further inquiry.

He gets a transcript to the Government’s proof?

Louis F. Claiborne:

Well, I’ve — I should say to say to Your Honor that the present practice in the District of Columbia Circuit under the Ingram decision, is to assign counsel and to furnish at the one and the same time such portions of the transcript as seem necessary to evaluate the pro se claims of error made by the indigent which normally or often includes one of insufficiency of —

William J. Brennan, Jr.:

But he usually says, “I wasn’t guilty.”

Louis F. Claiborne:

Yes.

William J. Brennan, Jr.:

And I suppose that carries with it the legal jargon, wasn’t enough evidence to convict.

Louis F. Claiborne:

At that point, counsel is then free to — as traditional transcript, if he can in good faith, make additional claims of error based on his investigation or based on his examination of the question that has (Voice Overlap) —

William J. Brennan, Jr.:

Of course to the situation in this case presents does it?

Louis F. Claiborne:

At — this case is decided before this new practice.

William J. Brennan, Jr.:

I see.

Louis F. Claiborne:

But nevertheless, counsel initially suggested insufficiency of the evidence as had the petitioner on that basis he was given a transcript to the Government’s evidence.

He then returned to the Court and said, on that basis of my examination of this transcript, on the basis of my interview of trial counsel and of my client, I can make no claim of error whatever, in effect of abandoning his claim of insufficiency of evidence.

But, there may well be some plain error which a full transcript would disclose.

William J. Brennan, Jr.:

On description of evidence or overzealousness by the prosecutor or erroneous charge or something like that, (Inaudible).

Louis F. Claiborne:

We do point out that he did not exhaust the investigation which he might have undertaken.

No indication that he approached the court reporter of — or the judge or any witness in the case, nor did he furnish the Court of Appeal with any summary of the cases he had been able to reconstruct it from the infuse he did conclude, leaving the Court of Appeal in the position of having to rule abstractly as this Court perhaps is forced to rule abstractly whether in any case, it is sufficient to say, “I want a transcript to search for error.”

Arthur J. Goldberg:

Mr. Claiborne, (Inaudible)

Louis F. Claiborne:

I must —

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

I must concede Your Honor that it is a burden on appointed counsel to make this investigation.

I would suggest that in a great many cases, a conclusory allegation of error can be made without exhausting all available avenues and the Court does not require counsel to exhaust all other investigation.

If he can on the basis of one interview, say I have good cause to believe that the evidence may have been insufficient, the Court will promptly grant him transcript to at least the Government’s evidence.

Suppose one must start with the premise that the Congress has spoken on this subject and right here only, has limited the transcript in respects that he’s now being contended and should not tolerated.

And therefore, a real question is here, whether or not that limitation by Congress is unconstitutional or whether as an exercise of supervisory power.

The Congress having rejected this broad formula, this Court always step into the picture, that’s the real essence of this problem, isn’t it?

Louis F. Claiborne:

Exactly Your Honor.

I would say that I — here in a sense more on behalf of Congress so the Department of the Treasury then the Department of Justice.

Louis F. Claiborne:

A point of view of the Department of Justice, it might be most desirable to have a transcript in every case.

I would say.

Louis F. Claiborne:

Also the Government’s benefit and for the benefit of the indigent, and it would spare the Government the need of filing oppositions to motions believe to have a transcript of leave to appeal.

In answer to Mr. Justice Goldberg’s question, it is I understand the practice in the District of Columbia, a practice initiated by the United States Attorney.

Earl Warren:

Would you talk a little louder please?

Louis F. Claiborne:

I’m sorry.

A practice initiated by the United States Attorney not to oppose the granting of a complete transcript in any case in which the cost thereof would not exceed $200 which is a practical matter and usually it means, any case tried in less than three days — in three days or less.

The Court I understand inevitably grants such a transcript upon the Government’s failure to object.

Earl Warren:

Well, does that seem fair to put a price tag on — on these things — on these transcripts and say that if a — if a defendant has a short trial, it only takes a day or two where there’s perhaps little opportunity for air, if he’s entitled to a transcript or that if he has a rather long, hard-fought trial where error often is committed?

If it is committed, that he’s not entitled to the same thing, is that — do that seem reasonable?

Louis F. Claiborne:

No, I must agree with you Your Honor that there is no basis in terms of equality for distinguishing between the short trial and the long trial.

Earl Warren:

Why do they do it there?

Louis F. Claiborne:

It is simply that we do the best we can now.

It has been determined that in terms of cost to the Government, it is no more expensive to have the transcript prepared than to file the opposition and waste the time of the Government attorneys and of the court in judging this motion without the benefit of the transcript.

Earl Warren:

Well, has Congress intimated that in the long, hard-fought trial, a defendant is entitled to — to less protection than he is in a — in a short probably, very simple trial?

Louis F. Claiborne:

Mr. Chief Justice, I don’t want to suggest any impropriety on the part of the United States Attorney’s Office but I’m — I’m not sure that their procedure informal as it is, is authorized by the statute.

I agree that the statue makes no distinction between expensive and cheap transcripts and therefore — or perhaps if it were a question of the Government’s taking any active role in furnishing a transcript in one case or the other, it would be improper.

All they actually do is not file an opposition and the Court, by its order, tested understanding I suppose grants the transcript in those cases, on the ground that their cost factor is no longer an important element to be weighed in the balance.

(Inaudible)

William J. Brennan, Jr.:

Qualify within that —

Earl Warren:

Yes.

William J. Brennan, Jr.:

I notice here that as — as report of the Mr. Clark Committee, a transcript of a three-day trial will generally cost less than $200 to prepare —

Louis F. Claiborne:

That —

William J. Brennan, Jr.:

— I thought — you thought this trial probably did not take three-full day.

Louis F. Claiborne:

You — you’re quite right Mr. Justice Brennan.

And the explanation is that the practice is — came after this case.

William J. Brennan, Jr.:

Oh I see, this new practice.

Louis F. Claiborne:

This case in fact in many respects, is the very strange animal.

It could not occur today under the practice of the Court of Appeals.

William J. Brennan, Jr.:

Well suppose we send it back to the District and we consider and let it the practice that of (Voice Overlap) —

Louis F. Claiborne:

That is precisely the disposition which the Government has suggested.

William J. Brennan, Jr.:

Oh I didn’t notice that.

I mean if (Inaudible) probably get it.

Earl Warren:

Well, would not be put in the stamp of approval on what you, yourself have said, is not a fair differentiation?

Louis F. Claiborne:

I don’t suggest that on remand, the transcript would necessarily be granted.

The Court in the Ingram case itself, in which it announced the new rules said, this is for the future and now as to the cases in the past, we must require counsel to make some claim of error.

That never happens today because the indigent pro se makes some claim of error before his counsel has a chance to disavowing and therefore, he gets some transcripts.

Under the new practice, this result had been happened.

I will say, in answer to the Chief Justice that we do feel it necessary for the Court to determine before remanding this case that it should agree with us, that there is not a right to a complete transcript in every case, merely to search for error.

If the Court should agree with the petition on that proposition, there would be no purpose served in remanding the case.

Now, as to —

Hugo L. Black:

If the charge that’s been in the transcribed, was anything transcribed in this particular case except the Government’s evidence?

Were the preliminary proceedings transcribed?

Louis F. Claiborne:

There was a motion to suppress the evidence which was transcribed and was made available before trial to the petitioner and he’s then — his trial counsel.

We reproduced in appendix to our brief the indictment and the judgments.

Byron R. White:

Mr. Claiborne, the uses — would you have one rule for cases of which trial counsel is the appellate counsel also in one — the different rule for cases where your appellate counsel had been assigned?

Louis F. Claiborne:

I wouldn’t think Mr. Justice White, that there would be justification for such a rule where appellate counsel is — where a trial counsel is freely available to appellate counsel.

If any error — well, let me put it the other way, if the trial counsel is unavailable, then there is reason to afford appellate counsel another method of learning something informative about the trial from someone who was in position because a lawyer to appraise it properly.

Byron R. White:

Such as the transcript.

Louis F. Claiborne:

Such as the transcript and then the Court of Appeal has recognized that in a case where trial counsel had died, the United States Attorney who is normally consulted had left Government service, then the Court realized that the only practical way for appellate counsel to do his job was on a full transcript which the Court did order.

But in very Ingram case, the case which follows this one and the light of which we suggest this case should be remanded, the Court distinguished between that unusual situation where trial counsel is no longer available and the normal situation where he can be consulted.

William J. Brennan, Jr.:

Mr. Claiborne, certainly, there’s pending legislation on providing trial counsel, as I recall it has provisions of one kind or another for the expenses of discovery of discovering that sort of — I take it at that legislation has nothing in it which bears on our problem, does it?

Louis F. Claiborne:

I think not, Mr. Justice Brennan, but I — I must submit that I have not researched it.

I think I should point out in conclusion that there is a realistic chance that by granting a transcript to every indigent defendant, whom is unable to make any claim of error despite consultation with his client and with trial counsel, and in the face of a certificate of frivolity by the trial judge will be given more than the moneyed defendant.

That chance seems to me, at least equal to the chance of an injustice resulting from the denial of transcript under these unusual circumstances.

In the best of all possible wills, everyone, rich and poor, would be given a free transcript but no one has suggested that nor would that be by any stretch of the imagination possible under the existing statutes.

Earl Warren:

That has been done in my State for over 50 years —

Louis F. Claiborne:

And that might —

Earl Warren:

— in my own personal knowledge.

Louis F. Claiborne:

Mr. Chief Justice that is a truly equal rule.

Earl Warren:

As in bankrupted of the State either.

I doubt — I doubt if we have many more appeals in California than they have in other jurisdictions that supply no transcript when they can get out of it.

Louis F. Claiborne:

But there is a difference between that rule which treats everyone alike, truly treats everyone alike and the rule which requires the man with money who is unable to make the affidavit of poverty to weigh the — how worthwhile it is to pay for a transcript.

He may well decide unless his sentence is severe or unless his attorney advises him that there’s some real point in appeal not to buy transcript merely on the hope that some error will be found there.

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

I suggest Your Honor that it does not fully answer the question to say that indigent appeals are not frivolous.

Certainly, there have been many indigent appeals which are well-taken.

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

I — I think Your Honor had it any criminal penalty or severe criminal penalty as opposed to a light one.

And that would get in — get us into another problem whether there was any basis for distinguishing between the man who had a 10-year sentence to the man who only had a two-year sentence.

May I ask you a question Mr. Claiborne?

Assuming that (Inaudible)

Louis F. Claiborne:

I think the Court would insist on counsel’s giving the Court a little more information.

If he gave the Court more information about the case and still insisted that he was unable to discover any basis for error, having already received the Government’s evidence, I think the Court might well deny any further transcript, and ultimately might well deny the appeal after looking at the Government’s transcript.

On the other hand, that decision, Ingram was a two to three decision — a two to one decision.

Dissenting view was that the new rule should be applied retrospectively and that view may very well prevail on the remand of this case.

In which event, since the petitioner pro se made sufficient allegations to require in the entire transcript, he would receive an entire transcript.

I can’t confidently predict what would happen in the Court of Appeal.

One question I think, I should in or kindly advise the Court as to the cost of indigent transcripts, it has gone up very measurably from — in 1960, the Administrative Office advises me the cost of the transcripts in criminal cases to indigents criminal cases involving United States of course 74,500, last year, fiscal 1963, $145,000.

William J. Brennan, Jr.:

Is this a district only?

Potter Stewart:

Nationwide is it?

Louis F. Claiborne:

It’s a nationwide.

William J. Brennan, Jr.:

Nationwide.

Earl Warren:

I see.

Louis F. Claiborne:

That — to that must be added the cost of printing joint appendix of the cost are involved in processing these appeals but the cost of joint appendix would not exceed about $20,000 under — assuming the number of appeals provided here.

This has nothing for the cost of a program which would allow every case be prosecuted with a full transcript.

Earl Warren:

Mr. Ratner.

Mozart G. Ratner:

May it please the Court.

To me, the one thing that Mr. Claiborne’s discussion of the shifting sands of Court of Appeals policy has done is to demonstrate that there is no basis for the assumption which Mr. Harlan indulged when he asked Mr. Claiborne what this case was about.

Namely, whether assuming Congress has spoken on this subject, then are we who reverse Congress.

Mozart G. Ratner:

If Congress has spoken on this subject, how does it happen that the Government and the Court of Appeals can decide to grant indigents without making anymore claim of error than has been made in this case, a full transcript if the cost is under $200 but not if it’s over it?

Where in the statutes does it say that it equals an appeal to give a transcript if the cost is under $200 but it doesn’t equal an appeal if the cost is over $200?

Where in Section 1915 or any other statute of the code does it say that in order to honor the District Court’s certificate of frivolity, you must deny a transcript to an indigent in order to permit his counsel an opportunity to prove that the District Court is wrong?

The fact to the matter is that this policy of the Court of Appeals are requiring counsel to come forward with some assurance to the Court that they have done a job of investigation.

It seems to me, it can do nothing but to lead, to invite something less than complete candidate for counsel.

How can counsel in good faith say that there’s a substantial basis to allege that there is inadequate evidence in the record that the District Attorney has been unduly pierced in his attack upon the defendant if he hasn’t read what has been said?

Whose word is he to take of this?

Is this the way we expect lawyers to operate?

Is this the kind of representations to the Court have a right from expect from Bar?

I don’t believe it and I think that to avoid what to me is an unseemly business, this Court in the exercise of its supervisory power should demand that lawyers’ function in a way that appellate lawyers always function.

By reading a transcript, they can possible lay their hands on it in making statements based on fact instead of hypothesis and suspicion.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

I believe that that’s correct Mr. Justice Goldberg, but I can’t answer that at my own knowledge.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

You — you are probably right.

I — I just can’t —

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

What I suggest to the Court, Congress really has decided.

It’s the problem that Mr. Claiborne would set it large.

Congress has really decided the defendants who can afford to pay for transcripts should pay for it.

And by allowing indigents to appeal, whenever they haven’t got a frivolous case, Congress has necessarily decided by implication that the Government could — should pay for their transcripts because without it, we just cannot know whether their case is frivolous or not.

Thank you.

Earl Warren:

Mr. Ratner, I understand you’re reported by the court below to represent this indigent — indigent appellant and you represented him there and here and I want you to know that the Court appreciates that kind of service on the part of employers.

It’s a public service and one must — well-done.

We thank you very much.

And Mr. Claiborne, I thank you for your very fair, frank representation of the Government in this case.

Mozart G. Ratner:

Thank you very much (Inaudible).