Long v. District Court of Iowa, Lee Cty.

PETITIONER:Long
RESPONDENT:District Court of Iowa, Lee Cty.
LOCATION:U.S. District Court for the Southern District of California, Central Division

DOCKET NO.: 77
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 192 (1966)
ARGUED: Nov 09, 1966
DECIDED: Dec 05, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – November 09, 1966 in Long v. District Court of Iowa, Lee Cty.

Earl Warren:

No. 77, Lawrence Long, petitioner v. The District Court of Iowa in for Lee County, Fort Madison Island.

Mr. Carlson?

Ronald L. Carlson:

Mr. Chief Justice, may it please the Court.The petitioner, Your Honor, in this case is an indigent inmate at Fort Madison Penitentiary in Iowa and I have been appointed by this Court to present his course to the Court.

Petitioner, Mr. Long was arrested in Iowa on April 9th of 1963.

On April 10th he was taken before the Justice of the Peace where his preliminary occurrence.

At that time, he was not represented by counsel and as the record shows in the case, a plea of “guilty” was recorded.

The petitioner being indigent, Your Honors, was incarcerated for some six months before he came up for trial in October of 1963.

At that time, no less than 11 questions were directed at the petitioner concerning admissions that he made at the preliminary hearing.

Some of these questions were objected to and the objections were sustained but others he was forced to answer.

He was convicted of larceny in Iowa and the jury there sets the amount of the thing in value which he stole in this case, it was a pump which was valued at $25.

He was sentenced to four months in penitentiary for a term not to exceed five years.

William O. Douglas:

Did he ever counsel during the trial?

Ronald L. Carlson:

Yes, Mr. Justice Douglas, he had appointed counsel at his trial, and this was only trial.

Now his court-appointed counsel did, Your Honor, appeal the case but the appeal did not raise the White vs. Maryland point which we have urged to the Court that exists on his habeas corpus claims here.

The appeal on the case involved itself for the lack of speedy trial.

The Iowa Supreme Court deemed his delay regrettable in getting to trial but affirmed his conviction and thereafter, well, at Fort Madison Penitentiary, he filed the action which now brings this cause to the Court.

He filed a Petition for Writ of Habeas Corpus, alleging certain claims including the fact that his court appointed counsel was incompetent and that he was denied his White vs. Maryland rights at the preliminary hearing.

The Lee County District Court, which is the county wherein Fort Madison Penitentiary is located, set the case for an evidentiary hearing and the cause came on for evidentiary trial at which time witnesses were called and evidence taken on the petitioner’s habeas corpus claims.

The Lee County District Court dismissed the petitioner’s application for habeas corpus in an order stating that the petitioner had not carried the burden or for other reasons the claims were not viable.

The petitioner filed a timely Notice of Appeal from his denial of habeas corpus and thereafter filed an Application for a Transcript of his evidentiary hearing for purposes of preparing a meaningful appeal on the habeas corpus denial to the Supreme Court of Iowa.

The Lee County District Court passed upon the Application for Transcript and it stated in an Order denying the Application for Transcript that habeas corpus being a civil proceeding in Iowa, there was no right to the transcript of the evidentiary hearing.

Petitioner then filed a Petition for Certiorari to the Supreme Court of Iowa — his appeal is still pending at this time, Your Honors — requesting that the Supreme Court of Iowa enter an order directing that he receive a transcript of his evidentiary hearing.

The Supreme Court of Iowa at this time summarily denied his Application for Certiorari, citing to the case of Waldon vs. District Court.

In the cited case, the Waldon case, credence was again given to the civil label of habeas corpus.

As a means, we submit of denying constitutionally protected rights.

Petitioner then filed a Petition for Certiorari to this Court and the matter comes on for hearing on the question of, is the petitioner entitled on an appeal from a habeas corpus denial to a transcript under equal protection of the law?

Abe Fortas:

Mr. Carlson, at any time, did they, in any of these proceedings, did the petitioner receive the transcript?

Ronald L. Carlson:

Yes, he did Your Honor.

When he took his direct appeal from the District Court where he was convicted on his felony of larceny to the Supreme Court of Iowa, he obtained a transcript of the original trial.

Abe Fortas:

Well then, that’s what he wants here?

Ronald L. Carlson:

No, Your Honor.

What he wants here is a transcript of the habeas corpus trial, the evidence presented on habeas corpus.

Potter Stewart:

And what were the issues on the merits of the habeas corpus trial?

Ronald L. Carlson:

Oh, there were basically four issues at that time, Mr. Justice Stewart, including that he did not have counsel at his preliminary hearing.

At which time, a plea of “guilty” was recorded and he was interrogated on his original trial as to admissions made at the preliminary hearing.

Abe Fortas:

Excuse me.

Ronald L. Carlson:

Yes, sir.

Abe Fortas:

Was the transcript after this trial before the court on habeas corpus?

Ronald L. Carlson:

No, it was not, Your Honor.

Potter Stewart:

It could have been brought to the court —

Ronald L. Carlson:

It could have been, Mr. Justice Stewart but counsel is not provided on habeas corpus in Iowa and this was not presented to the court.

Our point here is this, however, Your Honors, the original trial transcript would not reflect the particular point raised in habeas corpus here, that is, the original transcript would not reflect whether or not Long was —

Potter Stewart:

He had counsel on this preliminary hearing?

Ronald L. Carlson:

He was represented in the preliminary hearing, right, Your Honor.

And this could only have been developed, we submit by evidentiary matter presented on habeas corpus on which point of evidence was taken and that issue was resolved against the petitioner on habeas corpus.

Potter Stewart:

That is that he had had counsel or —

Ronald L. Carlson:

Yes, yes.

Potter Stewart:

— that something damaging had happened at the preliminary hearing.

Ronald L. Carlson:

No, no, Your Honor.

The issue was decided factually that he had had counsel at preliminary hearing.

Potter Stewart:

On the basis of what kind of evidence?

Ronald L. Carlson:

Well, as I recall, there was evidence presented by the county attorney from the county which had convicted Long.

I believe another police officer had testified on the point and Long himself testified contradictory matter on it, Your Honor.

Potter Stewart:

But — so that was a factual issue?

Ronald L. Carlson:

Yes.

Potter Stewart:

— resolved by the habeas corpus court.

Ronald L. Carlson:

Now on review, the Supreme Court of Iowa must adjudicate whether this finding is supported by substantial evidence in the record and our point is, that the reviewing court cannot (Voice overlap)

Potter Stewart:

— on the record before?

Abe Fortas:

It’s not that jurisdiction — you are not depriving an appeal the proof of the essence of the transcript?

Ronald L. Carlson:

There are two propositions that apply here, Your Honors.

Ronald L. Carlson:

We take the position that under Iowa Rule 340a which we have cited the Court to that the rule does call for the filing of a transcript to present any evidentiary record to the Iowa Supreme Court on an appeal of this kind.

Now the attorney general takes the position here that Iowa has in several indigent cases, permitted the indigents to type up from memory of their own narrative of the facts and therefore, it is not necessary that the attorney general contends to file this transcript.

However, it’s our position that the informal waiver on a few prior unreported cases does not constitute a standing waiver or notice to this indigent that he need not file the transcript which is called for in that rule.

Byron R. White:

Was a testimony of where the proceedings taken down?

Ronald L. Carlson:

Yes, it was.

They were —

Byron R. White:

Is that customary in Iowa in habeas corpus?

Ronald L. Carlson:

In a District Court matter, court reporters are always provided, Your Honor, and there’s no exception to that.

Byron R. White:

And has the transcript been made?

Ronald L. Carlson:

Yes, it has.

The appeal has not been heard by the Iowa Supreme Court?

Ronald L. Carlson:

No, Mr. Justice Harlan.

That appeal is still pending.

They thought that the transcript was necessary in order to enable them to deal with this White against Maryland and they have prior order as well.

Ronald L. Carlson:

Yes, they would although they have, as I say, denied our application for that transcript.

The petitioner himself tried to obtain the transcript.

Central to our position here, Your Honors, is the point that appeal is a matter of right in habeas corpus in Iowa.

The petitioner (Inaudible) was able to appeal his denial of habeas corpus and obtain full and meaningful appellant review.

The petitioner, Mr. Long — the indigent and Mr. Long’s position is precluded from doing that.

He – basically, he is in the position, we submit, of the petitioner in Lane vs. Brown or the defendants in Griffin vs. Illinois being foreclosed from meaningful appeal because of the lack of transcript.

And, we submit that it is clear the Griffin is made applicable for post-conviction remedies by virtue of Smith vs. Bennett, which case arose out of our jurisdiction as well as Lane vs. Brown.

Now the question is, is a transcript necessary to obtain meaningful review from your habeas corpus denial?

Well, the Iowa Supreme Court has recently passed on this connection in connection with direct appeals.

In the case of Weaver v. Herrick, which I have cited in my Brief, the Iowa Supreme Court was presented with the question, what is necessary for meaningful review under the Iowa rules?

And the Court said in Weaver vs. Herrick that to provide the indigent with any kind of meaningful appeal under the Iowa appeal rules, a full transcript is necessary.

That is the rule on Iowa on direct appeals.

Question is, why does a different rule prevail in habeas corpus?

The reason is, we submit, because of a continuing misconception of the habeas corpus process.

We point out that in Mr. Justice Clark’s opinion, representing the unanimous consensus of the Court in Smith vs. Bennett, Court said that the choice of labels should not continue to persist as a means for suppressing constitutionally protected rights.

However, even after that decision, as we pointed out, the use of the civil label continues to persist to suppress rights which are necessary in this case to obtain meaningful appeal.

Ronald L. Carlson:

Now, the counsel for the respondent here has raised some possible substitutes for a transcript.

We submit that these are inadequate that they in no way give the indigent petitioner as meaningful appeal as the petitioner with funds, first of all, use of the original trial transcript, which may be available to the petitioner here.

This will not reflect claims not contained within the trial record itself.

Such things perhaps as prejudicial pre-trial or during trial publicity which may not be in the trial transcript and may be far from erasable from habeas corpus.

Such things as threats or corrosions on a defendant which will not show up in the printed pages of the record, may properly be raisable in habeas corpus and therefore, the trial transcript would not operate there.

Are there issues as a kind of that?

Ronald L. Carlson:

The issue of that kind, no, Your Honor.

Those are matters that I’m simply using to illustrate the point.

The point that is involved here is, however, this White vs. Maryland point which does not show up in the trial transcript which is a point in this case.

And I must say the attorney general here has commendably, upon the review of this record, basically conceded the point that it appears that there was a White vs. Maryland violation here.

That will not be in the trial transcript.

Therefore, an evidentiary transcript –

Potter Stewart:

The transcript you say was in the habeas transcript?

Ronald L. Carlson:

No.

Oh, excuse me, yes, Your Honor –

Potter Stewart:

— as a trial transcript.

Ronald L. Carlson:

Right.

Potter Stewart:

But a record was made at the habeas hearing, is that it?

Ronald L. Carlson:

That is exactly, Mr. Justice (Voice overlap).

Potter Stewart:

And the issue was resolved against the petitioner, right?

Ronald L. Carlson:

Against the petitioner.

Potter Stewart:

As an appeal from the resolution of the issue against petitioner Joan (Inaudible), is that it?

Ronald L. Carlson:

That’s right, Your Honor.

Potter Stewart:

And you say you can’t do that effectively except as you have copy of the habeas transcript?

Ronald L. Carlson:

That’s right.

We cannot review whether the trial Court was correct without that transcript.

Abe Fortas:

When is this concession of appeared?

Just tell me, is it in your Brief, or the record or –

Ronald L. Carlson:

Yes, there is reference to it in the record or in the Brief, Your Honor, of the respondent and I have also alluded to that in my Brief.

Abe Fortas:

But did the Attorney General’s Office make that concession at the habeas proceeding?

Ronald L. Carlson:

Oh, no, Your Honor.

Abe Fortas:

Just in this Court.

Ronald L. Carlson:

Just in this court.

Abe Fortas:

Thank you.

Ronald L. Carlson:

That’s right.

William J. Brennan, Jr.:

Well, let’s see if I understand the concession –

Ronald L. Carlson:

Sure.

William J. Brennan, Jr.:

As the one I am looking at the page 5 of the State’s Brief.

While the trial Court erred in its reason for denying the transcript, it doesn’t necessarily follow that the Supreme Court can — we contend that the real issue is, whether the petitioner can obtain adequate appellate review without a free hearing transcript.

Ronald L. Carlson:

No, that is not the reference, Mr. Justice Brennan.

William J. Brennan, Jr.:

Which was it?

Ronald L. Carlson:

If you go to page 20, please of the respondent’s Brief –

William J. Brennan, Jr.:

Twenty?

Ronald L. Carlson:

Yes, Your Honor, page 20.

As the record reflects, Long was brought before Justice of Peace of W. Minor for a preliminary hearing.

At which time, he entered a plea of guilty.

William J. Brennan, Jr.:

Now that’s the trial record, is it, or is that the habeas corpus?

Ronald L. Carlson:

No, Your Honor.

What I did when I prepared the record here, I got the Justice of the Peace transcript and that is the record — it’s the record before this Court that we are referring to; not the trial record but the Justice of the Peace Papers.

William J. Brennan, Jr.:

Right and as well not the habeas record here.

Ronald L. Carlson:

Right.

William J. Brennan, Jr.:

Okay.

Well, there’s a private concession it says that the admission of guilt was initially the guilt usually was not represented.

He probably is entitled to relief in habeas.

Is that what you are referring to —

Ronald L. Carlson:

Yes, this is what I’m referring to on page 20, Your Honor.

But is a concession an admission of the fact —

Ronald L. Carlson:

Yes, sir.

But not a concession of court of law.

Ronald L. Carlson:

And that particular point of fact was, as I say, resolved against the petitioner in the habeas corpus proceeding.

Ronald L. Carlson:

That is, the District Court for Lee County found that he didn’t in fact had counsel.

Potter Stewart:

Now, Mr. Carlson, what you referred us to is an admission by the State of the fact that he was not represented by counsel for the preliminary hearing?

Ronald L. Carlson:

Yes, sir.

Potter Stewart:

I thought you told me that you needed the transcript to establish that fact because that didn’t appear in the recent trial record; it did appear in the habeas record.

Ronald L. Carlson:

What the habeas record shows are the conflicting evidentiary matters on whether or not he had counsel at preliminary hearing.

Potter Stewart:

Well, here’s a concession that he was not represented to that by counsel.

Ronald L. Carlson:

Your Honor, that would be splendid if that would control the Supreme Court of Iowa.

The District Court in and for Lee County has found this fact adverse to us.

And when it goes on appeal to the Supreme Court of Iowa their function is to determine if the trial court had substantial evidence to support their findings.

Potter Stewart:

The State didn’t make this concession before the Supreme Court of Iowa?

Ronald L. Carlson:

No, Your Honor.

Potter Stewart:

They’re making it only here?

Ronald L. Carlson:

Yes.

Potter Stewart:

And you say that doesn’t do you any good as the judgment against you in the Supreme Court of Iowa?

Ronald L. Carlson:

That’s exactly right.

Abe Fortas:

Was there any reason suppose they withdraw the concession, (Inaudible)?

Ronald L. Carlson:

No, there is not, Your Honor.

In fact, as I say I think counsel here has commendably, upon a review of the record, brought this to our attention.

Abe Fortas:

(Voice overlap) stipulation, now the attorney general that when that appeal is heard, you will say that the trial court is in error.

You find him to be handcuffed so you are probably over.

Ronald L. Carlson:

Well, I submit to Your Honor, now.

I suppose the concession here goes to the point that he did not have counsel.

There is the additional matter for litigation as to whether or not that was used against to me adversely or prejudicially at the trial of the cause.

Potter Stewart:

And was that — that was in the habeas hearing?

Ronald L. Carlson:

Yes, I believe it was, Your Honor.

Potter Stewart:

And was that — the question whether it was or was not used on the trial of the court.

Is that also resulting as an issue, as a question of fact?

Ronald L. Carlson:

Yes — well, no, no it was not.

It was not, Your Honor.

The trial court’s order on this says, “We find the petitioner had counsel at all relevant times” and that’s the end of this finding of fact as I recall on that point.

Ronald L. Carlson:

So that’s where we are left but — this is why I am saying, Mr. Justice Harlan, that this concession will probably not be the end of the matter.

There was also that additional point of White vs. Maryland to be litigated as to whether or not it was prejudicially used against the petitioner.

In addition to that, if that claim would be lost, there are other claims in the petitioners’ habeas corpus concerning incompetency of counsel and things of that nature which we contend the transcript is necessary to show.

Abe Fortas:

Well, I don’t know, Mr. Carlson, but it looks to me as that the attorney general on page 20 expressed pretty clearly reserves the conclusion of law.

It says that petitioner probably is entitled to relief in habeas corpus in the White against Maryland.

That would cover a reservation of the question as to whether the admissions made with preliminary examinations were used against him at trial.

Ronald L. Carlson:

Yes, as I see the concession here, Mr. Justice Fortas, it is clear on counsel that on the White vs. Maryland point, as you properly pointed out, with some reservation.

We contend also, Your Honors, that the trial transcript in habeas corpus now, trial transcript in habeas corpus –

Potter Stewart:

I would just like taking your time, Mr. Carlson.

Ronald L. Carlson:

Sure, Your Honor.

Potter Stewart:

I would just like to make this clear.

To say now that the Supreme Court of Iowa, there’s been an admission in this court that the trial court was wrong and he did not in fact said —

Ronald L. Carlson:

Yes.

Potter Stewart:

Therefore, vacate and proceed to courtroom.

You say that would get you nowhere since there’s still a White-Maryland point whether or not this was —

Ronald L. Carlson:

Yes.

Potter Stewart:

— this was introduced to the criminal trial.

Ronald L. Carlson:

Yes, Your Honor.

Potter Stewart:

But if no evidence was taken on the question whether it was introduced at the criminal trial that is no evidence taken at the habeas hearing, what good it is going to do to you to get the transcript to what occurred at the habeas –

Ronald L. Carlson:

I don’t know what occurred at that habeas hearing for sure, Your Honor.

I’ve got to get that transcript to see.

Potter Stewart:

Oh, I see.

Ronald L. Carlson:

It could be that my petitioner has explored that and –

Byron R. White:

I see, but what about the trial transcript itself at the criminal trial?

Ronald L. Carlson:

I submit it would be helpful, Mr. Justice White, have that didn’t introduce that evidentiarily at the habeas hearing.

Byron R. White:

I know but that doesn’t mean you have to have the transcript of the habeas hearing.

You have available the transcript in the criminal trial?

Ronald L. Carlson:

Yes, right.

Byron R. White:

And if that doesn’t show whether that evidence was introduced; nothing was —

Ronald L. Carlson:

Yes.

Byron R. White:

So I don’t see why you need the transcript to the habeas hearing just to show what went on at the trial because the trial transcript shows that.

Ronald L. Carlson:

Yes, that’s true.

The trial transcript would be–

Byron R. White:

Then why do you need the transcript?

You don’t need the transcript of the habeas hearing with respect to whether you had counsel for preliminary hearing because it’s been a concession.

You don’t need, it seems to me, the transcript to the habeas hearing to show up what went on at the trial because the trial transcript is by far that (Inaudible) to that.

So now, why do you really need the transcript in habeas hearing?

I agree with you that this Iowa, the State, it seems to me has conceded that if you can demonstrate a need on appeal for the transcript that you are entitled of transcript.

That’s what the major point in this case seems to me.

Ronald L. Carlson:

Yes.

Byron R. White:

And that was the State, it seems to me that has conceded, the same has conceded.

Ronald L. Carlson:

Yes, as I say —

Byron R. White:

— I don’t know why you need that transcript in the habeas transcript.

Ronald L. Carlson:

Well, assuming that that White vs. Maryland point may be determined adversely against me, that is if the Supreme Court feels that the trial transcript shows that White vs. Maryland was not violated and therefore, I lose on that point.

I have additional points for the reason of this habeas corpus petition including incompetency of counsel and including also, I submit, Your Honor, this, whether or not in the —

Byron R. White:

But incompetency — that’s a good blanket word but what specifically was that the trial transcript would show to —

Ronald L. Carlson:

The petitioner contends the —

Byron R. White:

Where you find out how counsel for this before?

Ronald L. Carlson:

Yes, that’s true.

However, I think the Court has indicated that whether the Court has made an accurate and adequate investigation of the case may not be completely shown by what the pages of the trial indicate.

The petitioner here has alleged specifically that counsel lack time and there was a shift of appointed counsels shortly before the trial that the counsel act–

Potter Stewart:

Why don’t just draw that instead of a need to transcript not because of any specific question, any specific reason that I tell you, “I’m just plain entitled to the habeas corpus transcript because I’m representing this man on appeal and I have to know what went on there”.

There may be that — that’s what I really want.

You want to engage in an exploratory examination not fishing expedition.

Ronald L. Carlson:

Well, I wouldn’t call at that, Your Honor.

It’s incumbent upon me that test whether this man had a —

Potter Stewart:

There’s nothing wrong with your fishing, I would say that.

Ronald L. Carlson:

It seems to me that it’s incumbent upon me to see that he had a fair trial in habeas corpus.

The original trial transcript won’t tell me that.

To find out of the trial judge in habeas corpus wrongfully admitted hearsay whether he improperly cut off my client from testifying on relevant matter.

Ronald L. Carlson:

All of that, it seems to me, it’s essential for me to have a habeas transcript to see —

Potter Stewart:

Did they have counsel at the habeas hearing?

Ronald L. Carlson:

No, Your Honor.

There’s no proof that he requested counsel.

There’s no provision for counsel in habeas (Voice overlap).

Potter Stewart:

Was there a hearing?

Was he there?

Ronald L. Carlson:

Yes, he was there.

He was permitted to ask such questions as he wanted of the State’s witnesses and also to make an argument.

Potter Stewart:

Have you asked him what went on at the hearing?

Ronald L. Carlson:

Yes, I have.

Potter Stewart:

You think he has told you or not?

Ronald L. Carlson:

Yes, I do.

Potter Stewart:

And you really, you will find out something more out of the transcript?

Ronald L. Carlson:

Well, I do, Your Honor.

As I say, I’m sure that he can’t recollect the decisions made by the trial court on the admission of evidence or objections made things of this nature.

It seems to me that test whether he got a fair hearing or fair trial, I need the transcript to look at.

Hugo L. Black:

What does the trial record show was to whether this was — this plea of guilty in this justice court was used against him.

Ronald L. Carlson:

It appears clear to me, Your Honor, that upon looking at it that it was used.

As I say 11 questions that I found were directed to admissions made at the preliminary hearing.

Some of those were objected to and overruled but — or the objection was sustained but on some points, the petitioner was required to answer.

Potter Stewart:

You found those from looking at the –- afterwards looking at the trial transcript?

Ronald L. Carlson:

The original trial transcript, Your Honor, yes.

Potter Stewart:

Which you didn’t see here at list the – it wasn’t there at the habeas corpus hearing.

Ronald L. Carlson:

I can tell you it was not there at the habeas corpus, Mr. Justice Stewart, because the petitioner, being a non-lawyer, apparently did a very poor job permit me to the very cord job of putting (Voice overlap)

Potter Stewart:

And he didn’t have a lawyer there.

Ronald L. Carlson:

Yes.

Potter Stewart:

Was the trial or the transcript could it be made available to the Supreme Court of Iowa, this is the matter of judicial notice even though it wasn’t before the habeas corpus court?

Ronald L. Carlson:

Yes, I think he might be able to do that.

They have rather liberal authority to order up other record material —

Potter Stewart:

Professionally notice of proceedings on their own court?

Ronald L. Carlson:

Yes, I think they could.

Potter Stewart:

And that could’ve done here.

It could be also done here.

Ronald L. Carlson:

Now, the experience of the States following Smith vs. Bennett and Lane vs. Brown has been moving in the direction of the position that we here advocate.

At least 30 States give habeas corpus appeals as a matter of right just as Iowa.

And of those 30, 26 gave a transcript of the habeas corpus hearing to the petitioner in the position of the petitioner whom I represent.

So, we think that the experience of the States is moving in the very direction of the position we raised to this court.

We do not say that the Court — that the Court is not or that the States are not free to put on limiting devices on perhaps the number of writs that can be filed to otherwise police what they’re — the amount of habeas corpus applications made but what we are saying here is, that where a screening device depends upon poverty as this one does.

This is an improper screening device.

Thank you, Your Honor.

Earl Warren:

Mr. Bennett?

Don R. Bennett:

Mr. Chief Justice, may it please the Court.

First of all, I’d like to go to the point that has been commented upon by several justices so I don’t lose it.

Did Mr. Carlson was referring to the District Court’s order denying Long’s petition for writ of habeas corpus insofar as that Court found that Long was represented by counsel at the preliminary hearing?

I believe I am free in reading this language to have made the concession on behalf of the State because I think the language of the Court’s order had self indicates that counsel wasn’t there.

And if I could take the liberty on page 30 of the record and without going into the whole hearing down in the last paragraph, about middle way through, “Court further finds that as to objection no. 2 that he was denied counsel at the time of preliminary hearing, the county attorney (Inaudible) contacted the attorney for the then defendant, Patrick Lied, and said attorney advised that he would not be present and informed the county attorney that he would waive the defendant to the grand jury”.

So, the Court’s own finding shows that an attorney was not physically present in the courtroom; that the county attorney had called the attorney and he said, “Yes, I’ll represent the man but I waive him to the grand jury”.

And of course, after they got into the room where the Justice of Peace was at, the Justice of Peace accepted “plea of guilty”.

And the Justice of Peace in the State of Iowa has no jurisdiction to accept a guilty plea in a felony case; this is why we have White vs. Maryland comparable situation.

Potter Stewart:

I don’t quite understand that, this language that follows what you read to as on the bottom of page 30 of the record.

Where it goes along and says that “The Court finds that no rights were lost at this time” and that “he was actually represented” and the Iowa Supreme Court found on the case of State against Long, he was at all times represented by counsel.

It seems inconsistent.

Don R. Bennett:

I think, Mr. Justice Stewart that what the trial court is saying is that he was at all times represented in the sense that the Iowa Supreme Court had made the same statement in its opinion affirming the conviction on direct appeal.

Potter Stewart:

That that he had a lawyer?

Don R. Bennett:

Yes, physically in —

Potter Stewart:

He had a lawyer but the lawyer decided not to show up there?

Don R. Bennett:

Right.

Potter Stewart:

But he was represented by a lawyer.

Don R. Bennett:

Well, as the Court’s opinion indicates, at the very moment, the man was taken there for a preliminary hearing, that was when the lawyer was contacted.

Don R. Bennett:

The county attorney got in touch with this lawyer on the telephone.

As a matter of fact, if this is confusing to you and I mean I can’t of course that’s in the record.

This is exactly what happened — they brought the man in for a preliminary hearing, at which time a County attorney went out and called Patrick Lied, who was a local attorney in Oskaloosa, Iowa where this took place.

Mr. Lied said, “Yes, I’ll represent the man but I waive him over the grand jury”.

So I just want —

Potter Stewart:

I suppose, this is really a holding that the defendant was represented by counsel at all crucial times or relevant times and that then at the preliminary hearing, this doesn’t have to deal a kind of a time in Iowa where you need to be represented by counsel.

Don R. Bennett:

The attorney general for whatever that is were, has ruled subsequent to White vs. Maryland, that counsel must be appointed at a preliminary hearing at least to this extent.

But the counsel was not appointed.

And if the man, “enters a plea of guilty, and then that plea of guilty or admission of–

Potter Stewart:

If that would be true —

Don R. Bennett:

By virtue of this court proceeding.

Potter Stewart:

As long as he doesn’t lose anything at the preliminary hearing as long as he pleads not guilty.

The attorney general hasn’t said that under White against Maryland, you need to have a counsel at the preliminary hearing.

Don R. Bennett:

Well, he has ruled that counsel ought to be appointed at preliminary hearing because of White vs. Maryland.

Perhaps, I don’t fully appreciate your question but to me White vs. Maryland becomes significant only at a subsequent period of time when they tried to introduce any damaging statements made after preliminary hearing.

Earl Warren:

Well, what is your understanding at the trial record?

Does it show that his plea of guilty there was used against him in anyway?

Don R. Bennett:

Well, I cannot — the States unequivocally as Mr. Carlson had stated that the record shows that.

Now actually, what happened, I got the trial record with me — it was found by him here and what does this record would show?

Earl Warren:

Do we have that?

Do we have–

Don R. Bennett:

No, you do not have, Mr. Chief Justice.

You do not request — this record was not directed up to the Court and at the late stage, we get attempt to get this record before the Court was unsuccessful.

You’re certainly entitled or you certainly may have my copy if you want me to leave it with the Court.

Earl Warren:

I suppose that no objection from you two.

Don R. Bennett:

I’d be very happy for you, Your Honor.

Earl Warren:

Would you leave it to the Court then?

Don R. Bennett:

Yes, Mr. Chief Justice.

Now to briefly answer your question.

What the record shows is an attempt by the county attorney, the prosecuting attorney, in cross examining Lawrence Long when he took the stand to get Lawrence Long to admit that he made some admissions before the Justice of Peace.

Don R. Bennett:

But it’s neither Black nor White.

It’s not clear as to whether White vs. Maryland has been violated in my estimation.

Now here’s what we are here talking about this morning.

It’s a 28-paged transcript that recorded the testimony at the habeas corpus hearing, and I’m not saying this case is moot because I ordered this transcript after certiorari was granted and it has not been made available to Lawrence Long.

Obviously, that’s what we’re here talking about.

Now I’ve got to admit, and I’m going to admit as practical matter, that it isn’t too practical to have now in retrospect spent some $3,000 or $4,000 probably to attempt to justify the denial of this $25 transcript.

But be that as it may, this Court has said time and time again and so numerous that I don’t mean to waive aside any cases since the Court is not concerned with whether the State is impractical but whether the State has denied this individual particularly Lawrence Long due process, equal protection by not making available to him a free copy, a copy without cause in this transcript.

Abe Fortas:

But what is the rule in Iowa, this matter — if there is one formulated so to tell us those?

There’s an opinion to the Supreme Court of Iowa from denial of habeas corpus?

Don R. Bennett:

That is right.

Abe Fortas:

There is a request here and I take it as one of the separate ancillary or collateral proceeding done by application in the District Court in Iowa and then petitioner’s certiorari was filed from the denial of that application and this is to say the application for the habeas corpus transcript, is that right?

Don R. Bennett:

Yes, Mr. Justice Fortas.

Physically what happened was, after the petition for habeas corpus was denied — there had been a hearing and it was denied — then, Lawrence Long per se filed at that time with a proper notice of appeal with the Iowa Supreme Court.

So that now that gave the Iowa Court jurisdiction to review the denial of this petition.

Simultaneously with filing this notice, the petitioner made an application to the trial court that denied the petition.

He said, “I want to be a free hearing transcript” and incidentally, “I want counsel to assist me in connection with the appeal”.

And that’s an issue which is in the petition but what this Court denied, unaccepted.

Alright, the trial court said, “That particularly your application is denied because there is no provision of law” and I’m required to furnish him of the pre-trial transcript.

Alright, so then Lawrence Long says well, “You can’t do that because of this line of decisions, Griffin vs. Illinois on down true”.

He filed then a petition or an application for certiorari in the Iowa Supreme Court.

Certiorari in the Iowa Supreme Court lies to correct illegal action on behalf of the lower tribunal.

So he is saying that –- Lawrence Long was saying the lower tribunal acted illegally, unconstitutionally.

Abe Fortas:

The only part of the case that we have before us is a denial of the certiorari.

Don R. Bennett:

That’s right.

Now —

Abe Fortas:

Because the Iowa Supreme Court still is considering.

It has before it the merits of the appeal.

Don R. Bennett:

Now in footnote 5 of our Brief, I pointed this out because I think conceptually it’s very important that the Court knows/understands that on appeal that the appeal still is pending.

Now we could have moved to dismiss the appeal.

When Long didn’t file his record, he had a certain length of time within which to file this record — we could have moved to dismiss his appeal but obviously, we’re not going to do that whenever he has made application to this Court for relief contending the denial of constitutional rights.

Don R. Bennett:

So, he still has an appeal there.

Now, if he is or if he is not entitled to a transcript, he still has the Iowa Supreme Court to turn to, to review the denial of this habeas corpus petitioner.

Abe Fortas:

Now is the rule or is there a rule on the Iowa Supreme Court, decisions of this Iowa Supreme Court in no event will that Court order that a transcript of habeas corpus proceeding be made available —

Don R. Bennett:

No, Mr. Justice —

Abe Fortas:

Or they formulated some other rule.

Don R. Bennett:

No, Mr. Justice Fortas.

It’s pretty universal that the trial courts will not give a free copy of the habeas hearing transcript.

On the other hand, there’s nothing to keep.

Abe Fortas:

Well, how about — any holding in the Iowa Supreme Court?

Don R. Bennett:

Not to my knowledge.

Abe Fortas:

Nothing one way or the other.

Don R. Bennett:

Well, yes.

In denying this petitioner, in denying this application for certiorari, the Iowa Supreme Court cited Walden vs. District Court which Mr. Carlson has referred to.

Now, Walden vs. District Court was concerned with the appointment of counsel for an indigent in a habeas action.

And Mr. Carlson rightly points out that the Iowa Court talks in terms of the civil liability but I don’t think it’s that clear, I mean do you recall that when this Court decided Smith vs. Bennett, it indicated that it wasn’t going to be quibble with this nomenclature whether it would be so a criminal is right or —

Abe Fortas:

But the Iowa Supreme Court has never for example said that “We will make a case by case determination and it doesn’t say that in this particular case, there’s no showing that the transcript is needed?

Don R. Bennett:

No, it does not say that.

Abe Fortas:

It’s a broad — we are confronted with the broad rule of law here to the effect that in no event will the Iowa Supreme Court reverse a trial court’s holding that —

Don R. Bennett:

I do not know — excuse me.

Abe Fortas:

— transcript will not be furnished on habeas corpus.

Don R. Bennett:

I do not know that that is entirely accurate because the petition for certiorari, petition as it was filed with the Iowa Supreme Court as well as the application to the trial court simply as a conclusary allegation that he needs the transcript.

There was nothing beyond it that we would have to assume but perhaps, had there been a stronger showing on behalf of the inmate that he really needed the transcript, that he couldn’t get the record up to the Court in any other way, may be the Court would have granted the certiorari.

Abe Fortas:

Can you refer a standing case in which Iowa Supreme Court has ordered a transcript to be furnished in these circumstances?

Don R. Bennett:

Not directly in point, Your Honor.

I can refer you to all of the cases in Volume 256 of the Iowa Reports, dealing with habeas corpus matters.

I went back and checked them.

I put some of the orders in appendix to this Brief.

In every one of those cases, the petitioner proceeded per se and everyone of the Supreme Court relaxed the rule regarding the record, regarding the Briefs in some respects or the other.

Byron R. White:

And you would agree that the trial court was wrong, gave the wrong reason for denying the request for a transcript?

Don R. Bennett:

Well, I think to say that it is civil is irrelevant to the real issue here, now we can take —

Abe Fortas:

And would you go on and say that this petitioner could demonstrate satisfactorily to you that for a meaningful appeal, you needed the habeas corpus transcript that he is entitled to it?

Don R. Bennett:

I believe I would have to —

Abe Fortas:

You would but you can’t speak for your Supreme Court?

Don R. Bennett:

I cannot speak for the Supreme Court and unfortunately I have and on pretty tenuous ground even speak for the Attorney General because of last night.

Abe Fortas:

Well, was it open to the Supreme Court? [Laughter]

Don R. Bennett:

I’m sorry.

Abe Fortas:

Is it open in your view to the Supreme Court to decide if this man is entitled to the transcript?

Don R. Bennett:

I’m sorry, —

Abe Fortas:

Is it open to your Supreme Court when the appeal is heard to say that this man should have a transcript or they foreclosed by any of their prior decisions?

Don R. Bennett:

Well, no, they’re not.

But part of our argument here is that the appeal is still pending and the rules in the Civil Procedure which are applicable to habeas appeals are flexible enough that this man may very well be and we will get an adequate record before the Court.

Abe Fortas:

You mean short of the transcript?

Don R. Bennett:

Short of having the hearing transcript.

Abe Fortas:

And I suppose that he wasn’t?

Don R. Bennett:

You mean that he not able?

Abe Fortas:

Of course then the Supreme Court says, “Well, this record is not good enough for us, we can’t tell you or we cant’ decide this thing.

There’s no transcript here.

We can’t give him the transcript because of civil proceeding, are they foreclosed by their prior decisions in saying that they will order up an adequate transcript of the habeas corpus proceeding?

Don R. Bennett:

Are they foreclosed from doing it?

Abe Fortas:

Yes?

Don R. Bennett:

No, I don’t think so.

I don’t think the trial court is for — the trial court has the power to do it.

Trial court says —

Abe Fortas:

This trial court has refused to do it.

Don R. Bennett:

Right, there is no rule of law in the State of Iowa requiring furnishing an indigent —

Abe Fortas:

This case went back to the Iowa Supreme Court and this appeal is heard.

Is there an opportunity for this man to persuade the Supreme Court that he does needed this transcript to the habeas proceeding?

Don R. Bennett:

Well, I would have to answer I think, yes that he could file a further application, trying to set forth why he cannot comply or work with the rules of the Civil Procedure which would allow him to get up a record despite the transcript.

Abe Fortas:

And you don’t know of any decision in your books that would prevent the Supreme Court from saying that these circumstances will require a transcript?

Don R. Bennett:

No, I do not.

Tom C. Clark:

(Inaudible)

Don R. Bennett:

No, let’s go to the rules, Mr. Justice Clark.

Rule 340 which is the main rule and the one that’s discussed on the Brief, provides that in a situation like this, shortly or promptly — the appeal has been noted.

The appellant is to file a duplicate typewritten manuscript of so much of the record as is believed to be relevant to the appeal and at the same time he showed file of the trial transcript; in this case, this document.

It goes on to say that within the 20 days the other party can amend the record, make corrections and so forth and so on. And then after the time for amendment is up, then upon three days written notice, the proposed abstract, with whatever amendments or corrections there might be, can be submitted to trial court who heard the case.

And then, the language of the rule as in this, by the way, has statutory authority.

It’s not just a rule.

It is that the trial court shall settle the record — to the end of the abstract correctly shows the evidence and proceedings at the trial — and I assume along with me just for a moment that the hearing transcript may not be filed as Rule 340 said and as I told you.

Well then, you have got a situation which I think was contemplated by the majority in Graper v. Washington, a situation where if this man, Lawrence Long, has the ability to remember the evidence at the hearing, he can prepare a narrative statement.

Now remember this man, at least we’ve got to assume if he has prepared applications and petitions and etcetera and etcetera.

Alright, I don’t think he can’t —

Abe Fortas:

He was personally there at the habeas corpus hearing, was he?

Don R. Bennett:

Yes, he would have to have been because a hearing was held at which he was to give his side.

Abe Fortas:

And he was a witness there?

Don R. Bennett:

So assuming that the transcript may not be filed, at least, we have a situation where if he is capable, he could file a narrative statement of what he thinks the evidence shows.

Now, at the other side, in this case the county attorney doesn’t agree that this was a way the evidence was shown. Well then, he’s got the burden to comment, amend and correct.

Now what I think as even more important is, then when you got to get this thing before the trial court and the trial court is enjoined to settle any differences in that proposed abstract.

To the end of the abstract correctly shows the evidence in proceedings at the trial.

Now —

Hugo L. Black:

Would you mind, may I disturb you and tell me, just from the beginning, what is the precise issue between you and your adversary?

Don R. Bennett:

Whether it is in the record?

Hugo L. Black:

(Inaudible) that was presented between you and him that you are at issue.

Don R. Bennett:

Well, we have in effect conceived that perhaps the whole court, if not the whole then a substantial majority of this court is committed to the proposition that if an indigent in a post-conviction proceeding needs a transcript to get adequate and effective appellate review, he is constitutionally entitled.

Hugo L. Black:

Alright, do you agree on that.

Now what are you at issue?

What is that issue?

Don R. Bennett:

Well, no. 1 we are taking a position that he has not shown that he needs the transcript and no. 2, that there —

Hugo L. Black:

Not shown it where?

Don R. Bennett:

Any place.

Hugo L. Black:

Where can you show it?

Don R. Bennett:

In his petitioner for certiorari, he could have attempted to have made a showing beyond just simply a conclusary allegation that he needs the transcript.

Byron R. White:

You mean the petition for the cert in the Iowa Supreme Court?

Don R. Bennett:

To the Iowa Supreme Court, right.

Hugo L. Black:

But it looks to me like you’re near together.

I don’t know.

Don R. Bennett:

Well, we’re not —

Hugo L. Black:

I don’t know why you have been issued.

Byron R. White:

All you have to do is return over that document to him and the case is over isn’t it?

Don R. Bennett:

I have no intention of turning that document over to him.

Hugo L. Black:

Is that your issue?

Don R. Bennett:

Yes, in effect that’s the issue but I want to take a step further.

I was developing this point.

So we think that at least it is arguable that he could have got the record made up.

Alright now, the petitioner said, “Well, isn’t that foolish, Mr. Bennett?”

The very thing which I can’t get, they going to force me to file in order to get this thing started.

Well, I suggest to you that’s just not so because Iowa rule of Civil Procedure 371, which his cited in the Brief, plainly indicates that the Court, the Iowa Court has go the power to change or modify Rule 340 insofar as the record making procedures are concerned and I don’t think the Iowa Court is going to say to him, “We recognize you an indigent.

We recognize you’ve got the right to appeal but were going to force you to file the very thing you can’t get because you can’t buy it to get up here to us.

Hugo L. Black:

What are you asking as not to do that he is asking as to do?

Don R. Bennett:

I am asking you to hold that there has not been a sufficient showing that this man has been deprived of the constitutional right.

Hugo L. Black:

That’s a pretty broad abstract clearly, (Inaudible) something concrete.

What is he asking us to do that we should not do?

William J. Brennan, Jr.:

He wants that blue covered book and you don’t want to give it to him. [laughter]

That’s what it is, isn’t it?

That’s the concrete factual then.

Don R. Bennett:

Mr. Justice Brennan, I would rather say, it’s not I who doesn’t want to give it to him. [Voice overlap]

William J. Brennan, Jr.:

Well, yes, but he says that he not only wants that book, that he is entitled to it because he needs it to have a meaningful appeal.

You say he would be entitled to it if he did get it to have a meaningful appeal but he doesn’t need it to have a meaningful appeal.

Don R. Bennett:

That’s right.

William J. Brennan, Jr.:

Because there’s nothing went on anyway that they need the transcript or even if there is, there’s another way for him to make up the kind of the record he needs for a meaningful appeal, no. 1.

Don R. Bennett:

Now no. 2 I think — I’m sorry.

Hugo L. Black:

They seem to have everything but that is — that’s the reason I want it but we (Inaudible) last time you are filling — (Inaudible)

Don R. Bennett:

I don’t think the Draper versus Washington was decided couple of years ago and of course, you have dissented in that opinion but you say that in Davis versus California (Inaudible) Griffin versus Illinois.

And Draper clearly says that an alternative — I’m reading from page 905 I guess of Lawyer’s Edition — No, 372 US 487, “That alternate matters of reporting trial proceedings are permissible.

If they place before the Appellate Court an equivalent report of the events at trial for which the appellee’s contentions arise.

Yes, and the Court says — a statement of facts agreed to by both sides.

We have a rule-making procedure which allows that and which is very briefly discussed in the Brief.

The statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken before trial or on the court reporters untranscribed notes.

Now I have suggested that this need not be filed and that the trial court is enjoined to settle that record.

To the end of that show, the evidence is correct.

Now, the trial court has jurisdiction over and control of his court reporter and there’s nothing that keep him from calling that book reporter in the –

Hugo L. Black:

As Long came in to the trial court and I remember that in this piece of evidence I don’t remember anything about objection, I don’t remember anything whether sustained or not?

Don R. Bennett:

You mean at the habeas?

Hugo L. Black:

Definitely.

When you raise that up, then you say what does the district attorney has to do with —

Don R. Bennett:

You mean in trying to get up a record from the habeas hearing itself?

Hugo L. Black:

Yes.

Don R. Bennett:

I think whether the objections were made or not, whether it was sustained or not, is not terribly important because what his interest should be is getting the evidence set out to show how and he has been unlawfully confined.

Now, the petitioner has stated in argument and he states in his Brief that — and in the record because may be the habeas trial court made some error — overruled an objection or didn’t sustain an objection something like this.

I don’t think that’s important.

I don’t think that he is —

Hugo L. Black:

(Inaudible) record on the merits shows that the Long pleading used — they might have raised that and —

Don R. Bennett:

Yes.

Hugo L. Black:

You never know when (Inaudible)

Don R. Bennett:

Alright, I think this brings to the third point.

I just want to spend at least a couple of seconds on and that’s his trial record right here.

Now, in Draper vs. Washington, this Court has made it quite clear, the majority of the court, that is not necessary to furnish a transcript to an indigent if the transcript is not germane to the contentions which were made.

Draper filed a motion setting forth his contentions and why he needed the transcript.

Alright, here, Lawrence Long filed a petition and he set forth certain contentions.

In fact, he set forth specifically filed.

One is the White vs. Maryland contention.

Don R. Bennett:

Alright, at that plea, a guilty was entered at the trial, this is the best source.

This will tell you not anything that happened at the habeas corpus hearing.

You look to the original trial transcript to find out whether White vs. Maryland had been —

Hugo L. Black:

They could see whether —

Don R. Bennett:

What’s raised — you can see that from the trial court’s judgment denying the petitioner for habeas corpus.

He sets the five areas out so we know it’s been raised there.

But the most relevant source to (Inaudible) and secondly, he says he had incompetent counsel and that he checked the petition, he says the comments the petitioner’s court-appointed attorney is challenged in the question of competence here goes only to the said attorney’s conduct and action and representation of the petitioner in his criminal trial.

Where else would you want to — what more relevant source would you have to see how his attorney behaved than right here in the trial transcript?

Potter Stewart:

Well, I’d expect that although it’s not issue of waiver here; that you pointed out at 26 and so forth, 30 rather.

Well, that’s an issue of waiver.

Counsel wasn’t there, went on and then these things happened at the preliminary hearing and waiver gets you all (Inaudible) problems there and anything else, does it?

Don’t they have to be developed at the — if the State is going to rely on the waiver, I would suppose the facts would have to be develop at the habeas hearing.

You are relying here as I understood you when you opened your argument, say you are.

And what appears in the trial court’s finding that in effect there was a waiver by the lawyer and appearance at preliminary hearing.

Don R. Bennett:

Well, yes, but then if he was not physically present and the plea of guilty was entered at this trial then, I think the petitioner is entitled to relief under White vs. Maryland.

Potter Stewart:

Unless there is something lesser than the plea of guilty and may be something else.

I think you’ve told us that that shows or perhaps as Mr. Carlson said.

Don R. Bennett:

Well I don’t [Voice overlap]

Byron R. White:

That shows cross examination?

An effort by the DA to find out what it was he had admitted it.

Don R. Bennett:

Right.

I don’t concede that White vs. Maryland has been violated.

Byron R. White:

I know.

Don R. Bennett:

The point is, I think this is the place to find out.

Now as far as his third contention is, he says that no brief on the merits was filed with the Iowa Supreme Court and he is thereby contending the ineffective assistance of counsel on his appeal.

Well, you don’t mean copy that trial transcript where the Iowa Supreme Court is concerned to find out what it’s own record show and in fact, they will show on the appendix of our brief and–

Potter Stewart:

You know, Mr. Bennett, I fully appreciate the use of (Inaudible) but I must say it presses me to think.

That there is going to be more time of viewers, of your judges, of everyone because inevitably, that he is not to get this transcript this is going in the Federal habeas corpus and we’re all going to find out the misuse anyway.

And why do we have to go over to that.

Earl Warren:

You may answer that after lunch.

Don R. Bennett:

To answer your question and I am a little bit (Inaudible) with it because it seemed not to be phrased quite so much as a question but as an observation.

Would you –

(Inaudible)

Don R. Bennett:

If I might respond the observation, we may very well be wrong, of course, in the position we’ve taken in the Brief and if we are wrong, why don’t this Court rule, issue a decision which will take care of the problem because it will be a constitutional decision and Wallace probably will be no comfort.

I will assure you this that if the Court holds for the State, in view of the fact that I have already ordered the transcript, and in fact two copies.

I will certainly see that this doesn’t happen. But I’m not releasing that transcript until —

Potter Stewart:

I appreciate fully — you (Inaudible) filing, you take that position and ask that it be decided by the Court.

Don R. Bennett:

I happen to share your view, Your Honor, I would just assure not to see this waste also.

But I’m precipitated in —

Byron R. White:

Well, you could take the same position, in all fairness, in the Federal habeas corpus petition as you have taken here.

The issue would make up the same way: you just need transcript at all in order to have a meaningful appeal.

And there — and because there is a meaningful State procedure available where in to vindicate its constitutional rights.

You could make up the same sort of an issue there as here.

But let me ask you.

As far as this record shows, in this case that is presented here on the petitioner for certiorari, as far as we were concerned, we were reviewing a decision of the trial court of Iowa because the writ, the appeal has been denied and we were reviewing a ruling of the trial court entered after a habeas corpus hearing that this man was not entitled to a transcript in any event because this was a civil proceeding.

And that issue, and as far as we knew, and as far as we still know, that is the law of Iowa.

Don R. Bennett:

That is the law of Iowa in so far as the Court is right in saying that –

Byron R. White:

Well, the Ohio Supreme Court has never said otherwise or the Iowa Supreme Court has never said otherwise, does it?

Don R. Bennett:

That’s correct.

Byron R. White:

What do you suppose, if this be speculated on your part, what if this Court said, “No, the law is, you must have a transcript” or some other way available to protect his appeal?

Now your response is, “Well, these rules are not or without having to buy a transcript at all”.

Do you think the Iowa Supreme Court has never been through that issue, has it?

Don R. Bennett:

Not to my knowledge, they have not.

Byron R. White:

You don’t know whether they would agree with you or not?

Don R. Bennett:

Whether they would agree to what I have argued to the Court today?

Byron R. White:

Yes.

Don R. Bennett:

I would have to assume they would because they summarily denied the application for certiorari for —

Byron R. White:

Well, I know, but they could have denied because they could have said that this is a civil proceeding and he is not entitled to transcript in any event.

Don R. Bennett:

Well, I don’t think that in ruling they necessarily have stated that.

Byron R. White:

No, but you can’t give us any case in Iowa that says that the rule about an indigent in a criminal case applies to a habeas corpus case.

Byron R. White:

There’s no ruling like that in Iowa, is it?

There’s no Supreme Court holding in Iowa that says that an indigent petitioner in habeas corpus is entitled to a free transcript?

Don R. Bennett:

No, there is no such ruling.

The Iowa Supreme —

Byron R. White:

Because we know the rule that in a civil proceeding, he is not entitled to anything.

Don R. Bennett:

That’s correct, Your Honor.

Potter Stewart:

Now, Mr. Bennett, in this appendix to your Brief, you have attached some orders of the Supreme Court of Iowa.

And what do they mean where they say and I’m just reading one at random, “It is hereby ordered that plaintiff may file nine copies that we have typewritten record and Briefs in lieu of printed record and briefs to be used by the Court upon submission of the appeal in this case”.

Now, what “record” are they talking about there?

I gathered not the transcript but something else.

Don R. Bennett:

Well, they’re talking not the transcript but about an abstract of record which would ordinarily be made up from the hearing transcript.

Potter Stewart:

Or from the recollections of the people appearing, would it be what Justice (Inaudible) heard to as equivalent to a bystander’s bill of exception or something like that?

Don R. Bennett:

Well, this is possible except in some of those cases.

There was not a hearing to begin with.

These were habeas corpus actions that were resolved on the pleadings themselves so it wasn’t necessary to go —

Potter Stewart:

This type of question in law so that there wouldn’t be a transcript.

Don R. Bennett:

That’s right.

Potter Stewart:

But the record would still show the pleadings and the orders or any memoranda of the trial court.

Don R. Bennett:

That’s correct.

And those, of course, are available to Lawrence Long.

Potter Stewart:

In this case.

Don R. Bennett:

That’s correct.

That’s what the record would show.

Potter Stewart:

Yes, alright.

Don R. Bennett:

Thank you, Your Honors.

Earl Warren:

Mr. Carlson.

Ronald L. Carlson:

Thank you, Your Honor.

Your Honors, I will briefly addressed myself to a point that Mr. Justice Fortas and Mr. Justice White have inquired into and that is, “Has the Iowa Supreme Court ever afforded transcripts in habeas corpus?”

If I could respond with perhaps a brief quote, Your Honor, from the latest authority I could find on the point which is Hoskins vs. Bennett which they say — here the petitioner also had requested a transcript of public expenses in habeas corpus.

The trial court said that habeas corpus is a civil proceeding and there is no provision in the Iowa law for a transcript to be evidence in such cases at public expense.

Ronald L. Carlson:

This is true.

Potter Stewart:

That case is in the citation.

Ronald L. Carlson:

Yes, it is, Your Honor, Hoskins vs. Bennett.

I just have the Iowa here, Your Honor, 256 Iowa, citing page 1376.

Byron R. White:

And what — when was that?

Ronald L. Carlson:

1964.

Byron R. White:

And that was before Long.

Ronald L. Carlson:

Yes.

Also, Your Honor, in the case of Walden vs. District Court which our Supreme Court ordered in this case, cites 2 gives credence to this civil labeling of habeas corpus. Mr. Justice White also asked the question, had the Iowa Court ever been faced with the potential substitutes, the bystanders bills and so forth that Mr. Bennett here has suggested in this case, we point to the case of Weaver vs. Herrick, decided by the Iowa Supreme Court in 1966 in which the question came to the Supreme Court, what is necessary for a meaningful appeal to indigents in Iowa?

This, in connection with direct criminal causes, first appeal, Court responded emphatically.

Of course, the transcript is essential for this kind of appeal.

The reason they don’t do it in habeas corpus we submit, is because of the civil labeling.

Byron R. White:

What if this Court took this case and reversed it and — to what Court would it go?

Ronald L. Carlson:

It would go to the Supreme Court of Iowa to order the District Court to enter to prepare a transcript –

Byron R. White:

Yes, but what if this Court just took the — this one as far as saying the — what I understand with the law of Iowa to be at least the decision, the rule of law in the decision which we are reviewing said that: this is a civil proceedings, no transcript.

We reverse that and Iowa must have observe another rule.

And we reversed the further proceeding consistent with this opinion?

Ronald L. Carlson:

Yes.

Byron R. White:

Now we go back to the Supreme Court of Iowa.

Then the Supreme Court of Iowa would have the job of saying, how — in the light of Iowa procedures, should we implement this constitutional rule, wouldn’t it?

Ronald L. Carlson:

Yes, Your Honor, although the decision of this Court —

Byron R. White:

— it might not decide but in this case, there was to be a transcript or it might remand the trial court for further proceedings.

We don’t know how the Iowa would react to it.

Ronald L. Carlson:

Yes, I think we’ve done that, Your Honor.

Byron R. White:

I know, but the Iowa Supreme Court never had a crack.

That you’re showing because they never get to it.

They never get to the question because they say this is a civil proceeding.

Ronald L. Carlson:

Yes, I think that’s legitimate Your Honor.

Of course, it seems to me that this Court’s decision perhaps could be broader and say that where evidentiary hearings are had as in this case, where the appellate court is being asked to review evidentiary matters, obviously without a transcript of the petitioner who —

Byron R. White:

Well, I would think the Iowa Supreme Court might decide the same thing.

Byron R. White:

But if they thought you are really asking for something that where you needed the transcript —

Ronald L. Carlson:

Yes, I think you have the problem arising quite analogously in Griffin vs. Illinois.

Byron R. White:

It would be quite an argument between the two of you, why do you really need the transcript of that?

It’s not as you say a black and white situation.

Ronald L. Carlson:

Yes.

Hugo L. Black:

(Inaudible)

Ronald L. Carlson:

Yes.

My response would be on that, Your Honor, that in this particular case, of course, our petitioner is without counsel denied that by the State.

He would be all prepared to drudge up from memory.

What evidence was presented at the trial of the case even to present to bystanders to affirm it.

Potter Stewart:

That’s right.

You don’t represent.

We just appointed you to represent him here.

Ronald L. Carlson:

That’s right, Your Honor.

Potter Stewart:

If you go back to Iowa, he may still be what otherwise —

Ronald L. Carlson:

That’s right and he will still be.

Potter Stewart:

I gather you would agree with Mr. Bennett that if we correct — that’s what our judgment should be, the misunderstanding based on this being a civil procedure for the Iowa Supreme Court.

I gather you would agree with Mr. Bennett that the rule of Iowa Supreme Court are broad enough within their present context to authorize you to have a transcript.

Ronald L. Carlson:

Yes, I think they are.

They certainly could promulgate a Supreme Court rule to that effect, Your Honor.

They’re broad enough to do that —

Byron R. White:

Why do you say that he wouldn’t have a lawyer?

Ronald L. Carlson:

Well, that is also denied him under the civil proceeding rationale.

Byron R. White:

Well, I know.

But do you think is going to happen? [Voice overlap]

Ronald L. Carlson:

Yes, excuse me, Your Honor.

Byron R. White:

He is bound to have a lawyer.

Ronald L. Carlson:

Yes, that’s right.

Byron R. White:

Because we have already held that, haven’t we?

Ronald L. Carlson:

Well, it seems to me that if the civil proceeding rationale is — well, perhaps I should pause on that, Mr. Justice White.

Byron R. White:

What?

Ronald L. Carlson:

Perhaps I should pause on that.

I would feel that in the context that were talking about here, equal protection – that would dictate the appointment of counsel ultimately but –

Byron R. White:

What’s the case?

Ronald L. Carlson:

It seems to me that —

Byron R. White:

We held that on the (Inaudible).

We had a case like that.

Ronald L. Carlson:

On counsel?

Byron R. White:

Yes, in post conviction hearing?

Ronald L. Carlson:

No, no, that’s my response.

[Voice overlap] That has not been decided.

Byron R. White:

So we he might go back to that lawyer in the Iowa Supreme Court.

Hugo L. Black:

Unless you volunteer.

Ronald L. Carlson:

Well, I’ve enjoyed my service so far, Your Honor, and it’s not too griever prospect.

Byron R. White:

Well, you did a good job.

Ronald L. Carlson:

That’s for sure.