Newsom v. Smyth – Oral Argument – January 17, 1961

Media for Newsom v. Smyth

Audio Transcription for Oral Argument – January 16, 1961 in Newsom v. Smyth

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Earl Warren:

— 116, Stuart W. Newsom, Petitioner, versus W. Frank Smyth, Jr., Superintendent of Virginia State Penitentiary.

Senator Boothe, you may continue your argument if you — or —

Armistead L.boothe:

Mr. Chief Justice —

Earl Warren:

— or hadn’t — had —

Armistead L.boothe:

— may it please — I had concluded my —

Earl Warren:

You have concluded.

Very well.

And Mr. Harp, you may proceed.

Reno S. Harp, III:

Mr. Chief Justice, may it please the Court.

There is some great disagreement between Senator Boothe and myself as to what the question presented in this case is.

We have set it forth on page 5 of our brief, it is the green brief and I’ll read it, because I think it is the controlling matter in the case at bar.

The question as we see it is this, is a person, who is represented by counsel of his own choosing in a state court and who is convicted of a capital offense and sentenced to life imprisonment, entitled to have the court-appoint counsel upon request to represent him for the purpose of appealing his conviction in the absence of any allegation that he is a pauper or that his own counsel has withdrawn from the case.

It is important to note that petitioner has never, in any of the enumerable habeas corpus proceedings, in which he has been involved, alleged, stated, or suggested that he was without funds in April of 1953.

He’s never said he was indigent.

Moreover, he has never made any allegation that any error occurred during the trial of — of his case.

The record before this Court and before the state courts is silent on this question.

Moreover, there is no affirmative statement contained in the record on this question.

What is the history of this man?

We think —

Earl Warren:

May I ask — may i ask — on what theory the case was argued in your — in your Supreme Court and on what theory the Court decided it?

Reno S. Harp, III:

The answer to that Mr. Chief Justice is this.

This is the first time that the respondent has been represented by counsel in a court proceeding in this case.

The history of this case is this.

He filed his petition for writ of habeas corpus in the Law and Equity Court of the City of Richmond, that is equivalent to a Circuit Court.

Judge Young, one of the three judges of that Court, appointed an attorney to represent him.

The attorney looked into the matter and filed a brief of some type with Judge Young.

In Virginia, the respondent, State Superintendent or the Penitentiary, by counsel, through the Attorney General of Virginia, cannot come wondering into the case until ordered by the Court.

We can’t file any pleadings.

We’re not permitted to until an order to show cause or — or a writ is issued.

We don’t appear and cannot appear.

Reno S. Harp, III:

So, we didn’t appear in that case at all.

Then as was stated yesterday, writs of error in Virginia are discretionary.

So, there’s no reason — we have no idea as to why the petition for a writ of error was denied.

Felix Frankfurter:

Do I infer from what Senator Boothe said yesterday that on the application or whatever it’s called, to — on leave of appeal, the grand jury writ of error in the Supreme Court, thereto the State — the Commonwealth was not represented and couldn’t be represented until that discretionary writ was granted?

Reno S. Harp, III:

Yes, sir.

We could not have come into the case.

Yes, and it was a habeas corpus case, we could not come into it until such time —

Felix Frankfurter:

Either — either in the nisi court or on — in the appellate tribunal.

Reno S. Harp, III:

That is correct Your Honor.

That is correct.

So, why the Supreme Court of Appeals denied the writ?

I don’t know.

I could think of several reasons, one of which is this, and it’s not in the record, it’s immaterial but the Law and Equity Court of the City of Richmond had no jurisdiction than attain this suit, because there were facts not matters of record alleged in the petition.

And under Virginia law, a petition for writ of habeas corpus which alleges facts which are not matters of record must be filed in the Court in which the conviction was suffered.

So, if we had been in the case, we would have immediately moved to dismiss it on the grounds of Law and Equity had no jurisdiction.

And that —

Felix Frankfurter:

Did you file — did you — in response to the — to the petitions in this Court, did Virginia raise this local procedural problem?

Reno S. Harp, III:

No, sir, we did not.

I did not file the response that was requested by the — this Court.

It was filed by a former — a former Assistant Attorney General Thomas M. Miller, who is no longer any officer.

Felix Frankfurter:

Well —

Reno S. Harp, III:

He didn’t raise it.

I would have frankly, but I was not handling the volume of habeas of corpus cases at the time, sir, I’ve been assigned since the First Amendment.

Felix Frankfurter:

What do you — what do you say to that, Mr. Harp?

Reno S. Harp, III:

Sir?

Felix Frankfurter:

What do you say to the argument that is implied in your answer namely, that if the State is represented by one lawyer who doesn’t raise a local procedural point and the case is brought here —

Reno S. Harp, III:

I think we’re — I think to use a colloquial expression, Your Honor, we’re out to lunch on that point.

We had it — I just called up to the Court’s attention.

Felix Frankfurter:

But are you now suggesting that you are not bound or you are not barred rather, from raising a procedural question which deprived this Court of jurisdiction?

That’s the essence of your argument.

Reno S. Harp, III:

That is the essence of the argument in a — in a matter of speaking, yes, Your Honor, because the original court didn’t have jurisdiction, sir.

John M. Harlan II:

Well, why do you consider you are precluded from raising a jurisdictional question?

Felix Frankfurter:

Even — he’s not.

Reno S. Harp, III:

I’m not.

I don’t —

John M. Harlan II:

(Voice Overlap) —

Reno S. Harp, III:

— think I am precluded, sir.

Felix Frankfurter:

You said the opposite.

You said you were not concluded — precluded.

Reno S. Harp, III:

Yes, sir, that is correct, Your Honor.

John M. Harlan II:

I thought you said, you were out to lunch, don’t you?

Reno S. Harp, III:

I said I was out to lunch because I don’t feel that I will get very far with that argument quite candidly, Your Honor.

I think I have a much stronger argument than that to make, sir.

Felix Frankfurter:

Well, I can’t imagine, speaking for one person, you have a stronger argument in lack of jurisdiction of this Court.

Reno S. Harp, III:

Well, the lack —

Felix Frankfurter:

I mean in this case and any case.

Reno S. Harp, III:

Well, I — I don’t know.

I haven’t investigated it and frank, quite candidly, I didn’t think of it until last night.

So, I’m in no position to talk too much about it, Your Honor.

The —

Earl Warren:

You didn’t take too much about what until last night?

Reno S. Harp, III:

Until the question — it hit me last night, Your Honor, in going over this case that Law and Equity had no jurisdiction to entertain the matter as originally filed.

So that when the Supreme Court of Appeals of Virginia denied the petition for writ of error, they may have denied on the grounds.

Well, Judge Young didn’t have any authority to enter the order or to write the opinion because Mr. Newsom filed in the wrong court.

Moreover, it’s interesting to note that Mr. Newsom is a busy little man and while his petition for a writ of certiorari was pending in this Court, from a decision of the United States Court of Appeals for the Fourth Circuit, this petition for writ of habeas corpus was found in Judge Young — Young’s court.

And while his present petition for writ of habeas — for a writ of certiorari, in this case, was pending in this Court, he filed a petition for writ of coram vobis in the Hustings Court for the City of Richmond Part II.

So —

Felix Frankfurter:

Where is that litigation?

Reno S. Harp, III:

You — the original petition for a writ of —

Felix Frankfurter:

The coram nobis litigation.

Reno S. Harp, III:

That was denied by the Hustings Court for the City of Richmond Part II and the Supreme Court of Appeals of Virginia denied a petition for a writ of error in that case.

Felix Frankfurter:

But that is not here before us.

Reno S. Harp, III:

No, sir, but we put it in our appendix.

Felix Frankfurter:

Yes, I understand that —

Reno S. Harp, III:

Yes, sir.

Felix Frankfurter:

— that case is not — we cannot —

Reno S. Harp, III:

No, sir.

Felix Frankfurter:

— pass — we can’t adjudicate that litigation.

Reno S. Harp, III:

No, sir.

To consi —

Felix Frankfurter:

Therefore — therefore, speaking for myself, assuming you’ve said all there is to be said, I hope Senator Boothe will address himself because if it’s — if it’s demonstrable, not questionable or ambiguous, but if it’s demonstrable that the lower court had — that — that this is a case which was barred from consideration by a virtue of the procedural limitations of Virginia courts and therefore, there is necessarily a state ground and speaking for one member of the Court, we have no jurisdiction because the case — the judgement then must rest unless we have explicitness of the contrary on that local ground, and I hope Senator Boothe will say something about that and come from his rebuttal.

Earl Warren:

But neither your response nor your brief raised that question.

Reno S. Harp, III:

No, Your Honor, it did not.

That Section 8-596 —

Felix Frankfurter:

Is that other case still alive?

Reno S. Harp, III:

Sir?

I beg your pardon.

Felix Frankfurter:

Is the coram nobis case still —

Reno S. Harp, III:

Well, let’s see where we are now.

Felix Frankfurter:

— potential.

Reno S. Harp, III:

That — according to the files in the Office of the Attorney General, no petition for a writ of certiorari has been filed in that case, sir.

Felix Frankfurter:

Well, I know but when was it — when was it denied?

I want to know if it’s still alive.

Reno S. Harp, III:

It was denied by the Hustings Court for the City of Richmond Part II on April 28, 1960.

The petition for a writ of error was denied by the Supreme Court of Appeals of Virginia on — on October 10, 1960.

Felix Frankfurter:

October, November, December, that’s three months?

Reno S. Harp, III:

Yes, sir.

Felix Frankfurter:

Alright then.

Reno S. Harp, III:

To continue that, the — the Code Section in question on this Mr. Justice Frankfurter, sir, is Section 8-596 of the Code of Virginia, 1950.

As amended, you will find it in the packet part.

Felix Frankfurter:

May — may I trouble you again, may I trouble you again for the figures.

Reno S. Harp, III:

8-596, it’s in the packet part, sir.

I think that’s the section.

I have to double check it.

Felix Frankfurter:

Of the Penal Code?

Reno S. Harp, III:

It’s the Code of Virginia.

The Code of Virginia is in — is in nine volumes and an index, sir.

Felix Frankfurter:

All of them in?

Reno S. Harp, III:

Yes, sir.

Felix Frankfurter:

Alright.

Reno S. Harp, III:

Yes, sir.

That’s in Volume 2, to be exact.

Earl Warren:

I’d like to ask just one more question about this and I understood you to say in the response to the petition for writ of certiorari that another lawyer handled the case for the State and he did not raise that question but that you would’ve, but I notice at the brief on behalf of the respondent in the case, that bears your name.

Reno S. Harp, III:

That is correct sir.

And as I told the Court, I didn’t think of the question until last night, sir.

I slipped up quite candidly, sir.

The — to continue, then the — we’ve listed on pages 2 through 4 of our brief, the chronological history of this man’s efforts to secure his relief and have included as appendix 2, the opinion of Judge Walter Hoffman, the District Judge, the Eastern District of Virginia, Norfolk Division of April 10, 1958, which gives a rather thorough, complete and exhaustive history of this man’s efforts.

He was tried on the charge of murder.

He’d been having a list of relations with another man’s wife and when she rejected him, he shot her husband.

He was represented by two attorneys of his own choosing in the trial of the case.

This — there’s no indication in the record before this Court that those two attorneys ever withdrew from the case, after it was tried in the trial court.

No indication whatsoever.

And Mr. Newsom has never alleged that he discharged them.

Felix Frankfurter:

When you say, withdrew, you mean that they affirmatively asked the Court to relieve them of defending.

We haven’t got in the record the facts of Newsom appeared pro se.

Reno S. Harp, III:

The — they — and Newsom did not start appearing pro se Your Honor, until 1956, when he filed his first petition for a writ of habeas corpus, alleging that there were only 11 jurors on the jury that heard his case.

Now —

Felix Frankfurter:

The purposes of this litigation, if he had pro se —

Reno S. Harp, III:

Yes, sir.

Felix Frankfurter:

— that would mean that even though those lawyers have still been willing to be called on or were under obligation perhaps, by virtue of the appointment by the Court, he chose to represent himself.

Felix Frankfurter:

And —

Reno S. Harp, III:

No, that is — I beg — excuse me, Your Honor.

The two attorneys who represented him at his original trial were selected and employed by Mr. Newsom.

They were not court-appointed attorneys.

Felix Frankfurter:

Well, in event, that raises a question which I hope we don’t — I don’t have to decide is whether if a man in fact has a lawyer, can he trial pleadings in his own name?

Hugo L. Black:

Well, then —

Reno S. Harp, III:

This is a different proceeding.

Hugo L. Black:

April — April 1953, he did write a letter —

Reno S. Harp, III:

Yes, sir.

Hugo L. Black:

— stating that he had not or did not have a lawyer, isn’t it?

Reno S. Harp, III:

Now that — that isn’t what that letter says, Your Honor.

Hugo L. Black:

Well, he says he hadn’t been able to complete arraignments with his lawyer.

I don’t suppose that (Inaudible) or what’s meant by that if he didn’t have a lawyer.

Reno S. Harp, III:

He didn’t say his lawyer, it says, with an attorney.

Hugo L. Black:

That’s right.

Reno S. Harp, III:

With an attorney.

That’s — that’s a little different.

Hugo L. Black:

Then he asked for a lawyer to represent him.

Reno S. Harp, III:

That’s correct, sir.

That is exactly correct.

Hugo L. Black:

(Voice Overlap) — I suppose that he —

Reno S. Harp, III:

He noted his appeal —

Hugo L. Black:

But supposing now, that he was — had a lawyer.

Reno S. Harp, III:

He noted his appeal and said he couldn’t make arrangements with — for an attorney.

What that means, I do not know.

Felix Frankfurter:

To what — to what point, are you now addressing yourself by stating these things?

Reno S. Harp, III:

Well, I’m addressing myself to this Your Honor.

I’m attempting to show by showing the history of this man’s efforts, to show first, that all his — that his efforts have been frivolous, that this petition is plainly frivolous.

And to show further that the man had — did have a fair trial and you’ll find that the opinion of the United States Court of Appeals for the Fourth Circuit which is printed, as Appendix 3 in our brief, indicates that, as well as Judge — Judge Hoffman’s memorandum opinion.

Felix Frankfurter:

By frivolous you mean that on the face of it, it’s — it’s saying that 2 and 3, it was filed?

Reno S. Harp, III:

Yes, sir.

Felix Frankfurter:

Now —

Reno S. Harp, III:

That is correct.

Felix Frankfurter:

— claim that he doesn’t make — and he didn’t make on the basis of which this writ was issued, was that he asked — he had no lawyer.

He didn’t make that — that does appear does it not in the papers?

That he said — at one — at some point rather, I don’t know whether it’s the 1953 letter, you can interpret it the way you like.

At some point or rather he did say, I have — I want to appeal, I gave notice of appeal but wanted an appeal, but I had no lawyer who would press that desire on my part, is that right or not?

Reno S. Harp, III:

That is what you can read into the petition for a writ which he filed Your Honor, but that isn’t what his contention as set forth in his petition on this.

That is not his —

Felix Frankfurter:

Contention, you mean here?

Reno S. Harp, III:

His petition for a writ of habeas corpus on which this proceeding is based, Your Honor.

That’s not what it’s — that’s not what he put in there, at all.

Felix Frankfurter:

What does — does the document have if you will?

Reno S. Harp, III:

Alright, Your Honor, just a second, if I may.

He says this on page 4 of the record or page 11 of our green brief, his contention is this, “Petitioner was denied due process of law and equal protection, when Hustings Court Part II of the City of Richmond denied him an appeal from its judgment rendered on the 10th day of April, 1953 and in that failing to aid sufficiently, they attended appeals of the appellant.”

It doesn’t say —

Hugo L. Black:

What — what did he say in addition to that, see Appendix — Exhibit C and D, what was that about?

Reno S. Harp, III:

Those are the two letters, sir.

The one noting appeal Your Honor and the second one saying, —

Hugo L. Black:

Asking for a lawyer?

Reno S. Harp, III:

Due to circumstances, I won’t able to make arrangements.

Now, I don’t what —

Hugo L. Black:

And asking for a lawyer.

And asking for —

Reno S. Harp, III:

Yes, sir.

Hugo L. Black:

— appointment of a lawyer?

Reno S. Harp, III:

Yes, sir.

He had no question about that.

He asked for an attorney.

Potter Stewart:

That you’re suggesting something else by what you’ve just been telling us after the time of this interrogation.

Potter Stewart:

In other words, in answer to Mr. Justice Frankfurter’s inquiry, aren’t you suggesting this?

This man was tried and convicted of a — of murder and he could’ve — he could’ve been sentenced to death.

He was not and its — we all know, as a practical matter, that offered him their very best lawyers in the world.

After a trial like that, they could see better part of valor not to take an appeal because of the rest that on a new trial, there maybe a — a capital — there maybe a conviction that will lead to a sentence of death.

And that this man, did have lawyers, lawyers of his own choosing, who were advising him and that — that it’s at least possible that they advised him not to take an appeal.

That would at least, have been a very reasonable, understandable and everyday a count of advice to give in that situation.

Is that what you’re suggesting?

Reno S. Harp, III:

That is correct, Your Honor.

I’d — it’s not in the record but the — it’s obvious that this man got a lucky break, frankly.

The record shows — it shows the type of crime which he committed, but the — I’m also addressing myself on that one —

Potter Stewart:

You’re suggesting this that it would be a — (Inaudible) state of the law if the person’s own lawyers told him and advised him not to take an appeal and he understood the wisdom of that advice, but decided he drafts to play on both ways and therefore on his own, decided to take an appeal and ask the Court to appoint a lawyer to take an appeal.

If that were denied, he’d get a — he’d have two bites of the apple.

Reno S. Harp, III:

That is correct, Your Honor.

That I think this man has been tried, has been biting at the apple since 1956, trying to get out —

Felix Frankfurter:

But can a defendant — can a prisoner reject the advice of — assume this, assume, assume that due process does impose upon the States the duty to supply a lawyer to an indigent — indigently convicted defendant in a capital case and otherwise, you’ll have the situation as you’re having here, with all the hypotheses in fact, in the record, which Justice Stewart had put to you.

Assume all that, can the defendant say, “I reject the advise of my lawyers and I would like — I think, I have a chance,” but would he be barred by the — not only the honest and contentious, but the wise advice of lawyers and go on his own?

Reno S. Harp, III:

I would say that he would be barred, but there’s one factor that I think, Your Honor left out of that question that I should like to supply if I may, because we ran into this very situation, not two months ago, with a habeas corpus case.

Suppose he can’t get an attorney and suppose no attorney will take the case because he says, there’s patently no error in the record.

Where does that leave you?

We had a recent habeas corpus case involving an indigent, the court-appointed a very fine attorney.

The man looked into and he talked to his client, he had coverage with the court with the petitioner present and his lawyers said, “I’m — I’m court-appointed but I cannot honestly argue this proposition because it’s — you’re obviously wrong and the man was ignorant and you just couldn’t explain it to him,” the question involved figuring the — whether he was serving third time, half time or flat time, good time or bad time, in a state penitentiary.

What do you do in that case?

I think that — that due process would not include the right of a man to have an attorney when the attorney says obviously.

An expert attorney says, “There’s no error in this record.”

It’s a clear-cut case.

Felix Frankfurter:

Well, you — you may or may not be familiar with cases in this Court, dealing with this problem as to federal prosecution —

Reno S. Harp, III:

I’m not, Your Honor.

Felix Frankfurter:

— which — which caused to be raised a very different question in view of the explicitness of the right to counsel in the federal court as against due process provision of the Fourteenth Amendment.

And the mere fact that it’s a professional judgment of the lawyer, and a good lawyer, or an able lawyer, recognized lawyer, doesn’t necessarily make a question frivolous for the one who has been many years or few years at the bar, you get jokes in picking something that’s frivolous and — and the majority of the Court quite disappoints your prophesy.

Reno S. Harp, III:

To continue then, if I may —

Earl Warren:

Mr. Harp, business is a little different from the case you were just telling us about two months ago because there, the Court did appoint a lawyer for the man and the Court did advise him that or the lawyer did advise him on his appeal that he had no case.

And the Court, after having appointed counsel, said that he had not — had gotten that reaction from him and he suffered no injury.

But here, here, a man is apparently from what we can see here has been abandoned by his lawyers so far as the appeal is concerned.

The lawyers may have had reason for it.

They may have had no reason.

We don’t know.

But apparently, obviously from his letters, that he wrote to the judges within the statutory time for appeal.

His case had been abandoned by his lawyers.

He was doing everything he could as an individual to — to note his appeal and get it moving and he was writing to the judge saying that I — I haven’t had the time, I haven’t been able to get a lawyer and so finally, I appealed to you to appoint a lawyer for me and that was within the statutory time for taking an appeal.

Reno S. Harp, III:

The end to — I didn’t tell the complete story on this recent case which will answer part of your question, sir.

We never had to reach the determination which this Court, which you — of the question which you asked me, sir, Mr. Justice Frankfurter, for the reason that while the matter was pending, the man escaped from the state farm and we haven’t caught him yet, so the case has been dismissed.

But in this case, Your Honor, I think that you’re reading a great deal into this very short letter, which the petitioner wrote.

Now, I hold him right strict to his words, because he is one of the finest con lawyers we’ve got, incarcerated in the Virginia State Penitentiary today.

And he’s not a dumb fellow by any stretch of the imagination, he’s been in watch before for murder and was pardoned.

So he knows what the score is.

Earl Warren:

Well, we don’t have any of that here before us —

Reno S. Harp, III:

It’s in the appendix Your Honor.

You’ll find it in the opinion.

Earl Warren:

— all we know are these letters and because they are — because they are briefs, maybe I can read them in — this first one, eight days after he was ordered committed to the penitentiary reads, “In lieu of any known action on the part of my attorneys, I am taking this method of respectfully noting an appeal, from the life sentences imposed upon me in your Court from April 10th, 1953.

I will, within the allotted time, attempt to get counsel to complete the appeal.”

Then five days later, he wrote a second letter in which he said, “Due to circumstances beyond my control, I have been unable to complete arrangements with an attorney to complete my appeal.

Therefore, I respectfully request that you appoint me counsel to appeal my case to the State Supreme Court of Appeals.”

Now, isn’t the firm interpretation of that he — that he had no lawyer, that he was doing his best to appeal, that he wanted a lawyer and that he requested the Court to appoint one?

Reno S. Harp, III:

I would concede that he wanted a lawyer.

There’s no question about that.

But insofar as any other facts are concerned, they are pure supposition and I cannot concede any other fact from the fact that he wanted a lawyer.

Now, if I maybe permitted to point out one thing at this point, which is in our brief, it is not overly emphasized but it is in there and I think it’s important.

If you examine the Court order which appears on pages 11 and 12 of this record and count the number of jurors, there are only 11 jurors on that — on that list.

This man is not now detained under this order.

And detained under the order entered in the nunc pro tunc proceeding held in November of 1956, which put the name of Duncan on that list.

Reno S. Harp, III:

He was represented by court-appointed counsel in the nunc pro tunc proceeding.

He was an indigent at the time.

He asked the Court to appoint an attorney to assist him an appeal — in appealing his case.

One was appointed and was later discharged.

Mr. Harlan, Ruby was appointed to represent him on appeal.He was later discharged by the petitioner in writing.

The petitioner is now detained in the Virginia State Penitentiary on that order.

He had an appeal from that order.

He is not detained under this order which contains only 11 names.

Felix Frankfurter:

Can I ask you Mr. — whether the — whether, under your procedure, in case this should go against him and the coram nobis having not been appealed, whether that is open to him, another coram nobis proceeding so that he may come up here on that proceeding or the first on res judicata, under your procedure?

Reno S. Harp, III:

I would think that there’s nothing to prevent him from coming up on another.

In fact, I will guarantee you practically that he will serve, if he loses here.

He’s got a long time to go and he’s going to keep right on filing, Your Honor.

Felix Frankfurter:

Habeas corpus may be renewed in Virginia after one unsuccessful attempt?

Reno S. Harp, III:

Habeas corpus may not be renewed on the same point.

The judgment is conclusive, under 8-605 of the Code.

Felix Frankfurter:

But if you’re right, then it would be a different point.

If you enter — if you went to the wrong court and was going out for that reason —

Reno S. Harp, III:

He can go back and start all over again.

Felix Frankfurter:

— he can go to a right court, can he?

Reno S. Harp, III:

Yes, sir.

He can go back to the right court and start all over again.

Tom C. Clark:

What was the allegation under Part II proceeding of the said trial?

That was in the right footnote.

Reno S. Harp, III:

Yes, sir.

That the allegation in that proceeding was this, he alleged that they were — that he was tried by a jury, consisting of only 11 jurors.

Tom C. Clark:

That — that resulted in the amend — the antitrust.

Reno S. Harp, III:

That resulted in this.

It resulted first, in the matter being state pending the outcome of the case of Counsel versus Commonwealth, which involved that very question which was decided by the Supreme Court of Appeals of Virginia in the fall of 1956, then, they nunc pro tunc him.

That, he appealed that and dropped that appeal.

Then he filed — then the petition for writ of habeas corpus was heard.

Reno S. Harp, III:

That went to the Supreme Court of Appeals of Virginia, writ of error was denied, it came to this Court.

Writ of certiorari was denied.

It went to Judge Hoffman in Norfolk.

He denied it without a hearing with the memorandum opinion, which is found on Appendix 2.

The Fourth Circuit Court of Appeals appointed a couple of attorneys to represent him, he then had a hearing there.

He lost there, that is — the opinion of that Court is printed in our appendix, then he filed a petition for writ of certiorari to this Court and while that petition was pending, he filed this petition for writ of habeas corpus in the Law and Equity Courts.

That gives you a — a brief rundown of these several efforts —

Tom C. Clark:

(Inaudible) I’ve got one more question

He asked there, in the original trial, convicted against that judge to appoint him an attorney for an appeal and then the record doesn’t show and the act (Inaudible) that at all, has he since that time ever asked any Virginia court to permit him through appointed counsel to proceed, to perfect that appeal on the Supreme Court of Errors (Inaudible) from that?

Reno S. Harp, III:

Of his original conviction?

Tom C. Clark:

Yes.

Reno S. Harp, III:

No, sir.

He asked for an attorney to appeal the nunc pro tunc case that he lost, brought by the State of Commonwealth of Virginia.

Tom C. Clark:

(Voice Overlap) — include counsel-appointed original case.

Reno S. Harp, III:

No, sir.

He asked for a — he asked the same Judge, Judge Douglas now, who tried him.

He said, “Judge, I don’t have any money, I want an attorney.”

The record shows, he was indigent.

And Judge Douglas immediately appointed an attorney to represent him.

Now, as we pointed out in the case at bar, from his original conviction, there’s no indication that he was indigent.

And I have very carefully examined all of the papers ever filed of which we have copies which is everything by this gentleman.

And he’s never said that in April of 1953, he was indigent.

The first person who ever suggested that was my good friend, Senator Boothe here and he assumed it.

It’s a — it’s a very nice assumption, but it’s not going out by the record.

The record doesn’t show what his financial condition was.

And for that reason, we don’t think that there’s any merit to the suggestion made by counsel for petitioner before this Court.

And Mr. Newsom was broke without funds in April of 1953.

There’s nothing in the record to support it.

Now, maybe if he had a hearing, it might be something different.

Of course, if we had a hearing, we could’ve looked in to see where his outside bank account is, because of couple of times going to govern, filing his petition, took all his money out and put it somewhere else.

Felix Frankfurter:

A hearing where, Mr. Harp?

Reno S. Harp, III:

A hearing in the state court, sir.

Felix Frankfurter:

State court.

Reno S. Harp, III:

A hearing in the state court.

That might’ve — if — if had not been an ex parte proceeding have gotten in the right pew, over in the Hustings Court Part II, then we would have it in — we have a record, frankly.

And we have no record in this case, when you get down to it.

There’s very little in the record.

John M. Harlan II:

But didn’t the lower court here, the nisi prius court decide this case on the premise that he was indigent?

Reno S. Harp, III:

That’s what Senator Boothe says.

John M. Harlan II:

Now — now, what does the opinion say?

Reno S. Harp, III:

The opinion says this, sir.

And I have quoted a small portion of it on page 12 of our brief, Judge Young says this, “The facts recited must be accepted as true in ascertaining whether probable cause has been shown, or to the effect that shortly after conviction, petitioner made known his desire to fit — to petition in the Supreme Court of Appeals of Virginia for writ of error and requested the trial court to appoint an attorney to handle the matter, which was not done.”

Those are the facts which Judge Young recites in his opinion.

That could be found on page 12 of our brief and page 23 of the printed record.

That’s what Judge — that’s what Judge Young used as a basis.

And of course, when he got into the question of appointing counsel, he had to go and manage some cases.

I know of no other cases that hold that you’ve got to appoint counsel period, except in the case of an indigent.

John M. Harlan II:

That’s what he says on page 27, where — after citing the indigent cases, he says, whether if you’ll be correct or incorrect, is of course, the question in the instant case.

Reno S. Harp, III:

That is correct, sir.

But he’s talking about the facts as he’s got them.

And he doesn’t have any information.

John M. Harlan II:

Well, you mean, he’s misapprehended the facts, don’t you?

Reno S. Harp, III:

I think he’s done some assuming Your Honor, quite candidly.

John M. Harlan II:

Still, as it comes to us in his opinion, rightly or wrongly, he premised his decision, does he not, on this fellow being indigent?

Reno S. Harp, III:

I don’t know what he premised his decision on, Your Honor.

It’s hard to say, because he says in his opinion that the facts — I accept are those which were recited.

And the recited facts make no mention of the man’s financial condition.

If this was — if he was an indigent, have he — if — if Newsom had been an indigent in April 1953, and he told the judge so and the record so indicated before this Court, we have an entirely different case, as we see it.

But there’s no clear cut case before this Court, there’s no clear cut constitutional question.

This is not the case of an indigent, ignorant man being convicted and desiring an appeal.

Reno S. Harp, III:

This is not that case at all.

This is the case of a man represented by his own attorneys.

We don’t know whether he was indigent or not.

We know he’s an able man as an attorney.

You’ve only got to look at pages 2 through 4 of our brief and see what he’s filed so far and he hasn’t done badly.

He hasn’t won anything yet, but he’s getting better and better.

He’s finally gotten here in the highest court of the United States.

He’s no — no ignorant person, at all.

This is not — this is not the case at all of a — of the ignorant indigent.

We have a confused situation, frankly, a very confused situation and it does not present a — a constitutional question as suggested by my good friend, Senator Boothe in a clear cut, concrete or in sided form.

Felix Frankfurter:

Mr. Harp, may I ask you to put these views, (Inaudible) now, we have a confused situation.

Put aside your jurisdictional — the jurisdictional question that you stirred and merely addressing oneself to the question of indigence, what do you say to this, we have no — we have no light, no direct light from the Virginia court as against court or anybody else, is that right?

At best one can argue one way or the other is to write that opinion of his presupposes whether he did or didn’t assume that this man was indigent.

Reno S. Harp, III:

Yes, Your Honor.

Felix Frankfurter:

We have before us, the underlying documents.

Maybe the two letters to which Justice Black referred to them a while ago.

What do you say may this Court, in the situation which we find ourselves, make an independent judgment and conclude that those letters are if not an ignorant man, in elegant way of expressing the fact the he doesn’t have a lawyer, because he hasn’t got the money to hire one, to pay one.

Is — is it open to this Court to make an independent judgment.

Reno S. Harp, III:

I would —

Felix Frankfurter:

If it — if it appeared on the record that he was not indigent, then of course, your courts, whatever one may think about the law, need to appoint a lawyer for him.

It doesn’t appear clearly that he was not indigent.

It doesn’t appear clearly as far as your argument that he was indigent.

In that situation, what do you concede to be our responsibility to such a record?

Reno S. Harp, III:

I would respectfully suggest that the petition for writ of certiorari should be dismissed, as improvidently that would for lack of the proper record, for this reason that the — the situation facing us today, I think is this.

You have a — a filed up record and although I am very young at the Bar and a neophyte when one gets down to it, I have never felt that a court should determine a case on facts which are not recited.

I’ve never felt that we can assume anything in making a decision.

Indeed in this case, all the assumptions if any need be made are against petitioner’s suggestions because the record clearly negates his financial condition that’s signed.

The record negates also any allegation had he made one, which he did not.

That there was — that there were any errors committed in the trial of the case.

So the question if any would be this, you’ve got man, we don’t know if he’s indigent or not, he makes no allegation as to whether or not, there were any errors in the case, moreover, the previous opinions of federal courts, two of them, in fact indicate that the man had a full and fair trial.

Reno S. Harp, III:

And there was nothing wrong.

Felix Frankfurter:

But —

Reno S. Harp, III:

So, I don’t think that this Court should make any decision on the constitutional question purportedly raised by my friend Senator Boothe in his brief.

If — if the courts — if we must have a case like that, I can assure the Court, there are plenty of them coming up because six of them have gone over my desk in the past six weeks.

Felix Frankfurter:

Mr. Harp, the very tribute you paid to the skill of this layman, namely that even experienced killer may be proven by the fact that he thinks it would be irrelevant for him to argue the merits of an appeal when all he’s arguing now, is the right to have an appeal in the course of which, the merits of the appeal could be established.

Reno S. Harp, III:

Oh, no.

This is not the argue and the right to have an appeal.

He could’ve appealed the case himself, when he wanted to Your Honor.

Felix Frankfurter:

No, no.

The right to have an appeal is competently conducted — competently pursued and he may — what he’s saying here, I need a lawyer in order — adequately to present my case being an experienced fellow you say that he knows enough so that this stage, he shouldn’t argue the merits of a potential appeal.

Reno S. Harp, III:

I don’t know about that.

He’s a very good appeal man, Your Honor.

After all, he’s —

Felix Frankfurter:

Well, that’s why he did not (Voice Overlap) —

Reno S. Harp, III:

— he’s been through here.

This is his third trip to this Court, Your Honor.

This is his third trip through here.

He’s been through the Supreme Court of Appeals a couple of times for the Circuit —

Felix Frankfurter:

Although, what have showed that this is not an ignorant man, the way the — the idea that I expressed from the letter and the way they are and that certain spectrum with which and of course we know, there are lots of very good lawyers inside a jail.

I mean there are lots of lawyers, lots of people inside of jail, who behave as good lawyers.

Reno S. Harp, III:

[Laughs]

Hugo L. Black:

Mr. Harp, I hope before your time is done, you would say what you think about the case on the assumption.

The record shows this man was convicted of murder in the first degree and sentenced to life that he asked for an appeal.

Thereafter, he wrote the judge and asked him to appoint him a lawyer and on the assumption that he was indigent and couldn’t get one, I’d — I wish you would argue the merits of it and further, we read some announcements.

Reno S. Harp, III:

Well, I’m frank to state that I had not devoted a great deal of time preparing for that particular question because I don’t think it’s raised by the record, but I would say this that in this particular case, in this particular man, with his ableness as an attorney, manifest on the record that in this case, the Court did not have to appoint an attorney to represent him.

Now, it is perhaps valid that the State should have some type of procedure, whether it be a certificate of probable cause, set up as, I understand the Federal Government has something along those lines so that if a man wanted to appeal, an attorney could be appointed to at least investigate it and read some sort of determination as to the merits of his contentions or see if there is an error of the face of the record or even in the transcript, if there’d be one.

Some setup perhaps, should be provided.

I don’t know that if — that you’ve got to appoint an attorney to carry it all the way out.

There should be some way that it could be handled to avoid that very situation, for this reason that if — if the Court should hold — furthermore, if the Court should hold for instance, that a man is entitled to have an attorney, an indigent male, the man is clearly broke, clearly without funds, if he is entitled to have an attorney to represent him on appeal, the Court should hold that now, what do we do?

There are approximately 125,000 people incarcerated in the penitentiaries of this country today, roughly.

Reno S. Harp, III:

About 6000 in Virginia alone and the — the result of such a decision if it be made retroactive as it was, would be horrendous in the state courts anyway.

I don’t know what would happen.

I’m frank to say, the — as the Assistant Attorney General of Virginia signed to the overseeing of all habeas corpus cases, the — an idea goes to the entire penal system including 31 road camps, 2 state farms and a state penitentiary for a — a new ground for relief, takes roughly three days, we figured it.

Before the time the first petition comes in, alleging the particular matter until we get one from the farthest road camp away.

So, this is the spectrum which disturbs me —

Hugo L. Black:

Are you —

Reno S. Harp, III:

— in the holding of that type.

Hugo L. Black:

Are you saying that you think there are great many cases where a man who’s been convicted to first degree murder and would ask for attorneys to conducting an appeal could’ve been indicted?

Reno S. Harp, III:

Well, I would say this.

Here’s a situation on this record, with these letters.

If these letters are sufficient now, if these letters are sufficient Your Honor, let me put this case before the Court.

You have a man who’s — who was convicted we’ll say, 25 years ago, at the age of 17, represented by a competent counsel.

A first degree murder of say, three or four people for heinous crimes and put away for the rest of his natural life, 25 years have now gone by and the Supreme Court of United States writes an opinion and says, “A man is — a man is entitled to have counsel on appeal.”

And he comes in to the — the courts in the State of Virginia and files a petition for writ of habeas corpus and says, “I was denied an appeal.”

And we say, what the records sound, we don’t have any court — official court reporters in Virginia now, so it has to be in the final judgment order of conviction.

The record’s silent, everybody’s dead, whoever had anything to do with the case.

And he says, well —

Hugo L. Black:

And you are still arguing largely on the basis that you don’t think this case ranked up?

Reno S. Harp, III:

Yes, sir.

Hugo L. Black:

I will — I hope before you finish, it’s up to you to use your time.

You will discuss the problem whether or not, you think it denies a man equal protection of the due process of law, who is an indigent, who is in convicted and sentenced to life imprisonment and who asked for a lawyer and to conduct an appeal and the Court doesn’t give it to him.

I’d like you to discuss the merits of that constitutional point if you don’t mind.

Reno S. Harp, III:

Well —

Hugo L. Black:

If you think — you think it should be discussed.

Reno S. Harp, III:

— I had not —

Hugo L. Black:

I think that probably it would be wise to discuss it.

Reno S. Harp, III:

I had not plan to discuss it, Your Honor, quite candidly at any length because of the state of the record, sir, but in — if you assume an indigent and assume that he was convicted of first degree murder and assume that there were errors in the record, you’ve got to make that assumption, I think.

Hugo L. Black:

Well I ask you the question assuming all that.

Reno S. Harp, III:

Yes, sir.

If you —

Hugo L. Black:

— but if you want to (Voice Overlap) —

Reno S. Harp, III:

— I’m — I’ve been trying to answer it, sir.

Hugo L. Black:

— but it’s not usual point.

Reno S. Harp, III:

Yes, sir.

If you assume all those things, then you reach this question as to whether or not, a man is entitled to anything beyond a fair trial in a state court.

Now, there are no decided federal and no decision of this Court on that question at all.

The — does the right to a fair trial then, extend beyond the trial itself?

Does it extend into the appeal period is what you’re asking me?

The appeal proceeding is not a part of the trial.

It is not a prosecution brought by the State of Virginia.

Hugo L. Black:

It’s a part in Virginia admit if the man is able to hire a lawyer?

Reno S. Harp, III:

No, sir.

It — it switches around.

If — if he is — if he is convicted in Virginia of first degree murder and desires to appeal, he files a petition for a writ of error and this case would’ve been style Stuart Newsom, Plaintiff in Error, versus the Commonwealth of Virginia, Defender in Error.

It’s an entirely new proceeding.

Hugo L. Black:

Well the —

Reno S. Harp, III:

It’s —

Hugo L. Black:

— sentence — the sentence couldn’t be imposed on him, could it, until he gets an appeal, if he’s able to get a lawyer and files the proceeding?

Reno S. Harp, III:

Oh, yes, sir.

Set — yes, sir, sentence can be imposed —

Hugo L. Black:

Sentence can be imposed if it’s suspended?

Reno S. Harp, III:

It can be.

It can be put under bond and if the local court won’t put him under bond, he may —

Hugo L. Black:

And then if he goes to the Supreme Court and it reverses it, what happens?

Reno S. Harp, III:

Well, let me — what I was saying was this, sir.

If — if the lower court refuses to bond him, then the Supreme Court feels can bond him, if they want to, but it goes to the Supreme Court of Appeals of Virginia.

He files a petition for a writ of error against the State.

It’s not a prosecution brought by the State against him.

It is an effort by a person who is convicted in a separate proceeding to secure an adjudication of the — of his trial.

Hugo L. Black:

But at least, has some connection with the formal proceeding, I would suppose (Voice Overlap) —

Reno S. Harp, III:

Yes, sir, because the record goes on out —

Hugo L. Black:

And it —

Reno S. Harp, III:

— but it’s a new proceeding.

Hugo L. Black:

— could get reverse — if it gets reversed, the sentence cannot be enforced against him.

Reno S. Harp, III:

Well, it depends on how it’s reversed.

Hugo L. Black:

Suppose it’s reversed and said it is wrong and he shouldn’t have been convicted, what happened?

Reno S. Harp, III:

To reverse, to remand it for a new trial, yes, sir —

Hugo L. Black:

Yes.

Reno S. Harp, III:

— then they take him back and they try him all over again.

It’s very seldom you ever see one where the — it’s reversed in the matters dismissed, I don’t think I’ve seen one in the four and a half years I’ve been in the Attorney General’s Office, sir.

But if it is reversed on a factual situation and quite often the Commonwealth’s attorney will look and say, “Well, I got this here, say evidence in first time but not this time and (Inaudible)

Hugo L. Black:

Well, now the problem that I wanted to discuss was this.Under the old proceeding, you have a man who’s been convicted.

He’s denied the opportunity.

We’re assuming to get the Court give him that chance to get his case reversed and remanded for a new trial solely because he was unable to get attorney and the Court could — would not appoint anyone.

Would that violate due process and equal protection?

Reno S. Harp, III:

No, sir, for this reason that he still got the right to do it himself.

He —

Hugo L. Black:

Still what?

Reno S. Harp, III:

He still has the right to file his own appeal if he wants to and the prisoners in the penitentiary are brought over every time a court, three to six at a time and carried into the Supreme Court of Appeals and their petitions for writs of error and habeas corpus cases, coram vobis and original convictions are heard.

But I think this, I think that we miss one point in this case and that is this that in Virginia, insofar as we can tell from the Commonwealth side, if a man is indigent and is wrongly convicted, his attorney, who was appointed by the Court, will bring the case up himself without anybody asking him to other than — other than the man who was convicted.

And we’ve had three during the past four months, one of them was reversed and the other two were not.

You’ve got to assume some good faith along the line somewhere and we have found that in Virginia, our attorneys come on up with the indigent and filed the petition for writ of error but in any event, that is not too material to this proceeding.

John M. Harlan II:

Is this the first time as far as you know that such a request has been made to your Supreme Court to the appointment of a lawyer?

Reno S. Harp, III:

This request was —

John M. Harlan II:

An appeal?

Reno S. Harp, III:

— not made — to the Supreme Court, sir.

John M. Harlan II:

No, no, I meant in connection with an appeal.

Reno S. Harp, III:

That was back in 1953, which was before I started practicing law, Your Honor.

I don’t know — I couldn’t answer that question honestly.

The only thing I can point to is this, and that is the nunc pro tunc proceeding which resulted in the order under which we’re now holding this matter, was tried by the same judge that tried him original and in that case where he was clearly and said so, an attorney was immediately appointed.

Felix Frankfurter:

Mr. — Mr. Harp, I’d like to get some clarification on one or two things.

The assumption to which you answered on the merits, as I understand — as I — as I followed you, you dealing with the merits or an aspect of the merits, suggested the — the grave consequences as you see them of making this a decision in case and who should prevail, retrospectively saying this is — this has been — is and has been a right under the Constitution and you addressed yourself to that for all the practical difficulties.

One of the assumptions that was put to use, is that there were errors in the trial.

Now, practically, how often would that assumption in its unquestioned form come before this Court?

You couldn’t tell whether there were errors until you examine the record on the merits, unless the State confesses error and if the State confesses error, it wouldn’t be confessing it here.

I mean, if it confessed it here, it would take appropriate step, I should suppose, to confess it below, so that to determine whether there is error in the record insofar as or there was a fair trial insofar as that is relevant and you urged its relevant for the consideration you gave, couldn’t be determined merely by an assertion, but would require this Court to canvas whatever record is available of the original trial.

Is that — is that a fair statement of the situation?

Reno S. Harp, III:

Yes, sir.

That is one of the problems.

The — another problem is this.

Where are you going to get the record from?

Felix Frankfurter:

May I — may I — you might find it of interest Mr. Harp to look at the case in which we have to deal with this problem with reference to federal prosecution, Ellis against the United States, 356 U.S. 674 and there had been one or two other summary disposition since.

Reno S. Harp, III:

Now, in — in discussing the so-called merits of the case, we assumed many things which were not in this record.

We had to assume that there was no error in the case.

We had to assume he was indigent.

We had to assume he wanted an attorney.

Now, to conclude, I would say this, that we can’t assume any of those things.

The record is silent as to his financial condition.

The record shows conclusively that he is expert in appellate proceedings.

The Fourth Circuit opinion as well as that of Judge Hoffman indicates that he had a full and fair trial, so there were no errors in the trial and he doesn’t allege any errors.

Felix Frankfurter:

What was before Judge Hoffman, Mr. Harp?

Reno S. Harp, III:

That was a petition —

Felix Frankfurter:

I know what the case was but what was there before him?

What — what record of the state proceedings was there before him, which justified you in saying that Judge Hoffman found there were no errors?

Reno S. Harp, III:

Before Judge Hoffman was the petition for a writ of habeas corpus is filed by the petitioner, in answer of the respondent.

Plus, the Court orders involved in the original trial, the habeas corpus had nunc pro tunc proceedings.

Felix Frankfurter:

How many days was this trial take, do you know?

Reno S. Harp, III:

My recollection is it took one day, Your Honor.

It was rather a simple case.

Felix Frankfurter:

And you — and you’ve also told us that in Virginia, you have no court stenographer, so that the proceedings for that day or whatever it was could have been or wasn’t before Judge Hoffman, is that it?

Reno S. Harp, III:

Except for the fact, Your Honor that Judge Doubles, who tried the original case, took the time to write down a testimony of several of the witnesses after the trial was over —

Felix Frankfurter:

And that —

Reno S. Harp, III:

And had it signed by the — by the different attorneys.

Felix Frankfurter:

And that was before Judge Hoffman?

Reno S. Harp, III:

Yes, sir.

That was before Judge Hoffman.

You’ll find that noted in his memoranda opinion, sir.

No question about that.

Tom C. Clark:

Who signed for the — for Newsom?

Reno S. Harp, III:

Who signed for Newsom?

Tom C. Clark:

(Inaudible)

Reno S. Harp, III:

Yes, sir.

Smyth and Smyth.

There were two Smyths who represented him, Your Honor.

Tom C. Clark:

I noticed in the opinion (Inaudible)

That certification was the day when two have alleged April 23rd, the fact Mr. Justice (Inaudible)

Reno S. Harp, III:

Yes, sir.

That was — that was the date of the letter.

Now, what did the letter — when the letter got to the judge, we don’t know because sometimes it takes about two days to get it out of the penitentiary.

Tom C. Clark:

(Inaudible) preparation of certification (Inaudible) the trial by the Court and the counsel.

Reno S. Harp, III:

Yes, sir.

That says that the letter is dated, it doesn’t say it was received, sir.

Tom C. Clark:

Yes.

Is that the letter sent to the Court of Appeals (Inaudible) Court of Appeals?

Reno S. Harp, III:

The letter was sent to Judge Doubles in Hustings Court Part II, Your Honor.

Tom C. Clark:

(Inaudible) the certification of the evidence.

It already knew —

Reno S. Harp, III:

Yes, sir.

That went through the Supreme Court of Appeals of Virginia, Your Honor, when the habeas corpus proceeding went through.

They’ve seen it.

Felix Frankfurter:

You mean this one?

When this proceeding went through?

Reno S. Harp, III:

Let me think, which — which — when was the most pending.

Now, it went through — on the first habeas corpus to the state courts, not the second and also was up here for the coram vobis proceedings.

Now, in — to sum up then, we would say that the record is silent as — as to his financial condition.

The record indicates he had a fair trial.

He certainly has waited a long time to raise this particular point.

He’s tried everything else.

And the record before this Court, does not present a constitutional question as suggested by Senator Boothe, in a form whereby this Court can decide.

Armistead L.boothe:

Mr. Justice may it please the Court.

Earl Warren:

Senator Boothe.

Armistead L.boothe:

I should — I should like very briefly to —

Earl Warren:

Yes.

Armistead L.boothe:

— try and answer one or two questions which have been raised.

Well, Mr. Justice Frankfurter, I have obtained Section 8-596 of the Virginia Code and very practically, it appears to me that the petition for habeas corpus could’ve been filed either before the judge, who entered the original judgement order or in the Circuit Court of Corporation Court of any — of any or any judge of either in vacation in the county or city in which the man was detained.

Now, the Court of Law and Equity Part II in the Hustings Court, they have a pretty similar jurisdiction and — and it seems to me that — that the man was absolutely right in going to any court, any trial court, any court of record in the jurisdiction which he was — detained which was Richmond City.

And I don’t believe that counsel will — will deny that even though that’s not shown in the record.

Now, Mr. — Mr. Justice Black asked a good question.

Well, I’ll — I’ll come back to that a little bit later.

Now, I would like to very briefly touch upon this question again raised for the first time, not in the response, not in the brief that the man’s not held under the order which is in the record.

Now, this is the stipulated record and the order is at — appears on page 10 — page 11 as being the — being a part of the record and we’re now told that he’s held under this record, under this order but under a nunc pro tunc order issued as a matter of fact, several years later.

Now, if that were a nunc pro tunc order and if it is in effect, what it says it is, then it takes the place of and it’s substituted for this order and the man would be appealing from the same order changed only to add the name of the 12 jurors, which was originally wrongfully admitted from the — from the first order.

Now, this nunc pro tunc order actually, was started after this man in March of 1956, filed for a writ of habeas corpus on the ground that he had been tried only by 11 jurors.

And then the State in November of 1956, more than three years after the — the original proceedings proposed and — and did have this nunc pro tunc order drawn up.

Now, one other comment I would like to make, Mr. Justice Clark, was referring to Judge Hoffman’s opinion and the dates there I think, sir, that we could note it in the third paragraph in Appendix 4 of the State’s brief.

It said there that a few days — that — that the — the judge did make up, I beg your pardon, it’s not on Appendix 4, it’s — it’s on Appendix page 2 — in the appendix at page 2 of the — of the State’s brief.

They said that, “While no transcript of evidence is available, a summary was prepared and signed by counsel” and Mr. Justice Clark, I mentioned that was his counsel at the — who had been his counsel at the trial and who had not appeared from the time he made his motion to dismiss and from the time he filed his motion to dismiss back in 19 — back in — in April of — on April 10 of 1953.

Now then, here in September, more than four months after that, when you couldn’t have taken the case up, the — Judge Hoffman says, the trial judge — learned trial judge did certify the written testimony of three of the witnesses on the date following the trial.

Now, I — I’m sure this was done in good faith, but I mentioned those things, number one, to say, they haven’t gotten any of them.

They have no bearing on the case that we have before us — this Court has before the other day and as a matter of fact, it does and I respectfully say to — to my friend and colleague that because the case is so simple, because the issue is so simple, I do not blame him for trying to confuse this record by bringing in proceedings which have gone on since 1956 to date, covering 25 pages of his appendix and about a third of the main body of this brief.

Potter Stewart:

Now, Senator Boothe, one of the things that isn’t at all simple about this is the — is the factual issue of whether or not, this man was an indigent.

He certainly does not allege — did not allege in 1953 that he was an indigent.

He simply alleged that he was unable to make arrangements to obtain counsel.

And on Appendix page 4, there is a very clear indication in the opinion of Judge Hoffman that the — that a possible reason other than indigency and which is that he was dissatisfied with his trial counsel.

That claimed to the State Bar about them.

Armistead L.boothe:

Mr. Justice Stewart, I’m — I’m glad you raised that because that was the question in regard to counsel which was before Judge Hoffman.

There, he was complaining as to the effectiveness of his counsel in the trial court.

Potter Stewart:

It would save him from the electric chair.

Armistead L.boothe:

That — that’s right.

Potter Stewart:

And — and presumably the —

Armistead L.boothe:

That’s right.

Potter Stewart:

— at least we might guess, had advised him not to appeal.

Armistead L.boothe:

Well now, that — so there is absolutely no indication of.

I had — I did not see —

Potter Stewart:

That might have been pretty good advice, don’t you agree?

Armistead L.boothe:

Well, I think that he certainly —

Potter Stewart:

Here’s here — this isn’t a husband who shot a paramour, this is a paramour who shot a husband.

Armistead L.boothe:

Well, this is — that is the — if they were the two alternatives that he has, if they were the two alternative he had, I think that advice might be — might be given and I know that facts are not good and I don’t like the facts either, sir.

But here is a man who has never had the Supreme Court of Appeals of Virginia review his record.

Potter Stewart:

Let me ask you this.

Armistead L.boothe:

And he’s — they’ve never had a chance to say, whether or not, he was given a fair trial and that’s all he’s asking this Court to give him today.

Potter Stewart:

May I ask you this?

Armistead L.boothe:

Yes, sir.

Potter Stewart:

Is your claim that due process requires a compulsory appeal rep — with representation by a lawyer or merely requires a lawyer’s advised to a manners had been convicted as to whether or not to appeal?

Armistead L.boothe:

Oh I — I think — I think that the issue is —

Potter Stewart:

Wouldn’t you agree as a lawyer that sometimes, it would be the worst advice in the world to tell a man to appeal in —

Armistead L.boothe:

Yes —

Potter Stewart:

— that case.

Armistead L.boothe:

Yes, sir.

But this man had no lawyer to so advice him.

Potter Stewart:

He did.

He did have a trial counsel.

Armistead L.boothe:

That’s’ right.

Potter Stewart:

— of his own choosing.

Armistead L.boothe:

That’s right, sir.

Insofar as the record shows, the only reason that association was terminated was because of his dissatisfaction or was there effectiveness?

I — I think that — that the — from the record, that assumption could be made that he was dissatisfied.

Yes, sir.

I cannot — I do not feel that that is the only assumption that can be made.

Now, I feel we’ve gone a good deal beyond the record for which I apologize.

I think the States gone a good deal beyond the record and the State went beyond the record before I did.

But we have got this man’s own life before the Court now.

That he had $40 and — $50.03 when he went in the penitentiary in — about April the 10th — 10th and on the 23rd, when he was trying to get his lawyer, he had $40.

And he said, “This was a reason for my failure to secure assistance and why I requested the court to appoint counsel.

And I’m sure check the prisoner records will reveal them.

I had my rival here.

And I’m saying to this Court, I’m sure check of the prisoner records by the able Assistant Attorney General of Virginia has shown that.”

Now, as a matter of fact, that is true.

There is — there is this doubt in the record and it’s the doubt which can be expected when you realized that it is an ignorant man trying to — to appeal.

Now, this — the — the States — United States, I mean the — the State Attorney General talked about this man.

I’ve been down seeing that, pop news in the corner.

He’s a very distinguished nice looking, white-haired man, wouldn’t harm a fly, if you looked at it — just look at him.

And of course, he has —

(Inaudible)

Armistead L.boothe:

— sir?

(Inaudible)

Armistead L.boothe:

Well, of course, he has — he has good advice, good legal advice, there’s no question about that, in a way.

But as you all can see, he failed to allege there was error.

He failed to allege — they say that he was indigent and — and that is perfectly true, but that does show the — the difficulties in these cases and of course, a man in his condition.

A man who does not know, a man who is not furnished with counsel is going to make these mistakes and the more ignorant he is, the longer it will be before this question of constitutional right will be decided.

William J. Brennan, Jr.:

Well, do I understand Senator that in this case, at least, you’re not asking his release?

Armistead L.boothe:

No, sir.

William J. Brennan, Jr.:

The only relief you want is that lawyer be appointed who then can perfect the kind of appeal that he might have had had one been perfected back at the time in 1953 of this case?

Armistead L.boothe:

Exactly.

Felix Frankfurter:

Well, let me —

Armistead L.boothe:

Mr. Justice Brennan, if that had been done, look at the litigation which would’ve been saved.

If the original judge had given him a lawyer and the Supreme Court of Appeals of Virginia had looked at the record and said, “Your trial is fair, you stay where you are,” it would have eliminated pounds of — of pamphlets and — and litigation.

Felix Frankfurter:

But it might’ve eliminated by — by another proceedure, namely to ascertain with all these assumptions that had been made in this case or so, namely, whether he is indigent, whether he didn’t have a lawyer because able-lawyer who was suggested by my brother, Stewart, they’ve been from — what do you do in Virginia, Mr. Boothe, electrocute or hang?

Armistead L.boothe:

[Laughs] Well, they — they electrocute.

Yes.

Felix Frankfurter:

To save him from the electric chair, etcetera, etcetera and therefore, he would come even within the rule of the federal court of our Court rather in the Ellis case, that he’s asking the State to spend money or at least go through waste of judicial attention, when it’s a frivolous case in the technical sense in that term and there’s nothing to it that anybody should require the State to lend it a — for an appeal.

All those things are now, certainly, could admire their little clouding —

Armistead L.boothe:

Yes, sir.

Felix Frankfurter:

— I should say.

Armistead L.boothe:

Yes, sir.

Felix Frankfurter:

And I should think the thing to do is to leave this cloud utmost and not to say, give him an appeal.

Armistead L.boothe:

And now to say.

Felix Frankfurter:

Or find out whether he was indigent.

That’s all —

Armistead L.boothe:

Yes, sir.

Felix Frankfurter:

(Voice Overlap) —

Armistead L.boothe:

We would dissipate the entire thing.

Felix Frankfurter:

If — if whether there was a postmortem lightened communication is this letter from Mr. Newsom on December 5th, 1960.

Armistead L.boothe:

Yes, sir.

Now — and I am, Mr. Chief Justice, I’m going to close now.

Potter Stewart:

Senator Boothe, before you leave that —

Armistead L.boothe:

Yes, sir.

Potter Stewart:

— and I’m sorry to take so much of your time, but —

Armistead L.boothe:

That’s alright, sir.

Potter Stewart:

— in answer to Mr. Justice Brennan, you suggested — you answered his question that you’re not asking for this man’s release or release even for a new trial, but only that he be given the right to appeal with the assistance of counsel.

Armistead L.boothe:

Yes, sir.

Potter Stewart:

Now, as a — as a procedural matter, as a technical matter, is this the can or — or a habeas corpus in the — under Virginia law?

Is it a proper function of that writ to — to provide that kind of relief, because traditionally and ordinarily, the function of a writ of habeas corpus is to release a person from custody only?

Armistead L.boothe:

Yes, sir.

Potter Stewart:

Although it is used to — good deal just to bring the — bring the body into court, of course –(Voice Overlap) —

Armistead L.boothe:

(Voice Overlap) — and — and I — I feel that it — the broader jurisdiction covers the narrow —

Potter Stewart:

I was wondering —

Armistead L.boothe:

— function which we perceive.

Potter Stewart:

— if as a matter of Virginia law —

Armistead L.boothe:

Yes.

Potter Stewart:

— can — can a habeas corpus provide this kind of a more subtle or more refined sort of relief that is the right to appeal with counsel as distinguished from release from custody —

Armistead L.boothe:

Yes, sir.

I — I don’t —

Potter Stewart:

— release from custody?

Armistead L.boothe:

— I don’t believe that — I don’t believe that even the governmental authorities would feel you had to turn a man loose in the case of this kind and would feel that the writ could be used for much —

Potter Stewart:

You think, it could be used in this way, turn him loose unless —

Armistead L.boothe:

— much more meaning.

Potter Stewart:

— or until he —

Armistead L.boothe:

Yes, sir.

Potter Stewart:

— is given —

Armistead L.boothe:

Yes.

— unless he’s within a reasonable time, given a right to appeal with counsel.

Yes, sir.

Now, I — I feel that in closing, I — in one minute, I would like to get right back to exactly what the case was about.

Mr. Justice — Mr. Justice Black, in your question to Mr. Harp, you asked him to discuss the merits.

I would like to point out to the Court the merits as they appear to the State.

Now, I think that he’s answered your questioning his brief.

And on page 5, in the question presented, he says in effect, is a person — I’m going to leave that to represent him by counsel of his choosing because he’s certain of — he mentioned, a man represented by counsel of his own choosing, when his counsel has withdrawn from the case.

Now obviously, he has asked for the counsels.

I’m going to leave this language here, just get right down to the very crux of the case.

Armistead L.boothe:

Is a person convicted of a capital offense and sentenced to life imprisonment, entitled to have court-appointed counsel upon appeal, in the absence of any allegation that he is a pauper?

Now, the State of Virginia has in all fairness and honesty, not say — not said that he was not a pauper.

They have simply based their entire case upon the fact that he did not, unless he was a pauper.

They are admitting when you seize upon and look at that question, that had he alleged he was a pauper?

He would have been entitled to — to have had counsel representing him on appeal in this case.

And winding up finally, I would just like to go back to the record, something from which we have won.

Again on page 27 and the able, scholarly trial judge who decided this very issue, which is now before the Court, the man from whose decision certiorari has been granted ultimately, said on page 27, “Whether an indigent defendant is entitled to the assistance of counsel on appeal has not yet been squarely decided by the United States Supreme Court.”

An annotator says that such a decision in the affirmative would appear to be no more than a logical extension of the Griffin doctrine.

And then the judge, in a nutshell, places the case by saying whether this due be correct or incorrect is of course the question in the instant case.

Now, there’s your evidence, there is the record and there is the matter which was before the trial judge and which is before this Honorable Court today.

Earl Warren:

Senator Boothe, on behalf of the Court, I should like to express our appreciation to you for your representation of this indigent defendant.

We’re always comforted when lawyers will accept assignments of this kind.

We know they’re burdensome.

And Mr. Harp, I want to say to you that we — we appreciate the earnest and diligent manner in which you represented the interest of your State.

Reno S. Harp, III:

Thank you.

Armistead L.boothe:

May I — I say, I — I have enjoyed the assignment.

First, the opportunity I’ve had to appear before this Court and I’m delighted to be able to get in facto.