Newsom v. Smyth

PETITIONER:Newsom
RESPONDENT:Smyth
LOCATION:District Court of Massachusetts

DOCKET NO.: 116
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 365 US 604 (1961)
ARGUED: Jan 16, 1961 / Jan 17, 1961
DECIDED: Mar 27, 1961

Facts of the case

Question

  • Oral Argument – January 17, 1961
  • Audio Transcription for Oral Argument – January 17, 1961 in Newsom v. Smyth

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

    Earl Warren:

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

    Mr. Boothe, you may proceed with your argument.

    Armistead L. Boothe:

    Mr. Chief Justice and may it please the Court.

    The issue in this case is extremely simple and the facts themselves are — or should be very brief.

    It involves the question of whether or not a convicted felon is entitled under the Fourteenth Amendment to counsel on appeal.

    It counts the felon also being an indigent and being a man who has been tried for capital offense, convicted and sentenced to life imprisonment.

    The facts are that on April 10, 1953, Stuart Newsom was tried in the Hustings Court in the City of Richmond, was convicted before a jury and was sentenced.

    Eight days later, he wrote to the trial judge noting an appeal and saying that he propose to get counsel.

    Five days after that, on April 23, 1953 or 13 days after his conviction, he then wrote the judge and said that due to circumstances beyond his control, he could not get counsel and asked the Court to appoint an attorney for him.

    He —

    William O. Douglas:

    He was — he was tried with — with his own counsel?

    Armistead L. Boothe:

    Yes, sir.

    As a matter of fact, he was tried with his own counsel and the counsel whom he himself has selected.

    That counsel stayed in the case until the conclusion of the trial when he made a motion to set aside the verdict and for a new trial, which was denied.

    Thereafter, he was not in the case and from then on, he did not have counsel in this proceeding.

    Actually, no appeal was ever taken from that conviction.

    He did not hear from the Court and no appeal was — was had.

    On January 12, 1959, that is nearly six years later, he filed his petition for habeas corpus and asked the Court to grant his petition under section — under the Fourteenth Amendment, Due Process Clause and Equal Protection Clause.

    John M. Harlan II:

    Was that a federal habeas corpus petition?

    Armistead L. Boothe:

    Yes, sir.

    Actually, what he did was — no, it was not federal habeas corpus.

    He went into the Law and Equity Court of the City of Richmond and Judge Young heard his habeas corpus petition and in a very well-reasoned opinion, which is in the record ending at page 27, he denied I say a well-reasoned opinion as a magnificent opinion up to the last paragraph.

    And you would think that up to that time, he was going to decide the case in favor of the petitioner.

    Then from that decision, the petitioner appealed to the Supreme Court of Appeals of Virginia, Judge Young’s decision and memorandum were offered and dense the petitioner the petition for certiorari to this Court.

    Felix Frankfurter:

    Mr. Boothe, may I govern you to go back a minute?

    Armistead L. Boothe:

    Yes, sir.

    Felix Frankfurter:

    You said from the original conviction, which was in 1953 —

    Armistead L. Boothe:

    1953, yes, sir.

    Felix Frankfurter:

    From the original conviction, there was no appeal.

    Armistead L. Boothe:

    There was no appeal.

    Felix Frankfurter:

    Now, you wouldn’t have to tell us if there are any circumstances that were spelled out in detail but we — he had a lawyer up to the time of the — the imposition of the sentence.

    Armistead L. Boothe:

    That is — that is right, sir.

    Then —

    Felix Frankfurter:

    What is — in your — in the Commonwealth, what — if he told that he has the right of appeal by — by his lawyer, if he has one, or by the Court if he’s — hasn’t got one and need not to have one?

    Armistead L. Boothe:

    There’s — there’s no statute requiring that he’d be — that he’d know that — now, he — he did know it.

    He knew —

    Felix Frankfurter:

    He knew he had a right of appeal?

    Armistead L. Boothe:

    Well, he knew he had the right to appeal because he asked the trial judge.

    He wrote the trial judge on April 23rd in this letter which is in the record at page 14, I believe it is, asking for an appointment of counsel.

    It is in the record 14.

    He said, “Due to set you up,” now this is the judge who tried him, the judge who sentenced him to life imprisonment and who later recommended that he not even be paroled, this is three years later.

    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.”

    He asked for counsel.

    He pled for counsel.

    This is 13 days after his conviction and he never heard from the judge.

    Felix Frankfurter:

    Well, let me — that’s a very important qualification —

    Armistead L. Boothe:

    Yes.

    Felix Frankfurter:

    — the statement it was an appeal —

    Armistead L. Boothe:

    Well, I —

    Felix Frankfurter:

    — he asked — he knew he had a right of appeal.

    He wanted to appeal.

    He asked for assistance to appeal, to enable him to appeal and that was denied, and therefore I should think in order to call without any therefore causes such a subtle thing in this world.

    And the next step was that there was no appeal.

    Armistead L. Boothe:

    Yes, sir.

    William O. Douglas:

    Well, on Page 13 there, I — I see that he — he writes us a letter — well, a previous letter saying that he is taking this method of noting an appeal.

    Armistead L. Boothe:

    That’s right.

    So had — he noted an appeal and said he was going to — to attempt to get counsel.

    In my opening statement, I mentioned both these letters but I slurred them all and I appreciate the emphasis which you have given to my words.

    Felix Frankfurter:

    In other words, this was not voluntary — whether justifiably understood or not, this was not a voluntary abstention from an appeal.

    Armistead L. Boothe:

    Oh no, sir, he wanted the — he wanted an appeal.

    He requested it from the very beginning and as I say, he did not hear from the judge and therefore, no appeal was taken from — in — in that — from this original conviction.

    Was —

    Earl Warren:

    This letter was within the statutory time for appeal?

    Armistead L. Boothe:

    Yes, sir.

    Actually, you have four months in which to present your petition to the Supreme Court of Appeals Virginia.

    I have that statute in the brief.

    And also, one other limitation, he was required by the rules of the Supreme Court of Appeals to present a transcript of the record of the evidence, the typewritten part of the evidence to the judge within 60 days from conviction or from the date of the order, and that had to be signed by the judge to consent.

    So they are the two periods.

    He had 60 days to present the evidence and four months to present the petition for appeal to the Supreme Court of Appeals.

    John M. Harlan II:

    At some point along your argument, I don’t want to anticipate it.

    Armistead L. Boothe:

    It’s all right —

    John M. Harlan II:

    This letter brings to my —

    Armistead L. Boothe:

    Mr. Justice Harlan.

    John M. Harlan II:

    You’re going to deal I suppose with your adversary’s argument that there is nothing in this record, that’s what he says, that indicates that this man was indigent and therefore, whatever might be the consequences, otherwise is not presented by this case.

    Armistead L. Boothe:

    Mr. Justice Harlan, I’ll deal with it right — right now sir.

    I don’t — don’t feel that an interruption of — of that importance should be disregarded.

    As a matter of fact, I think that the clearest answer to the contention that this man was not pauper in the record.

    Is the language of Judge Young himself on page 27 of the record where he summarizes the exact question before him.

    And at the middle of the page, he quotes from the — the Griffin case, as I recall, only citing A.L.R. — or maybe he’s there citing an A.L.R. note and he says, “Whether an indigent defendant is, as a matter of due process, entitled to counsel on appeal is a question which has not yet been squarely decided by the United States Supreme Court.”

    Then he goes on down and quotes the annotation in law edition of the Supreme Court reporter and then he says, “Whether this view be correct or incorrect is of course the question in the instant case.”

    Now, the view that he’s speaking about is the annotator’s view that the establishment of a rule that a state must, as a matter of federal constitutional law, provide indigents with the assistance of counsel to prosecute appeals and criminal cases would appear to be no more than a logical extension of the Griffin doctrine and of course, the case of Griffin against Illinois.

    Now, whether this view, whether this room that a — an indigent criminal must be appointed counsel to help prosecute as a field, whether that view is correct or incorrect, is the question in the instant case.

    Now, all through his decision, Judge — Judge Young acknowledged that on pages 24 and 25 in at least five places.

    He speaks of — of Virginia statutes dealing with the furnishing of counsel to paupers with Virginia statutes which relieved indigents of cause on appeal of the double misfortune of being stricken with poverty and accused of crime, and of the fact that courts of records under — even in Virginia have decided that where — that those courts do have inherit authority to appoint counsel to defend paupers and other indigent persons.

    He is speaking and treating this entire case as though the man were an — an indigent.

    Counsel says — or the other Attorney General says that he has to do that because there are so many cases that involved indigents.

    But my answer to that is that if he will not deal with a case of an indigent and if he felt that this should go off on the ground that the man was not an indigent, all he would have to say is that none of these cases are applicable, this man is not an indigent and therefore, I dismiss his claim.

    He did not do that.

    He treated him as an indigent and he still decided the case as if he were an indigent.

    Armistead L. Boothe:

    Now actually, and I — with some interpretation, I did follow a short file, a short reply brief in this case and I felt that since the Attorney General of Virginia had put in by 25 pages in his appendix of opinions from the Circuit Court of Appeals and the — and the District Court of United States and other cases have nothing to do with this case, then I would justify doing it.

    This is a letter from the petitioner where he said that on April — in April of 1953 when he was convicted, he had $53.03 when he went in the penitentiary and approximately $40 constituting his total assets when he filed the — when he sought to appeal the case, and that he did make efforts to obtain bonds and was unsuccessful.

    Now, this is a letter from him to me, which I requested him to write me in order to give me the true facts, which I did not know until I received this.

    So — and then there’s one other thing.

    I feel that — I know that there is in the record right on the first page of the record a statement that in January of 1959, he was poor — I think it was $27 then in the — in the penitentiary.

    There are those things, but I feel that Judge Young’s handling the case, Mr. Justice Harlan, is the — is the most conclusive of proof that this was treated in this way.

    And as I say, if — if he hadn’t treated it that way, he could have said, “Well, had the man been an indigent, I’d have given him relief.

    But since he wasn’t, I won’t.”

    And he — he didn’t do that at all.

    He treated it as an indigent’s case and that is the exact opinion, the exact memorandum, the order of the identical judge from which certiorari was granted ultimately quote by this Court.

    Now —

    Felix Frankfurter:

    Mr. Boothe, when did — when in the history of your calendar appealability — was appealability a matter of right either in capital cases alone or in cases of severe offenses?

    What — what is the history?

    Armistead L. Boothe:

    No, sir.

    Appealability is not now a matter of right.

    It’s a matter of the Court’s discretion.

    Felix Frankfurter:

    You mean in this case?

    Armistead L. Boothe:

    Yes, sir.

    Felix Frankfurter:

    What court, the trial court or the appellate court?

    Armistead L. Boothe:

    The appellate court.

    In other words, in Virginia, you petition for an appeal or whether —

    Felix Frankfurter:

    Even in the cases of murder, you’ve got —

    Armistead L. Boothe:

    Yes, sir.

    It’s — it’s within the court’s —

    Felix Frankfurter:

    Not automatic?

    Armistead L. Boothe:

    That’s right, sir.

    It’s like the good — good man at the other state.

    As you all have cited in the Griffin case and substantive cases.

    Felix Frankfurter:

    I’m not talking about indigent in determining that but we have no question of whether the man is really an indigent.

    It’s all by leave of court, isn’t it?

    Armistead L. Boothe:

    All by leave of court.

    You have —

    Felix Frankfurter:

    What I’m going back to is that, is any opportunity for appeal in — in Virginia —

    Armistead L. Boothe:

    Automatic appeal?

    Felix Frankfurter:

    No, no, any appeal.

    Always by —

    Armistead L. Boothe:

    It’s always been a matter of discretion of — in the court.

    We have two — in other words, there are two steps.

    You file a petition for appeal and the other side follows, even with criminal cases, files of an action.

    Then you go before the Court and only the petitioner or the appellant has the privilege of speaking orally to the Court at that time.

    The appeal is even granted or refused.

    If it’s granted, then you have a hearing for the whole court.

    Felix Frankfurter:

    And that is true as to all offense — that has been true as to all — I don’t mean the — the belief that it isn’t automatic.

    But was there an opportunity even for discretionary review —

    Armistead L. Boothe:

    Oh no!

    No, not just yet.

    He didn’t — he didn’t have a — he didn’t have an opportunity for a discretionary view because he didn’t have —

    Felix Frankfurter:

    No, I don’t mean in this case.

    I mean in — as a matter of history.

    Armistead L. Boothe:

    Oh no, sir.

    Oh — oh yes, you — you — always discretionary.

    Felix Frankfurter:

    You see, because in many — in — in some states, there was no appeal at all —

    Armistead L. Boothe:

    Oh, I see what you mean.

    That — I — that is correct.

    Felix Frankfurter:

    It’s always a matter of constitute — well, I suppose I know from the decision of this Court that the state doesn’t have to give the right of appeal at all.

    Armistead L. Boothe:

    That is correct.

    I remember in your — in your concurring opinion in the Griffin case, you pointed out how recently you’ve been (Inaudible).

    Felix Frankfurter:

    Or in the federal courts and this Court.

    Armistead L. Boothe:

    Yes, and — or in the federal courts of this country.

    Well, I say we’ve always had the right of appeal.

    Armistead L. Boothe:

    I do not — I — I cannot say how long we’ve had to —

    Felix Frankfurter:

    I’m just curious you know.

    Armistead L. Boothe:

    No, sir.

    Potter Stewart:

    Just as a matter of interest.

    In capital cases, is a view often denied?

    Armistead L. Boothe:

    Is it often denied?

    Potter Stewart:

    Yes.

    Armistead L. Boothe:

    Yes, sir.

    Actually, I did point out in my brief this complimentary question with a complimentary answer to what you’ve just asked.

    Since 1950 in Virginia, there — there have been 167 criminal cases in which appeals have been allowed.

    Now, if you watch the decisions coming down year after year, appeals are granted in approximately half the cases where they are requested.

    Now, in criminal cases in Virginia, out of 167 cases in which they were granted, they — they reversed 96 and affirmed 71 since 1950.

    Charles E. Whittaker:

    Now, does that mean they were reversed out length or just reversed (Inaudible) and remanded for trial?

    Armistead L. Boothe:

    Some of those were remanded.

    Charles E. Whittaker:

    May I ask you, sir, in this case —

    Armistead L. Boothe:

    Yes, Mr. Justice Whittaker?

    Charles E. Whittaker:

    — as I understand, this man was tried for murder of the husband of his paramour and that carried a death sentence under your law.

    Armistead L. Boothe:

    That is correct, sir.

    Charles E. Whittaker:

    And he — the two counsels in his trial was able to secure a lesser sentence than asked.

    I mean, life imprisonment.

    Armistead L. Boothe:

    That is correct, sir.

    Or — no, in Virginia, the — they jury sets the sentence and the jury gave him life imprisonment.

    Charles E. Whittaker:

    The jury gave him life imprisonment?

    Armistead L. Boothe:

    Yes, sir.

    Charles E. Whittaker:

    A new trial would expose him to the list of — that would —

    Armistead L. Boothe:

    A new trial might —

    Charles E. Whittaker:

    A new trial.

    Armistead L. Boothe:

    Yes, sir.

    Charles E. Whittaker:

    Does he led you to the place — I have seen nothing at that kind in his petition for habeas corpus here suggested that he had any defense on the matter merits?

    Armistead L. Boothe:

    No, sir.

    Armistead L. Boothe:

    The — the Attorney General claims that he did not allege any error in the — in his petition of habeas corpus.

    He didn’t allege any error, which would — he just said he wanted counsel, in other words.

    I think substantially, that is true except that he said that in — in his layman’s language, he said that the Court have not aided him sufficiently in effecting an appeal.

    Charles E. Whittaker:

    Now —

    Armistead L. Boothe:

    Now, he — he did not, but Mister — Mr. Justice Whittaker, please let me say this.

    Charles E. Whittaker:

    Yes.

    Armistead L. Boothe:

    I think that that is one example of the absolute necessity and fairness in cases of this time for a man to have an attorney.

    I don’t see how we can expect a layman even with all the expert advice he’s got inside that penitentiary to make these petitions complete and to make — to expect him to make all the technical allegations he should such as that number one, I specifically am a pauper, number two, the errors of the court from which I wish to appeal are such and such.

    Now, I think that if he is given counsel, then the Supreme Court of Appeals of Virginia can very quickly determine in an appeal from that case whether there was any error, and had he been given counsel when he asked for it, the Supreme Court of Appeals would have decided the case or the record and if he had no error, the case would have been over with in 1954.

    That’s what I — what I feel should have been —

    John M. Harlan II:

    Supposing the trial court have said in response to his letter, I’ve looked over this record and in my judgment, this is a frivolous appeal, I decline to assign counsel and then he’s gone up on to your Supreme Court — the Supreme Court has denied to review or affirm this — such a record.

    What was your position then?

    Armistead L. Boothe:

    Well, I feel that — that of course it is a matter of a state legislatures to determine the circumstances under which appeal should be granted and — and not — and not granted, and under which within the framework of the federal constitution and the decisions of this Court that counsel should be appointed.

    And at the same time, I feel that even a decision of a trial judge that this was a frivolous appeal is something which the Supreme Court of Appeals of Virginia along with its decision of the whole case should have had an opportunity to pass on.

    Felix Frankfurter:

    Now, let me put it (Voice Overlap) —

    Armistead L. Boothe:

    — avail his right to counsel really surpasses that sir.

    Felix Frankfurter:

    Let me put a variant or carry out Brother Harlan’s question.

    As I understood you and it interests me enormously — as I understood you, appeal is by leave of the court of — the Supreme Court of Appeals.

    Armistead L. Boothe:

    Yes, sir.

    Felix Frankfurter:

    And did I understand you correctly to say that on that application or motion or whatever you call it technically down there, the (Inaudible) is heard orally.

    Armistead L. Boothe:

    Yes.

    Felix Frankfurter:

    But not the opponent.

    Armistead L. Boothe:

    That’s right, sir.

    Felix Frankfurter:

    Now, let me put the case of this — of Newsom, himself pro se appearing before your Supreme Court and stating the ground on which he wanted.

    And then your bench — five or seven —

    Armistead L. Boothe:

    Seven.

    Felix Frankfurter:

    Seven?

    Armistead L. Boothe:

    Yes, sir.

    Felix Frankfurter:

    Seven of them examining him and questioning him in order to decide whether they should give him leave and should then appoint counsel.

    What do you say to that?

    Armistead L. Boothe:

    Had they asked him?

    Felix Frankfurter:

    If he — if they allowed him to appear —

    Armistead L. Boothe:

    Yes.

    Felix Frankfurter:

    — in person.

    Armistead L. Boothe:

    Yes.

    Felix Frankfurter:

    And say for these and these reasons, I want Your Honors to dispense me an opportunity to have this case argued on the merits, but that preliminary statement — there’s a preliminary statement —

    Armistead L. Boothe:

    Yes, sir.

    Felix Frankfurter:

    — at which the appellant, the potential appellant may state reasons for asking the court to allow him to.

    Armistead L. Boothe:

    That’s right, sir.

    Felix Frankfurter:

    And I’m supposing that he was allowed to come in the — we’re dealing with the future here.

    Armistead L. Boothe:

    Yes.

    Felix Frankfurter:

    That a convicted prisoner —

    Armistead L. Boothe:

    Yes, sir.

    Felix Frankfurter:

    — is allowed to stay to the Court of Appeals why he should be allowed to have the appeal prosecuted on the merits.

    Armistead L. Boothe:

    Well, that appeal — if — if he was allowed to do that, he would be given say half of his privileges because if they heard him, of course, and decided that they would hear the appeal and then assign him counsel, he would be given full relief.

    Felix Frankfurter:

    Well then he’s got no — he couldn’t have agreed with the (Voice Overlap) —

    Armistead L. Boothe:

    Oh no —

    Felix Frankfurter:

    But I’m supposing they hear him and — on the basis of the Solicitor’s examination from the bench they prepared together and (Inaudible) to say whether this is — there’s nothing in it.

    There’s a variance on what Justice Harlan concluded.

    Armistead L. Boothe:

    Well —

    Felix Frankfurter:

    Except if they’re really — the Court of Appeals itself makes an investigation of that kind indicated to determine whether they should do it.

    Armistead L. Boothe:

    Well, then — then I feel that he has not — if they decide that they will go no further, then I feel that he has been deprived of his constitutional right because it’s very possible that an attorney may have presented a more effective case for him.

    Felix Frankfurter:

    Then he’s brought out problem — it has brought out difficulties that sua sponte, the Court didn’t —

    Armistead L. Boothe:

    Well, of course yes, sir.

    And he would know the case and — and — rather than — than this man.

    As a matter of fact, if you look at his language in the petition, some of it is quite picturesque but it just slightly misses the mark.

    You know what he is trying to drive at and — and it’s amazing how close he does — he does get to it.

    Hugo L. Black:

    What happened to the case after he noted the appeal in the trial (Inaudible) did you get it in your record?

    Armistead L. Boothe:

    Yes, sir.

    As I said, within 60 days, you have to — it’s — the rules of court specified the pleadings and certain other papers will automatically become part of the record.

    Armistead L. Boothe:

    To get the transcript to the evidence in and of course, there was a transcript here, you must — counsel either agrees on it or don’t agree but in any event, it’s presented to the judge within 60 days and he must sign it within 70 to make it a part of the record.

    Hugo L. Black:

    (Inaudible) Supreme Court of Appeals to show after that.

    Armistead L. Boothe:

    That’s correct, sir.

    Then the whole thing goes down.

    Hugo L. Black:

    So here, although I know it was on appeal, you can’t just lay it down.

    Armistead L. Boothe:

    It — it stayed there, that’s right.

    It stayed in the — in the Hustings Court.

    Nothing — nothing else happened.

    Felix Frankfurter:

    Under your — under your statute for the appointment of counsel in capital cases, the counsel feed by the state or the —

    Armistead L. Boothe:

    In the trial court, yes, they get $40 now.

    They —

    Felix Frankfurter:

    All total (Voice Overlap)?

    Armistead L. Boothe:

    Mr. Harp tells you to get a hundred.

    I didn’t realize —

    Felix Frankfurter:

    A day, hundred dollars a day?

    Armistead L. Boothe:

    For the trial.

    Felix Frankfurter:

    For the whole trial.

    Armistead L. Boothe:

    Yes.

    Felix Frankfurter:

    Whether that’s today or 10 days or 2 weeks?

    Armistead L. Boothe:

    Yes, sir.

    (Inaudible)

    Felix Frankfurter:

    I suppose under the theory of this quote that every lawyer has a duty to his profession.

    Armistead L. Boothe:

    Well, I — I feel that that’s true and I think it —

    Felix Frankfurter:

    The same circumstances the jury has (Voice Overlap) —

    Armistead L. Boothe:

    I feel that that is — it is true, Mr. Justice Frankfurter, and I think that it — it — to my mind, it satisfies — it satisfied the doubt in which on the interest that I had in Mr. Harlan’s dissent in the Griffin case, I think here we are asking for the appointment of help which doesn’t place any burden on the state, any financial burden on the state.

    I think that here, rather than ask the state to take some appropriate funds for transcripts —

    John M. Harlan II:

    To place the burden on the bar.

    Armistead L. Boothe:

    Exactly, and I — I think truthfully that this is a responsibility which the bar would accept and possibly, some would — would even enjoy.

    John M. Harlan II:

    Do you — is your element constitutional position here, a due process question or an equal protection question?

    Armistead L. Boothe:

    Mr. Justice, I feel that it is both.

    Armistead L. Boothe:

    I feel that — that under the due process clause, it is absolutely — it’s just as essential in cases on appeal for counsel to be appointed as it is in cases in the trial court.

    And I think actually that (Inaudible) against Pennsylvania and Pennsylvania against (Inaudible) bring forth which the normal step would be to say that if we’re to guarantee true constitutional rights to — for these defendants in — in — in these cases that they should be granted counsel all the way through.

    I feel that that was sort of the inference that I got in the Chestnut case, I think.

    I believe you wrote the opinion in that when you indicated that all the way through, the — these proceedings, as you mentioned it, the man was entitled to counsel.

    John M. Harlan II:

    We didn’t have that problem.

    Armistead L. Boothe:

    No, that’s right, except that was the case where a record was being made up at the trial.

    John M. Harlan II:

    Now, if it’s a due process problem, at least, then you view this, the Betts and Brady, the extension of Betts and Brady to appeal?

    In other words, was your — was your position is on due process mean that on a constitutional standpoint, he might be entitled to a counsel in such — in certain kinds of cases after the — depending on the character of the issues on appeal, and another case is if the due process wouldn’t require?

    Armistead L. Boothe:

    Well, certainly if you — if you followed those cases, that’s — that’s the Brady case that you feel it in the capital cases —

    John M. Harlan II:

    Yes, capital cases.

    Armistead L. Boothe:

    Yes, certainly, yes it should be.

    That was of course the first distinction made by this Court I believe in the trial courts and later on it was extended to all felony cases where it was felt that it would be really unfair.

    First, he was not fairly protected unless he did have counsel.

    Now, he then also feel that the — the — that the case of Griffin against Illinois, which relied upon the Equal Protection Clause, too, would be applicable here because certainly, if you have two litigants convicted of the same offense and one is able to get a lawyer and one is not and one asked for a lawyer and doesn’t get it, there’s no question about who has the better chance.

    But personally, I feel that a man has a better chance nowadays with the — with Perry Mason and all the other shows on television to defend himself in the trial court than he does on appeal.

    We have got one-third — one-third of the rule of Supreme Court of Appeals of Virginia to deal with appeals.

    We’ve got a —

    Felix Frankfurter:

    What’s that?

    I didn’t get that.

    Armistead L. Boothe:

    I say, one-third of the — of the — I’ve put that in my brief, I think, on page 6, nearly 15 pages, comprising one-third of all the rules of our Supreme Court of Appeals.

    This is a trial rule, common law rules, equity rules, deferred rules, one-third on being repealed.

    We have 34 technical sections in the court dealing with appeals and then of course we’ve got a myriad of decisions of the courts interpreting the statutes and the rules and if I was a criminal today and have my choice, I’d rather defend myself in a trial court and would try to — in trying to perfect an appeal.

    And —

    Felix Frankfurter:

    Have you got — have you got — I suppose you have appellate procedural problem that’s comparable to some of those that we have here.

    What is open, what has been opened?

    Armistead L. Boothe:

    Oh yes, sir, yes.

    And then I — I cannot think of — of a better example we’ve got right in this case where it will answer Mr. Justice Whittaker’s.

    This man didn’t say “I want to appeal because certain errors, errors that were committed by the court.”

    He didn’t have to do that.

    He didn’t even — he wasn’t even careful enough to say, I was an indigent at the time.

    Armistead L. Boothe:

    And I think that nothing is more proof for us than the need of an action by this Court to establish this Constitution.

    Charles E. Whittaker:

    May I ask you Mr. Boothe please.

    Assuming, apart — apart from the claim that he was entitled to counsel on his appeal as an original proposition, that sentence was in 1953.

    Armistead L. Boothe:

    Yes, sir.

    Charles E. Whittaker:

    Is it fair?

    Is it right?

    I ask you that he wait seven, eight years until the witnesses upon a new trial have died, he is no longer endanger of the death sentence to raise this question?

    Armistead L. Boothe:

    Sir, I will say this that, of course, that should be taken into consideration but this Court has held and it urges that waiting seven years is not too long in the Florida case at eight years is not too long and (Inaudible) that 18 years was not too long for a man to go back and — and say, a constitutional right, a right guaranteed needed by the Constitution of United States has been — and I feel that — you see, he didn’t latched on to this — this — this — he filed several other proceedings or one of the main proceeding.

    He started a hornet’s nest — well I won’t go into that because I didn’t do the case.By filing one action has made the case — the state filed actions.

    But he did not realize or comprehend the constitu — this constitutional issue until he filed a pleading in 1959.

    If he had an attorney, it wouldn’t have arisen.

    If the Court had just gave him a lawyer when asked for it, it would have terminated and gone away with litigation which have extended over seven years, almost eight.

    Hugo L. Black:

    What do you ask for in 1959 proceeding (Inaudible)?

    Armistead L. Boothe:

    In 1959, that was when he filed this writ of habeas corpus, asking if he’d be turn loose on the ground that he was being denied his rights under the Fourteenth Amendment.

    Hugo L. Black:

    If you’re right, the Virginia courts has permitted (Inaudible) made his appeal to find him a lawyer in the original case?

    Armistead L. Boothe:

    No.

    That — that was — that was the burden of his complaint in this case and this is the first time he has done that.

    Hugo L. Black:

    In a habeas corpus (Inaudible)

    Armistead L. Boothe:

    Yes, sir.

    That’s right.

    Hugo L. Black:

    And the lawyer there.

    Armistead L. Boothe:

    In —

    Hugo L. Black:

    The lawyer next —

    Armistead L. Boothe:

    In 1959?

    Yes.

    There is a lawyer who was appointed by the Court beforehand.

    Potter Stewart:

    Well, now, at the most under your theory, is he entitled to his liberty that is in a new trial or is he entitled now that have an appeal for —

    Armistead L. Boothe:

    I think that he is entitled to have an appeal sir and I suggest it in my brief Mr. Justice Stewart that the Court the — now to be sent back to the Supreme Court of Appeals with the suggestion that counsel will be appointed for him.

    And say what they have tried to do and there are general jurisdictions of the trial.

    Potter Stewart:

    No — no trouble about the transcripts under the — this late day?

    Armistead L. Boothe:

    Sir?

    Potter Stewart:

    There’s no trouble about the trial transcript this late —

    Armistead L. Boothe:

    No, there wasn’t and that was one thing the — the transcript wasn’t made up until September 1953 which was such as it was but I believe this that that issue would be settled if he gets a good counsel.

    Judge Douglas is still there and Judge Douglas made notes.

    After the appeal further expire of the evidence given by three of the witnesses.

    Felix Frankfurter:

    Are there stenographic notes in existence so far as you know?

    Armistead L. Boothe:

    No sir, there were not.

    They were not — they were not taken.

    Felix Frankfurter:

    They were not taken.

    Armistead L. Boothe:

    I mean they were not written off but —

    Felix Frankfurter:

    What —

    Armistead L. Boothe:

    As the — as the —

    Felix Frankfurter:

    Is it — is it a statutory or a common law practice as it would to have a stenographer person?

    Armistead L. Boothe:

    Well, we don’t have court reporters in the state court and the man has got to get his —

    Felix Frankfurter:

    The judge takes — the trial judge takes copious notes, does he?

    Armistead L. Boothe:

    Yes sir, and in this case, he wrote up notes on the testimony given by three witnesses but as I say, that was done after the period had expired for appeal, done September 1953, September 24, 1953, and that’s shown in the — in Judge Hoffman’s opinion which I — I don’t think has got any (Inaudible) in this case.

    Earl Warren:

    We’ll recess now (Inaudible).