Wade v. Wilson

LOCATION: Riverbed of the Arkansas River

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 396 US 282 (1970)
ARGUED: Nov 12, 1969
DECIDED: Jan 13, 1970

Facts of the case


Media for Wade v. Wilson

Audio Transcription for Oral Argument - November 12, 1969 in Wade v. Wilson

Warren E. Burger:

Number 55, Wade against Wilson and others.

Mr. Small, you may proceed whenever you are ready.

Marshall L. Small:

Thank you Mr. Chief Justice and members of the Court.

In this case, petitioner Wade was tried with codefendant, Pollard, convicted of murder in the first degree.

Each of the defendants filed a notice for appeal.

Had they been tried separately, under the California Rules of Court, each of the codefendants would have been furnished a separate trial transcript.

However, they were tried together and, therefore, under the rules only one transcript was made available to both defendants.

And that transcript was sent to the codefendant, Pollard, Wade here did not see that transcript.

He didn't have the opportunity therefore to inspect the transcript before it was certified as correct for purposes of the appeal.

Warren E. Burger:

Now, I may have missed it in the record and parts of the appendix which are here, but is there an explanation for why this could not have been obtained for the use of this petitioner by the ordinary courtesies and amenities as between and among lawyers?

Marshall L. Small:

I don't know that there was any separate lawyer appointed at that time, Your Honor.

There was a new appellate counsel appointed for petitioner Wade here in connection with the appeal.

The record doesn't make clear at what point in time he was appointed.

Warren E. Burger:

But we don't -- so we have nothing in this record to show whether he made any efforts or if so what efforts he made to get the transcript that had already been certified?

Marshall L. Small:

That's correct.

We do -- we do not have that in his record.

The case went up on appeal, oral argument was waived.

The decision was affirmed and thereafter, subsequently, the petitioner instituted proceedings in the California courts to try and obtain a copy of its transcript for the purpose of instituting collateral attack on his convictions.

He first applied to the District Court of Appeals and it affirmed the conviction and that court told him they'd had had no facilities for duplicating the transcript.

He applied to the California Supreme Court.

They told him to go back to the District Court of Appeals.

The transcript hereof record then indicates that following correspondence with California courts became clear that in order to obtain a copy of this transcript he would have to pay for it.

It was available for duplication if he paid for it, but that's the only way that he could get it.

Warren E. Burger:

With -- the California courts have had the -- do they have the power to order the codefendant to surrender his copy of the transcript for use by your petitioner?

Marshall L. Small:

I would assume they do under rule ten by direction of the court they could've made it available, but they have taken no action to do that.

Warren E. Burger:

And you -- do you know whether any effort was made to get them to exercise the rules and power?

Marshall L. Small:

I do not, Your Honor.

Warren E. Burger:

Is it -- while I have you interrupted, is it a substantial record if you know?

Marshall L. Small:

I have looked at the record myself, just briefly perused at -- had it sent up from Los Angeles to San Francisco.

It is approximately 800 pages long.