Wade v. Wilson

PETITIONER:Wade
RESPONDENT:Wilson
LOCATION:Riverbed of the Arkansas River

DOCKET NO.: 55
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

Question

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.

Marshall L. Small:

I used in my brief my calculations for the cost of reproduction were based on that 800 pages and on commercial reproduction rates in the Bay Area and what — we figured out that would be about $80 and the — on reproduction rates at the court’s own reproduction facilities were utilized (Voice Overlap) —

Warren E. Burger:

Or about $25 for the Xerox equipment?

Marshall L. Small:

Right it would be substantially less than commercial rates.

What we have here then in summary is a case that really presents, I think a fairly narrow issue.

The case where a defendant was denied his right to a transcript by the application to the California Rules of Court in connection with his direct appeal.

And, therefore, it comes around now for purpose of collateral attack as an indigent and is unable to get a copy of this transcript unless he can first demonstrate errors in his original conviction.

I might add the — that he filed for habeas corpus in the Federal District Court after he had been turned down by the California courts.

The District Court found that, yes, he was entitled to a transcript and order he be supplied one or else discharged.

The case was taken to the Ninth Circuit and the Ninth Circuit reversed and said that he was required to first show meritorious grounds for off setting his conviction.

Turning to the argument now, on the first stage of the argument, the question is to whether he was unconstitutionally denied his right to the transcript in connection with his direct appeal is a predicate for moving on to second stage.

We feel that the operation, the California Rules of Court are discriminatory in at least two respects.

Number one, in the way they discriminate between defendants tried separately and defendants tried jointly.

If the defendants tried separately, he is entitled to a transcript whether he is a millionaire or a pauper and regardless of the seriousness of the crime involved or the severity of the sentence imposed.

If he is tried jointly, he isn’t entitled to a separate transcript even if he is an indigent.

We also feel that as a second basis for claiming discrimination as far as indigents are concerned the operation of the California Rules of Court preclude an indigent codefendant from receiving a right to a trial transcript in connection with an appeal and this case is an example of how that sort of rule can work.

So that, therefore, we feel that the rules as they operate tend to unconstitutionally deny particularly an indigent defendant his right to a trial transcript.

Now, the State has argued that all that’s necessary is access and that the attorney on appeal had access to the trial transcript for purpose of briefing the case.

First of all, this sort of case demonstrates access may not be sufficient in connection with reviewing the correctness of the record.

It’s — that’s possible and that — and it worked out that way.

Secondly, and perhaps more fundamental, is the burden that it places on appointed counsel in trying to brief and prepare cases if they have only access to a record where they have to borrow it from the Attorney General of the State.

I have cited in the brief references to some of the problems encountered, discussed and recognized by this Court in the Hardy case, appointed counsel in indigent cases may face when they are trying to prepare cases.

So, therefore, the appeal that — the type of access that the state says was made available here really should not be viewed as constitutionally sufficient for the protection of indigents to give them the same sorts of access to legal channels to effectuate justice as are available to persons who are not indigents.

William J. Brennan, Jr.:

Mr. Small, is it the problem here, I’m looking at that footnote, the Court of Appeals submitted.

Did that — do you think that turn at all on — tried and exhaust state remedies?

Marshall L. Small:

I really do not think so.

William J. Brennan, Jr.:

There is a suggestion that you might have a good interest point?

Marshall L. Small:

Yes.

They were raised in the Court of Appeals’ footnote.

They raised question and it might be a good Ander’s point but they had an — he hadn’t exhaust the state remedies on that.

I think the reference to state remedies refer to the Ander’s point, Mr. Justice Brennan and —

William J. Brennan, Jr.:

You don’t think — in other words, is there anything in that which precludes or which he emerged, the issue?

Marshall L. Small:

No sir.

I don’t, I think that remark was directed to the Ander’s point which I am of course not trying to raise and consider here in this proceeding.

Byron R. White:

You don’t think any particular showing is necessary to prejudice in a particular case?

Here there was access to the record by appellate counsel and there’s a — is there any suggestion that he could’ve done any better with a transcript of his own or anything specific?

Marshall L. Small:

I’m really not prepared to make that contention.

I think we can only speculate as to what prejudice resulted to this man by not having separate transcript available either to examine before it was certified as correct on appeal or at subsequent stages in the procedure.

We can only speculate on that.

Byron R. White:

Well, do you rely at all on the unavailability of the transcript, to prepare a petition for rehearing?

Marshall L. Small:

Yes, I do.

I’m afraid that the record in this case is not as satisfactory as it should be.

Although I believe that the state’s willing to concede the factual predicate that’s set out in the exhibits to my reply brief that there is basis for certainly contending that the record was not available for preparation of our petition for rehearing —

Byron R. White:

Well, assume you win — why — what do you want to win for, so you can get another appeal?

Marshall L. Small:

That would be — I think the ultimate result of your primary — first off, I think that the man is entitled to a copy of this transcript so that he can at least — at the very least, at the minimum, he should at least have a copy of his transcript so that he can examine it and prepare its basis for collateral attack.

Step two and we’d ask for that in our original brief that we filed, he should have a right to appellate review again of his conviction.

But primarily, our first argument is that he should at least at the very minimum have a right to a transcript to prepare for a collateral attack.

Byron R. White:

Have — has this Court ever held that a state must furnish a transcript in order to prepare a petition for collateral relief?

Marshall L. Small:

Not specifically.

I think that that result can be drawn by putting together cases such as Smith and Bennett and Gardner v. California.

In the Smith case, the Court indicated that you couldn’t impose a burden on access to habeas corpus by a minimal — afford a filing fee, I think it was.

In Gardner, in effect the Court was saying just this last term that for purpose of effectuate, really effectuate pursuing a habeas corpus proceeding, you had to make available the transcript of the prior proceeding.

Now, you could argue as —

Byron R. White:

That was the state habeas, wasn’t it Mr. Small?

Marshall L. Small:

That was state habeas, that’s correct.

Byron R. White:

But is there a right to counsel to prepare a habeas corpus petition?

Marshall L. Small:

No, not necessarily and of course that’s a point that we make in our brief that you can draw a legitimate distinction between right to counsel where a man made — file repeated habeas corpus petitions which may or may not be meritorious and the right to a transcript which you need only once.

Byron R. White:

Well, is that — on what provision of the constitution do you rely on?

Marshall L. Small:

The Fourteenth Amendment, violation of the equal protection and due process.

Byron R. White:

Equal protection?

Marshall L. Small:

Equal protection.

Marshall L. Small:

That an indigent — I’m —

William J. Brennan, Jr.:

That’s because (Inaudible) ending up tried jointly.

Marshall L. Small:

That’s right.

William J. Brennan, Jr.:

He would be entitled?

Marshall L. Small:

That’s correct.

William J. Brennan, Jr.:

Because he was tried jointly and the other chap was supposed to get a transcript, the rules denied him of it?

Marshall L. Small:

That’s right, that he has none of his own and carrying that —

William J. Brennan, Jr.:

That’s the only basis, is it, of your equal protection argument?

Marshall L. Small:

Well, I think you could carry it up a step further and say that there are other examples of how he was discriminated against, including on collateral attack.

He is not in the same position as a person who is moneyed defendant.

The whole theory of the Roberts v. LaVallee and the cases that stem from (Voice Overlap) —

Byron R. White:

But on that basis, it carry the right to counsel too, wouldn’t it?

Marshall L. Small:

Not necessarily, not necessarily.

Byron R. White:

Almost necessarily.

Marshall L. Small:

I wouldn’t want to have to advance that argument here, in this particular proceeding but simply the right to the transcript.

Warren E. Burger:

How does California decide which of the three or four or five defendants, codefendants gets the first shot at the transcript?

Marshall L. Small:

I only wish I knew Your Honor.

I really don’t know the basis by which they do that.

The — this is — in this particular transcript as I recall —

Warren E. Burger:

Then for all we know it may have been made available to all of them and each of them collectively?

Marshall L. Small:

Well, I’m a little reluctant to speak from my own personal perusal of the transcript as what apparently happened and since it’s not of record in the case, but on the facts that were alleged in the habeas petition here, which haven’t been denied, petitioner Wade never saw a copy of his transcript, never had it available.

One other pint in connection with the state’s argument as to access as we — it was the case here being sufficient it works a particularly discriminatory result on subsequent proceeding on collateral attack because even if you say access is sufficient for any defendant, you only have to allow him to see a transcript and not give him a copy of it then the state switches its position on collateral attack and no longer grants the right of access an in effect is saying, well, you can’t see your transcript unless you first show meritorious grounds for off setting your conviction.

So that even if you were to use the access point that the state is using here to try and uphold the procedure the petitioner here is twice in a less advantageous position than he otherwise would be in.

The state is arguing in effect two points, essentially two points as I see it in trying to sustain the position that the petitioner should not have a right to a transcript.

They are in effect saying first all that the burden on the state economically would just be terrifying because then anybody could come in and on purposes of collateral attack ask for a right to a transcript, but that isn’t this case.

They were referring to statistics where maybe no transcript had ever been prepared and the person would come in and apply for a transcript for purposes of collateral attack.

This is a case where a transcript had been prepared and was indeed available and could easily have been copied at a fairly small cost.

So the type of statistics that the state is citing for the purpose of establishing undue economic burden really aren’t relevant to this particular case which is really a fairly narrow case.

I say it’s a case where there is a transcript in existence.

The man would’ve gotten it in connection with his original appeal, but for the particular operation of the California rules on appeal.

Warren E. Burger:

What stage did you come in to the case counsel?

Marshall L. Small:

In connection with the preparation of the brief on the merits in this Court.

Warren E. Burger:

And you were appointed by this Court?

Marshall L. Small:

I was appointed by this Court for the purpose of this case.

Warren E. Burger:

I’m not sure that its relevant at all and please don’t assume I’m suggesting any criticism by the question, but I wonder if you made any effort to consider getting an order to show cause on the codefendant or other processes to get that transcript before you came all the way here?

Marshall L. Small:

No sir.

I felt under the terms of the appointment that my obligation was to brief and argue the case before this Court.

Warren E. Burger:

Of course I recognize that.

You’re here because we asked you to be here.

Marshall L. Small:

Yes sir.

The second argument that the state presents for denying his right to transcript to this petitioner is that it may have a deleterious effect on prison discipline.

A suggestion is made that a prisoner gets a transcript, he might be discussing his case with other prisoners and this could hamper prison discipline.

I’m a little perplexed by this argument because as I understand it, a prisoner who say was tried individually rather than jointly and convicted and furnished a transcript would be entitled to keep his transcript and have it in prison with him and use it there so that in effect, the state is arguing that it’s only codefendants who were tried jointly who might be causing problems with the prison discipline by having the right to their transcripts and the — I just don’t think that this argument really holds water when you look at the practicalities of the situation.

The basic premise I think here come down me is really is the question of trying to balance — carry out as effectively as possible the administration of justice, the persons who were incarcerated by not clogging up the channels of judicial administration, making available to them the instruments necessary to vindicate their rights, but the same time, not thrusting unreasonable burdens on the state.

It seems to me that in this particular type of situation where you have the man who would’ve had a transcript but for the peculiar operation, the discriminatory operation of California law, where a transcript is available and can easily be reproduced that the balance should be struck in favor of making the transcript available to a person such as this indigent.

In terms of trying to carry out the line of cases, Griffin, Roberts and LaVallee, those cases that try to ensure that the channels of the courts, the access to vindication of legal rights will be available to all without any distinction based on financial position of the defendant involved.

I would like to reserve time now for rebuttal if I could unless the Court has any questions.

Warren E. Burger:

Very well, Mr. Small.

Marshall L. Small:

Thank you.

Warren E. Burger:

Mr. Murphy?

John T. Murphy:

Mr. Chief Justice and may it please the Court.

Your Honors, four facts stand out in this particular case.

First, petitioner Wade is now an indigent.

Second, as a state prisoner, he is a potential applicant for a writ of habeas corpus in the state courts or in the federal courts.

Third, he is seeking here now a free copy of his trial transcript for no other reason than to comb the records in the hope or anticipation that he’ll discover some trial error in the record.

And the fourth fact and I think this ties in with your question Mr. Chief Justice, I think it’s a — the fact that we have to emphasize in this proceeding is that California has provided this indigent with a trial attorney, a daily transcript during the course of is trial with an appeal, with an attorney on appeal and has given that attorney an access to the trial transcript in the preparation over the brief on appeal.

California has provided all of these services at state expense to this particular indigent.

Now the trial proceedings and the appellate process which I suppose you can call the natural extension of the trial proceedings terminated in 1961.

Now, since 1961, this petitioner has made no allegation in any court, state or federal respecting the validity of his state court conviction.

What’s — he is in — involved in —

William J. Brennan, Jr.:

Excuse me Mr. Murphy?

John T. Murphy:

Yes.

William J. Brennan, Jr.:

Are you trying to say that he already had (Ianudible) daily transcript?

John T. Murphy:

Yes Your Honor, this was a capital case.

It’s a first degree murder case.

William J. Brennan, Jr.:

And — at — was on appeal, first appeal.

John T. Murphy:

Yes Your Honor.

William J. Brennan, Jr.:

This is the compulsory (Inaudible)

John T. Murphy:

No Your Honor, it was not a compulsory or automatic appeal because like —

William J. Brennan, Jr.:

But he then — he had a complete transcript for the purposes of that appeal, did he?

John T. Murphy:

Yes Your Honor, not personal possession, the record doesn’t disclose that he had a personal possession of the trial transcript.

The record does disclose that his attorney had access to the record for the preparation of the appeal.

William J. Brennan, Jr.:

This is still something on how you been tried, and just to of them?

John T. Murphy:

Yes Your Honor, codefendants.

William J. Brennan, Jr.:

But there was only a single transcript?

John T. Murphy:

Yes Your Honor.

William J. Brennan, Jr.:

I see, a single daily transcript?

John T. Murphy:

Yes Your Honor.

William J. Brennan, Jr.:

Available —

John T. Murphy:

That is — I can make that representation of fact that there was but a single daily transcript appeared.

Thurgood Marshall:

Mr. Murphy what do you mean by access?

Actually, I mean, was it in the certain room where they can go and use it, could they take it to their office, could they Xerox it?

What do we mean by access?

John T. Murphy:

Well, let me — before I answer that question.

Thurgood Marshall:

Okay.

John T. Murphy:

Let me premise your question Your Honor.

The record that is before this Court as it was before the District Court and the Court of Appeals, doesn’t have the facts developed.

There was never any evidentiary process either in the state courts or the federal courts to determine what was distribution of the daily transcript, who had access to it and the full circumstances surrounding the use by appellate counsel, the transcript during the course of the appeal in the preparation of the brief.

We really haven’t had any evidence presented on that.

If we look at this record, it would disclose that the appointed attorney on appeal borrowed a copy of the record from the State Attorney General because of some difficulty in obtaining the record from the codefendant, Mr. Pollard.

John T. Murphy:

And that in preparing his brief in the state direct appeal, he relied upon this record and I assume we can or infer from this that the record that he did use was the same record that the court had.

It doesn’t appear here that there was any handicap because he had to borrow the record from the Attorney General’s Office rather than going over to the prison, removing a record from a prisoner and using that in the course of the appellate process.

Hugo L. Black:

May I ask your —

John T. Murphy:

Yes Your Honor.

Hugo L. Black:

— state, the method California use this when they have three or four defendants to make a copy of your evidence available to all of them?

I don’t mean all at the same time, but what is your method, if you are familiar with it?

John T. Murphy:

Yes, Your Honor.

During the course of the appellate process, there is an enforceable right that each co-appellant or codefendant would have a — to obtain the copy of the record, either for the attorney to prepare the brief or if the appellant is proceeding in pro per, for himself to prepare the brief.

There is an enforceable right during this process that of course and it wouldn’t be otherwise under this Court’s decision in Griffin, the man is entitled during the direct appeal, to have access to the trial record in the preparation of the brief.

Hugo L. Black:

How does the state draw about fulfilling this obligation?

John T. Murphy:

I can’t speak with any — any more than the general familiarity.

When the attorneys are appointed by the court to represent the appellants, the attorneys would have their interviews or discussions or conferences with the appellant and borrow the record from the appellant.

It would be a mutual arrangement made among or between the attorneys who are handling the appeal.

Hugo L. Black:

You mean the state has nothing to do with it but just leave it up to the different defendant, if you get from another defendant?

John T. Murphy:

You Honor, if there was any complain, if every appointed attorney had a complaint that a transcript was not available to him to prepare a brief on appeal, all the attorney would have to do under the rules of court would bring this to the attention of the court and the court will take the necessary action —

Hugo L. Black:

What action?

John T. Murphy:

— to either to reproduce, say a copy of the Court’s transcript for the — whether the co-appellant to furnish his copy to the appellant who does not have a copy.

Hugo L. Black:

So, you are saying is — in preparing his brief, or use in preparing his brief?

John T. Murphy:

Yes Your Honor, in use for his brief.

Hugo L. Black:

Whether it’s yes as to whether the state will furnish each individual defendant with a complete transcript of the record, is that what it is?

John T. Murphy:

What the state furnishes is access to the record.

Now, if a defendant is tried separately, of course he has a unique trial record that is peculiar to his particular case.

As an incident or a circumstance of the appellate process, it may develop that at the termination of the appeal, after the reversal or the affirmation of the criminal conviction, he may retain personal possession of the transcript —

Hugo L. Black:

But have we ever held that where there are more than one defendant, the state is under an obligation, and they’re all indigent, the state is under an obligation to file a complete transcript with each one?

John T. Murphy:

That during the appellate process Your Honor.

Hugo L. Black:

What?

John T. Murphy:

The state would be under an obligation to furnish the appellate attorney or the appellant in pro per —

Hugo L. Black:

But have we held — has there been any in a case which either raised this question or decided the question —

John T. Murphy:

No Your Honor.

Hugo L. Black:

— whether there are four or five defendant, the state has to supply four or five transcripts?

John T. Murphy:

No Your Honor, no case in California nor is there any federal case.

Let’s put this case in its perspective.

Petitioner Wade without a transcript is really in no different position than any other potential habeas corpus applicant who does not have a transcript for any number of reasons.

He may not have a transcript because it was lost, it was stolen, it was destroyed, because he appealed on a settled statement rather than on a transcript or because he never appealed at all.

He doesn’t have the piece of property which constitutes the transcript.

What he did get, what California did furnish him was a transcript for use during the appellate process and when that came to an end, the state’s interest in whether or not he continues to have this document in his cell or wherever he wants to keep it, is that a determination where —

Hugo L. Black:

In your view — your argument then that the state is not compelled to provide a transcript for collateral attacks only during the time that matter can be held on the appellate process?

John T. Murphy:

Yes Your Honor.

Hugo L. Black:

From the original judgment, is that to — what you’re arguing?

John T. Murphy:

Yes, yes Your Honor.

Now during an appellate process, whether the appeal is a direct appeal from the trial or whether it’s an appeal from a habeas corpus evidentiary hearing or whether it’s an appeal from a lower court coram nobis proceeding, the appeal necessarily concentrates on a specific proceeding.

The state is interested in satisfying itself that the proceedings below have been fairly conducted in an accordance with law, state law and federal law alike.

But once the appellate process ends, and I think this Court recognized in Johnson versus Avery the responsibility of presenting a claim of illegality in the conviction rests upon the potential applicant for habeas corpus relief.

Habeas corpus is a new proceeding.

We’re starting something all over again.

It’s broad in its scope and its varied in its reach.

Thurgood Marshall:

Mr. Murphy.

John T. Murphy:

Yes, Your Honor.

Thurgood Marshall:

Do I understand you that this transcript, there is one that he had on appeal is still available some place?

John T. Murphy:

Yes, Your Honor.

Of course there would be a copy in the files of the Court of Appeals.

There is a physical transcript available, yes Your Honor.

Thurgood Marshall:

Well, is — I understood you to say, you gave him one when he went up on appeal.

John T. Murphy:

No, Your Honor.

We don’t know those facts.

We really haven’t had any evidentiary process to determine for certainty whether or not this man did have at one time physical possession either during the course of the trial —

Thurgood Marshall:

What I’m trying to get to, is there more than one copy of this transcript available as of this moment?

John T. Murphy:

Yes, Your Honor.

Thurgood Marshall:

Well, why not give it to him?

John T. Murphy:

Well, Your Honor we are involved here —

Thurgood Marshall:

I mean, you don’t need the one, do you?

John T. Murphy:

Your Honor, we’re involved here with a very broad issue.

Now counsel for petitioner has attempted to narrow this down and to paint the state as being irresponsible because it will not come up with $40 or $25 to Xerox a copy.

We have to look at the holding of the United States District Court.

The United States District Court said that an indigent prisoner is entitled, free of charge to his trial transcript to explore the record in the hope of finding some flaw.

This was the issue that was ruled upon by the United States Court of Appeals for the Ninth Circuit when it reversed the District Court.

So, we’re up before this Court on a broader principle and if we were to furnish, if we were to concede that the District Court were correct that any habeas corpus applicant, potential, let me emphasize that word potential.

It’s just not any one who has filed a habeas corpus petition.

This is the potential applicant which was — would be anyone in the whole prison system and the reach of habeas corpus or the vast number of habeas corpus cases involved matters, they go outside the trial record.

The are matters collateral to the trial proceeding.

Thurgood Marshall:

I understand all of that, but I don’t see the need for the Xerox copies.

As I understand it, the state can give him a copy which is available and which state don’t need, is that your position?

John T. Murphy:

Well, I don’t know the exact number of copies, but under the rule of court, there would be an original which would’ve gone to the appellate court and there would’ve been three copies because this was a capital case, the District Attorney would’ve received the copy and the Attorney General would’ve received the copy.

The third copy would’ve gone to be shared by the appellants during the course of the appeal.

So, the answer to your question is that there should be an original and two copies somewhere in the state of California.

What we think is before the Court, the problem before the Court is not limited to this particular case.

The problem before the Court is whether or not when an indigent makes no allegation on collateral attack of any error that occurred in his trial, is the state then responsible to turn over its copy or the copy of any other documents whether they be police reports or any other matters that might be connected with the criminal proceedings, matters of physical evidence that might have been produced at the trial, whether or not the state is then responsible to turn over these documents because the man wants to engage in an exploration or fishing expedition.

We think the state burden comes to an end, that the conscience of the state, that it is satisfied, that it has given the man due process through a criminal trial in an appellate process, comes to an end when the affirmation of the — with the affirmation of the decision on that — on appeal.

Potter Stewart:

Mr. Murphy.

John T. Murphy:

Yes Your Honor.

Potter Stewart:

It seems to me that you and your brother counsel are — differ a little bit as to what is the issue in this case.

He puts in terms of this; that since California does provide a free transcript to every individually tried defendant, rich or poor, it is obligated under the equal protection law, under the particular Equal Protection Clause of the Fourteenth Amendment to provide an individual free transcript to every defendant, rich or poor who was tried jointly?

John T. Murphy:

Yes Your Honor.

That’s how I understand the issue —

Potter Stewart:

And that the only — thus you can eat can the defendant be tried jointly be equated and give an equal protection with the defendant who is tried individually and singly, that’s the way he posts the issue before us.

You on the other hand say what the issue in this case has nothing to do with that, but rather is the question of whether a state is obligated under the constitution, I suppose now the Due Process Clause to provide at a state convict’s arbitrary request, a free transcript of that convict’s trial even in the absence of any allegations whatsoever on the part of the convict that any error occurred at his trial that might be subject to collateral attack which is a much broader issue as you correctly say and which frankly it seems to me is what was the issue decided by the District Court and the Court of Appeals in this case?

John T. Murphy:

Yes Your Honor.

I might add one more fact that —

Potter Stewart:

But would you — am I right (Voice Overlap) —

John T. Murphy:

Yes, Your Honor.

John T. Murphy:

I think that’s a very accurate summary of both our position and the position of the petitioner here.

I like to add one more thing.

If there were an issue regarding the validity of the California procedure whereby co-appellants or codefendants share a single copy of the transcript, you would not need a copy of the transcript to raise this issue.

The possession of a transcript would be immaterial.

The issue could be —

Potter Stewart:

Or the content of it?

John T. Murphy:

The content of the transcript would be immaterial.

The state courts in this case and the federal courts have never passed upon this issue raised by the petitioner and of course the petitioner, you might say would be even in a better position if he didn’t have a copy of the transcript if he were raising this point.

Potter Stewart:

But which point?

John T. Murphy:

But the District Court —

Potter Stewart:

Which point?

John T. Murphy:

If you’re raising the point that there — the — there are some invidious discrimination in providing an individual —

Potter Stewart:

Yes, I understand that point.

John T. Murphy:

— defendant with the transcript in requiring codefendants to share a transcript.

You don’t need a transcript to reach this issue, then the order of the District Court would be meaningless.

The court could have found if it reached that issue that this man had been discriminated against, it would’ve set aside its conviction and ordered the reinstatement of the appellate process, this wasn’t done.

The decision that was reached and arrived at by the District Court which was reversed by the Court of Appeals was that this man who alleged no error, who we assumed — we have no other course but to assume that he can’t think of any possible error.

And here is a man that comes before the Court and is asking for a transcript at state expense, in other words for the state to subsidize his exploration in the anticipation that maybe he’ll come up with something that he can present to the Court.

Potter Stewart:

Seven or eight years after the affirmance of his conviction on direct appeal at which his counsel did have access to a transcript, is that correct?

John T. Murphy:

Yes Your Honor.

Warren E. Burger:

Did anyone ask the District judge here to direct a copy of the transcript be made either from the codefendant or from some other person having custody.

John T. Murphy:

Not to my knowledge Your Honor.

Warren E. Burger:

The record doesn’t show anything of that (Voice Overlap) —

John T. Murphy:

The record discloses these alleged facts.

As I said, there’s no evidentiary process to get into any certainty, but the record alleges these facts that he asked the petitioner, asked the California Court of Appeal for a copy of his transcript some five or six years after his conviction had been affirmed on appeal.

He was —

Hugo L. Black:

Wasn’t that copy available in the court?

John T. Murphy:

Yes Your Honor.

If he had the funds —

Hugo L. Black:

And was he indigent?

John T. Murphy:

Yes Your Honor, he was indigent.

Hugo L. Black:

There was a copy in the —

John T. Murphy:

The allegation is that he was indigent.

Hugo L. Black:

And he asked to see a copy?

John T. Murphy:

He asked for a copy Your Honor, not to see a copy, asked for a copy.

Hugo L. Black:

And is that the only issue between them whether you give it to him or whether you’ll let him have a — have it available?

John T. Murphy:

No Your Honor.

Again, there’s a — looking at this case in its broadest scope, it’s a question of whether or not we are going to provide any requesting indigent who is a potential applicant for some form of collateral attack with documents at state expense, we don’t provide him attorney —

Hugo L. Black:

You had it there looking at from a practical standpoint, the courts had it?

John T. Murphy:

Well, Your Honor —

Hugo L. Black:

What —

John T. Murphy:

I don’t think this —

Hugo L. Black:

What harm would it do the court to let him see it?

John T. Murphy:

What harm would it do Your Honor in reply to — provide him with an attorney or to provide with a team of investigators or provide him with some experts.

There’s any number of things that you could not necessarily say would be — would be harmful.

Hugo L. Black:

(Voice Overlap)– but we have said that a man who is indigent is entitled to get — to have said as nearly as possible in the status of the man who would have money to pay for a record.

What he is saying as I understand you now is that he is entitled to have that record made available to him and he asked the court for it and they wouldn’t let him have it, although they had it.

John T. Murphy:

The court would’ve made it available to him if he could have arranged for the reproduction of the record, that’s what the facts of this case disclose.

Hugo L. Black:

If — who could arrange them?

John T. Murphy:

Pardon me Your Honor?

Hugo L. Black:

If who could arrange for the reproduction of the —

John T. Murphy:

If the petitioner himself —

Hugo L. Black:

Well that means if he didn’t have the money to do it, he just couldn’t do it.

John T. Murphy:

Your Honor if he had had the money, he could have to be candid with the court, he could have had a copy of the record, but that’s not the question before the court, I think —

Hugo L. Black:

It seems to be the question to me from what you tell me?

John T. Murphy:

Well, Your Honor, here is how I would pose the question.

Is the state responsible to provide a record to an indigent in his continuing efforts to search for a possible error in his trial or to put in another way, is the alleviation of any doubt in the mind of the prisoner about the validity of his state conviction, so important, so fundamentally important that the state must assume the great financial burden far greater than any burden it has right now.

Thurgood Marshall:

What is the —

John T. Murphy:

— of providing a transcript for any indigent who request a copy of it.

Thurgood Marshall:

Mr. Murphy, what is the financial burden of giving him the record that they have, you said they had it?

John T. Murphy:

Yes Your Honor.

Thurgood Marshall:

There is no financial burden.

John T. Murphy:

Let me answer the question this way.

Thurgood Marshall:

Well, suppose if — would you agree that it would fair to say that if there is one available, it should be shared with the prisoner, that there’d be no financial burden there, would it?

John T. Murphy:

Your Honor I — on an administrative basis, on a legislative basis, some procedure might be devised which would permit an incarcerated prisoner a glance or a look at his particular record.

Thurgood Marshall:

But don’t you think he should have the same right as the wealthy prisoner?

John T. Murphy:

Well, does a wealthy prisoner Your Honor have any real need for the transcript?

Thurgood Marshall:

Unless the —

John T. Murphy:

That’s I think is a basic question.

Thurgood Marshall:

Unless I misunderstood you, you said that this man could get it if he could pay for it.

John T. Murphy:

Yes Your Honor.

Thurgood Marshall:

And the only reason he couldn’t get it was because he couldn’t pay for it?

John T. Murphy:

That’s right Your Honor.

But he — there’s also many other — there’s many other things that he can’t have because he can’t pay for it.

He can’t have an attorney, he can’t have experts, he can’t have investigators during the course of his incarceration and this Court has never held that upon a mere request for these services, he is entitled to it.

Now, let me emphasize one more thing.

We don’t have an absolute final foreclosure or preclusion of this inmate from access to the record, nothing is final here.

All we’re asking is that this potential applicant come forward and state to some court on apparently meritorious ground why his conviction was invalid or why his custody is illegal, that’s all we’re asking.

So we have a balance, we had a great financial burden upon the state to provide transcripts to indigent and on the other side, a rather minimal requirement that the man tell the court, apprise the court that he is not engaged in a mere exploratory fishing expedition in the hope that he is going to find some error and —

Warren E. Burger:

Would you concede Mr. Murphy that the District judge had inherent power to direct that a Xerox copy or some other kind of copy would be made for the benefit of the District Court judge at the time of the original hearing?

John T. Murphy:

Your Honor if he had — if the petitioner had come forward and alleged some trial error, if he had come forth — I don’t think there’d be any question but that the District Court judge could’ve required the state to produce the trial transcript.

Warren E. Burger:

We’ll take it in exactly the posture it was in when it appeared before the United State’s District judge, not the state court.

Could the District judge have said, “I want a copy of this transcript, please get one for me” and for $25 or $30 at the most, it could’ve been made.

Now, would you agree or — I’m inquiring because I am not sure, does the District Court have any power to do that?

John T. Murphy:

I don’t think so, Your Honor.

I think the District Court in — under those circumstances would be on a fishing expedition of its own.

I think in order to get a justiciable issue before the District Court, there has to be some allegation of error in the trial.

Now, if this petitioner had alleged that his attorney never discussed defenses with him, that there was facts outside the record that affected something that occurred during the trial, there wouldn’t be any need then for the trial transcript to resolve that.

All we’re asking in this case is to alleviate — not to alleviate because we don’t have the burden yet, but they asked this Court to — not to impose upon the states the burden of financing the indigent —

Warren E. Burger:

I think we have (Voice Overlap) — I think we have your argument on that point.

John T. Murphy:

— continuing efforts once the state has satisfied itself that the man has been validly —

Warren E. Burger:

I think we (Voice Overlap) Mr. Murphy that the state having provided this for a complete appeal once around that that’s the end of the obligation.

John T. Murphy:

Yes Your Honor.

Warren E. Burger:

Alright.

Thank you.

You have a few minutes left, I think about ten minutes Mr. Small.

Marshall L. Small:

Thank you, Your Honor, I don’t believe I’ll need to take very much additional time.

I just wanted to respond to two or three points that have been raised in the course of the counsel’s presentation of argument and some of the questions raised from the bench.

One of the points that you raised yourself was the possibility of obtaining of show cause order to require Pollard to turn over his copy of the transcript.

Hugo L. Black:

Would you mind speaking a little louder?

Marshall L. Small:

Well, excuse me Mr. Justice Black.

One of the point that Mr. Chief Justice raised was the possibility of ordering Pollard, the codefendant here who apparently still has a copy of this transcript to turn it over at this stage in the proceeding for use by this petitioner Wade.

I’d have question in my own mind whether California would permit such a procedure now because the procedure for sharing transcript is cached in terms of the direct appeal process and I therefore would have really substantial question as to whether a California Court would be prepared to enter such an order at this point.

Warren E. Burger:

But since the codefendant presumably has it or may have it in his possession for use for the same purposes, why couldn’t the district judge have issued such an order to show cause on that codefendant either at the request of the counsel if they had the imagination to ask for it or on his own motion?

Marshall L. Small:

I suppose he could Your Honor, but I think that this —

Warren E. Burger:

And then this case would not have been engaged all the time, involve the people all the way to Washington?

Marshall L. Small:

I suppose that might have been the result, but I think that that in and of itself underscores the unfair application of these California Rules of Court.

Assume for instance that there were four or five codefendants tried here rather than just two codefendants —

Warren E. Burger:

Well, why was there a denial when such a lack of imagination and enterprise at least as I see it as exhibited on this record?

Marshall L. Small:

Because I think that puts a burden on the indigent and his appointed counsel.

Warren E. Burger:

To ask the court to do this?

Marshall L. Small:

To have to go to court and fight to get a copy of the transcript to use, a burden that a moneyed defendant would not have placed upon it.

Warren E. Burger:

Well, now he is all the way through the chain of command to this Court and that was a considerably greater enterprise than simply asking the District judge in open court on an oral motion to do what I’ve just suggested, would you not agree?

Marshall L. Small:

I’d say that that is correct, Your Honor that it — that he is certainly having to take it up through this sort of procedure —

Warren E. Burger:

I’m directing no criticism or no implication of at you?

Marshall L. Small:

No, I understand that.

Certainly, it would have — well, just the cost of producing the transcript would have been a much smaller portion of the cost of bringing the proceedings up to this Court and paying for bringing attorneys back here to argue the case.

But this of course, this case is simply going to be exemplary of other codefendant cases that come up in the California courts.

Warren E. Burger:

I hope it isn’t exemplary of the lack of enterprise that I see for my part on this record.

Marshall L. Small:

It would be easier though I believe in the terms of the administration of justice if instead of requiring court appointed counsel for indigents to fight to get copies of the record.

Marshall L. Small:

If it were made clear that they should be furnished them as a matter of course —

Potter Stewart:

Well, excuse me, I don’t want to interrupt your answer to the Chief Justice Mr. Small.

Marshall L. Small:

No sir, that’s quite alright.

Potter Stewart:

I’m not sure I quite understand whether your basic claim is that it was incumbent upon California to supply a separate extra transcript to this man for his direct appeal which took place a good many years ago or whether its now incumbent upon California to supply to this man at — upon his mere request a transcript of his trial that took place many years ago for the purpose of now making a collateral attack on his judgment of conviction, which is it?

Marshall L. Small:

My argument is that it was incumbent upon them to supply it years ago and because they didn’t, he should not be placed in a less advantageous position now because of his indigency and having to show meritorious grounds for reversal before he can even have a look at his trial transcript.

Potter Stewart:

Because the second is a much — of course a much broader rule of law?

Marshall L. Small:

Yes, and I am not arguing for that.

I’m not arguing (Voice Overlap) —

Potter Stewart:

Very understandably you’re not arguing that.

But what if the — what if five or six, seven years ago he had been given it on appeal and then he had lost it, where would you be?

Marshall L. Small:

If he had been given his appellate — And he –(Voice Overlap)

Potter Stewart:

With all his negligence that it just disappeared, now, where would you be in?

Warren E. Burger:

Just bearing mind before you answer there will be of other question I’ll add.

Bearing in mind that if he were an affluent man, he could go out and buy one?

Marshall L. Small:

Yes.

I would say and I’d grant, just go ahead and go beyond this particular case, I would argue that the state should furnish him that copy on balance because of the relative smaller expense involved where a copy of the transcript is available and can be reproduced.

I don’t think it’s necessary to argue that here.

Potter Stewart:

But that is really — its that broader issue is it not that the District Court seems to have decided and that its upon that broader issue that the Court of Appeals seems to have reversed the District Court (Voice Overlap) —

Marshall L. Small:

The opinion could be so read, however, I don’t think that this Court has to deny relief to this petitioner simply because of the broader basis upon which the District Court may have posited its result.

This Court could cut down the basis for granting a transcript to this particular petitioner.

Potter Stewart:

And in this particular State of California where if this man had been — for everybody who was separately and individually, this question would never arise unless he lost the transcript.

Marshall L. Small:

That’s right and in the same way in most states as we point out in our brief, the — in most states this question isn’t going to come up because the overwhelming majority of the states give transcripts to individual defendants whether — and the codefendants.

They make no distinction the way that California and limited number of states do.

So they were talking about if there were a narrow issue.

Mr. Chief Justice —

Warren E. Burger:

Perhaps the advent of the Xerox machine and other related machines will help solve this problem without more.

Marshall L. Small:

That in substance is really my contention that that as modern techniques become available, they really should be applied to judicial process such as the stenotype machine here in this Court that over a period of time that hopefully by using modern methods of recording and duplicating trial transcripts, we won’t have to get into this type of situation.

They’ll be either way available and easily reproducible.

Thank you Your Honor.

Warren E. Burger:

Thank you counsel.

Warren E. Burger:

You acted at the appointment of the Court and you came here at our request.

We thank you for your assistance for the court.

We thank you both for your submissions.

Marshall L. Small:

Thank you sir.