Williams v. Oklahoma City

PETITIONER:Williams
RESPONDENT:Oklahoma City
LOCATION:apartment

DOCKET NO.: 841
DECIDED BY: Warren Court (1969)
LOWER COURT: Oklahoma Court of Criminal Appeals

CITATION: 395 US 458 (1969)
ARGUED: Apr 01, 1969 / Apr 02, 1969
DECIDED: Jun 09, 1969

Facts of the case

Question

  • Oral Argument – April 02, 1969
  • Audio Transcription for Oral Argument – April 02, 1969 in Williams v. Oklahoma City

    Audio Transcription for Oral Argument – April 01, 1969 in Williams v. Oklahoma City

    Earl Warren:

    Number 841, Tommie E.L. Williams, petitioner versus City of Oklahoma City, et al.

    Mr. Gray, you may proceed with your argument.

    Jon F. Gray:

    Mr. Chief Justice and may it please the Court.

    The petitioner below has been completely barred from his statutory right to appeal the criminal conviction against him and this bar has been solely upon the basis of his poverty.

    We therefore contend that the case before Your Honors today is on all force or even a stronger case than that presented to this Court in the case of Griffin versus Illinois and following cases in which this Court has held that for decade that the state may not withdraw a right of appeal from a person upon any invidious discrimination such as poverty.

    The respondents raised two points, their first point is that there is some adequate alternative method of appeal open to us and their second point is that the Griffin rule should not apply since the offense convicted in this case and appealed from is a petty offense with which we disagree.

    In Oklahoma as was the situation in Illinois at the time of Griffin case there are two methods of appeal.

    There is a short form of appeal which is the clerk’s transcript then contains barely the few papers of record.

    It is conceded in respondents’ brief at page 8 and it was so held by the trial court that this method of appeal is inadequate in this case.

    The second method of appeal available in Oklahoma is the long form which we call a “case-made” and which respondents agree at their brief in page 4 is the method in which the court reporter’s transcript evolved with the evidence and all of the proceedings and all of the instruments are made up and presented to the appellate court.

    Now, turning to their first point, that there is an adequate alternative method the response assert that the defendant should have made up a statement of the evidence for memory in early form and submitted it and I quote from page 8 of their brief, “in lieu of the case-made” and that therefore, we would have an alternate method of appeal.

    Abe Fortas:

    Of course it matter in which word does that word “case-made” come from?

    Jon F. Gray:

    Your Honor, the statute as far as I can tell states that the party shall make up a case and that the statute set forth in our brief and I think that’s where it come from.

    Potter Stewart:

    You said statute, it’s in the appendix of your brief.

    Jon F. Gray:

    Yes.

    Potter Stewart:

    This many, I have a little trouble finding it.

    I’m not being critical it’s a very thorough brief.

    Jon F. Gray:

    It’s section on page 39.

    Potter Stewart:

    Top of page 39, case-made in criminal cases.

    Jon F. Gray:

    Right.

    Now, the facts of this case which we say bring this case within Griffin rule is that the defendant who is conceded in this case to be indigent.

    He was a hospital janitor making about $55.00 a week and supporting 11 children.

    The defendant was convicted in the municipal court of Oklahoma City after a trial and this is important, a trial by a 12-man jury and was convicted of the crime of driving, and this is also critical, driving under the influence, not drunk-driving for everybody knows what drunk-driving is, but driving under the influence and he was sentenced to serve 90 days in jail and paid a fine of $50.00 under a statute in which the maximum sentence is 90 days in jail and $100.00.

    Earl Warren:

    Is there a legal distinction between drunk-driving and driving under the influence?

    Jon F. Gray:

    I think it’s a matter of degree, Your Honor.

    Earl Warren:

    Then what is the legal difference between the two?

    You said, you know what drunk-driving is but this is something different, then it’s something different.

    Jon F. Gray:

    I think in the drunk — if he was charged with drunk-driving, and I know of no common statute that sets about that charge but I understand some states have them that the prosecution would have to prove that the defendant was drunk, drunk on his mind, they drunk out — and in this case, the prosecution only has to prove that the defendant had enough alcohol to influence his driving to some degree which would render him incapable of safely driving.

    And that’s the distinction that I —

    Potter Stewart:

    You just have this single offense in your statement.

    Jon F. Gray:

    Right.

    Potter Stewart:

    You don’t have the two.

    Jon F. Gray:

    I know — as far as I know of, there’s no drunk-driving statute in Oklahoma, just the driving under the influence.

    The defendant filed his motion for a new trial and attached thereto the sworn affidavit that the person who was driving the car at the time of the so-called alleged accident but that motion for new trial was overruled and he requested a case-made in forma pauperis.

    It is recognized by the trial court and that the petitioner in this case would have an absolute right to appeal if he would pay for the court reporter’s notes.

    The respondents have attached as an exhibit to their first brief in this case a transcript of the hearing and the trial court conceded this point.

    Abe Fortas:

    Well, do I — Mr. Gray, do I correctly understand that the question here is not whether he has a right to appeal.

    He can appeal.

    Jon F. Gray:

    Right.

    Abe Fortas:

    And on that appeal, he would get the transcript which you refer.

    What do you referred to it as?

    Jon F. Gray:

    The “case-made”, yes.

    Abe Fortas:

    No, no.

    Jon F. Gray:

    The court reporter’s transcript?

    Abe Fortas:

    The reporter’s transcript.

    Jon F. Gray:

    Right.

    Abe Fortas:

    He would get that without paying for it, is that right?

    Jon F. Gray:

    That’s correct.

    It has been —

    Abe Fortas:

    And so the only question here is not his right of appeal but it’s whether he can have a right as you would put it I suppose whether he’s got a right of effective appeal in the sense that he can obtain without paying before it the stenographic report of the — what transpired at his trial.

    Jon F. Gray:

    That’s very well put and it was conceded by and expressly stated by both courts that if he had been convicted of the felony in District Court, he would have been given this transcript without cost.

    Now, it is interesting to note that at the hearing on our request for a court reporter’s transcript, the trial court held several findings of fact which are lengthy but briefly the important ones are and it is for this reason that we contend this case is stronger than Griffin.

    The trial court held that we have the legal need for the long form of appeal and that the short form is inadequate.

    The second important point that the trial court found is that our appeal is not without merit which is similar to a federal court finding that the appeal is not frivolous; and the third point that strikes right at the heart of the respondents’ first contention is that the defendant, neither the defendant nor his attorney could compile for memory an adequate narrative statement, an adequate transcript.

    Earl Warren:

    Why not?

    Jon F. Gray:

    Well, the trial court Your Honor heard the pretrial hearing and they have pretrials in this Court and heard the trial and heard our motions and our arguments and of course in taking all of that into consideration, I assume, he felt it not unreasonable that we can remember all of the important points of the case.

    Earl Warren:

    How long did the trial take?

    Jon F. Gray:

    It took approximately one day.

    Earl Warren:

    How short would it have to be so memory would suffice?

    Jon F. Gray:

    Your Honor, the only thing that I can respond to in that regard is this Court’s holding in the Gardner case which was rendered at the time my brief was turned in so it’s not in my brief but this Court pointed out that certainly, a lawyer would be lost without a transcript and even preparing the petition for review and that is the position in this Court today.

    Jon F. Gray:

    I don’t know how short the hearing would have to be.

    Thurgood Marshall:

    How many witnesses?

    Jon F. Gray:

    I think there were approximately four, four witnesses.

    Thurgood Marshall:

    And it took a whole day?

    Jon F. Gray:

    Yes.

    Earl Warren:

    To forward?

    Jon F. Gray:

    Yes sir, that’s my memory.

    Earl Warren:

    Well, don’t some states have this as a regular procedure where the defense counsel presents a statement of the fact on appeal and it’s settled by the Court after a consultation with counsel?

    Jon F. Gray:

    Yes, they do Your Honor and we admit that Oklahoma could establish such a procedure.

    Earl Warren:

    You have such a procedure.

    Jon F. Gray:

    No, I say that we admit that they could and that would be a reasonable alternative.

    Earl Warren:

    Well, what do they have?

    Jon F. Gray:

    Well, Your Honor, the two methods of appeal are the clerk’s transcript which contains only the bare pleadings in the case, the information, the minutes and the judgment, and the case-made that we’ve discussed.

    Earl Warren:

    Those were the only two?

    Jon F. Gray:

    Yes, sir.

    Earl Warren:

    There is no provision at all for counsel getting together and presenting a statement of the facts to the Court and have it approved and used as a record on appeal.

    Jon F. Gray:

    There is none that I have found and if there is, it’s appointed it has escaped also defense counsel and the trial court because this has all been discussed in the hearing.

    Byron R. White:

    Why did the trial court make the finding that the parties couldn’t — that the party couldn’t remember what went on?

    Jon F. Gray:

    Well, he —

    Byron R. White:

    What if he could have?

    What would —

    Jon F. Gray:

    What if he could have?

    Your Honor I don’t know —

    Byron R. White:

    He could have made this case.

    Jon F. Gray:

    Well, there are many cases in Oklahoma that set out the requirements for a free case-made and one of them is that neither the party nor their attorney can make up a transcript from memory and we requested the trial court rule on this issue and he did so and he ruled that it would not be reasonable to require us to make up a transcript from memory.

    Byron R. White:

    Well, what if he could remember it?

    Jon F. Gray:

    That’s a good question Your Honor.

    Byron R. White:

    Well then, a good question.

    Jon F. Gray:

    I don’t know.

    Byron R. White:

    It’s rather relevant here, isn’t it?

    Jon F. Gray:

    Yes, it is.

    It’s relevant but it is not one that this Court need get to.

    Byron R. White:

    Let’s assume you thought you could remember — you’d make plenty of notes like most lawyers do in Court and you made up a running account of what happened to trial, what the testimony was, do you think that would be acceptable as a case-made in Oklahoma?

    Jon F. Gray:

    I’ve tried that Your Honor and in a case exactly in the same Court, and that has been the petition for certiorari has been year —

    Byron R. White:

    Well, what happened to you in the state court?

    Jon F. Gray:

    In the state court, the Oklahoma Court of Criminal Appeals did rule that the petition for writ of mandamus was denied for the same reason as it was denied in this case.

    And because the defendant there was employed and I think there was one other situation that went to his earnings —

    Potter Stewart:

    There’s a question asked to whether or not he was an indigent, as I remember.

    Jon F. Gray:

    Right.

    Potter Stewart:

    That’s the petition for certiorari pending here.

    Jon F. Gray:

    Right.

    Potter Stewart:

    Yes.

    Jon F. Gray:

    But in other words, the Court of Criminal Appeals in Oklahoma did not rule in that case that we couldn’t have the case made because we could remember the testimony.

    I think its unfortunate they didn’t speak to that point.

    William J. Brennan, Jr.:

    Well, does this all come down to this Mr. Gray that you’re saying to us that whatever Oklahoma might adopt in the way of some substantive facts, the present factors from it on appeal only on short form or on case-made.

    This case is inappropriate for short form and you’re denied case-made because you can’t afford to pay for the transcript.

    Therefore, this practice in those circumstances is unconstitutional.

    Jon F. Gray:

    That’s correct, Your Honor.

    Byron R. White:

    But part of it is that you must have a transcript to make a case.

    Jon F. Gray:

    That’s correct.

    Thurgood Marshall:

    And that goes —

    Jon F. Gray:

    In this case.

    Right.

    Thurgood Marshall:

    And that goes for all traffic violations?

    Jon F. Gray:

    Well, we believe that goes for all.

    All we’re asking this Court to get to is that that goes for all serious criminal convictions.

    And —

    Earl Warren:

    Are there any cases in Oklahoma where a trial record has been made by counsel and approved by the court and used by the Courts of Appeal?

    Jon F. Gray:

    I have not seen any.

    Earl Warren:

    I see.

    Potter Stewart:

    May I ask this, this is from the what, the municipal court or the municipal criminal court as called?

    Jon F. Gray:

    Right, it’s court of record.

    Potter Stewart:

    And does this mean that there always is a court reporter —

    Jon F. Gray:

    That’s correct.

    Potter Stewart:

    — sitting there, taking down the — transcribing the evidence?

    Jon F. Gray:

    That’s correct, Your Honor.

    The statutes have given the same court reporter to the municipal criminal court of record in Oklahoma City as they have given to the District Court which is the Court of the General Jurisdiction.

    Potter Stewart:

    And here she is paid out of public funds?

    Jon F. Gray:

    That’s right.

    Potter Stewart:

    So this isn’t a question of one party or the other needing to arrange in advance and hire a reporter to come into the courtroom?

    Jon F. Gray:

    The statutes on the court reporter salary set in our brief that briefly they are that the court reporter is paid a salary and then he may charge the individual appellant per page.

    Potter Stewart:

    Per copy.

    Jon F. Gray:

    Right, per copy.

    Byron R. White:

    But now, do you go directly up to an appellate court from this municipal court or is there an appeal to the District Court for de novo trial?

    Jon F. Gray:

    Prior to the inception of this Court in 1965, the appeals of this type of case went to the District Court then they instituted this Court and the appeals are exactly as in the District Court straight to the Court of Criminal Appeals in the State of Oklahoma.

    Earl Warren:

    There’s a trial de novo in the District Court?

    Jon F. Gray:

    No, Your Honor.

    There is one trial in the municipal court and then you appeal that finding to the appellate court in the state.

    So the point I would like to make is that the trial court has negated this first point that there is no alternative record and the only basis for their argument is the 1918 Harris case which was adopted at the time when the court reporter took down all the testimony in longhand and the judge who find that there — the attorney might as well do.

    There is no need to remand this case therefore as the respondents request since both courts have ruled upon the issue and have stated the issue to be a lack of statutory authority that was expressly the trial court’s ruling and the Court of Criminal Appeals denied the petition expressly because the U.S. Supreme Court had not intimidated that a person convicted of a quasi-crime or a petty offense could get an appeal by case-made.

    Now, the issue of quasi crime which was briefed well in the court below as apparently been abandoned by respondents and I’ll submit it on my third argument in my brief covers quasi crime to think it’s clear there is no quasi crime, that’s relevant in this case.

    Potter Stewart:

    This man received a sentence of 90 days imprisonment and a $50.00 fine.

    Jon F. Gray:

    That’s correct.

    Potter Stewart:

    What’s the 90 days, that’s the maximum under this?

    Jon F. Gray:

    That’s the maximum under the city ordinance.

    Right.

    Byron R. White:

    I take it you’re arguing — I gather from your brief, you think you’re arguing not only about a transcript but about counsel here.

    Jon F. Gray:

    That turns to the issue of the petty offense Your Honor and the short answer is yes.

    Byron R. White:

    Is that whatever we decide here also determines the counsel issue?

    Jon F. Gray:

    Yes, Your Honor.

    Byron R. White:

    In your view?

    Jon F. Gray:

    And this is why.

    Because our contention is that this is a serious crime.

    There are as Your Honor is well aware in this discussions, petty-serious crimes, there are two elements.

    Byron R. White:

    And what’s that got to do with it in this area, serious or petty?

    Jon F. Gray:

    Well, the — usually, the past determination of whether it’s serious or petty has come from the type of penalty and the type of crime but we think it goes deeper than that.

    Byron R. White:

    But who’s made that distinction in question as concerning counsel or transcript?

    Who’s made that distinction between serious and petty crime?

    Jon F. Gray:

    Most of the cases do —

    Byron R. White:

    Well do the states have?

    Jon F. Gray:

    No, most of the cases — most of the cases involving the petty-serious distinction have been jury trial issues.

    Byron R. White:

    Yes.

    Jon F. Gray:

    And I think there had been one or two cases involving the right to counsel.

    Byron R. White:

    There has in the federal courts?

    Jon F. Gray:

    Under that impression Your Honor, I can’t cite you one right now.

    William J. Brennan, Jr.:

    You don’t mean in this Court?

    Jon F. Gray:

    No.

    William J. Brennan, Jr.:

    I gather that this Court has refused to review some instances of offenses which carried no more punishment than 90 days at least.

    We refuse to review refusals to provide counsel.

    Jon F. Gray:

    I think that’s correct, Your Honor.

    William J. Brennan, Jr.:

    And you think we have to reach that question?

    Jon F. Gray:

    Well no, Your Honor, I don’t.

    And this —

    William J. Brennan, Jr.:

    I wouldn’t think so.

    I suppose you suggest this in Congress if you prevail on the right to transcript like it wouldn’t necessarily follow.

    You’ll also take the right to a counsel.

    Jon F. Gray:

    We believe that in serious crime, and that’s why we think the right to counsel is important.

    If this is a petty crime, possibly we wouldn’t have a right to counsel.

    But it’s a serious crime and since it’s a serious crime, we have a right to a fair jury trial including the right to counsel, a fair preliminary hearing and a fair appellate procedure and it’s the right to a jury trial without counsel would be half a loaf.

    And in this case, there had been no Oklahoma cases cited to this Court in which the Court said that this situation is a petty offense.

    Jon F. Gray:

    So turning the Court to the case of Duncan versus Louisiana for example as a guide, this Court said that if we look to the laws of the locality as a gauge of the social and ethical judgments, we see that the crime in this case is serious for the singular reason that for 50 years, for 50 years, the State of Oklahoma has given a right to a jury trial based upon due process and that in all cases in which there is any incarceration, in all cases in which there’s any incarceration, the Oklahoma courts have held that due process requires a jury trial.

    And for instance Franks —

    William J. Brennan, Jr.:

    And even for 15 days, 20 days?

    Jon F. Gray:

    Yes sir, even for one day.

    William J. Brennan, Jr.:

    Now, is this a matter of Oklahoma Constitution?

    Jon F. Gray:

    Well, settled to Oklahoma constitutional law and Oklahoma case law based upon the federal constitution.

    Byron R. White:

    But haven’t we held up — haven’t we held that up to six months of the petty offense here —

    Jon F. Gray:

    Yes sir, the Court certainly has.

    Byron R. White:

    — that reverses the jury trial question?

    Jon F. Gray:

    Yes, sir.

    Byron R. White:

    Do you think that if the — you should a different —

    Jon F. Gray:

    No.

    Byron R. White:

    — view of it on the counsel or transcript?

    Jon F. Gray:

    No sir, we concede the fact that there is at some place a petty offense but this Court need not re-examine the roots of the petty-serious offense distinction because in this case, it’s a serious crime.

    It’s a serious crime because Oklahoma has always construed this type of crime to be a serious offense.

    Did that answer Your Honor’s question?

    William J. Brennan, Jr.:

    I wonder if it does because — at least, am I wrong about this Mr. Gray to the extent we’ve dealt at all with the distinction between petty and serious or petty or non-petty whichever way you want to phrase it.

    We have indicated, have we not that there are certain of the guarantees, notably jury trial which do not apply if the offense whatever or however serious carries with it a punishment not exceeding six months, have we?

    Jon F. Gray:

    Yes, Your Honor.

    In the Duncan case, you implied that if the punishment was under six months, there would be no right to a jury trial.

    But we think that —

    William J. Brennan, Jr.:

    But there we’ve drawn the distinction on the time of a rather a length of imprisonment which the offense may carry.

    Jon F. Gray:

    Right.

    William J. Brennan, Jr.:

    We haven’t drawn the line based on whether the offense is serious or non-serious.

    Jon F. Gray:

    No, Your Honor.

    It was my reading of the cases.

    The sixth month — the sixth-month line is result of finding that as I understand that under six months, it’s not serious and over six months it is serious but we’ll argue that there are more considerations than the mere six-month penalty.

    Your Honor knows well that there’s long been discussed, there are two elements, the length of the penalty as well as the seriousness of the crime.

    And in the Oklahoma court and other cases cited in our brief in pages 17 and pages 28.

    For example in 1918, Franks versus Muskogee gets to the point when a defendant is convicted of an offense carrying a maximum offense, a $25.00 fine is the maximum penalty and this Court held, I mean the Oklahoma court held that in any regard to ordinance violations, any crime in which carries imprisonment is an essential part of the tribunal and in this case that I’m mentioning to you, the defendant could be jailed for failing to pay a fine which emphasizes my point that if there’s one day of imprisonment, in Oklahoma that’s a serious crime.

    Jon F. Gray:

    Ex parte Monroe also pointed out.

    It’s another Oklahoma case cited in our brief, that it was never contemplated that a police court which is not a court of record could try crimes involving incarceration.

    Now, there are precedents in this Court, Callan versus Wilson, was $25.00 fine and a 30-day imprisonment penalty and in 1888, this Court held that was serious.

    In the case of District of Columbia versus Colts, the charge is reckless driving which we think to be a lesser including offense and the Court held that that was indictable under the common law.

    It was shocking to the general moral sense and state cases have since continued that evaluation of the charge of reckless driving to be a serious offense.

    There are — our contention is that in deciding whether a crime is serious or not, there are other legal indicia besides the length of —

    William J. Brennan, Jr.:

    Well, is this your submission Mr. Gray that on this business of an extension of right to counsel if that’s what it’s to be and the determination should be made on the basis of the criterion called seriousness of the offense rather than by focusing primarily on the punishment that the offense carries?

    Is that what you’re —

    Jon F. Gray:

    We believe that the right to counsel is part of the baggage of the jury trial.

    I don’t know if that answers your question and I submit that the right to counsel shouldn’t depend upon an arbitrary imprisonment, a time of imprisonment.

    It should depend upon whether the crime is serious or not and in the past, this Court had said there are two considerations.

    We’re arguing today that there are many considerations about whether a crime is serious.

    The right to counsel that you’re speaking of is extended in Oklahoma by a statute and Oklahoma state constitution as I mentioned and it’s an essential part of the jury trial and also the City of Oklahoma City has an attorney and it certainly would be a violation of due process and equal protection we contend to try a man with a jury trial when the City of Oklahoma City has an attorney —

    William J. Brennan, Jr.:

    Incidentally, did this petitioner have an attorney?

    Jon F. Gray:

    Yes, sir.

    I was his attorney in the trial court.

    William J. Brennan, Jr.:

    Well how was this issue of right to counsel came out?

    Jon F. Gray:

    Well, we’re indicating that since there is a right to counsel that is another indication of the seriousness of the crime.

    Potter Stewart:

    But you said there’s a right to counsel in every case in Oklahoma or did I misunderstand you?

    Jon F. Gray:

    I think that is the correct position.

    Potter Stewart:

    But in Oklahoma, every serious offense is a serious crime under that definition even a parking offense.

    Jon F. Gray:

    Well, I see what you mean, Your Honor.

    I think this Court need not get that point but I think you’re right.

    Potter Stewart:

    That is for your oral argument at least.

    Jon F. Gray:

    That’s correct.

    Abe Fortas:

    Well, Mr. Gray, as I remember your brief, what the points that you rely on to show that Griffin ought to be applied in this case that is to say that the state ought to be required to furnish without a cost to an indigent the — such a transcript as is necessary for effect of appeal.

    That’s what you’re trying to get us to hold, isn’t it?

    Jon F. Gray:

    Yes, sir.

    Abe Fortas:

    And in order to support the argument that this is a kind of case in that category, you point out that this is a case in which that the jury trial has required, that’s point one, is that right?

    Jon F. Gray:

    The case in which the jury trial has required and given.

    Abe Fortas:

    Is that?

    Jon F. Gray:

    Yes that is right.

    It is required but even —

    Abe Fortas:

    And the second thing as I remember is you say that this is regarded that driving while under the influence of intoxicating liquor is regarded as malum in se under your cases.

    Jon F. Gray:

    That’s right, in our cases and in this Court.

    Abe Fortas:

    Sorry?

    Jon F. Gray:

    In our cases and in this Court.

    Abe Fortas:

    And in this Court.

    And then you are pointing out, is there some provision in the Oklahoma Constitution to which you refer us with respect to the serious definition of a serious offense?

    Jon F. Gray:

    No, Your Honor.

    The definition of the serious offense we contend comes from the old Oklahoma case that’s cited in our brief which construed the Due Process Clause to mean that any crime which —

    Abe Fortas:

    It has to have a jury trial.

    Jon F. Gray:

    That’s right.

    Abe Fortas:

    I see.

    What is the limit in your Constitution?

    Jon F. Gray:

    For jury trial?

    Abe Fortas:

    Yes.

    Jon F. Gray:

    The limit that applies to this case —

    Abe Fortas:

    Yes.

    Jon F. Gray:

    — is anything over a $20.00 fine or any imprisonment.

    Abe Fortas:

    Or any imprisonment.

    Jon F. Gray:

    Right.

    Abe Fortas:

    Concerning your Oklahoma Constitution in the amendment.

    Jon F. Gray:

    That’s correct.

    But in the amendment, they have left the imprisonment requirement if there is still any imprisonment if the serious crime —

    Abe Fortas:

    And in this case, the penalty did include imprisonment and prison term was actually imposed, was it?

    Jon F. Gray:

    No.

    No, it’s a state pending this appeal.

    Abe Fortas:

    No, but I mean to say the judgment include it.

    Jon F. Gray:

    Yes, 90 days, a maximum of 90 days incarceration.

    Jon F. Gray:

    This — of course this court is a court of record and on your question as to the right to a jury trial, our position is that since we do have a right to a jury trial, that is the indication of seriousness of the crime.

    But the other indication as to which we submit that this Court may consider are the seriousness, serious is a relative term and should be related to something other than some other length of punishment.

    For example, a $50.00 fine given to a wealthy man would certainly not be serious but given to a man earning $50.00 a week and supporting 11 children is serious.

    Now, I think that’s a proper consideration.

    There are other gauges of social and ethical judgments of the locality by some authors have termed the extra legal consequences such as the loss of job or for example if a school teacher were given a three-month jail term wrongfully, that would be a serious offense.

    So we think this Court or any court need not stop just as the penalty of the three-month, whether it be three months or six months to look at the seriousness of the crime.

    It is interesting that in the Duncan versus Louisiana case, the state level was two years and that was the level of which we’re being attacked whereas the federal level is six months.

    In this case, the state level is any imprisonment and in the Duncan case, they were asking this Court to improve the individual protections and bring it down to the federal level.

    In this case, we’re asking to prove the individual protections by leaving the dividing lines where it is in Oklahoma at any imprisonment.

    So we asked this Court —

    Potter Stewart:

    That’s the dividing line for trial by jury?

    Jon F. Gray:

    Right.

    Potter Stewart:

    And also for the right to appointed counsel if you’re an indigent?

    Jon F. Gray:

    Right and a court reporter.

    Potter Stewart:

    And a court reporter?

    Jon F. Gray:

    In this particular court.

    Potter Stewart:

    Right and the dividing line is whether or not it can possibly be punished upon conviction by imprisonment.

    Jon F. Gray:

    Imprisonment, that’s correct.

    Hugo L. Black:

    What is this municipal criminal court?

    Jon F. Gray:

    The municipal criminal court is a city court of record established especially by statute and all of the statutes which regard its procedure are set out in a special section separate from the statute.

    Hugo L. Black:

    Did you say at each county?

    Jon F. Gray:

    No it is just in Oklahoma City.

    There are —

    Hugo L. Black:

    Oklahoma City only.

    Jon F. Gray:

    Right.

    The — in 19 —

    Hugo L. Black:

    Can it take the place of the recorder’s court?

    Jon F. Gray:

    Yes, Your Honor, that’s essentially correct.

    In other counties, there are county courts except that in 1968, we had a constitutional revision and the laws were changed but it doesn’t affect this case because the new laws specifically on appeal at least —

    Hugo L. Black:

    Did they have stenographers there regularly?

    Jon F. Gray:

    In Oklahoma City, —

    Hugo L. Black:

    In the criminal municipal?

    Jon F. Gray:

    Yes sir, everyday.

    Hugo L. Black:

    That’s part of the law?

    Jon F. Gray:

    Yes sir, statutory, right.

    Thank you.

    Earl Warren:

    Very well.

    Mr. Ratcliffe.

    Giles K. Ratcliffe:

    Mr. Chief Justice, if Your Honor please.

    The respondents have urged two positions here.

    One is that the Court’s ruling in the Griffin case should not be extended to this type of case for the reason that the relief that the petitioners have sought was denied by the appellate court below on the grounds that this was a quasi criminal in the language of the court are a petty offense.

    Now, I think this is what we’ve got into this discussion of serious offense or petty offense.

    The Court just said that it had reviewed Your Honor’s decisions on these matters and had found no case where this Court has said that a transcript must be furnished in a case involving what they call quasi criminal or a petty offense.

    Now, clearly if this were one in which a felony was involved, it would not be tried in this city court.

    Consequently, this problem wouldn’t have arose.

    Potter Stewart:

    What’s the jurisdiction in this city court?

    Giles K. Ratcliffe:

    $100.00 fine, 90 days maximum sentence.

    Potter Stewart:

    That’s the Court had no — the court has no jurisdiction of anything punishable with a more serious offense.

    Giles K. Ratcliffe:

    No, that’s true.

    These are city ordinances only.

    That’s all they find in your city ordinance.

    Hugo L. Black:

    Why are there cases appealed to other court?

    What’s the next —

    Giles K. Ratcliffe:

    Well, this Court that we’re dealing with now has only been in existence two or three years.

    Prior to that time, we had what we call the police court where the maximum fine was $20.00.

    The appeal from there was to the common plea court where it was trial de novo.

    Then of course an appeal from that to the Court of Criminal Appeals would be treated as a county matter.

    Transcripts would have been furnished under the state law and say this problem didn’t arise until just a couple of years.

    Potter Stewart:

    But in answer to Justice Black’s question now, not the last couple of years, where is the appeal, where is the –?

    Giles K. Ratcliffe:

    It is directed to the Court of Criminal Appeals just as it was before from the Court of Common Plea.

    Giles K. Ratcliffe:

    In other words, this is —

    Hugo L. Black:

    This one has a jury?

    Giles K. Ratcliffe:

    Yes, sir.

    Hugo L. Black:

    Which one has a jury?

    Giles K. Ratcliffe:

    Well, both now.

    Both, the city court of record has the jury.

    Hugo L. Black:

    Municipal court?

    Giles K. Ratcliffe:

    Yes.

    And then from that court, you appeal directly to the Court of Criminal Appeals.

    Potter Stewart:

    There’s no trial de novo?

    Giles K. Ratcliffe:

    No, no, no.

    It’s tried their jury —

    Hugo L. Black:

    All this time, they’re entitled to have a jury trial?

    Giles K. Ratcliffe:

    Yes.

    Hugo L. Black:

    In that Court?

    Giles K. Ratcliffe:

    In this Court.

    They’re entitled to jury trial.

    Earl Warren:

    Do you agree with Mr. Gray to the effect that there is no other way that this indigent client can have appeal on the record, on the evidence other than to have a case-made by the stenographer at his own expense?

    Giles K. Ratcliffe:

    No sir, I don’t agree with that.

    However, I can’t —

    Earl Warren:

    That’s what I want to know.

    Giles K. Ratcliffe:

    I can’t quote you any cases where this has been done.

    However, in his — in the hearing before the trial court, he on his motion for a free case-made, the transcript, a copy of it attached to our brief in opposition to the certiorari, he alleged that it was necessary for him to have the testimony of the three city witnesses, the testimony of the defendant and he needed to present some additional evidence by way of affidavit which has been made a part of this record in the last week or so.

    Now, clearly, he could not complete his case-made if he just took the reporter’s transcript because the two affidavits and the — well, the three affidavits that he has acquired, these people did not testify in Court.

    Those were attached to his motion for new trial.

    So if the Court had said yes, you can have a case-made.

    Part of his transcript would have to have been in narrative form because these people did not testify in the trial — in the case at trial court.

    The reporter could not have been included it in the case-made, so if he can present his case to the Court of Criminal Appeals on a partial reporter’s transcript, on a partial narrative statement of evidence by way of affidavit, we don’t think that he would be prejudiced by presenting at all.

    Now this was not a complicated case.

    Earl Warren:

    Well, that isn’t exactly my question.

    Earl Warren:

    What my question was, is there in the power of the court to make any kind of a record that would enable him to appeal on the evidence in his case other than by a case-made paid by him?

    Giles K. Ratcliffe:

    I can’t quote you where this has been done Your Honor.

    But I believe that it can be.

    I believe that the Court, the petitioner’s attorney or the attorney for the city or anyone who could had the information available could sit down and prepare a narrative form, a statement of the testimony of these witnesses and that the Court of Criminal Appeals would consider that.

    Earl Warren:

    Is that done as a matter of practice?

    Giles K. Ratcliffe:

    As far as I know, it has not been done.

    Earl Warren:

    Do you have any authority to the effect that it can be done?

    Giles K. Ratcliffe:

    No, I have no authority where it could be not.

    However, I have quoted a case.

    It’s an old Oklahoma case.

    It’s Harris versus State in which the Court of Criminal Appeals had this to say, if for any reason stenographer’s notes could not be obtained, then it was the duty of such lawyers to use their best exertion to make up the case-made from memory and if they failed to do so, the defendant would be held responsible for this neglect of duty on their part.

    See also Dove versus State, the writer of this opinion practice law many years in Texas before court stenographers were known to that state and when the law — when it went under the law, the evidence had to be written out as a matter of memory by the attorneys and filed in Court within ten days from the adjournment of the term of Court.

    The writer never had the least difficulty in preparing his statements of the evidences in his cases.

    And he knows from personal experience that it can easily be done.

    In fact, he seriously doubts that the employment of court stenographers is at all necessary either in the administration of justice up to the development of lawyers.

    It has a tendency to breed carelessness on their part but be that as it may, the trial court has a large discretion as to when to order the stenographer’s note be extended without expense to the defendant.

    Earl Warren:

    We’ll recess now.