# Hardy v. United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Clark
* Dissenting Opinion Harlan
United States Supreme Court
375 U.S. 277
Hardy v. United States
Argued: Nov. 21, 1963. --- Decided: Jan 6, 1964
Petitioner, a pauper, has been convicted and sentenced to prison. After conviction the court-appointed lawyer, who represented him at the trial, withdrew his appearance with the approval of the court. The present court-appointed attorney is a different person, appointed by the Court of Appeals after the indigent had prepared pro se a petition for leave to appeal in forma pauperis. The District Court denied leave to appeal in forma pauperis. The Court of Appeals, although empowered to allow the appeal (Coppedge v. United States, 369 U.S. 438, 455, 82 S.Ct. 917, 926, 8 L.Ed.2d 21), merely allowed petitioner to proceed in forma pauperis for purposes of the appeal 'to the extent of having the stenographic transcript of the testimony and evidence presented by the government prepared at the expense of the United States,' as those parts of the transcript were the only ones that relate 'to the conclusory allegations' formulated by the indigent defendant pro se. See Ingram v. United States, 114 U.S.App.D.C. 283, 315 F.2d 29, 30-31. After a petition for rehearing was denied, petitioner moved the Court of Appeals for a transcript of the balance of the proceedings in the District Court. This motion was denied by a divided Bench. The case is here on certiorari. 373 U.S. 902, 83 S.Ct. 1293, 10 L.Ed.2d 198.
We deal with the federal system where the appeal is a matter of right (Coppedge v. United States, supra, 369 U.S. at 441, 82 S.Ct. at 919, 8 L.Ed.2d 21; 28 U.S.C. §§ 1291, 1294), and where the appellant is entitled to 'the aid of counsel unless he insists on being his own.' Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593. Congress has buttressed that right of appeal in several ways. It has provided in 28 U.S.C. § 1915 that any federal court may authorize an 'appeal' in forma pauperis, except that such an appeal may not be taken if the trial court certifies that 'it is not taken in good faith.' Further, a transcript is available for appeal purposes, Congress having provided in the Court Reporter Act, 28 U.S.C. § 753(b), that a transcript 'by shorthand or by mechanical means' of 'all proceedings in criminal cases had in open court' shall be made. The United States Attorney for the District of Columbia has adopted the practice of furnishing to indigents a full transcript on request if the cost to the United States is not more than $200. That policy draws a distinction not present in the statute nor in the Rules of the Court of Appeals which provide that, when the court allows an appeal in forma pauperis, it shall then determine 'whether, and to what extent, a transcript will be necessary for the proper determination of the appeal.' D.C.Cir.Rule 33(b)(2)(i).
We have here a case where an appeal in forma pauperis has not yet been allowed. But whether counsel seeks an entire transcript at that stage or later on, the problem seems to us to be the same.
A court-appointed counsel who represents the indigent on appeal gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned. Coppedge v. United States, supra, 369 U.S. at 446, 82 S.Ct. at 921-922, 8 L.Ed.2d 21; Ingram v. United States, supra. But when, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than th t. For Rule 52(b) of the Federal Rules of Criminal Procedure provides: 'Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.' The right to notice 'plain errors or defects' is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.
The duty of counsel on appeal, as we noted in Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060, is not to serve as amicus to the Court of Appeals, but as advoca e for the appellant:
'Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required. If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.' (Italics added.)
We deal here only with the statutory scheme and do not reach a consideration of constitutional requirements. We see no escape from the conclusion that either where the requirements of a nonfrivolous appeal prescribed by Coppedge v. United States, supra, are met, or where such a showing is sought to be made, and where counsel on appeal was not counsel at the trial, the requirements placed on him by Ellis v. United States, supra, will often make it seem necessary to him to obtain an entire transcript.
We conclude that this counsel's duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and also the court's charge to the jury, as well as the testimony and evidence presented by the prosecution.
Reversed.
Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring.
I join the Court's opinion which is written narrowly within the framework of prior decisions. I concur separately, however, to state my conviction that in the interests of justice this Court should require, under our supervisory power, that full transcripts be provided, without limitation, in all federal criminal cases to defendants who cannot afford to purchase them, whenever they seek to prosecute an appeal.
The problem here arises out of the different procedures by which criminal appeals taken by indigent and nonindigent defendants are processed in the District of Columbia and other federal courts. The procedure for nonindigents, who are represented by retained counsel and who are generally free on bail pending appeal, is automatic, direct and prompt. Within 10 days after judgment, counsel files a simple notice of appeal with the clerk of the District Court; a transcript is purchased and filed with the Court of Appeals; and the case is then automatically placed on the calendar for briefing and argument on the merits. The procedure for indigents, who are generally incarcerated pending appeal because of their inability to make bail, is indirect, dilatory and discretionary. A key difference is that while a nonindigent may appeal, in effect, as a matter of right, an indigent must make a showing that his claims of error are not frivolous before he is given permission to appeal. A brief description of the process by which the federal courts seek to screen frivolous attempts to appeal in forma pauperis is necessary to an understanding of the problem raised by this case.
Following the conviction and sentencing of an indigent defendant, his cou t-appointed trial lawyer often withdraws from the case. If the right to appeal is to be preserved, the defendant pro se must file a notice of appeal within 10 days after the entry of the judgment and must apply to the District Court for leave to appeal in forma pauperis. The application must include a statement of the alleged errors the defendant seeks to raise on appeal. Unless the District Court concludes that the appeal is not taken in 'good faith,' leave to appeal in forma pauperis must be granted. If the District Court denies leave to appeal in forma pauperis, the defendant, who, as previously noted, is often without the services of an attorney, may apply to the Court of Appeals for leave to appeal. If the Court of Appeals can determine from the application that a nonfrivolous claim of error exists, it must grant leave to appeal. If leave is granted, either by the District Court or the Court of Appeals, a lawyer is then appointed and supplied with the portions of the transcript relating to the nonfrivolous claims. If he then desires any additional portion of the transcript to help him prepare his appeal on the merits, he must ask the Court of Appeals to order its preparation.
If the District Court has denied leave to appeal in forma pauperis, and if 'the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing * * *' that the case presents a nonfrivolous issue. Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21. A 'record of sufficient completeness' has been interpreted by the Court of Appeals for the District of Columbia to mean 'the portion of the transcript of proceedings which relates to the conclusory allegations' made by the defendant in his pro se application. Ingram v. United States, 114 U.S.App.D.C. 283, 285, 315 F.2d 29, 31. After receiving the relevant portion of the transcript, the appointed lawyer has the duty of pre aring a memorandum showing, if he can, that the case presents a nonfrivolous issue and that leave to appeal should be granted. If the lawyer finds what he considers a nonfrivolous claim of error in the portion of the transcript he has been given, he files the memorandum. If the court then agrees that there is a nonfrivolous issue, it must grant leave to appeal in forma pauperis, and the same previously described procedure is then followed as would be followed if leave had been granted originally by the District Court or the Court of Appeals.
If the lawyer has examined the portions of the transcript relating to the pro se claims of error and has satisfied himself that they contain no issue which he can assert to be nonfrivolous, he then has these alternatives. Deeming his appointed function exhausted, the attorney may seek leave from the Court of Appeals to withdraw from the case on the ground that he is satisfied that the case presents no issue which is nonfrivolous. If leave to withdraw is granted, a new lawyer is generally not appointed, and the defendant is informed that he may submit his own memorandum in support of his application. Since the pro se memorandum will rarely add anything to the original application, once the lawyer is given leave to withdraw denial of the defendant's application is virtually inevitable
The lawyer who has satisfied himself that the transcript originally ordered contains no nonfrivolous issue may, however, decide to request additional portions of the transcript before seeking to withdraw from the case. If his examination of the original portions of the transcript leads him to suspect specific error in other portions of the transcript, the Court of Appeals, upon being presented with these new claims of error, will order the production of those portions of the transcript relating to these claims.
Where the appointed lawyer can find no nonfrivolous claim of error in the portion of the transcript relating to the claims raised in the defendant's pro se application but has no idea whether the remainder of the transcript will disclose any such claim, he cannot in good conscience allege any new claim of error to which additional portions of the transcript would be relevant. Nor can he, without being furnished with the remainder of the transcript, conclude in good conscience that the case presents no issue which is nonfrivolous.
Counsel in this case was presented with precisely this dilemma and sought resolution of it by asking the Court of Appeals either to order the production of the remainder of the transcript, or to terminate his responsibility in that court by denying leave to appeal in forma pauperis. The Court of Appeals granted neither request. Thus we now have before us for resolution the problem of the conscientious appointed counsel at this critical stage in the screening process.
This case, therefore, although it arises in the context of a request for portions of a transcript, raises fundamental questions concerning the proper role of appointed counsel on appeal. If the function of appointed counsel is essentially to aid the court, as amicus curiae, in assessing the claims of errors made in the pro se petition and in determining whether they include a nonfrivolous issue, then the practice now prevailing is perfectly suited to its end. It is then entirely logical to give the appointed lawyer only those portions of the transcript relating to the pro se claims of error, and to permit him to withdraw from the case if those portions of the transcript reveal no nonfrivolous claims. However, if the proper function of the appointed lawyer is essentially the same as that of the retained lawyer-to be an effective advocate in an adversary system-then there can be no justification for limiting him to those portions of the transcript relating to the claims of error raised by his indigent and often illiterate lient and for permitting-indeed in effect requiring-him to withdraw from the case without examining the remainder of the trial transcript. It cannot seriously be suggested that a retained and experienced appellate lawyer would limit himself to the portions of the transcript designated by his client or even by the trial attorney, especially where the Courts of Appeals may, and not infrequently do, reverse convictions for 'plain errors' not raised at trial.
The proper function of appointed counsel on appeal has been described by this Court. '(R)epresentation in the role of an advocate is required.' Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060. It is not enough that the appointed counsel perform 'essentially the role of amici curiae.' Ibid. If this requirement is to be more than a hollow platitude, then appointed counsel must be provided with the tools of an advocate. As any effective appellate advocate will attest, the most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law. Anything short of a complete transcript is incompatible with effective appellate advocacy.
The opinion of the Court agrees with this conclusion as it relates to 'one whose lawyer on appeal enters the case after the trial is ended.' Ante, at 280. I believe that it is equally applicable to one whose appointed lawyer on appeal was also his lawyer at trial. No responsible retained lawyer who represents a defendant at trial will rely exclusively on his memory (even as supplemented by trial notes) in composing a list of possible trial errors which delimit his appeal. Nor should this be required of an appointed lawyer. An appointed lawyer, whether or not he represented the defendant at trial, needs a complete trial transcript to discharge his full responsibility of preparing the memorandum supporting the application to proceed in forma pauperis.
I believe further that the availability of a complete transcript should not be made to depend on the facts of each case. This Court has recently condemned 'the inevitable delay that surrounds a procedure in which the courts give piecemeal attention to the series of motions that indigents must make before a final adjudication of the merits of their cases is reached.' Coppedge v. United States, 369 U.S., at 450, 82 S.Ct., at 924, 8 L.Ed.2d 21. One of the prime reasons for this delay has been the 'separate considerations of motions * * * for the preparation of a transcript of the trial proceedings * * *.' Ibid. A case-by-case approach-regardless of the governing standard-must inevitably contribute to this delay. Experience in this area has shown the need for a clear and simple across-the-board rule that would obviate the necessity for further court considerations of transcript requests. This rule should be that any criminal defendant desiring to appeal who cannot afford a transcript must be given one to help his appointed lawyer prepare a memorandum establishing the existence of a nonfrivolous issue in support of the application for leave to appeal n forma pauperis.
The Government suggests that such a memorandum can be adequately prepared, even by a lawyer newly appointed on appeal, without more transcript than is presently provided. It would have the lawyer conduct an investigation, including interviews with the trial judge, the prosecuting attorney and the trial defense counsel, in an effort to reconstruct the events of the trial. At best, however, this is a poor substitute for a transcript in disclosing possible error. Moreover, a lawyer appointed to represent the interests of a defendant should not be required to delegate his responsibility of determining whether error occurred at trial to participants at that trial whose conduct may have formed the very basis for the errors. Finally, this interview requirement is unduly burdensome on the appointed lawyers who are required to serve without compensation. As the Attorney General's Committee on Poverty and the Administration of Criminal Justice recently observed: 'It is not far from the truth to say that the federal system seeks to avoid the expenses of supplying transcripts to all financially disadvantaged defendants desiring to appeal by shifting the burdens to lawyers required to serve without compensation or reimbursement of expenses.'
I conclude, therefore, that the interests of equal justice and the viability of our adversary system are impaired when an indigent defendant's access to a trial transcript is not as complete as that of a paying defendant. This 'concept of 'equal justice' does not confuse equality of treatment with identity of treatment.' It does, however, require the Government to do 'all that can reasonably be required of it to eliminate those factors that inhibit the proper and effective assertion' of the defendant's claims.
Providing a complete transcript to all defendants who cannot afford to purchase one will not create an undue financial burden on the Government. Statistics for the last three years for which figures are available indicate that almost 90% of the criminal trials in the District of Columbia lasted three days or less and that a 'transcript of a three-day trial will generally cost less than $200 to prepare * * *.' The Government informs us that its present practice in the District of Columbia is not to oppose the preparation of transcripts which cost $200 or less to prepare. It seems likely, therefore, that a system of free transcripts will, in the long run, be less expensive than the present system with its multiple proceedings and frequent delays. Moreover, the financial costs are relatively unimportant when compared with the unnecessary hardship to defendants, many of whom are incarcerated during their attempts to secure appellate review because of their inability to raise the necessary bail. I agree with Judge Learned Hand: 'If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.'
Finally, the foregoing discussion leads me to the ultimate conclusion that the cause of equal justice is unduly hindered by the cumbersome obstacles to appeal which have been erected by the procedure for screening frivolous attempts to appeal in forma pauperis. I agree, therefore, with my Brothers STEWART and BRENNAN, in their concurring opinion in Coppedge, 369 U.S., at 458, 82 S.Ct., at 928, 8 L.Ed.2d 21, that 'each Court of Appeals might well consider whether its task could not be more expeditiously and responsibly performed by simply' eliminating the entire process for screening in forma pauperis appeals and by treating such appeals in the same manner as paid appeals are now treated. Since 'no a priori justification can be found for considering (in forma pauperis appeals), as a class, to be more frivolous than those in which costs have been paid,' Id., 369 U.S. at 449, 82 S.Ct. at 923, 8 L.Ed.2d 21, it would seem to follow that no justification exists for erecting artificial barriers to appeal for indigent defendants, '(p)articularly since (these) litigants * * * may, in the trial court, have suffered disadvantages in the defense of their cases inherent in their impecunious condition * * *.' Id., 369 U.S. at 450, 82 S.Ct. at 923, 8 L.Ed.2d 21. However, as long as the Courts of Appeals continue to require a preliminary showing before granting an indigent leave to appeal, we can do no less than require, under our supervisory power, that a full transcript be made available, without limitation, to the lawyer appointed to help make that showing.

## Notes

* ↑ During oral argument of this case, counsel for respondent stated that the United States Attorney for the District of Columbia initiated, since this case was before the lower courts, a practice of not filing an opposition to a motion for a full transcript where the cost of such a transcript will not exceed $200. This is usually the case when the trial does not exceed three days. This practice is followed because the United States Attorney feels that the time and effort necessary to oppose such a motion will, in terms of dollars, exceed $200. According to counsel, the Federal District Court, pursuant to a 'tacit' understanding, usually grants unopposed motions for a complete transcript.
* ↑ In Ingram the Court of Appeals said:
* ↑ Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783, 792-793 (1961), in speaking of the task of counsel who is appointed to represent the appellant and who did not serve as trial counsel, says:
* ↑ Rule 39(d) of the Federal Rules of Criminal Procedure provides that:
* ↑ See Pannell v. United States, 115 U.S.App.D.C. 379, 320 F.2d 698; Committee on the Administration of Bail of the Junior Bar Section of the Bar Association of the District of Columbia, Report on the Bail System of the District of Columbia (1963).
* ↑ Permitting the trial lawyer to withdraw at that stage probably reflects a recognition both of the burden of serving as uncompensated trial counsel and of the different skills often possessed by trial and
* ↑ In the District of Columbia, many lawyers chose this course and, at least until recently, leave to withdraw was freely granted.
* ↑ See, e.g., Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612; Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430; United States v. Currens, 3 Cir., 290 F.2d 751; McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847; Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767.
* ↑ Under the practice now prevailing, problems relating to transcripts may arise both before and after leave to appeal in forma pauperis is granted. If counsel were provided with a complete transcript upon being appointed to prepare the memorandum in support of the application to appeal in forma pauperis, the problem of supplying additional portions of the transcript after leave is granted would become moot.
* ↑ Indigence 'must be conceived as a relative concept. An improverished accused is not necessarily one totally devoid of means.' Attorney General's Report, at 8. An accused must be deemed indigent when 'at any stage of the proceedings (his) lack of means . . . substantially inhibits or prevents the proper assertion of a (particular) right or a claim of right.' Ibid. Indigence must be defined with reference to the particular right asserted. Thus, the fact that a defendant may be able to muster enough resources, of his own or of a friend or relative, to obtain bail does not in itself establish his nonindigence for the purpose of purchasing a complete trial transcript or retaining a lawyer.
* ↑ Attorney General's Report, at 102.
* ↑ Id., at 10-11: 'The essence of the adversary system is challenge. The survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. Persons suffering such disabilities are incapable of providing the challenges that are indispensable to satisfactory operation of the system. The loss to the interests of accused individuals, occasioned by these failures, (is) great and apparent. It is also clear that a situation in which persons are required to contest a serious accusation but are denied access to the tools of contest is offensive to fairness and equity. Beyond these considerations, however, is the fact that the conditions produced by the financial incapacity of the accused are detrimental to the proper function ng of the system of justice and that the loss in vitality of the adversary system, thereby occasioned, significantly endangers the basic interests of a free community.'
* ↑ Id., at 9.
* ↑ Ibid.
* ↑ Special Committee of the Junior Bar Section of the Bar Association of the District of Columbia, Report to the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, reprinted in Brief of the Bar Association of the District of Columbia, as amicus curiae, at A-9, A-16.
* ↑ The Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice made the following observation concerning the real cost of the present system: 'The Committee believes that proper evaluation of comparative costs requires that attention be directed to the 'hidden costs' of the present system. First there are the costs in judicial time in the district courts and courts of appeals, just noted, that result from the administration of the present system. Second are the costs in the time of public officials required to be interviewed by assigned counsel in his effort to establish a record or to justify the ordering of a transcript in proceedings involving leave to appeal in forma pauperis. Third are the costs of time, effort, and expense of assigned counsel. The present system is able to function at all only by shifting a large part of the burdens of the system on lawyers who are required to serve without compensation or reimbursement. It should be carefully noted that in a system of adequate representation involving the use of compensated counsel the shifting of many of these burdens to counsel will no longer be possible. In many cases the provision of a transcript at the outset of the appellate process will involve substantially less expense to the government than the payment of attorneys' fees for time spent by counsel in an effort to settle a record for disposition of the application to appeal in forma pauperis and in other proceedings made necessary by the present system. Fourth, a system that obstructs access to direct review is likely to encourage resort by prisoners to collateral attack on their convictions and sentences with losses of time and money thereby occasioned. Such has been the uniform experience of state systems of criminal justice.' Attorney General's Report, at 114.
* ↑ The recent case of William H. Kemp, arising in the District of Columbia, illustrates the complexity of the in forma pauperis procedures, the attendant delays, and the resulting injuries to the accused. The procedural history of the case, as compiled by the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, follows:
* ↑ Address before Legal Aid Society of New York, Feb. 16, 1951.
* ↑ 'The Government would then be free in any case to file before argument a motion to dismiss the appeal as frivolous, as every appellee is always free to do.' Coppedge v. United States, 369 U.S., at 458, 82 S.Ct., at 928, 8 L.Ed.2d 21.
* ↑ Attorney General's Report, at 113-114: '(T)he Committee believes that the present practices are largely self-defeating and that they can be abandoned without creating unmanageable burdens of costs or necessitating undue expenditures of judicial time. Every justification of the present practices which has come to the Committee's attention is predicated on the assumption that the screening procedures are required to prevent an inundation of frivolous appeals and that the increases in the number of appeals will result in large monetary costs to the government and in substantial burdens on adjudication in the courts of appeals. We believe that even if these fears were substantial, such considerations are not entitled to be given decisive weight by a system of criminal justice dedicated to the objective of full and equal justice to all accused persons and to the proper and vigorous operation of the adversary system. The Committee notes, however, that many American states-some sufficiently populous to provide reasonable comparisons with the federal system of justice have granted financially disadvantaged defendants full access to appellate review without experiencing burdens approaching the magnitude of those sometimes predicted as the consequence of similar measures in the federal courts. We believe, also, that forecasts of inordinate burdens do not take adequate account of the fact that the proliferation of motions and petitions produced by present practice is highly expensive of judicial time.'
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