Earl Warren: -- Ward Lane, Warden, petitioner, versus George Robert Brown. Mr. Levy, you may continue your argument.
Nathan Levy: Mr. Chief Justice, may it please the Court. At the Court's recess yesterday, we had proceeded with the respondent's argument to the point of examining the Law of Indiana as expressed in the McCrary case. And to resume that argument, I would like first simply to say that from the McCrary case, it is clearly established that the presence of a transcript is necessary to an appeal in the Supreme Court of Indiana and by transcript, we mean, the full blown transcript in its formal aspect. It is also established in the Law of Indiana by the McCrary case that an indigent convicted prisoner goes to the Public Defender, and if the Public Defender refuses to accept his case, refuses to represent him, that prisoner is unable to obtain a transcript.
Potter Stewart: The scope of this rule is limited to an appeal from denial of a coram nobis remedy, is it not?
Nathan Levy: To the extent that it is expressed in the McCrary case, yes, Your Honor.
Potter Stewart: And how about the statute?
Nathan Levy: This -- the statute refers to belated appeals and apparently could be broaden to include the direct appeal as well.
Potter Stewart: But it’s a post conviction and --
Nathan Levy: This is a post conviction --
Potter Stewart: It's limited to a post conviction, an appeal from the denial of a post conviction remedy.
Nathan Levy: Yes, sir.
Potter Stewart: May I ask you this while --
Nathan Levy: Yes, sir.
Potter Stewart: -- I've interrupted you. Is there an absolute right to counsel in the trial court in a post conviction remedy? In this case, the Public Defender did represent the petitioner in the trial court, in a coram nobis hearing. Was that an absolute right under Indiana law?
Nathan Levy: I would say that it is an absolute right taking the older cases. I do not believe the question has been raised in recent years at least. Now, from the McCrary case, it may also be gathered that there is some form of review. It was used in the McCrary case and then after the Brown case was repeated in -- with slight changes in the Willoughby case. But it seems to us unnecessary to examine into that review at the present time unless the Court desires to hear upon it because it was not available to Brown and he, by admission of the State, had exhausted all state remedies available to him prior to the time that the Willoughby case was decided. Now when we turn to Brown's own case, we have a slightly different treatment both by this Court and by the court below. When Brown first sought a writ of habeas corpus, it was denied him on the ground that he had failed to exhaust the state remedies. Then, Brown proceeded through the various steps that McCrary proceeded through, and finally came before this Court with a petition for writ of certiorari upon the denial by the Supreme Court of Indiana of a writ of mandate to the Lake Criminal Court to provide him counsel and a transcript and permit him to appeal from the denied petition for writ of error coram nobis. In this Court, instead of setting aside the dismissal of his action and remanding as had been done in the McCrary case, the Court denied certiorari without prejudice to Brown's right to bring habeas corpus in the appropriate Federal District Court. Now Brown did go into the Federal District Court for the Northern District of Indiana --
Potter Stewart: Do you take the denial of the petition for certiorari without prejudice to mean as distinguished from a mere denial of certiorari?
Nathan Levy: It seems to me that one of the great problems involved in this case is, as has been discussed in some of the preceding cases, the question of federalism and the abrasive, corrosive relationship with respect to the States. The procedures, as I will attempt to show in my understanding of the Brown case, follow precisely the recommendations of the conference of Chief Justices with respect to such matters in the use of federal habeas corpus. So that when Brown's case was in the Federal District Court of the Northern District of Indiana, the question arose as to whether or not his constitutional rights have been denied. We -- I think he filed on July 19th, 1961. We were assigned to represent him on July 20th, 1961 and in the interval between the 20th and the 26th, when the order of the District Court was entered, two hearings were held, one, the original hearing and then at the request of the State of Indiana, another hearing. Now the Federal District Judge, having heard the case, wrote an opinion which is a part of the transcript, finding that Brown had been denied his constitutional rights. And the Federal District Judge, following the recommendations and rules of this Court, as established in an earlier Indiana case by chance, granted the State of Indiana time in which to correct the defect with respect to the constitutional rights of George Robert Brown.
John M. Harlan II: You're talking about Irvin against Dowd?
Nathan Levy: No, Your Honor, it was Cook against Dowd, another similar case in which this Court -- Cook's papers were destroyed each time that he prepared them and they were never sent up to the Court. And when the Court decided that his rights have been taken away from him, this Court directed the Federal District Court from the Northern District of Indiana, South Bend Division, another judge city, to give the State of Indiana some time in which to permit him to have his appeal rather than to release him at once, so that the Federal District Court below in the Brown case followed very meticulously this rule, granted 90 days to the State of Indiana to attempt to correct this constitutional defect, the deprivation of the constitutional rights of George Robert Brown. I must also call the Court's attention that in the order, the court below indicated that additional time would be granted if desired by the State of Indiana. Thus --
John M. Harlan II: What is this argument directed to, jurisdiction?
Nathan Levy: No, sir. No, I am trying to indicate that in every respect of the -- in the case of George Robert Brown, all that it can possibly be done with respect to the relationship of this Court and the state judiciaries -- the state judiciary of Indiana has been done.
William J. Brennan, Jr.: Well, what you're saying --
Byron R. White: [Inaudible]
William J. Brennan, Jr.: -- as to the Federal District Court bent over backwards to give the state judiciary an opportunity to deal with the merits under the fact on the conviction, is that it?
Nathan Levy: Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: Tell me this neither, in the Federal District Court nor in the court -- Court of Appeals, is there any revelation of what the grounds are upon which he attacks the conviction itself, is there?
Nathan Levy: The -- yes, I believe that in the petition for the writ of habeas corpus, the original one having been granted by what is known at the prison as the Writ Department, the grounds are stated.
William J. Brennan, Jr.: Was known at the prison as the Writ Department?
Nathan Levy: Yes, the Writ Department of the Indiana State Prison.
William J. Brennan, Jr.: [Inaudible]
Nathan Levy: -- is a -- it's a sort of a -- what the -- Justice Schaefer of the Supreme Court of Illinois, once called it the Prison Therapy Department. There are no lawyers in the Writ Department, but they draft all these petitions and papers and they -- they (Voice Overlap) --
William J. Brennan, Jr.: Well briefly, can you tell me what the -- what claims are addressed to the conviction itself.
Nathan Levy: The statement of them appears in the transcript of record beginning at page 20 and is a very, very long statement, as is true of the Writ Department, that he was denied a fair and impartial trial because the appointed attorney neglected to enforce his constitutional rights and --
William J. Brennan, Jr.: For what -- a coerced confessions or --
Nathan Levy: There was a question of a confession involved in the case, that the confession was improperly admitted --
William J. Brennan, Jr.: So you never suggested to the District Court that these circumstances, the Court might have dealt with those constitutional claims rather than the one the one of denial of transcript, did you?
Nathan Levy: No, Your Honor, we did not. As a matter of fact, to be fully frank, we felt at the time that we were assigned and having examined what record we could that the -- that the denial of what we argued then was equal protection of the law whether it is equal protection or due process is a different question, was so startling an error and so complete the deprivation of the rights of this man as measured by the Griffin case and the ones following that there was little need to go into any other of the questions raised. And it was -- the other questions are --
William J. Brennan, Jr.: Well, what it comes down to is that the -- if the Court of Appeals is sustained, he is ordered to discharge not because of any constitutional defect or a conviction of a (Inaudible) --
Nathan Levy: That's correct.
William J. Brennan, Jr.: -- but only because he's not been given an opportunity to appeal from the conviction.
Nathan Levy: Yes, Your Honor. Well, it is our feeling that this constitutional right follows him both in the trial stage and the direct appeal and in any post convictional appeal. And if denied and the denial persisted against the opportunity to correct, he must be given the benefit, the advantage of that constitutional right as well as any other person.
Byron R. White: Well, are there grounds alleged in the petition which would qualify for coram nobis under Indiana law, but might not be a federal ground.
Nathan Levy: Yes, I -- I -- I'm convinced that there are Your Honor, in the -- through the length of the --
Byron R. White: So that there are grounds alleged in the petition which the fed -- which it would do him no good whatsoever to go into federal habeas (Inaudible) --
Nathan Levy: Yes. That is true.
Byron R. White: And consequently, people who couldn't pay for lawyers can have those grounds reviewed in the Indiana courts on appeal --
Nathan Levy: That's correct.
Byron R. White: -- whereas ones without them -- without lawyers, or without an appeal just don't have those grounds reviewed. The trial is the end of it.
Nathan Levy: Mr. Justice White, we -- we thought of arguing the question of lack of counsel and in our brief in the Court of Appeals, we mentioned the point, but we did not argue it in our oral argument there. The problem of arguing counsel in our case is extremely peculiar. What good would counsel do him without the transcript? The transcript is the key to the appeal.
Byron R. White: Well, there's a -- in the previous argument, you noticed that if you have a lawyer, it would be a substitute for a transcript.
Nathan Levy: Not in Indiana, not in the face of the -- of the clear cut statement of rule in the McCrary as repeated in Willoughby. There is -- we actually felt that we should argue the question of counsel particularly when this case was set on the calendar following the other three.
Byron R. White: But if there was only -- if there was only a federal ground alleged in the petition, you really would have no particular exception of this whole procedure, would you, because you could go right on the federal habeas after the trial?
Nathan Levy: Yes. It is a slightly -- a slightly different towards that you are expressing sir, but --
Byron R. White: But you do give up one chance then?
Nathan Levy: Yes. We have the feeling that what Brown was asked to go back to Indiana to do, to exhaust state remedies was itself wrong. There are no state remedies in Indiana.
Byron R. White: That's right.
Nathan Levy: Once the Public Defender has said, “I will not give you a transcript --”
Byron R. White: That's right, but isn't -- isn't that the end of it then? Doesn't the State admit then that state remedies are exhausted and you could go right into federal habeas?
Nathan Levy: I'm not sure that the state will admit that.
Byron R. White: Isn't that what the State said?
Nathan Levy: I'm not sure that the -- that the State of Indiana will admit that. What McCrary was put through and what Brown was put through was --
Byron R. White: I thought I asked that yesterday of the State's counsel and they thought --
Nathan Levy: We thought that -- that State's counsel had gone further in response to your question than the State had gone in any other time in our working in this case, but I -- I do not believe it could be so.
John M. Harlan II: [Inaudible] that the State said in its letter to your client, the Public Defender said that he'd taken the matter up with the Attorney General and the Attorney General will concede that you've exhausted your state remedies.
Nathan Levy: That is correct, but nevertheless in each of the instances, the convicted criminal appearing pro se went through the effort in the trial court which denied the petition for writ of error coram nobis to get counsel and transcript upon the -- upon refusal attempted by writ of mandate in the Supreme Court to get counsel and transcript by mandate to that court. I do not believe that those can be classified as State remedies available. They represent lawyers or Writ Department's efforts to find remedies. They are not established as remedies.
Byron R. White: So, in this case [Inaudible]?
Nathan Levy: We believe that they have been exhausted.
Byron R. White: And that [Inaudible]?
Nathan Levy: No, and under those circumstances where there are only federal questions to be raised, we would not be, but the questions raised are a mass of problems. The one question that we believe stands out above all others is the question of the denial of his constitutional rights. Now, it seems so clear, so obvious, that the State of Indiana, under the system and I will discuss the actual system itself (Inaudible) --
Byron R. White: [Inaudible]
Nathan Levy: That's correct. Yes --
Potter Stewart: Well, they have been reviewed once on direct appeal from the conviction, where he was represented by counsel --
Nathan Levy: Yes, and (Voice Overlap) -- they have been reviewed on direct appeal and the conviction was sustained. Now --
Potter Stewart: And he's represented by a counsel?
Nathan Levy: Yes, sir.
Potter Stewart: And there was a petition for writ of certiorari here.
Nathan Levy: Yes, sir.
Potter Stewart: It was denied.
Nathan Levy: Denied.
Potter Stewart: So there was a complete review of -- in which he had the advice of a lawyer all the way.
Nathan Levy: That is correct. Now Indiana has created a post --
Byron R. White: [Inaudible]
Nathan Levy: They are res judicata but coram nobis, if the allegations with respect to petition --
Byron R. White: [Inaudible]
Nathan Levy: Yes. At least you can raise in coram nobis in Indiana which is somewhat like a state habeas corpus proceeding, those questions that -- of which the convicted prisoner can say, “Had you known this at that time you would not have convicted me” and this could be any kind of a question --
William J. Brennan, Jr.: What does Indiana [Inaudible]?
Nathan Levy: Yes, I would say that this is -- this is the rule, this is a court interpreted rule. I'm not sure that it's --
William J. Brennan, Jr.: In this petition if all he alleged was state grounds on that which could not [Inaudible]
Nathan Levy: I cannot answer that, Your Honor, because we have not seen the transcript, we have not seen the record. There is no way for us to know.
Potter Stewart: There was an opinion of the Indiana Supreme Court, wasn't it, the first time?
Nathan Levy: Yes.
Potter Stewart: In affirming the conviction?
Nathan Levy: Yes.
Potter Stewart: You can gather from that, I suppose, but --
Nathan Levy: Well, if you gather from that, then the allegations at least contain other grounds. The --
Arthur J. Goldberg: Isn't the substance of the argument [Inaudible]?
Nathan Levy: That is correct.
Arthur J. Goldberg: And that absence [Inaudible] --
Nathan Levy: That --
Arthur J. Goldberg: -- anybody who is not [Inaudible].
Nathan Levy: Has the record, can respond to the questions and can go to the Supreme Court of Indiana and yet its judgment expressed upon even the very question that has been proposed to me by the Court.
Arthur J. Goldberg: [Inaudible]
Nathan Levy: Well, I can -- I will address myself to that right now because this is the situation as we have it. We have sort of three categories of people. We have non-indigents who can afford their transcripts. We have indigents who receive the assistance of the Public Defender which means representation and transcript. And then we have the category into which George Robert Brown falls, an indigent convicted prisoner whom the Public Defender refuses to represent and who therefore cannot have his transcript, and therefore cannot have any kind of review.
William J. Brennan, Jr.: Mr. Levy, which facts [Inaudible]? I gather on direct appeal [Inaudible]?
Nathan Levy: That is correct.
William J. Brennan, Jr.: [Inaudible]
Nathan Levy: Oh yes.
William J. Brennan, Jr.: Now the record is [Inaudible]
Nathan Levy: Has the transcript.
William J. Brennan, Jr.: [Inaudible]
Nathan Levy: Agree, yes.
William J. Brennan, Jr.: The state court has no jurisdiction [Inaudible]
Nathan Levy: That is correct.
William J. Brennan, Jr.: That is claimed in the appeal, the denial for [Inaudible]
Nathan Levy: Yes. The -- the Supreme Court in the McCrary case says specifically that without the transcript, it has no jurisdiction. The transcript is jurisdictional to it.
Byron R. White: Were the added post to that [Inaudible] -- whether or not what the grounds were in a coram nobis procedure at this [Inaudible]?
Nathan Levy: That could be but --
Byron R. White: And there's a real question [Inaudible] isn't the question here is whether or not [Inaudible]?
Nathan Levy: Mr. Justice White, it would seem to me that regardless of what the coram nobis record would show, that is a matter for the State and the State's jurisdiction. That should not be a matter tried or heard in the federal court. He was denied his constitutional rights the moment he was denied the right to appeal. That happens in Indiana to take the form of the denial of the transcript.
John M. Harlan II: So your point is that so far as these grounds were state grounds of appeal, the federal court is without jurisdiction to review those on federal habeas corpus --
Byron R. White: [Inaudible]
John M. Harlan II: -- but you can only get those in --
Byron R. White: [Inaudible]
John M. Harlan II: -- state court, that's your point?
Nathan Levy: It could be that they were foreclosed, and possibly they were not foreclosed but the question of whether --
Byron R. White: [Inaudible]
Nathan Levy: You can't tell unless you have the record and the question of whether they are or are not foreclosed is a question that should be decided by the Supreme Court of Indiana and not by a court in the federal judicial system.
Potter Stewart: Well, Mr. Levy, assume this case, assume that as here, there was a trial and a conviction with the defendant represented by a lawyer and there was an appeal with the appellant represented by a lawyer and the conviction was affirmed. The petition for certiorari to this Court had been denied and then a coram nobis procedure was initiated in which the identical ground, the identical grounds were asserted as had been asserted originally on the appeal and this was made clear. Now do you think that the State of Indiana is constitutionally required to furnish at its expense a process of another appeal on the identical grounds under which had already been decided? In other words, I'm just testing as to whether or not there might not be some relevance as to what was alleged in this coram nobis.
Nathan Levy: Your Honor, it makes the test the most difficult single kind of case. May I respond to that by saying this? Indiana tests this kind of a problem with respect to the non-indigent prisoner by having his transcript go into the Supreme Court and having the Supreme Court of Indiana say, “You are simply re-alleging the very same things that we have examined before and there's nothing new in it,” we deny this appeal. Now the --
Potter Stewart: So this means that a rich man who wants to do it has a constitutional right to pour his money down a sewer, but the question is whether an indigent has the right to compel the State to pour its money down a sewer?
Nathan Levy: The indigent certainly has no right to compel the State to pour its money down the sewer, but the State, as a matter of equal protection of the laws or due process which are -- however you wish to think about it that the cases say equal protection of the law, certainly does not have the right to say, and this is in response to your question, sir, and the question of Mr. Justice Goldberg as well. Here is a lawyer available to you, our indigent friend, who's called the Public Defender, you go to him. The Public Defender sees this man, listens to his tale, examines what he can of the record and of his own notes in this instance of what occurred in the Court and says to him, “There is no merit in your case.” Now the State of Indiana has sent the prisoner to the Public Defender as lawyer and then by interpretation and rule of law, the man who has visited the Public Defender as lawyer suddenly finds out this was the judge, this was the man who decided this case. He went to him for assistance as a lawyer and that man, by the interpretation of the laws of Indiana, is given the power, the equivalent power of the judgment of the Supreme Court of Indiana.
John M. Harlan II: Suppose that Indiana in a case (Inaudible) in forma pauperis appeal have said -- had established a Commission of the Board of three judges or quasi judges and then provided that any indigent who wanted to appeal should submit his points to this Board and its determination was to be final as to whether he had a frivolous or non-frivolous appeal and the determination of the Board was un-reviewable, would that be unconstitutional?
Nathan Levy: Mr. Justice Harlan, I -- I can only speculate in this way. To me, it would seem to be unconstitutional.
John M. Harlan II: What you're arguing in effect is that an indigent as a matter of right, in all circumstances he's got a right to get a record, get a transcript to find out whether he's got any asset -- to any legitimate points of appeal.
Nathan Levy: In -- earlier, in one of the cases that you Your Honor asked, a similar question. Under the peculiar situation in Indiana, he has an absolute right to get a transcript because that's jurisdictional to anything that he gets. I do not believe that the language of Griffin or the succeeding cases which say that a State is free to workout other methods is meaningless language. The State of Indiana maybe able to workout other methods so that instead of the formal document called a complete transcript, what Your Honor referred to as a bystander's transcript, something of that kind could be used, but where the State itself says, “You must either have this document or we have no jurisdiction,” how else can the indigent react? How else can the Constitution protect the indigent? There must be --
John M. Harlan II: All the State has said you have that at public expense if you showed you've got a non-frivolous appeal?
Nathan Levy: Well, you -- the State has established a Public Defender and this, I think is an answer now to questions asked by a number of the members of the Court, has established a Public Defender. He is a lawyer. He acts as lawyer to the indigent. With respect to the questions of lack of merit in the appeal of a non -- of an indigent person, his judgment is accepted as infallible. That ends the rights of the non-indigent -- of the indigent person in Indiana. Well, this is quite of a responsibility for a lawyer. This is outside the province of a lawyer and there can be differences of opinion among lawyers. As Mr. Justice Stewart indicated in an earlier case, the non-indigent might try a thousand different ways until he found one who believed he had a point by which he could appeal. Now, let us look at the Public Defender the other way. The Public Defender in none -- in cases in which he finds a lack of merit has the final word, but when he thinks there is merit, the State of Indiana itself does not give him the final word. When he finds there is merit, he becomes just another lawyer like the rest of us who provides the transcript and takes that question up to the Supreme Court of Indiana.
John M. Harlan II: Now what you're arguing in effect is, if I'm wrong I wish you'd tell me, that in a case where the State conditions a right of appeal upon a furnishing of a transcript to the record, an indigent in all circumstances is entitled to get a copy of the record.
Nathan Levy: If the non-indigent --
John M. Harlan II: Isn't that right?
Nathan Levy: Yes sir, Your Honor. If the non-indigent --
John M. Harlan II: A State cannot protect itself, could not draw any lines, and take any measures to protect itself from having to furnish at public expense a transcript of the record.
Nathan Levy: It would seem to me, Your Honor, that -- that the State would have a right to protect itself. For example, if they were to say, “It is unnecessary to bring out the full transcript,” you can use the narrative statement. There are --
John M. Harlan II: No, you're avoiding my question.
Nathan Levy: No, sir.
John M. Harlan II: I may say so. I'm postulating a question, a situation which you have here that the State says, “You got to have a proper bill of exceptions or proper transcript.”
Nathan Levy: Under those circumstances, my answer to your question is yes, they must provide --
John M. Harlan II: Must do it in and the State can't take any measures to protect itself having a better condition to appeal.
Nathan Levy: It would seem to me that that's true. It may -- makes his own condition.
Arthur J. Goldberg: You have to go that far don't you [Inaudible] to stop at this point. As you've said, the State may protect itself against [Inaudible], isn't that the rule?
Nathan Levy: Yes.
Arthur J. Goldberg: Isn't that the key?
Nathan Levy: Yes. Well, the -- as long as Indiana makes the full transcript, the only way to open the door to the Supreme Court, you have one question. If the State of Indiana would create a system by which frivolous appeals of, let me say the indigent and non-indigent both could be sifted and looked into so that they were all treated alike and the transcript were not the -- the one key for opening the door to the Supreme Court a thousand, maybe a hundred thousand different possible combinations would be open. But in response to Mr. Justice Harlan's question, the State of Indiana in this case, its requirements with respect to the transcript, there seems to us no way out except to say, the indigent must be given the transcript and the public expense.
Hugo L. Black: Suppose instead of having a statute they have -- I want to ask in connection with your justification -- discussion a moment ago, had a statute which says all indigents were unable to pay for the cost of the appeal or to obtain a transcript, shall be granted a transcript free by the State, provided, however, that the -- if the indigent shows the questions that are to be raised so that the Court, the Supreme Court of the State can pass upon them as a Supreme Court rather than as a Public Defender pass on it and determine clearly that the points are frivolous, no one of them has merit, would you be saying what you're saying now?
Nathan Levy: No, if that system were made available and may I add some -- one other thing to it, enough of the record itself, not an affidavit or so --
Hugo L. Black: So that they could tell from the --
Nathan Levy: Could tell.
Hugo L. Black: They could tell and they could pass on it. You would not be challenging it --
Nathan Levy: This would seem to be --
Hugo L. Black: What you are saying now is as I understand it, that they have turned over the responsibility to determine whether a man has points that are not frivolous to a Public Defender, not the Supreme Court and that the people who are able to go to the Supreme Court and get their records don't have to depend on the final decision of the Public Defender but can go to the Supreme Court itself.
Nathan Levy: That's correct. To put it in this way, we, in order to uphold the Indiana system, we must say that the judgment and the opinion of the Public Defender is the Constitutional equivalent of the judgment and opinion of the Highest Court in the State.
William J. Brennan, Jr.: Mr. Levy, suppose either by statute or rule, it was the requirement applicable to rich and poor litigants alike, that as a condition to an appeal, the attorney who tried this case must certify that the grounds of appeal are not frivolous. Is there anything wrong with that, applicable to rich litigants and poor litigants alike?
Nathan Levy: If it were applicable to a rich and poor alike and had to do with an appeal which the State could or create upon any terms that it wished, that would a be constitutional procedure.
William J. Brennan, Jr.: So under those circumstances that the Public Defender represented a poor litigant and he refused to make that certification, you wouldn't be here?
Nathan Levy: That's correct, we couldn't be here.
William J. Brennan, Jr.: Yes.
Nathan Levy: Now, I would like to indicate just one more thing. The defect in the State of Indiana, the crux of the problem is this transcript. We wanted to argue the counsel question. I would hate to have to be without counsel on appeal in Indiana, as with all of the -- all of the words that the Court has heard concerning counsel at the trial level and believing them all, and coming from the State which branches attorneys at the trial level, if I were accused of crime and were not a lawyer but could remember what I'd known as being a lawyer and had to choose in Indiana between having counsel at the trial or counsel for an appeal, I would choose to have counsel on the appeal.
Potter Stewart: Well, by hypothesis, you've already lost a trial or you wouldn't be on appeal?
Nathan Levy: Well, that is correct but the odds it seems to me that chances are greater in Indiana, that you would need the assistance of the attorney on -- at the appeal level than you would at the trial level. And in this case, we have a Writ Department at the prison that turns out these papers and if you examine the transcript, you have seen some of the work that they do, but there are policies in some prisons that do not permit this. There are prisons where the prisoners have a higher degree of illiteracy, less sophistication and if this kind of a situation can exist in the State of Indiana, the -- the equivalent in other states is at least as great and possibly worst. It seems to us that there is time -- the time has come to enunciate some kind of a rule that will prevent this kind of a situation as rules in the case of George Robert Brown or in the case of McCrary.
William J. Brennan, Jr.: But it doesn't [Inaudible] for a trial judge in Brown's case.
Nathan Levy: There was a hearing, Your Honor, of --
William J. Brennan, Jr.: I mean a hearing of hours long or day's long, or --
Nathan Levy: I do not -- there was a hearing and it was denied. I -- George Robert Brown was not present in --
William J. Brennan, Jr.: Was there a lawyer representing him (Inaudible)?
Nathan Levy: The Public Defender.
William J. Brennan, Jr.: Oh yes.
Nathan Levy: He was represented at that trial and the -- the Public Defender -- we cannot furnish any statistical data, neither the State nor the respondent's counsel, concerning the number of cases that the Public Defender handles of any -- finds have merit on any -- he finds do not have merit because of the small staff and small office staff that he's unable to keep records and statistics and so reported to us.
Potter Stewart: Mr. Levy, if you're right, to what relief do you think your client is entitled to at this stage?
Nathan Levy: He is entitled to be released, Your Honor.
Potter Stewart: Be released. Now, here's a man who has been tried and convicted, represented by a counsel and took an appeal, represented by a counsel and his conviction was affirmed, and certiorari was denied here, and then he had a coram nobis proceeding in which he was represented by counsel. And the Public Defender has found that there is absolutely no merit whatsoever in his appeal, do you think he's entitled to be released?
Nathan Levy: Yes, he can be held and retried on this charge or he can be arrested at the gate and an article in the newspaper one the portions of the State indicated that he would be arrested at the gate, but with respect to this first -- this present situation, he is entitled to be released.
Potter Stewart: Well now, all he's been denied even if you are right is the right to an appeal from the denial of his coram nobis and that's all he's entitled to, isn't it? If -- even if you're completely right.
Nathan Levy: If -- if we are -- if we are right, he has been denied the right of appeal from his denied petition for writ of coram nobis.
Potter Stewart: Yes.
Nathan Levy: There is no way that he can have that appeal.
Potter Stewart: Well, Indiana said so, but if we -- but if you're right, then we would hold it and Indiana must provide a way. If Indiana provides a way, that's all he's entitled to, isn't it?
Nathan Levy: May I say this with respect to that. The District Court below indicated that the responsibility of Indiana was to provide George Robert Brown with the full appellate review from the denial of his petition for writ of error coram nobis --
Potter Stewart: Yes.
Nathan Levy: -- that the non-indigent prisoner was entitled to get. The State of Indiana had 90 days and as much additional time was -- would be wanted, they did not ask for them, 90 days in which to do that. Now, this denial is the denial of a constitutional right. We are concerned about that and I am sure, as has been indicated in arguments on the other cases, with the improper withholding of constitutional rights and in the doing of that, improperly depriving a person of life and liberty. He has -- he has been a resident of death row for a long time. And in every respect, the right of the State, the opportunity for the State to give him this full review has been protected and held out and offered. The State of Indiana has of its own volition, determined it would not do so. Time is -- has been long and it has run a long time.
William J. Brennan, Jr.: But Mr. Levy, do you suggest that he might be retried, that is the difficulty. In these circumstances, why wouldn't his prior conviction be a perfect double jeopardy defense if they try to retry him on the same --
Nathan Levy: Well, if -- I have not gone into this. I am -- some -- in some instances, it is held that one who receives his freedom on a writ of habeas corpus is not permitted to plea double jeopardy. I don't -- the State has given no indication of that, but an article appeared in one of the newspapers stating that the State was ready upon the moment of release to arrest him on another crime and I am advised that at the time he appeared once in the Court, the Federal District Court at our first argument, the sheriff was present with a warrant (Voice Overlap) --
William J. Brennan, Jr.: Mr. Levy, in those cases, the result of habeas corpus has been to invalidate the conviction. Here, as I understand it --
Nathan Levy: The conviction (Inaudible) --
William J. Brennan, Jr.: -- there's no invalidation of the conviction it's because there has been no right of appeal from that conviction afforded, that the Court of Appeals said he's entitled to be released but how can he be tried --
Nathan Levy: Under those --
William J. Brennan, Jr.: -- while that conviction stands?
Nathan Levy: Under those circumstances, I would agree that he could not be retried, but this would not change the position that he must be released. May I say this?
Potter Stewart: [Inaudible] prevail in this Court and Indiana then says, “Oh, yes. Now we'll -- the Supreme Court has told us we -- we've got to offer this fellow an appeal with the transcript and a lawyer, and if Indiana proceeds to do it, then you gotten everything that you say you're entitled to under the Constitution", isn't that correct?
Nathan Levy: If -- yes.
Potter Stewart: This man was convicted of what, killing several and raping --
Nathan Levy: He was -- well, he was convicted of (Voice Overlap) --
Potter Stewart: -- several teenage girls, burying their bodies in the sand up there.
Nathan Levy: Yes, he would do (Inaudible) -- in this case of murder and a perpetuation of a robbery which resulted in the death of a woman and I think [Inaudible]
John M. Harlan II: [Inaudible]
Potter Stewart: Yes.
Nathan Levy: I beg your pardon.
John M. Harlan II: Is he under a death sentence?
Nathan Levy: He's under the death sentence.
Potter Stewart: And there are several other alleged victims of these activities.
Nathan Levy: The -- I am told that his -- that his confession includes the confession of another murder.
Arthur J. Goldberg: Mr. Levy, why -- you moved the appropriate [Inaudible]?
Nathan Levy: Well, the -- the State of Indiana -- let me start out by saying -- by quoting Lord Seldon's general approach to the problem. Lord Seldon said, “With the writ of habeas corpus, we deliberately take a social risk that there will be a few extra slashed throats”, and he used those words. This is not a proceeding to measure the worth of George Robert Brown. This is a proceeding to measure the worth of a constitutional protection. The State of Indiana has held him in prison after having had full opportunity to offer him what the justices now indicate, and once again would be indicated to Indiana. And one of the reasons that I started to describe the procedure with respect to the George Robert Brown case so carefully was that we -- that the federal courts in this instance have the final responsibility with respect to the constitutional question under the Fourteenth Amendment. And the federal courts in this instance have followed out every possible suggestion with respect to the maintenance of good relations with the state judicial system. The Court followed the recommendations of the conference of Chief Justices. The lower court did precisely what is now suggested shall be done. Now if the constitutional right has a real value despite the danger to the -- to individuals in our society, how long they may had -- be withheld.
Potter Stewart: Well, hasn't the -- hasn't it been stayed pending the proceedings?
Nathan Levy: Oh, yes but in addition to --
Potter Stewart: As well as the execution of the petitioner about the respondent (Voice Overlap) --
Nathan Levy: In addition to the right not to have to go to the electric chair, the Constitution, under these circumstances, would restore him his liberty.
Arthur J. Goldberg: Yes, but asserting -- you're asserting a constitutional right of a person who at certain type of appeal would be denied a right of the State to consider its right to appeal to this Court?
Nathan Levy: None at all.
Arthur J. Goldberg: Well, that's really what you're arguing.
Nathan Levy: No.
Arthur J. Goldberg: You're saying because the State pursued his right to come up here, challenged a judgment of the District Court and the Court of Appeals, that the State should be penalized [Inaudible]
Nathan Levy: Well, Mr. Justice Goldberg, the argument on that point was one that I indicated in the last sentence of my brief in opposition and I doubt seriously, the Court would wish made now. It seems to me that a very strong case can be made out, that the position of the State of Indiana with respect to this case and its appeal to the Court of Appeals and its seeking certiorari here was as frivolous as anything, that it is charged the indigent prisoners with -- back in the State of Indiana.
Arthur J. Goldberg: In any event, that's [Inaudible]?
Nathan Levy: That is correct.
William J. Brennan, Jr.: [Inaudible] -- this jurisdictional ground that the Supreme Court of Indiana could not obtain the appeal without a transcript, is that a matter of statute?
Nathan Levy: It was a matter of the rules of the Supreme Court and that --
William J. Brennan, Jr.: But if they'd -- they might be -- if there is a defect that is correctible by the Court itself without legislative action?
Nathan Levy: Well, the -- there is some doubt in Indiana, but there is no doubt in the mind of the Supreme Court of Indiana that they can change their rules by their own force and power and when you read the McCrary case, the Rule 240 which also appears in our brief is the rule which -- which requires the transcript. And the McCrary case says that in just so many words, that transcript is jurisdictional. We felt that the Supreme Court of Indiana would vary at the time that the District Court entered its order.
William J. Brennan, Jr.: Because if they may vary, it's hard to see how it's jurisdictional, isn't it?
Nathan Levy: I don't know what they would -- what they could do. We feel this. We feel that the Supreme Court of Indiana has the power if it wished to order a transcript brought to it and to review in the case of this kind, and I believe that the District Court gave the 90-day period and indicated a longer time if necessary feeling that the Court would do that.
Earl Warren: Mr. Levy did I understand you to say that you're assigned by the court below to represent this defendant?
Nathan Levy: Yes, Your Honor.
Earl Warren: On those circumstances I know the Court would have me express its appreciation to you for having accepted this burdensome task. That we're always comforted to know that indigent defendants may get good representation in this Court from lawyers doing a public service and --
Nathan Levy: Thank you.
Earl Warren: -- we thank you and your associate for your representation here and Mr. Attorney General, we appreciate the table and energetic manner in which you have represented the interest of your State, too.
William D. Ruckelshaus: Thank you, sir.
Earl Warren: You have some time left, should you want to respond?
William D. Ruckelshaus: Mr. Chief Justice, may it please the Court. I would just like to respond shortly to a few of the questions that arose during the argument of respondent's counsel. First of all, an answer to a question from Mr. Justice Stewart, I think in fairness, we should state that it is not an absolute right in Indiana to be provided counsel at a coram nobis proceeding. As a matter of policy, the Public Defender does represent the prisoners in the capital case always, but they must --
Potter Stewart: Did so in this case?
William D. Ruckelshaus: -- and he did so in this case, but they must ask him if they want his --
Potter Stewart: I see.
William D. Ruckelshaus: -- representation and often he does not represent.
William O. Douglas: In that connection, on page 21 of your brief, you cite the McCrary case, the Willoughby case, and the -- and this case on the petition for a mandate. The (Inaudible) -- to review the decision of the Public Defender not to proceed and you cite those cases from the point that the decision of the Public Defender not to proceed, or in other words, his decision at the appeal would be -- present frivolous matter is reviewable. And my question is, reading those three decisions indicates that technically your statement is correct but actually the Supreme Court of Indiana affords its own relief, does it?
William D. Ruckelshaus: Mr. Justice --
William O. Douglas: Has it ever -- has it ever reversed the Public Defender? Has it ever --
William D. Ruckelshaus: It has --
William O. Douglas: -- appointed a new Public Defender?
William D. Ruckelshaus: As to this particular point, Mr. Justice Douglas, that we have not cited that to say that the State of Indiana will provide a review. We have shown that just to show that in certain instances it has provided review. They have never stated the criteria by which they will or will not --
William O. Douglas: Well, as I read those --
William D. Ruckelshaus: -- grant a review.
William O. Douglas: -- those opinions, the opinions read as if the discretion of the Public Defender is non-reviewable actually, I mean they entertain the petition; they write an opinion and say petition denied.
William D. Ruckelshaus: As I understand these decisions, there has never been a question except implicitly in saying that they should be provided with other counsel. There has never been stated in the petition that the Public Defender did abuse its discretion or there was a dereliction of his duty. What the position of the Supreme Court of Indiana would be if there were such an allegation made, I can't say. In answer to Mr. Justice White's question as to whether the same grounds that have been raised in the coram nobis petition could be raised in the habeas corpus petition. I would state that the record on page 13 shows, in his petition for habeas corpus, just what was alleged in the coram nobis proceeding. It said that that were later or thereafter on May 10th, 1965 in the Lake Criminal Court have verified petition for writ of error coram nobis wherein he presented the questions noted as one and two, that's in paragraph F on page 13, and one are -- And two in the Court's order is cited on page 12 on the record, show that he was -- well, what he alleged was that he had inadequate representation by counsel and that the confession was coerced. Now both of those are federal grounds which he could raise in the habeas corpus petition. That same argument was made by the State of Iowa in Smith against Bennett and this Court dismissed this argument by saying --
Byron R. White: [Inaudible]
William D. Ruckelshaus: That is what it says right here in his habeas corpus petition in the record, Your Honor.
Arthur J. Goldberg: [Inaudible]
William D. Ruckelshaus: These are other -- the only two -- what he is saying is the only two grounds that were considered in the -- in the coram nobis petition were these first two grounds, they were also a federal grounds. The other grounds that he raised were grounds that were raisable on appeal from his original conviction and therefore are not properly raised in the coram nobis proceeding.
Arthur J. Goldberg: [Inaudible]
William D. Ruckelshaus: That's correct, Your Honor.
Potter Stewart: Am I not right in recalling that inadequate representation and coerced confession are both raised on direct appeal. I have a dim recollection of this case when it came here in the 1959 term on a petition for certiorari from the affirmance of the conviction by the Indiana Supreme Court. And there were, as I recall, claims of a coerced confession, inadequate representation by counsel and the admission of several very lurid photographs of --
William D. Ruckelshaus: These (Voice Overlap) --
Potter Stewart: -- corpses of the victims and who had been buried in the (Voice Overlap) --
William D. Ruckelshaus: Your Honor --
Potter Stewart: -- in the sand.
William D. Ruckelshaus: Brown's position in the coram nobis hearing was that he had some new evidence regarding the coerced confession in that this was -- this was not discovered by him until the time for appealing this had expired and therefore, this was a ground outside of the ground for appeal.
Potter Stewart: I see.
William D. Ruckelshaus: And this was what the hearing was mainly about.
Potter Stewart: I see.
Byron R. White: [Inaudible]
William D. Ruckelshaus: Well, the inadequate counsel had not been considered on direct appeal, but it wasn't urged very strongly in the coram nobis proceeding.
Byron R. White: But the confession was --
William D. Ruckelshaus: The confession was, yes, Your Honor.
Byron R. White: On the other grounds?
William D. Ruckelshaus: The other grounds were not considered because they could have been raised on appeal. And as a matter of fact, were raised on appeal.
Byron R. White: [Inaudible]
William D. Ruckelshaus: Yes, they were Your Honor, the other two grounds.
Byron R. White: [Inaudible] the only ground is what you considered on the direct appeal and this ground saying that you have [Inaudible] based on new evidence --
William D. Ruckelshaus: And --
Byron R. White: -- outside the record.
William D. Ruckelshaus: No, that the -- the coerced confession was based on new evidence. There wasn't -- it was urged of inadequate counsel but this was never really considered by the Supreme Court of Indiana on its direct appeal.
Byron R. White: When was it raised?
William D. Ruckelshaus: Well, it was -- it was not in -- it was not considered in the opinion now whether it was raised --
Byron R. White: But it --
William D. Ruckelshaus: -- in the brief, I don't know.
Byron R. White: But it could have been.
William D. Ruckelshaus: It could have been, yes.
Byron R. White: But the confession in evidence that he alleged was -- was demanded.
William D. Ruckelshaus: That's -- that was his contention, Your Honor.
William J. Brennan, Jr.: Are you suggesting that the -- this case might've been disposed off by the Federal District Court by finding that there'd been an exhaustion of state remedy and then deciding on the merits, the federal claims both the alleged coerced confession and the alleged inadequacy of counsel?
William D. Ruckelshaus: That's precisely our position, Mr. Justice Brennan. That is an answer to your question why they didn't' consider this. We requested Judge Grant and the court below to consider these questions so that we would have the whole thing and his position, as I understood it, was that you don't reach these questions because as a matter of fact, Indiana under the Equal Protection Clause must give this man an appeal from his denial of writ of error coram nobis and therefore Indiana hasn't exhausted its state remedy, and that you don't reach these other grounds.
William J. Brennan, Jr.: Well, I take it whether there has been exhaustion as a federal question (Inaudible).
William D. Ruckelshaus: That's correct, Your Honor. This was his determination that it had -- just in --
Arthur J. Goldberg: [Inaudible] -- just in a coram nobis [Inaudible]
William D. Ruckelshaus: Well, this could not be determined on appeal without transcript, that's correct because it's a question of the sufficiency of the evidence and obviously, they would need a transcript. However, I would submit that in the very nature of these coram nobis proceeding, it's not such a difficult thing as it is in a regular criminal conviction for an attorney to say there's no merit on appeal. The burden of proof is on the petitioner, in this case Brown. The hearing has had before a judge. There were actually few points brought up in this particular proceeding and it's in the very nature of these proceedings they're using are brought on one or two points and that it's not impossible for an attorney to look at the question and say, “Well, it's just a question of fact and there's no chance for us to overturn it and therefore I won't appeal it.” Just to make once again, it's clear as I can the position of the State in this proceeding. Our position is that the Public Defender's office as it presently functions in Indiana, does not operate to deny an indigent due process of law or equal protection of law under the Fourteenth Amendment. We went into the discussion yesterday of the show-cause order just to buttress the idea that the screening process that has been set up by Indiana does not make this denial of his transcript fall within the proscription of the Equal Protection or the Due Process Clause.
Hugo L. Black: But do you think your case would be stronger or weaker, have any effect on it at all if the statute had provided that the Court should make its own investigation to determine whether there was the ground for frivolous and the action has been taken under that rather than leaving that power to the Public Defender?
William D. Ruckelshaus: Your Honor, under the decisions of this Court, certainly in copies that would probably be more amenable to this Court, but I would submit that the process of Indiana has devised in these post conviction writs is a -- as reasonable a process and provides as adequate a substitute for appeal as would the Supreme Court of Indiana reviewing these petitions themselves or reviewing the request of the indigents to appeal themselves.
Hugo L. Black: Would you think that your situation in the statute would be any different if the statute has provided that in all cases there is an appeal whether by person who's able to buy transcripts or not, the Public Defender could pass on the -- whether the grounds were frivolous, and let him dispose of it rather the Supreme Court?
William D. Ruckelshaus: This would be the position of the courts below, Mr. Justice Black, but it seems to me that if you are saying the State has a rational policy against frivolous appeals taken at the State's expense that this would only apply to screening those appeals taken from indigents because those are the ones that are taken at State's expense and not the screening of appeals for non-indigents.
Earl Warren: Well General, don't -- don't you think the -- an appeal taken by a frivolous moneyed defendant who is entitled to go through the entire procedure of an appeal where the time of the Court, or the Supreme Court is occupied, all of the employees of the Court are -- their time has taken, do you not think that they are there handling an appeal with a frivolous appeal at the expense of the State?
William D. Ruckelshaus: They are handling it to a certain extent.
Earl Warren: Well, isn't -- isn't that expense much greater than the expense of a transcript?
William D. Ruckelshaus: I --
Earl Warren: How many Supreme Court Justices have you got?
William D. Ruckelshaus: Five.
Earl Warren: Five of them do you not think that the combined salaries of those justices and all of their clerks and marshals and everybody in the courtroom to hear a frivolous appeal by a moneyed defendant is more expensive to the State than the mere filings of a transcript?
William D. Ruckelshaus: I do -- I would not have those figures, Mr. Chief Justice, but the way you see it --
Potter Stewart: The appeal is really frivolous and if there are competent judges it's not going to take them much time, isn't it?
William D. Ruckelshaus: I would -- I wouldn't assume that it would taken as much time as it would to --
Earl Warren: But here, we're talking about an appeal that's supposed to be frivolous and you're taking -- we're taking the time of all of this Court to determine and I suppose you can do the same thing in your Supreme Court if -- if a man has the money to do it?
William D. Ruckelshaus: I would -- in answer to your question, Mr. Chief Justice, I don't think that because that a man who has money and under the particular -- peculiar procedure of Indiana where he can buy a transcript and take it before the Supreme Court with a non-meritorious appeal that this is a right that should be also granted to an indigent under the Equal Protection Clause, it would -- he is not being treated equally but I would submit that this is not an equality that is protected under the Equal Protection Clause.
Earl Warren: Very well.
Hugo L. Black: This case cannot be dismissed I gather without [Inaudible] action by the Supreme Court.
William D. Ruckelshaus: The appeal of the rich man --
Hugo L. Black: A man who has the money.
William D. Ruckelshaus: No, it cannot, Your Honor.
Hugo L. Black: That's the difference, one, the Public Defender, one, the court.
William D. Ruckelshaus: That -- that is the difference.
William J. Brennan, Jr.: Let me see if I understand you correctly, you're suggesting or I thought you didn't answer my last question that we don't really have to reach that question here, if indeed what the District Court should have done, while to give him a hearing on the merits of his federal claims addressed through the conviction itself, treating everything else that happened merely as an exhaustion of state remedy, state proceeding that they were exhausted under these circumstances. And therefore, that there was no state remedy available to him and he's entitled to a federal court disposition under federal habeas of his federal claim.
William D. Ruckelshaus: This was our position in the court below.
William J. Brennan, Jr.: Well, is that your position now?
William D. Ruckelshaus: The position now must be that in attempting to fight the decision that Indiana has denied an equal protection in not giving him an appeal. We say that his rights have been protected by the Public Defender's decision and that the federal court below should review these questions and as to their merit and that should be the end of it.
Hugo L. Black: But you'd have done it without a transcript.
William D. Ruckelshaus: These -- these questions would be raised anew in the federal court below.
Hugo L. Black: Is it -- do you think the federal court could pass on them without a transcript?
William D. Ruckelshaus: Well, everything that was in the transcript at the coram nobis proceeding would -- the same things presumably would be in the -- the hearing before the Sup --
Hugo L. Black: [Inaudible] about a transcript of the hearing, the trial?
William D. Ruckelshaus: I don't think they would be reviewing that decision, Mr. Justice Black. This would be a new determination by them based on a new record on a hearing on the same allegations as in the coram nobis.
William J. Brennan, Jr.: No, but the District Court I take it, would have available, certainly the transcript of the trial itself if it were a regular trial.
William D. Ruckelshaus: Yes, of the regular trial.
William J. Brennan, Jr.: The only -- the only transcript that we've been talking about is whatever this transcript is of the coram nobis proceeding.
William D. Ruckelshaus: Yes.
William J. Brennan, Jr.: Is that it?
William D. Ruckelshaus: That's why he -- he has the transcript for the regular trial. That's provided to every indigent in Indiana.
Byron R. White: So you did answer yesterday that your position is that it has been in this case, this man has exhausted his state remedies.
William D. Ruckelshaus: Yes, that is correct.
Byron R. White: And you also went a little farther I take it, and said that the Indiana -- the rule would consider an indigent to have exhausted his remedies when the Public Defender refuses to represent him.
William D. Ruckelshaus: Well, that has been our position, there are -- a fact situation --
Byron R. White: And that he (Voice Overlap) --
William D. Ruckelshaus: -- that could have rise or we (Voice Overlap) --
Byron R. White: That he did not have to go on for a writ of mandate in the --
William D. Ruckelshaus: No, the writ of mandate, we claim is not available to him because under the state law, he can't get a transcript if the Public Defender (Voice Overlap) --
William J. Brennan, Jr.: But don't you agree that this would be a very different case, if the only questions he had which had not been reviewed were state law questions?
William D. Ruckelshaus: I think that it would be a different case as far as the question in which Mr. Justice White holds. However, I would still contend that the Public Defender's system has it had -- it is -- has arisen does not deny him --
William J. Brennan, Jr.: Well, my point is, you have to defend then the present system as were nothing but state law questions involved, but because it's attack on the merits of his conviction involved only two federal law questions. Your position is we don't have to reach the constitutional questions raised as to the Public Defender's certification, because the District Court ought to reach the merits of the federal claims, is that it?
William D. Ruckelshaus: That is our position, Your Honor, however, the question has been decided below and it's certainly before this Court, I would say.
Arthur J. Goldberg: [Inaudible]
William D. Ruckelshaus: That is a deprivation, Your Honor, and certainly under Griffin and under Smith against Bennett, Burns against Ohio, those are -- that's a denial of equal protection or due process. We say that's not what's happened here.
Arthur J. Goldberg: [Inaudible]
William D. Ruckelshaus: Under the decision of this Court, I would say yes, they have.
Potter Stewart: Mr. Ruckelshaus, if the respondent is right in this case, to what relief do you think he's entitled to?
William D. Ruckelshaus: I think it is clear that the only right to which he is entitled is a right to an appeal. The difficulty, it seems to me that the counsel for the respondent got into is the conceptual difficulty of bringing up on habeas corpus. A man's deprivation of constitutional rights as regard to his -- regard to his appeal from a post conviction remedy that the only ultimate authority that the Court has under habeas corpus is to --
Potter Stewart: To release --
William D. Ruckelshaus: -- let the man go free --
Potter Stewart: Is to release but you can release conditionally. You can release (Voice Overlap) --
William D. Ruckelshaus: And that's what the Court has been doing over and over again in these habeas corpus cases is giving the Courts or the States time to correct the wrongs and then if the State doesn't act, ultimately, all you can do is to let him go free.
Potter Stewart: But certainly it can be conditions that (Voice Overlap) --
William D. Ruckelshaus: I wouldn't say so, certainly, that that is not what the Court has to do now and it's not what they've done in the past.
William J. Brennan, Jr.: Well, suppose you are right that the District Court should have reached the merits of the federal claims, I don't know whether they're relevant or not, could the proceedings on coram nobis even though not made available for purposes of appeal in the Supreme Court, could they be made available to the Federal District Court?
William D. Ruckelshaus: Under the law as it now stands in Indiana and if this -- I -- if the rational policy against providing appeals, frivolous appeals at public expense is to have any basis, I would say that the transcript would not be --
William J. Brennan, Jr.: Well, I know but Indiana would be a party, that it is a party to the litigation, isn't it, in the District Court?
William D. Ruckelshaus: In the habeas, yes. Yes, that's right Your Honor.
William J. Brennan, Jr.: Yes. Well, now what is -- what is a federal habeas, is it civil or criminal proceeding?
William D. Ruckelshaus: Civil proceeding.
William J. Brennan, Jr.: What about the federal rules of civil discovery and civil proceedings?
William D. Ruckelshaus: Well, I had to consider that, Your Honor, if he wanted to try and discover these things.
William J. Brennan, Jr.: Well --
William D. Ruckelshaus: I can't say whether we would contest that now or not. I haven't thought about them.
William J. Brennan, Jr.: I wonder what grounds it was contested?
Byron R. White: But certainly, if you thought the [Inaudible] that hearing was relevant, you won't have those hearings [Inaudible]
William D. Ruckelshaus: I think that's right, Your Honor, we would.


Earl Warren: Number 424, I. A. Watson, Jr., et al. petitioners, versus City of Memphis, et al. Mrs. Motley.
Constance B. Motley: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari from United States Court of Appeals from the Sixth Circuit. Before this Court for review is the judgment of that Circuit, affirming a judgment of the United States District Court for the Western District of Tennessee. The judgment affirmed by the Sixth Circuit denied petitioners, Negro residents of Memphis, Tennessee, an injunction against continued exclusion of Negroes from a large number of recreational facilities in the City of Memphis. However, that injunction, the judgment of the District Court rather, provided for desegregation of these recreational facilities on a gradual basis. Now, in providing for the gradual as opposed to the immediate enforcement of petitioners’ rights to the equal protection of the laws in this case, the courts below relied upon this Court's decision in the second Brown case, involving desegregation of public schools where this Court recognized that a delay might be permitted in the enforcement of the constitutional rights there involved once a start had been made upon a demonstration by the school authority that the resolution of specifically enumerated physical problems would make for a smoother transition from a segregated to a desegregated system. Now, before proceeding to a discussion of the facts in this case, I would just like to say briefly what our contentions are. Petitioners say, first, that their constitutional rights here to use the publicly owned and operated recreational facilities in this case should have been immediately enforced by the courts below because these are personal and present constitutional rights. Second, petitioners say that irrespective of whether the second Brown decision has any application beyond the area of schools, that decision has no applicability to the area of public recreation. And finally our contention is that even assuming for the purposes of this argument that the second Brown case would apply in the area of public recreation upon a demonstration of complex and difficult physical problems, the record here fails to justify the applicability of the principles of the second Brown case to this case. Now this controversy presently --
Potter Stewart: These are three alternative arguments?
Constance B. Motley: Yes this is --
Potter Stewart: Getting less and less extreme --
Constance B. Motley: This case presently involves the exclusion of Negroes from 58 neighborhood parks, from Crump Stadium.
Potter Stewart: Are they parks or playgrounds or are they both?
Constance B. Motley: Well these I understand are neighborhood parks on which playground facilities are located generally.
Potter Stewart: And quite a highly organized playground program [Inaudible]
Constance B. Motley: Yes, there is and the record indicates that there is a highly organized playground program in Memphis and that they are operated on these so called neighborhood parks, some are operated on parks attached to the public schools, some on property owned by Churches and private groups. Now Negro growth --
William J. Brennan, Jr.: Has there been segregated facilities of this kind --
Constance B. Motley: Pardon me?
William J. Brennan, Jr.: Have there -- of the 58 right now presently owned, segregated?
Constance B. Motley: That's right sir.
William J. Brennan, Jr.: Divided between Negro and the white or are they all white?
Constance B. Motley: Yes.
William J. Brennan, Jr.: I see.
Constance B. Motley: No, these are the facilities from which neighborhoods are presently excluded. There are some playground facilities available to Negroes, I'm now speaking of only those from which we are presently excluded, and that's 58 in number.
William J. Brennan, Jr.: Can you tell us what the number is presently provided just for Negroes?
Constance B. Motley: Yes, I think there is something like 40 available to Negroes at the present time.
Tom C. Clark: How many are integrated?
Constance B. Motley: Well now I don't think that any of these playground facilities are integrated. They have integrated 25 parks, but I think what these are the squares with a statue and a few benches. Now 25 of those have been desegregated, but what I'm taking about now are playground facilities in the so called neighborhood parks and they are 58 in number from which Negroes are excluded.
William J. Brennan, Jr.: Well does this mean primarily then since they are playground facilities exclusion of Negro children?
Constance B. Motley: Pardon me?
William J. Brennan, Jr.: Does this mean primarily then exclusion of Negro children?
Constance B. Motley: Yes, that's right, yes. They are parks with swings and wading pools and that sort of thing from which Negro children are excluded. In fact in the record one women testified, a Mrs. Bonn that she went to Gaston Park and she lives next door and she took her eight children or whatever number and she was denied admission because she is a Negro, but she lives right next door to that park and those are the kinds of facilities involved here. And then Negroes are excluded from Crump Stadium which is a large stadium, a stadium and other stadiums in the city. They are also excluded from the museum known as Pink Palace. Then they are excluded from 40 playgrounds on property not owned by the city, these are those attached to churches or private groups or school, not owned by the city as such.
Potter Stewart: Does you lawsuit involve those 40 playgrounds too?
Constance B. Motley: Oh yes, these are now trying to bring out those facilities from which we are excluded.
Potter Stewart: As I understood you to say that these 40 playgrounds are not publicly owned?
Constance B. Motley: But I'm sorry. They are operated by the park authority, which is a respondent here. The park authority provides supervisory personnel and furnishes the facilities on this land owned by someone else and that's how they are involved in this case. Then involved are --
Earl Warren: Because it's used as a public park?
Constance B. Motley: Yes, that's right. It's operated by a public authority. Now in addition there are five swimming pools from which Negroes are excluded, eight community centers and one golf course. And as I said a moment ago, they desegregated 21 of these squares, and in addition after the suit was filed Overton Park Zoo was desegregated and an art gallery in Overton Park and then they desegregated a boat dock on a lake in a white park. Now Negroes can't use the park, but they can walk through the park to get to the boat dock.
Arthur J. Goldberg: [Inaudible]
Constance B. Motley: One day a week that's right.
Arthur J. Goldberg: [Inaudible]
Constance B. Motley: Well my understanding is that it has not been filed in the District Court. However, when this case was argued before the Sixth Circuit, one of the judges, Judge Starr said “Well what about your plan?” And they -- the respondents had a copy of it and they handed up that plan and it was made available to the Court, and then they sent us a copy and that plan provides for the desegregation of these remaining segregated facilities over a ten-year period, but that is not in the record.
Arthur J. Goldberg: [Inaudible]
Constance B. Motley: That's my understanding that it has not been filed. We checked I think yesterday. Mr. Willis from Memphis was the clerk there and he said it has not been filed. Now they may be able to give a date on which it has been filed, but further there has been no hearing in the District Court on that plan. Now the District Court accepted a preliminary plan. The respondents here said to the District Court “Well now we are prepared to desegregate the fairground at the end of the year and we don't want to do that till the end of the year because concessionaires may lose money if Negroes go in and people stay away and so forth.” And then they said we are prepared to desegregate the golf courses because several of the plaintiffs had gone to white golf courses and had been denied, even though they lived nearer to the white one and the District Court approved the desegregation of the fairground at the end of the year, six months later and the desegregation of seven golf courses over a three-year period. Now they have carried out that desegregation as I understand it and there is one more golf course according to their schedule, which in a record at page 94, where Galloway Golf Course is deemed to be desegregated on January 1, 1964 and then all golf courses. Then they also said to the District Court, we are going to desegregate six parks to Negroes, referring to some of these playground facilities that we mentioned a moment ago, but no dates were given and as far as the record is concerned, those parks are still segregated. Now they maybe able to say that they have segregated even some of those, but the fact is that the large numbers of facilities are still -- Negroes are still excluded to the large number of these facilities. Now the District Court after accepting that preliminary plan directed the defendants to bring in another plan in six months with regard to all these other facilities. Then the District Court stayed adjudication of the right of Negroes to go into Pink Palace on the other six days of the week, until such time as the respondents filed a suit for declaratory judgment in the Chancery Court of Shelby County as to the effect on the title of a city, the admission of Negroes to the Pink Palace regulars. The respondents claim that they couldn't admit Negroes to the Pink Palace regularly, because this would violate a limitation in the deed to the city, which said that this property was given to the city to operate as a museum or art gallery for Whites only. Now in violation of that restriction of course they've been admitting Negroes for number of years, but they claim that they would have to have this adjudicated first and they have filed a suit. The District Court gave them three months in which file it. They filed that suit on September 1, 1961. There has been no answer. Apparently, the grantor or his assign no longer exists, and nobody has answered that suit, it's just pending there and there is no real controversy obviously, but the District Court invoked the doctrine of abstention and said that he would stay this until that was determined. But abstention was improperly applied there because the question before the District Court was whether Negroes could be excluded as long as the city was operating it and no matter how the State Court proceeding came out, the District Court would still have to determine that because what we're attacking was a policy of these respondents of excluding Negroes from these facilities, not a restriction in the deed because Negroes are being excluded from properties on which there was no such restriction. So it still has to determine that even if the State Court should for some reason on the Tenancy Law hold that restriction void.
Potter Stewart: Just one day a week plan for the Pink Palace, is this on a segregated basis or --
Constance B. Motley: Yes sir.
Potter Stewart: On that one day a week to both, to all races?
Constance B. Motley: No, I believe that on that one day, Tuesday Negroes other than Whites are not allowed.
Potter Stewart: And White people are not allowed to go?
Constance B. Motley: That's my understanding of it, yes.
Earl Warren: But the dedication was to the use of Caucasians only?
Constance B. Motley: That's right. Now the judgment below finally provided that the District Court would retain jurisdiction of this case for further orders and so forth. However, the Petitioner's immediately appealed to the Court of Appeals for the Sixth Circuit which affirmed the District Court's ruling, relying as District Court did on this Court's decision in the second Brown case. Now our argument is as I have indicated that the Courts below erred in refusing to enjoin this admitted violation of a basic and fundamental constitutional right clearly established by prior decisions of this Court. Now prior to the Brown decision, this Court had firmly established that the right to equal protection of the law under the Fourteenth Amendment was a personal and present constitutional right and was always immediately enforced. In the Brown case, the Court recognized that with the desegregation of public school systems in all of the states in the South, which involved the unification of dual school systems into a single unitary non-racial system, obviously would be involved tremendous problems, and the Court therefore made an exception. And the Court indicated in Cooper against Aaron that this wasn't a general rule applicable to schools altogether that even in some school situation, the District Court might order the immediate admission of Negro children. Now in the couple of cases that were here following Brown, this Court made it clear that state enforced racial segregation in public facilities were unconstitutional. In Dawson against Mayor and City Council of Baltimore, which we cite in our brief, this Court affirmed the Fourth Circuit's decision so holding. And there the City argued in their jurisdictional statement at page 19, the second Brown decision applied. So this question is already been considered by this Court. This Court didn't simply deny Certiorari there. This Court considered that case although without argument and affirmed, so it obviously considered the contentions raised in the jurisdictional statement. Now even if the second Brown decision does have some applicability beyond public schools, we say that it doesn't apply to the area of public recreation because obviously public recreation is not as complex as the school system. You don't have compulsory attendance, you don't have transportation of children, you don't have assignment of children, nobody has to go a public park. You don't have overcrowding in one building like you would have in a school situation, you don't have a close supervision with the teacher in every class, one of these playgrounds would probably have one or at most two supervisors. And all it's really involved in desegregation of public recreation like desegregation of the buses, the city wide system of transportation is the removal of the sign saying, Negroes here and Whites there, and a public announcement to this effect. It's really all that's involved in desegregation of recreational facility.
Speaker: [Inaudible]
Constance B. Motley: Now --
Potter Stewart: The staffs or the playground supervisors, is that an integrated staff?
Constance B. Motley: Yes, the record indicates that they are Negro; well, there are Negroes and Whites employed. The Negroes are employed of course to work in the Negro parks, but they use the same administrative office I believe as their headquarters. To that extent it's integrated, that's way I read the record. Now apart from precedent, we feel that there are strong policy considerations why this Court's decision in the second Brown case should be limited rather than expanded. First of all, as I've said, the deliberate speed doctrine enunciated in the second Brown case is an anomaly with respect to personal and present constitutional rights, especially such highly prized rights as equal protection of the law. And then, this all deliberate speed doctrine with respect to the school has resulted in a mass of litigation around the school issue. Some of these school cases have been pending for five and six years resulting in the admission of a handful of Negroes, all because of this -- what is deliberate speed, how fast and school board have to go, what we get is 12-year plans and pupil assignments and all of this resulting in about 7% of Negroes being desegregated in the last nine years. And then, the deliberate speed doctrine I think has been widely interpreted as substituting a doctrine of gradualism for the separate but equal doctrine in the area of race relations. And certainly, it is extended from schools to parks where we will have in the enforcement of constitutional rights to Negroes is a gradualism in every area and instead of shortening any period of disquiet and confusion that would certainly lengthen the period of racial unrest and disturbance and then as I said on the whole, there has been a very little desegregation. Now finally, as I've said before, there is nothing in this record to support the applicability of the principles in the second Brown decision to this case because there is not a single demonstration of any complex physical problem with which the respondent had to deal, which would require the application of that doctrine. I would like to save the remaining time.
Potter Stewart: What is the -- what's the school situation in Memphis now as a matter of fact?
Constance B. Motley: Well, I don't know the exact number of Negro children admitted, but I think that case, a representative from Memphis argued here about a month ago involving the transfer provisions as amicus curiae and I think he stated at that time, there were 66 Negro children admitted, but the District Court has not yet acted upon any plan in Memphis. It was filed about a year ago and there has never been a hearing. It's scheduled for May 22nd. The Sixth Circuit more than year ago sent it back for the plan, but there has been no hearing on it.
Earl Warren: Mr. Prewitt?
Thomas R. Prewitt: Mr. Chief Justice and may it please the Court. As a preliminary, I should allude to this fact, because I don't believe that Mrs. Motley has. The Department of Justice has filed the brief amicus curiae in this cause as of February the 7th. We did not know about this until last Thursday, when one of the members in the Solicitor General's office called me in Memphis and advised me of that fact and we have received the brief amicus curiae of the Government on last Friday. Now, if the Court please, I do not make that statement in any criticism and we do not ask for any additional time within which to answer the propositions raised by the Solicitor General in his brief because I believe that our argument in response to the petitioner's would be substantially the same. In other words, in our judgment, the brief of the Government raises no substantial new questions, but I did want to make that reference to the Court.
Earl Warren: Should you want some time at the end of the argument, you may have it to reply to the Solicitor General.
Thomas R. Prewitt: Thank you, sir. This, I think we should get the record clear to determine just what the question is presented on this record. The question presented to the Court of Appeals was purely and simply a question of law in our court, whether the decision in the second school desegregation case, Brown against Board of Education, which contemplates allowing a delay in the desegregation of public elementary and secondary schools is applicable in an action involving public recreational facilities. That was the question presented to the Court of Appeals. That was the question which the Court of Appeals decided. That was the question specifically presented in the petition for certiorari, now filed in this cause. But now, we are faced with an additional question, may it please the Court, not presented to the Court of Appeals, not presented on the petition for certiorari to it under the facts of this case after viewing the record as a whole, was there any justification for the delay permitted by the Trial Judge? In other words, that question involves a determination of the whole record in this case. It wouldn't involve necessarily an analysis of all the facts and all the evidence below and that question was not presented to the Court of Appeals and was not presented on petition for certiorari. Notwithstanding that, I do feel that I should allude to the facts and as far as I can show that the burden cast upon us was met below -- was met both in the Trial Court and in the Court of Appeals.
John M. Harlan II: You say that the Court of Appeals [Inaudible] District Court's discretion.
Thomas R. Prewitt: Yes sir, Court of Appeals did review the District Court's discretion, may it please the Court. The Court of Appeals had before it the question of whether or not --
John M. Harlan II: That's right.
Thomas R. Prewitt: -- in a case involving public recreational facilities, the rule as announced in the Brown case was applicable.
John M. Harlan II: And then why is that the whole case is here, I mean why is it –
Thomas R. Prewitt: Because if Your Honor please, if the second question presented that is whether or not the burden cast on the public authorities was met, it would require an analysis of the whole record. The old record isn't here. The testimony of the some of the important witnesses below is not here and the point I am trying to make, may it please the Court, is that we have here a question of law and that is; are the principles of equity announced in the second Brown decision, which permit of some delay in the desegregation of public school facilities.
Earl Warren: That question wasn't asked in a vacuum, was it? It was asked in the light of the facts of this case as presented to the District Court, is it not?
Thomas R. Prewitt: Yes, I agree with the Court that there has to be some analysis of the facts.
Earl Warren: Well then the Court did consider the facts?
Thomas R. Prewitt: The Court of Appeals did consider the facts to determine whether or not in a case involving public recreational facilities, the rule in the Brown case is applicable, to that extent the Court did consider those facts. My point is that if we are to go into all of the facts to determine whether or not the burden of proof as is required in the Brown case was met, it would require a consideration of all of the evidence and all of the evidence is not here.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: Yes sir, Your Honor please.
Earl Warren: Do you think we should be limited just to those facts?
Thomas R. Prewitt: Yes sir, because I believe those facts are adequate to determine the question before the Court whether or not the rule announced in the second Brown decision, permitting some delay in the desegregation of public schools is applicable to a system involving public recreation.
Earl Warren: What facts that were before the District Court are not in this record?
Thomas R. Prewitt: The testimony of the Superintendent of Education may it please the Court, Mr. Marin Hill is not in this record.
Earl Warren: Why?
Thomas R. Prewitt: Because it wasn't printed, may it please the Court. The petition for certiorari --
Earl Warren: Is there a typewritten record here?
Thomas R. Prewitt: I do not know. I would assume that it is -- it's a typewritten record.
Constance B. Motley: I believe that there should be, Your Honor.
Earl Warren: I beg your pardon?
Constance B. Motley: I believe that there should be, I didn't check it. Certainly --
Earl Warren: Well, if there is a typewritten record, then the testimony of the Superintendent of Schools would be in it, wouldn't it?
Thomas R. Prewitt: Yes sir.
Earl Warren: That was considered by the Court of Appeals and I suppose it would be -- could be considered by us?
Thomas R. Prewitt: Yes sir.
Earl Warren: Very well.
Thomas R. Prewitt: Now addressing myself, if Your Honor please, to the question presented here, is the rule that this Court announced in the Brown case that permits of some delay in the desegregation of public education facilities applicable here. If that rule is limited to public education then the petitioners are right. There is no question about it. If this Court intended that the -- all deliberate speed formula be limited to cases involving public education, then of course the petitioners are correct. We say that it should not be so limited and that it should be not so limited in this case. Now, I believe, may it please the Court, that a statement of some of the facts that were not covered by my adversary is proper. We are not dealing here, may it please the Court, with an isolated facility or even a group of facilities. We are dealing here with the vast system of public recreation in a city of a half a million people, 130 public parks, 117 supervised playgrounds, 56 of which are on school and church properties. These 117 playgrounds are each staffed by trained supervisors who afford a supervised system of play for what the proof shows is 100,000 children, 35,000 I believe colored and 65,000 white. The proof shows that this system of supervised play is one of the finest in the country.
Potter Stewart: And that number really accurately reflects the make up of the population of the city as a whole, doesn't it?
Thomas R. Prewitt: Substantially.
Potter Stewart: [Inaudible]
Thomas R. Prewitt: I believe the proof is that from the 1960 census, the percentage was 37% colored and 63% white, so it's substantially the same. In addition to that, the recreational facilities include a number of things, which are not troublesome. There are seven golf courses, I believe 12 community centers, a public zoo, an art gallery, a boat dock, and some ten swimming pools. I haven't covered all of the facilities, but substantially that is it. The greatest problem is in the area of the 117 public playgrounds, where there are supervisors to supervise the play of all of these children. Now, the undisputed proof and incidentally and may it please the Court, none of the proof offered by the Park Commission was disputed. The only proof offered by the petitioners and there was no question about it, was that in each instance where one of the petitioners sought to use a golf course and incidentally all of the golf courses except one have now been desegregated, but where they sought to use the golf course or the fairgrounds or whatever facility it might have been, they were rejected. In each case now all of those facilities have now been desegregated.
Potter Stewart: All of which all the golf courses?
Thomas R. Prewitt: All of the golf courses, except one.
Earl Warren: Why not that one?
Thomas R. Prewitt: That, may it please the Court, was on the basis of a plan that was submitted to the Trial Court for a gradual desegregation of the seven golf courses. At the time this case came to trial, there were five golf courses for white and two for colored. The proof was that the officials in-charge, after making their investigation, determined that the best way to remove the restrictions on the golf courses was to do it on a gradual basis and that plan was started and it is now almost complete. A plan as I say was submitted to the Trial Court and approved with respect to the golf courses and with respect to other facilities. While I am on that, may it please the Court, the plan as submitted to the Trial Court for gradual desegregation did not embrace all of the facilities, and it was for that reason that the Trial Court ordered the Park Commission to submit a complete plan within six months, but before the plan could be submitted, the petitioners appealed to the Court of Appeals, thereby staying the hand of the Trial Court. The plan was evolved, submitted to the Trial Court and it was not filed because of the suggestion of the Court, because its hand was stayed. It was printed in the public press so that all the world had notice of it. It was given to the Court of Appeals on their request, the petitioners had the plan when it was submitted to the public press and the plan has been carried out. And in fact, in several instances it has been accelerated. Now, I am not here to say that this plan is adequate. It may not be ten years maybe too long, may it please the Court. The Trial Court has never had an opportunity to adjudicate with reference to this plan because the appeal was taken before the court had an opportunity to determine whether or not it was adequate or whether or not it was the best plan, but I feel that we have gone as far as we can with respect to a complete plan. So, that's the status of the six-month plan, but if I might go on further.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: It was published in the two newspapers in Memphis.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: Certainly, it was made available to the Court of Appeals and I have it here.
Earl Warren: You may leave it with the clerk.
Thomas R. Prewitt: I will Your Honor, but to go on further with the proof below, there are 117 public staffed supervised playgrounds. 56 of these playgrounds are on school and church properties. A number of the playgrounds are on parochial school properties. The Park Commission has felt that since it is an important facet in the Memphis community that its program of desegregation in compliance with the rule in the Brown case should be carried out in coordination with all other activities in Memphis. Over the last four or five years, there have been many steps toward desegregation of public and private facilities, including the schools, the public transportation system, the public terminals many, many things that I could allude to here.
Earl Warren: How many children are in it -- Negro children are in the public schools?
Thomas R. Prewitt: I am not prepared to answer that, may it please the Court.
Earl Warren: Have you any idea?
Thomas R. Prewitt: The city attorney is here, may it please the Court, and I would prefer --
Earl Warren: Very well, we'll recess until morning, maybe let's find out.