Earl Warren: William Douglas and Bennie Will Meyes, Petitioners, versus California. Mr. Mitchelson.
Marvin M. Mitchelson: Mr. Chief Justice, may it please the Court. Just to briefly summarize, this is of course a case for reargument. It's a case where two admittedly indigent defendants went through a criminal trial which involved 13 felony counts, all of a rather complicated nature. One of the felony counts being, an assault with an attempt to commit murder that were reasons to be discussed, counsel was dismissed by the two defendants at the inception of the trial. Both defendants sat mute through the entire trial. It raises questions of due process of whether or not there was an effective appointment of counsel and also, what is raised in this case is whether or not as a matter of right on an appeal an indigent defendant should have the absolute right to have counsel appointed. Now, since our last hearing, there has been a supplemental brief filed by both the petitioners and respondents' answer to that supplemental brief, and my brother Goertzen to my right here has pointed out in his supplemental brief, has made an offer to lodge the murder trial record with this Court. Your Honors may recall there were two murder trials, one was a hung jury. Then there was a second murder trial in which the defendant, Douglas was acquitted and Meyes was convicted of second degree murder. After that, there was an indictment of both defendants as to robberies, these 13 counts of robberies, and I might point out to the Court in this regard that these 13 robberies that were testified to at this trial -- at this appeal that we're considering here were extensively discussed in the earlier two murder trials. By that, I mean, that the same witnesses virtually, the entire cast of witnesses who appeared to testify against the defendants in this matter here testified at both murder trials.
John M. Harlan II: Was the murder charged of felony murder?
Marvin M. Mitchelson: Yes.
John M. Harlan II: The same felony?
Marvin M. Mitchelson: Yes, Your Honor, that's true. It was a murder charge of the killing of a police officer. Now, I will come to my brother Goertzen's suggestion to lodge that transcript with the Court, because if the Court would be interested to look at that transcript, although we don't wish to overburden the Court of matters outside the record, in a way, it's inextricably tied up into this case, because I believe that that record will indicate to this Court the following information that really hasn't come before the Court. The judge in the first murder case, Judge Roth was the judge who tried these defendants in this matter here, the same judge who refused or -- dismissed counsel after defendants indicated that they didn't want counsel to represent them. The same judge that refused to recognize the conflict of interest and denied all of the defendants' motions. We'll also indicate to this Court that the judge who tried the first murder trial, the same judge in this case, disqualified himself to hear the second murder trial. That's an interesting fact because, obviously, he felt that there was some conflict that he should hear this matter a second time, so by the time he came to these robbery trials, he felt that there was no conflict despite a motion being made by the Public Defender Atkins that they should be disqualified under 170.6, which is our statute for --
Earl Warren: Did he disqualify himself for any stated reason or just to recuse himself.
Marvin M. Mitchelson: Well, in California, we don't have to state the reason --
Earl Warren: I know that.
Marvin M. Mitchelson: Yes, Your Honor.
Earl Warren: Did he?
Marvin M. Mitchelson: He just filed a general disqualification that he had heard -- that he should disqualify himself under -- right. Now it would also reveal -- you see there's been much talk of whether or not there could be any possible conflict. Now, I say to the Court that I happen to try the -- both murder trials. I represented Douglas and I gained an acquittal for him. And having some personal knowledge of the fact that there were over 266 pages of cross-examination on the second trial and on the first two, of all these witnesses, I can state to this Court not because of the meritorious job that I might have done or did not do, but they were thoroughly impeached these witnesses and very badly discredited. And I feel quite frankly in all earnestness that this cross-examination of these witnesses helped gain an acquittal for Douglas. So when a statement is made by the judge who tried the first case and knows the testimony from these witnesses and the prosecutor who was the same prosecutor on both murder cases that there was no conflict that both defendants were positively identified by all these witnesses in almost every respect, that just is not the truth of the matter. The truth of the matter is that they were very much discredited, and of course, in this particular trial when those 13 -- when those witnesses are unopposed and there is no one there to cross-examine them in any regard, of course, their testimony at first blush may seem very powerful and very damaging, but I can assure you if counsel had been there to point out the ways that that very same testimony had been impeached prior to that time, there might have been a different result in this case.
Earl Warren: Did you represent Douglas in this robbery case?
Marvin M. Mitchelson: No, I did not, Your Honor. Much to my regret, I was out of the country at the time and that's why I've been here twice because I wish I had represented him, but I might point out, Your Honor, that Meyes received very adequate representation by Public Defender Breckenridge, and I might say this to Your Honors that Mr. Breckenridge is a far more competent attorney than I am and had a vastly more experiences as a trial lawyer and I think that he's represented Douglas and I represented Meyes, the result would have been the same. Now I point that out because I think it's very important in this regard that I would ask my brother Goertzen who he would rather have represented when we talk about no conflict between these two. Here is the man on one hand who has four prior felonies, and Douglas who has a clean record has no felonies. Douglas who had just received an acquittal for murder, Meyes who's been convicted of a murder and these two were thrown into a trial together and almost naively the prosecutor says their judicial conflict and the court says, “Well tell me, where is your conflict?” And Atkins -- defender, Atkins said, “I submit to this Court that it is a conflict that any lawyer should be able to see. Obviously, there's a conflict.” Now, how could -- and Atkins says, “I would -- attorney should be in the position to bring out the best phases of Douglas' case as opposed to Meyes.” Well, how could he do that? It's a question that that could even be brought up. It could be done very simply. Let's take Officer Bitterolf who is the crime testifying officer in both matters, all three matters in these robbery cases. In other words Bitterolf testified to show that there was a motive to resist arrest on the part of the defendants that they admitted these robberies after they had been shot. This was around the time of the murder, of course, but they brought this testimony back into the robbery trial. Now you could say that Sergeant Bitterrolf, when he took the stand, “Sergeant Bitterolf, are you biased in this case?” I'm talking about the present case, the robbery case and he says, “No, I'm not biased.” Well, the fact that a brother officer had been killed in a case where Douglas had been acquitted, it could be a perfectly proper question, I submit to the Court, to show whether or not, there was bias. Your Honors, there isn't any doubt in my mind that this whole proceeding is a result of the bias by the Los Angeles Police Department. This is a tragic event, the death of a brother officer, but here they have two trials where finally Douglas is acquitted. And --
John M. Harlan II: Was there a disagreement on the first murder trial there?
Marvin M. Mitchelson: Yes, there was a hung jury.
John M. Harlan II: Hung jury.
Marvin M. Mitchelson: There was a hung jury.
Byron R. White: As to both.
Marvin M. Mitchelson: As to both as to both. And then on the second trial, of course, you know the result, but let me say this to you. Meyes is found to be a habitual criminal. That means he's -- he can't give a man more than life. What was the necessity of bringing Meyes back to the robbery trial? He's a habitual criminal. He's sentenced to life imprisonment. After the second murder trial, the result is the same. He'll be there for the rest of his life unless the matter is ultimately reversed. So why do you bring him in a robbery trial? It's so obvious because they want to put him back together with Douglas. They want the tape of Bennie Meyes to rub off under Douglas.
Arthur J. Goldberg: Was there an appeal for the murder conviction on the murder trial?
Marvin M. Mitchelson: Yes, there was Your Honor.
Arthur J. Goldberg: Can you tell us what happened?
Marvin M. Mitchelson: Yes, I can tell you what has happened. What has happened is that the conviction has been sustained and I think there is further appeal. Now, they asked him was there any conflict? There's no conflict between Meyes and Douglas. Your Honors, I'll just read to you one sentence from California Reporter, 18 California Reporter, page 326. This is the case that Mr. Justice Goldberg has just asked me about. And this is to show the continual conflict between Meyes and Douglas through their entire proceedings. Commencing at the top of page 326 --
Earl Warren: What court is this speaking?
Marvin M. Mitchelson: This is the California Supreme Court.
Earl Warren: Yes.
Marvin M. Mitchelson: Pardon me, the District Court of Appeals, I'm sorry Your Honor. The police officers brought the two defendants together in their wheelchairs in the hospital, and at that time, Officer Filbert asked defendant Douglas, if it was not true that in a previous statement, he, Douglas have told the officers that he was lying on the floor in the front bedroom beside the bed, that there was a gun fired in the room, that he had observed Meyes shoot at the officer and the officer shoot at Meyes in exchange of gun fire. Meyes then turned to Douglas in his wheelchair and said to him, “Are you going to let me go like that?” Douglas then stated to Meyes, you are going to fry Bennie and you are not going to take me with you. Tell them the truth. Tell them you pulled the trigger. Meyes then stated, who went back to get the gun. Douglas stated to Meyes, “If I have done it, I would tell the truth. Tell them Bennie the truth. Tell them you pulled it. Meyes then made no further reply. Now, I just bring this up to show you what a conflict there have always been between Meyes and Douglas. Indeed, Your Honors, when we were granted the honor and privilege of coming before this Court, I even felt the necessity to have co-counsel, Mr. Marks, because I don't even think in advocating an appeal that -- you see I'm talking out of the one side of my mouth as to Douglas and the other side is to Meyes. I don't want to hurt Meyes, but I was so much able to present a better case in a murder case because I represented one man only. And I must say to Your Honors that I'm only sorry, I did not bring it with me but I will gladly lodge it with an exhibit for this Court. I had my final argument in the murder -- second murder trial -- pardon me, the first murder trial -- well, the second murder trial. I had that transcribed. Now, I can still clearly recall and I will lodge it with this Court in case they want to see it, I can recall how I would gather to argue, I had to compare Meyes and Douglas in order to show how much cleaner, so to speak, Douglas was, that he had no prior record and that he didn't have the parole officer after him and he did not have all these problems. And --
Hugo L. Black: Is that case from which you read cited in your brief?
Marvin M. Mitchelson: The case from which I just read.
Hugo L. Black: Yes.
Marvin M. Mitchelson: Yes, it -- well it is --
Hugo L. Black: I don't see it. Well, I -- what is it? Will you give it to me again?
Marvin M. Mitchelson: Well, let me say this to Your Honor --
Hugo L. Black: The page in the book.
Marvin M. Mitchelson: Yes, I will. It is Cal -- 18 California Reporter, page 326.
Hugo L. Black: Alright, thank you.
Marvin M. Mitchelson: Since it was referred in the respondents' supplemental brief, that's the reason I'm commenting on it now.
Potter Stewart: Well, Mr. Mitchelson, that was the appeal from the murder trial, is it not?
Marvin M. Mitchelson: That's correct.
Potter Stewart: And in that trial, the statement that you read had to do with dispute between the two as to who had been the -- who has pulled the trigger.
Marvin M. Mitchelson: Yes.
Potter Stewart: And in that trial, each was represented by separate counsel, correct?
Marvin M. Mitchelson: That's correct.
Potter Stewart: In this case, these are what burglary or robbery.
Marvin M. Mitchelson: Burglaries and robberies involving, Mr. Justice Stewart, the very same witnesses who testified in two earlier murder trials, and I bring up these other trials to show that there was a necessity then to have separate counsel.
Potter Stewart: Well, because there was a conflict in that case and they did have separate counsel.
Marvin M. Mitchelson: Yes, Your Honor.
Potter Stewart: But how does that bear on this case?
Marvin M. Mitchelson: Well, it would bear --
Potter Stewart: This burglary and robbery indictment.
Marvin M. Mitchelson: It would bear on this case because you recall that Public Defender Atkins stated to the Court when asked the very same question that you're now asking me, what Douglas should have a counsel, he should be able to make the most of the fact that he was acquitted in these previous trials --
Potter Stewart: How do you -- how do you get that into a burglary around --
Marvin M. Mitchelson: Well, you would get it in, in the manner -- the one of the ways this manner I just described. Let me say that Prosecutor Carr got it in, in this very trial by referring to the killing of a police officer “and they killed the police officer”. Now he allegedly got it in just to try to show motive on the part of resisting arrest that they are more likely to have committed the burglaries. Well, you could get it in by asking Sergeant Bitterolf when you go to cross-examine him whether or not he's biased for one thing, because of the fact that Douglas was acquitted of killing a brother police officer. This would be a perfectly proper question.
Potter Stewart: Would it?
Marvin M. Mitchelson: Yes, it would, because it's a bias question. In other words, it would be proper to show bias on the part of anyone testifying. And I think -- I represent to the Court with all the earnestness I can muster that the police officers were most bitter at the death of a brother officer. And this was shown in the demeanor of Bitterolf throughout both trials and I believe that I have made a point to the jury by showing that there was a -- they were trying to get both of these fellows. Now --
Byron R. White: The record says it doesn't – [Inaudible]
Marvin M. Mitchelson: Yes.
Byron R. White: You represented Meyes, and he's not [Inaudible]
Marvin M. Mitchelson: Of course, yes it is. That's --
Byron R. White: [Inaudible]
Marvin M. Mitchelson: Exactly, Mr. Justice White. That is the point I'm making. And --
Earl Warren: Mr. Mitchelson.
Marvin M. Mitchelson: Yes sir.
Earl Warren: Would you mind telling us very briefly how these robbery cases came into the murder case just the factual situation so you have to connect with that --
Marvin M. Mitchelson: Yes, I will.
Earl Warren: -- very briefly.
Marvin M. Mitchelson: Very briefly? This is how they came in. They offered these robberies to show --
Earl Warren: Well, how did the facts developed? Where -- where was this man arrested and under what circumstances and what brought the robbery -- robbery sentence.
Marvin M. Mitchelson: Alright. The police officers came to Douglas' apartment. They were investigating robberies, alleged robberies. They came without a search warrant. They came into the premises. There were some people whom they asked, “Where is Bill Douglas?” And one of the parties said, “He's not at home.” In fact, Douglas and Meyes were in the back bedroom. Officer Nash went down the hall opening doors and came into this bedroom, in this darkened bedroom, there was gun fire. Douglas was almost mortally wounded. The officer died and Meyes was wounded and jumped out the window and escaped. Now, they brought in the -- to show that the reason they were resisting the arrest is because they were -- had committed all these robberies. This is the point there.
Earl Warren: That puts it in perspective for me --
Marvin M. Mitchelson: Yes, Mr. Chief Justice. I should have done that and I realize there's sort of a complicated intertwined set of three matters and it certainly would be a special circumstance under Betts versus Brady, I think. But of course California has a different -- we have appellate defender system so we're not really concerned with that particular portion.
John M. Harlan II: I'm still a little confused. I thought you said the murder charge was a felony murder charge.
Marvin M. Mitchelson: Well, perhaps I misunderstood you --
John M. Harlan II: It's -- what I mean is --
Marvin M. Mitchelson: -- Mr. Justice Harlan.
John M. Harlan II: It was not a charge of killing in the course of the commission of an independent felony.
Marvin M. Mitchelson: No, it is not.
John M. Harlan II: It was not.
Marvin M. Mitchelson: No, it is not.
John M. Harlan II: I know. I misunderstood you.
Marvin M. Mitchelson: I misinformed you and I'm sorry I misunderstood you. It's not the felony murder rule per se. It was --
John M. Harlan II: It was premeditated murder.
Marvin M. Mitchelson: It was a charge of premeditated murder. Yes. Now lying in wait killing is what they charged that they were lying back in the bedroom waiting for police officers to come in. Of course, the jury rejected as to both defendants that -- that it has found a second degree as to Meyes and they found an acquittal as to Douglas.
Byron R. White: I take it you're saying that the -- these two people should not only have had counsel but they should have had a separate counsel.
Marvin M. Mitchelson: They should have had separate counsel.
Byron R. White: And they didn't have any counsel at all during the trial after a certain point.
Marvin M. Mitchelson: That is correct.
Byron R. White: And you're also saying that they should have had counsel on appeal.
Marvin M. Mitchelson: Yes, sir.
Byron R. White: Now, if you're right in the latter point, doesn't it make these other points irrelevant here in the sense that there should have been an appeal in the state courts with the assistance of counsel who had considered these and the California courts themselves might correct these other errors that you're talking about.
Marvin M. Mitchelson: Well, Mr. Justice White, I do agree with you that on, of course, either basis, I feel that the California appellate review or the appellate situation wherein they have the right to review the transcript and decide whether or not defendant should have counsel, I believe that is an error of course --
Byron R. White: But there was an affirmance of the conviction in an appellate process where these two defendants had no counsel.
Marvin M. Mitchelson: Yes, that is correct.
Byron R. White: And you're saying that they should have had counsel.
Marvin M. Mitchelson: They should have had counsel.
Byron R. White: And you're saying they should have had counsel because it would have had them more chance in getting the conviction reversed.
Marvin M. Mitchelson: Absolutely. They went through a trial without any representation at all. So I believe that have they had counsel, they could have certainly made a record and there would have been something to go by except a one-sided situation as we now have. Now, turning --
Potter Stewart: If this Court directs itself only to that question and you prevailed the result would be only that I suppose that California would allow an appeal with counsel and there's no -- there's no guarantee at all that the -- that the California Supreme Court or District Court of Appeal would not still affirm the conviction, wouldn't it?
Marvin M. Mitchelson: No, there is not a guarantee to that. But of course, this is a --
Potter Stewart: And then you'd be back here again with your first point.
Marvin M. Mitchelson: Quite possibly.
Potter Stewart: I mean, isn't that quite possible from that?
Marvin M. Mitchelson: Yes, I think it's possible.
Potter Stewart: Probably.
Marvin M. Mitchelson: Now, I would point this out to the Court. Now as to whether or not there was an effective point -- appointment of counsel, this brings us into the arguably rather thoroughly the last time but I would only point out there that they're just -- I don't see how there could be any question that this was ineffective appointment of counsel. Much has been stated about the public defender --
Byron R. White: Well, how can it be for both of them? You're saying that there should have been separate counsel but both of them discharged them -- discharged the lawyer. It looks to me like the -- the first fellow who discharged them -- one of the other of them hasn't got a point on that. He was certainly -- you have to get to some other point besides conflict to say that -- that the public defender wasn't qualified to represent one of them.
Marvin M. Mitchelson: That's just a point of getting to, Mr. Justice White. Of course, the big point here, of course, I think there's three big points but certainly --
Byron R. White: Well do you agree or not that the conflict point only goes to one of the other of them.
Marvin M. Mitchelson: Yes, I do. I do agree with --
Byron R. White: Which one?
Marvin M. Mitchelson: I think it goes to -- it could go to either counsel. In other words, Douglas dismissed first, so therefore, Meyes could have had Mr. Atkins represent him.
Byron R. White: So Meyes did the discharge here except for another reason.
Marvin M. Mitchelson: Except for another reason. Now -- and that is just what we're getting to. Was Mr. Atkins prepared? Now, here is counsel appointed by this -- by the State. This is not a free choice of counsel. These two men are in jail. They're appointed counsel. On the day of the trial, it's so clearly indicated to them that Mr. Atkins is not prepared. As I pointed out to the Court last time, on 13 -- page 29, this is the transcript, 31, 32, 36, 38, 39, 43, 45, and 76. Mr. Atkins stated to the Court, “I am not prepared.” Now under, I think pressure, one or two other times, he stated that he thought he could go through and do a good job that for his own part, he thought he might be prepared. But I ask this Honorable Court, at what point does the client lose the confidence in his attorney. If my attorney stands up and says, “I am not prepared to go to trial, can there be anything equivocal about that?” It's a statement that he's not prepared. And Mr. Atkins came into that courtroom that morning and he started out by stating that he was not prepared, he's been trying a case a day like all the other deputies. He wasn't prepared to go to trial. There is nothing equivocal about that. He held to that position until considerable palaver between the prosecutor, the judge and finally some place in the middle there, he sort of backtrack his ground a little bit, but he ultimately stated he was not prepared.
Earl Warren: When was he appointed?
Marvin M. Mitchelson: He was appointed six weeks prior to the trial. Now, I'd like to correct one statement that my brother Goertzen has made. He said the Public Defenders Office had this case for 10 months. Well, they didn't have this case for 10 months. For 10 months, the vast public defender system have well over 100 attorneys was in some way connected with the two defendants. This is not a small law firm where each attorney has intimate knowledge in the other attorneys' cases. The public defender system is, I think, Mr. Chief Justice, you know, is a system where they appoint two or three defenders to each court room, they send them out on the circuit so to speak to various branch courts while the very fact that they had three different public defenders for the arraignment, for the preliminary hearing and for the trial itself indicates that there was a complete total lack of communication among the public defender's office as to what these cases were all about. Tell me.
Earl Warren: When your judge -- when your judge appoints a public defender, he doesn't appoint John Jones of the Public Defender's Office to represent him, does he?
Marvin M. Mitchelson: No, he does not.
Earl Warren: He represents the Public Defender's Office of Los Angeles County.
Marvin M. Mitchelson: That is correct.
Earl Warren: And as you say, they have about 100 deputies.
Marvin M. Mitchelson: I think they have close to a hundred and I might say that whoever has happened to be the public defender in that courtroom is one who receives the appointment.
Earl Warren: Well that's -- that's a matter of circumstance only it wouldn't have to be that way, would it?
Marvin M. Mitchelson: No, it wouldn't have to be that way because, Mr. Chief Justice, the logical thing to have done in this case were to have been to assign Mr. Breckenridge who have thorough knowledge of all these witnesses' testimonies and to prior murder trials who did an excellent job for Mr. Meyes and it would have been more logical to have allowed him to represent these petitioners at that trial. Perhaps, it would not, well I say, he, representing one of them, but at least he would have had enough knowledge having to examine all these witnesses on prior occasions.
Earl Warren: But I suppose that in all events, it could not be said that the public defender's office as an institution, could not reasonably have been prepared for that trial.
Marvin M. Mitchelson: I think they could have been prepared for that trial.
Earl Warren: Yes, alright. In those circumstances, isn't it a matter of discretion for the judge to determine whether there's going to be continuance or not?
Marvin M. Mitchelson: Well --
Earl Warren: Can any -- can any lawyer, whether he's paid or whether he's public defender just walk in and say, You Honor, this -- I came in the case six weeks ago, but I'm just not prepared and not ready to go.
Marvin M. Mitchelson: Your Honor posed the same question to me last time.
Earl Warren: Yes.
Marvin M. Mitchelson: And my answer --
Earl Warren: In my mind.
Marvin M. Mitchelson: Very true, and I would answer it this way. This is a different situation in private counsel.
Earl Warren: Why?
Marvin M. Mitchelson: Because they've been appointed by the State and they're not counsel of free choice. In other words, if a man has nothing to say about the appointment at his attorney, if I have chosen attorney who came into court and said, I'm not prepared, I might be bound by that, because I will have waived the problems that come up so to speak. I have chosen the attorney and I am bound by what I've done, but this is not a voluntary act on the part of either Meyes or Douglas. They did not choose this attorney. They had this attorney assigned to them. This attorney admitted at the most that he spent three hours with these two men.
Earl Warren: After -- after he's been appointed by the Court and accepted by the defendant, is there -- does he have any different status before the Court than a paid attorney?
Marvin M. Mitchelson: Well, the only difference -- he might have the same status because he's going to conduct the case in the same manner, but he might have a different status when we retrospectively look back and we see what has happened and we're trying to determine whether or not they are bound by his appointment. This is an appointment that, as I say, has been put upon them. This is not of their own choosing. They're locked up in the jail.
Arthur J. Goldberg: Counsel with reference to the Chief Justice's [Inaudible]
Marvin M. Mitchelson: They certainly did and they asked repeatedly. As a matter of fact --
Arthur J. Goldberg: [Inaudible]
Marvin M. Mitchelson: That is true, Mr. Justice Goldberg. And --
Arthur J. Goldberg: [Inaudible]
Marvin M. Mitchelson: Well --
Arthur J. Goldberg: [Inaudible]
Marvin M. Mitchelson: Well, the only difference is that the man stands in and says I do -- I'm indigent and I cannot get an attorney. And the Court says, “We will appoint a public defender for you”, because that's exactly the circumstance to which a public defender is appointed to represent a man. So it's either a case of having the representation over not having representation.
Arthur J. Goldberg: I agree to that but nothing can be found in the history of the [Inaudible]
Marvin M. Mitchelson: No, I don't say that they should apply a different rule, but I do say that when a public defender comes into a courtroom, and states in an unequivocal language to a court that he is not prepared to properly represent a defendant, then it is the duty of the Court to grant a short continuance perhaps a week or two, and allow that man to be properly represented. In the face of a man saying 13 times, “I'm not prepared” that means exactly what it says and I think there is no longer a matter of discretion for the judge. It is the duty upon the judge.
Potter Stewart: What if a week later, he comes back and says, “I'm still not prepared, Your Honor”?
Marvin M. Mitchelson: Well, there would be a limit to everything, but this has never happened before in this case. There was no motion for any continuance in this case. At any time, prior to this day, and that was what was wrongfully cited to the Court also.
Earl Warren: If this was -- this was paid counsel who made exactly the same representations to the Court; you believe then that the Court could have compelled him to proceed?
Marvin M. Mitchelson: It is -- Your Honor, I have to answer by saying it is really a question of fact. I think that there comes a time when a judge --
Earl Warren: Let's don't change any facts except --
Marvin M. Mitchelson: Right.
Earl Warren: Don't change a single fact except that in one case, the man is -- the public defender, he was here, and in the other case, we would have been paid a lawyer.
Marvin M. Mitchelson: The Court could have compelled them to proceed, but I believe that under these circumstances, it would have been an abusive discretion even with a paid counsel.
Earl Warren: Then -- then whether he's a paid counsel or public defender, they're both in the same position.
Marvin M. Mitchelson: With the one exception that in the case of a public defender, it is a court state appointed counsel, it is not a matter of free choice on the part of the defendant, and I think that in certain circumstances, the defendant would be less bound because he has counsel appointed for him than if he had chosen his own counsel.
Earl Warren: Well, having some knowledge of the calendar, criminal calendar in Los Angeles County, I would say that the courts would be in a rather weak position to get their work done if every time the public defender came in and said, “I'm not prepared,” to be entitled to a continuance as a right.
Marvin M. Mitchelson: Your Honor, I'm not -- I think I've answered your question and I note your statement. At this time, I have -- Mr. Marks and I were going to divide the argument --
Earl Warren: Yes, that's alright.
Marvin M. Mitchelson: And I would like to give him --
Earl Warren: Yes, you may.
Marvin M. Mitchelson: -- an opportunity to perhaps continue.
Earl Warren: You may. Mr. Marks.
Burton Marks: Mr. Chief Justice and members of the Court. Going to the Chief Justice's last question, I think it's a very interesting situation that the Court might be informed of how the courts do work in Los Angeles County. I'm sure the Chief Justice has an intimate acknowledge and I know that I have a very intimate knowledge. The fact is we have a master calendar system, and the -- a person is arraigned in department 100. He is then assigned to one of approximately 20 superior court trial calendars and each trial court has maybe five to six, I've seen as many as10 trials scheduled for the same date. Now, on the date for trial --
Potter Stewart: There are almost 100 judges in the Superior Court of Los Angeles.
Burton Marks: Yes, but only --
Potter Stewart: About 20 of them assigned to criminal --
Burton Marks: About 20 are assigned to criminal --
Potter Stewart: And they rotate -- I mean they're not -- are they permanent criminal judges or --
Burton Marks: Permanent for a year and generally the same judges request assignment to the Superior Court Criminal Bench. They either have the very old season judges or the very new appointees who get criminal assignments because they were not suppose to be the most desirable.
Earl Warren: They're assigned normally for a year at a time, aren't they?
Burton Marks: For one year.
Earl Warren: Yes.
Burton Marks: Now, these judges have an extensive calendar and as a matter of practice in a criminal case, when you go into the time after they'd set for trial, you should either, as private counsel, be prepared or you have discussed it with a District Attorney and you make some disposition of the matter. In any case, it generally comes down to the fact that there may be two or three trials scheduled, and then -- that are going to definitely go ahead. And within that, the ambit of that, there is more wheeling and dealing because there are sometimes priors alleged and you might be able to get a prior struck if you waive jury and you might also be able to get a submission on the transcript and you might want a different judge. This is done in the normal course of business. There's nothing wrong with it. It's done openly and there is a great deal of working done between counsel and the public defender -- now the -- I mean the prosecuting attorney. Now, the interesting thing is that the counsel both the public defender's office and the District Attorney's office are assigned to each particular court. So the defendant, when he is assigned to a trial court, automatically picks up the public defender and the prosecutor that's assigned to that court unless it's a very, very special case. Now, there may have been coincidence in our case or there may have been a plan to shoot the case back to Judge Ronword, where Deputy District Attorney Carr was sitting anyway department 104 so he would be familiar with the case at hand. Now, this goes directly to Chief Justice Warren's question. Now, getting one step further, and I suppose we have two or three trials in one court, it may be another court that has no trials. They dispose of their entire calendar perhaps they had a probation sentence calendar that morning and they finish it early. Now, we have a gentleman by the name of Earl Osatche who was a very amiable person and he sits up there, he is a coordinator and he has every case down in every court, and again, there is a sort of wheeling and dealing. You go and see Mr. Osatche and you ask him what courts are open and you -- if you are experienced in the criminal field there, you know which judges favor certain cases, don't favor certain cases, and you try and get your client the best possible deal by getting him into a certain judge, if that Court is open and if you can get in there. Some courts will open say for just half an hour or an hour and if you can state that your trial will only take that long, you will get transferred into that matter. So therefore, I want -- this comes down to the conclusion or the question, was there any prejudice to the prosecution or the people or to the courts by denying a continuance, the request for a short continuance by the defendant's counsel who was then counsel. I think the answer must be ‘no', because of the volume of business that extended, none of the courts would have been prejudiced. There are always two or three cases waiting to go to trial. They're always continuing. Many times they have to open up a civil court in order to take care of the business for a criminal trial. So --
Byron R. White: [Inaudible]
Burton Marks: For continuance? Well --
Byron R. White: [Inaudible]
Burton Marks: That's true but assuming that the request for continuance was proper and I might discuss that a little bit later.
Byron R. White: And the other three?
Burton Marks: And the other three were proper, the only thing that would happen is that there are 60 other cases ready to go to trial that day and they will fill the void very easily.
Hugo L. Black: You lack the rule, that's what I understood.
Burton Marks: Under what sir?
Tom C. Clark: If you relax a rule as to what constituted the appropriate cause?
Burton Marks: Well there are specific causes or reasons for continuance in the Penal Code. And as a matter of fact, one of the prohibitions in the Penal Code says that a continuance shall not be granted except for good cause. Now, what is good cause is obviously in the discretion of the trial court as Chief Justice Warren indicated, however --
Tom C. Clark: The judge does said every time when the prosecutor or public defender imposed, he said I'm sorry, I'm not ready today. The judge said okay, draw the next case. Now, every public defendant, every prosecutor or every defense lawyer would know [Inaudible]. First thing he knows that doctrine would be brought out.
Burton Marks: Well, I might say that I don't believe that public defenders nor private counsel for the most part and this represent to the court for any reason. Now, there are many reasons why you -- you aren't prepared, it's mere dilatoriness on your part. That's -- I think the Court can reject your claim of not being ready. They also -- there's many factors a court has to take into consideration in granting continuance. One is convenience of witnesses. Well, in this case, there obviously were several private witnesses but it might note that in the first place, they were -- had already been called to court twice. And this was at -- on this case, the third time, for reasons -- let's put it this way. For reasons known only to the District Attorney's office, they preferred to charge these two defendants with murder and not the robberies. They never -- in the first cases, they never had the substantive counts. So the District Attorney's office charged these people with murder, uses the facts of the robbery to prove the lying in wait or a consciousness of guilt on behalf of the defendants and after there has been an acquittal of one of the defendants files the 13-robbery counts as substantive counts. Now the -- I don't think that the District Attorney can stand up and properly say, “We're prepared and our witnesses are here so you can't give these defendants a chance”. And I also think that under the circumstances explained by Mr. Mitchelson, the District Attorney could not say to the Court in all propriety that he did not think there was a conflict of interest between the defendants. One of the -- going into conflict situations, I -- the Attorney General, my brothers have indicated to the Court that, for some reason they feel that conflict exists only in a trial in the factual matter consistent with the actual facts of the case, and this is not the essence of conflict. Conflict in an attorney is a very serious thing. We have a Canons of Professional Ethics. We have -- I wanted to bring to the attention of the Court the study on -- by the subcommittee and constitutional rights, the United States Senate, that's a 1961 printing, 68-881 and they cite there from the equal justice for the accused, the things that they picked should be provided for indigent counsel. Number one, they stated, it should provide for every indigent person who faces the possibility that you provide counsel for every indigent person who faces the possibility of the deprivation of his liberty or rather serious criminal sanctions. And the system should afford representation which is experienced, competent, and zealous. I think that's very important. The system should provide the investigatory and other facilities necessary for a complete defense. The system should come into operation of a sufficient early stage of the proceeding so it can fully advise and protect and it should continue throughout the appeal. And the system should assure the undivided loyalty by defense counsel to the indigent defendant. And that is the one main thing that is lacking in this case as far as conflict is concerned where the counsel could not give undivided loyalty to both defendants. Now --
John M. Harlan II: Are you going to spend any time on the question that Justice White asked your colleague questionably whether these people were entitled to counsel?
Burton Marks: Yes, sir.
John M. Harlan II: On appeal?
Burton Marks: Yes, sir.
John M. Harlan II: You haven't gotten with that yet. Nobody has discussed it.
Burton Marks: No, I was going -- I would sort of wrapping it in because when we get to the other questions which I will get to that question in just a quick minute. What I wanted to state was this. Just as far as conflict is going that -- it does not have the factual situation. I might refer the Court to its own decision that sort of ties in Connelly versus Cochran which is a very recent decision. When you come to the situation of whether or not, counsel should be provided, then you don't ask whether or not the man has made an intelligent waiver or whether he requested counsel, and I think this goes into the situation of, when, myself for instance, comes in front of the Court and I say, Your Honor, I find the conflict of interest. I am representing as an officer of the Court to the trial judge that there is a conflict and this, I do not believe as the Attorney General would have the Court think that you can inquire at that time into counsel's reasons for stating that there is a conflict. I don't think you could question the defendant as to why there is a conflict. I think that the minute that a counsel states to the Court that there is a conflict of interest that ipso facto a conflict has been raised --
John M. Harlan II: You mean as a matter of constitutional law and a lawyer goes before a state court, says I think there's a conflict of interest that forecloses any exercise of discretion, any appraisal of the situation by the judge.
Burton Marks: I think it does because the judge cannot inquire into -- there's -- first of all, there is a privilege of -- there is a privileged communication. Now, counsel may have received a privilege communication from one or the other defendants, which he cannot reveal to the Court so the Court cannot inquire that counsel what that privilege communication is, and the only thing the Court can do is take the word of his court officer that there is a conflict.
Arthur J. Goldberg: This would only apply to the appointed counsel.
Burton Marks: No, to any counsel.
Arthur J. Goldberg: Well, other counsels could decide. In fact --
Burton Marks: Well, He would still have to make a motion to be relieved, and I think that the Court should obviously grant it without question or inquiry.
Arthur J. Goldberg: Well, the thing about is, it's being [Inaudible]
Burton Marks: Correct.
John M. Harlan II: Well, he would have to get the Court's permission.
Burton Marks: That's correct. Now, ordinarily -- sir, I'm sorry Justice Harlan. You would have to get your client's permission obviously but you still --
John M. Harlan II: The Court's permission.
Burton Marks: -- the Court's permission to withdraw, but once you stated to the Court there's a conflict of interest and you stated to the client there's no question that you're going to be relieved. Now, the circumstances in this case are that the public defender who went in and represented that there was a conflict of interest, was only there a few minutes prior to the -- the day or two prior to the trial and he had been engaged in trial and obviously was quite busy as the entire public defender system in the State of California.
Earl Warren: At what stage of the proceedings did counsel raise the conflict of interest issue?
Burton Marks: The stage of the proceeding as shown by this record was the day of trial.
Earl Warren: The beginning of the trial?
Burton Marks: At the very beginning of the trial within the scope and framework of these various motions he was making.
Earl Warren: Yes.
Burton Marks: For continuance, preparation, and also conflict of interest, and I believe that the record shows that in between some of the motions he was again conferring with his clients and he --
Earl Warren: But they didn't get into the middle of taking of testimony and then -- then the issue being raised. It was done before that.
Burton Marks: Perhaps it was before the jury was sworn or called --
Earl Warren: Yes.
Burton Marks: -- which is another thing that our juries are not sitting there in the Court. They are in a main jury room and when they're needed, they're called out. Now --
Potter Stewart: Did I understand it under California law, if the Court had appointed a separate lawyer from the public defender's office for Meyes or for Douglas, in other words, it had appointed two different lawyers but both of them from public defender's office, that would have been -- that wouldn't have solved the problem at all because their cases would say that's the same law firm.
Burton Marks: Not only is there a case but there's a specific statute and I think it's 987a which provides that the public defender cannot serve for any reason then a private counsel should be appointed and compensation is given by the Court at its discretion, a reasonable compensation which is taken out of the county fund. Now, getting to the question that Justice Stewart and Justice White asked; what about the effect of the appeal if you should find that counsel should be appointed on appeal? I do not believe that that is the answer in our case because if you reverse it merely to the stage of the post-conviction point, I think we've already gone through that procedure because a very interesting situation arose. Mr. Goertzen who is a Deputy Attorney General for the State of California has a duty to represent the people of the State of California on appeal, and also being very conscientious in performing his duties zealously, he raised the very point which in my opinion would be the reversible error in this case, and that is to with the conflict of interest. Now, if Mr. Goertzen raised the conflict of interest in his brief, and he cited to the Court orally, although there was no specific argument, he did refer the Court to the Kerfoot case which is cited in our brief and which is just been decided a few days later, and they completely ignored this issue then wouldn't it be an idle act to reverse the case to the -- only to the appeal stage to allow the California Court to review something which it has already reviewed.
Potter Stewart: It has fully reviewed it.
Burton Marks: It has fully reviewed it in the sense that it's been briefed but it never reviewed it in its opinion. It completely ignored the conflict area.
Byron R. White: [Inaudible]
Burton Marks: No, that isn't what I say. I think counsel would --
Potter Stewart: It follows what you say, I think, isn't it?
Burton Marks: Well, let's put it this way. Practically speaking, if this case was reversed down to the District Court of Appeal and counsel was then appointed, I think that as a practical matter, the District Court of Appeal would be alerted to the fact that there had been a conflict and that possibly that was one of the reasons why certiorari had been granted in this case and that therefore --
Byron R. White: [Inaudible]
Burton Marks: Well, the cert has been -- a petition for hearing was denied in the California Supreme Court.
Byron R. White: [Inaudible]
Burton Marks: Yes, very definitely. But --
Arthur J. Goldberg: [Inaudible]
Burton Marks: No, it was never argued on behalf of the defendants.
Arthur J. Goldberg: The counsel there argued the [Inaudible]
Burton Marks: Well, I always feel that if my opponent raises a point then it's pretty -- and it almost concedes the point, as a matter of fact, if it's pretty well raised that I don't -- can feel like arguing at his behalf, but this is -- this is one of those peculiar cases where it just passed unnoticed which goes -- now very briefly, in the few minutes I have left, to the question of whether or not the appellate judge should review in the first instance as the California rule has stated. I do not think that this is a proper rule. I don't think it's constitutional. As a matter of fact, I think under the federal law, this Court has rejected that as a matter of due process of law. I think that the Coppedge case recently decided is --
Byron R. White: [Inaudible]
Burton Marks: Well, it's -- it's due -- I interpret it as a semi due process question of whether or not the indigent has a right to get into court before he's knocked out of court. And in this case, the difference here is we have the record prepared and the Court made a decision which in effect was saying if the Attorney General moved to dismiss the appeal as frivolous, we would have dismissed it. But then they went one step further and said, “Well we're not going to dismiss it as frivolous but we're going to discuss the points which are raised in their brief because they raised the brief without counsel and then completely missed the point which I think were meritorious”. I don't think a judge who is sitting as a judge, and this was discussed yesterday can -- could advocate either for the defense or for the prosecution. He sits there as a judge. I think that counsel, one of the functions of counsel is to help the Court by presenting cases to the Court and arguments and propositions of law which then the Court decides whether true or false or applicable or not applicable.
Potter Stewart: This Court -- this Court goes through that in a couple of dozen cases every week. We have petitions for certiorari filed by people in the penitentiary, that don't have any help of counsel at all and we dispose those petitions one way or the other, but no argument and there's no counsel representing the petitioner.
Burton Marks: Well, the function of this Court is a little bit different than our appellate courts because the difference between our appellate courts and this Court is that everybody has a right to appeal in California --
Potter Stewart: And everybody does have a right to appeal including a pauper, doesn't it?
Burton Marks: Right. But -- and everybody of course has a right to file a petition for a writ of certiorari but the rules of court are somewhat different. In California, the appellate court must write an opinion on any appeal that's filed unless the appeal is dismissed.
Tom C. Clark: [Inaudible]
Burton Marks: No, I didn't understand.
Byron R. White: [Inaudible]
Burton Marks: There was briefs by the defendant's pro se and brief by the respondent, Attorney General and --
Byron R. White: [Inaudible]
Burton Marks: No, the rules of the Court do not require that they'd be present. The rules of the Court do not require that the defendants be present and counsel may actually submit it if they wish unless the courts have any question. So the situation --
Earl Warren: So normally, they are not permitted to request?
Burton Marks: I would say that in a situation where they're in prison that it would be very unlikely that they would be present although they might be permitted, they might be ordered present. I don't think any request was made. I think by the time that the matter of argument came up, they've been pretty well decided. There's no reason to ask to argue because they -- that would have been denied along with their request for counsel and request for transcript. The -- my time is up.
Byron R. White: Can I ask you one more question.
Burton Marks: Yes sir.
Byron R. White: [Inaudible]
Burton Marks: Well, when you say they discharged him, I think --
Byron R. White: [Inaudible]
Burton Marks: I don't think that that was really the reason because it's sort of intertwined. At first, he said he wasn't prepared and then he said he was and I think at that point, they lost confidence in the counsel not because of this particular counsel but merely because he wasn't prepared and they would have taken any counsel who was prepared. Does that answer your question and perhaps --
Byron R. White: Apparently, you're saying that the [Inaudible]
Burton Marks: Yes.
Byron R. White: [Inaudible]
Burton Marks: Right. And they have just no choice being in prison or confined to do anything else but assert their rights which I think they did very effectively.
Byron R. White: So you mean the [Inaudible]
Burton Marks: Well, it's not ley de situs to Mr. Douglas. I wouldn't -- I would certainly --
Byron R. White: [Inaudible]
Burton Marks: No, I don't think he would have -- he would -- if he had been given a counsel, they never would have -- the point is that he --
Byron R. White: [Inaudible]
Burton Marks: Well, he said he's not prepared but the conflict question is inextricably intertwined immediately before you even come to the preparedness question. I think that's the most important question that exists. And that the counsel should have been dismissed regardless of whether he's prepared or not prepared. And I -- my brother counsel points out that Douglas stated that he wanted separate counsel at the beginning --
Earl Warren: To what -- begin -- when do you refer to as the beginning?
Burton Marks: May I look at in the record?
Earl Warren: Yes.
Burton Marks: I will reply it in rebuttal.
Earl Warren: Yes, you may. So you mean at the beginning of the trial or when he was -- when they were appointed?
Burton Marks: No, after the -- when the appointment -- the appointment is, that's a peculiar phraseology because the appointment of counsel actually took place at the time -- the date -- three days after arraignment when the judge -- or at arraignment when the judge says, do you have a counsel, and they say no. He says, “Do you have money to employ counsel?” And they say, no he says appoint the public defender and the public defender is appointed, but which public defender is appointed, they don't have any idea.
Byron R. White: You mean counsel, there's going to be one.
Burton Marks: It's going to be one.
Earl Warren: Yes.
Byron R. White: That's the point [Inaudible]
Burton Marks: Right.
Byron R. White: The point is there's going to be one.
Burton Marks: Right, but they --
Byron R. White: [Inaudible]
Burton Marks: They didn't see the public defender that they were -- he was going to be appointed for the --
Byron R. White: [Inaudible]
Burton Marks: Well, how could they raise it? They don't have conflict. The public defender raised the conflict.
Byron R. White: [Inaudible]
Burton Marks: I say it was important as a matter of right. Thank you.
Earl Warren: Mr. Goertzen.
Jack E. Goertzen: Mr. Chief Justice, may it please the Court. With the Court's indulgence, Mr. James and I will utilize the same split we did at the last argument; that is, I'll address myself to the matter of the discretion on the continuance motion and the conflict point, Mr. James will discuss the right to counsel on appeal.
Earl Warren: Very well.
Jack E. Goertzen: By way of introduction, however, I would like to just make a conclusionary statement to a point raised by Mr. Justice White and that is, that Meyes filed a complete brief raising fully the matter of the continuances and also raising the grounds that he should have had counsel on appeal which is one of the points we're here. And I have an eight-page argument in citation of cases, Lanigan, Robinson, Glasser, Kerfoot case in California, but I didn't concede the point. That was an over generous statement on the part of my brother counsel, I wouldn't have been able to offer these briefs and this Court. I don't think if I had conceded it but we raised it merely because the point was there and frequently we do have these in pro probates in our briefs in our office and when we're reviewing them, if we find anything in the record that hasn't been touched on by their briefs, as a matter of policy, our office raises the point, discusses it, distinguishes cases etcetera. So the --
Byron R. White: You mean the counsel [Inaudible]
Jack E. Goertzen: No, it was raised by myself in absence of any comment on it, however, in the lower appellate opinion does not mean that they may very well as I point out in my brief, I just felt there was no substance to it and I commented on it. But I think a reverse on point right to counsel on appeal and the remand is going to -- along would raise a lot of problems because I think the matter has been reviewed.
Earl Warren: I still don't -- I still don't get the sequence on the conflict of interest issues to when it was raised and how and --
Jack E. Goertzen: Right.
Earl Warren: -- would you -- would you please --
Jack E. Goertzen: I'll cover that right to my argument now, sir. The conflict was raised, I believe, at about page 30 or 31 of the record. The first thing that happened, Atkins was -- or the public defenders office was appointed for purposes of these crimes, these 13 counts on -- formally on August 18th, 1959. On August 21st, public defender's office was again represented by deputy in court and the defendants were arraigned. On September 30th, the opening day of trial, Mr. Atkins comes in and he first goes -- filed a motion under Civil Code of Procedure -- California Code of Procedure 170.6 which is a preemptory challenge to the trial judge, which for obvious reasons, has to be filed sometime in advance if the trial judge is known beforehand. Otherwise, it's going to interfere with the due administration of justice if we could just come in on opening day of trial and hand this in, so that was disallowed. Then Atkins said, “Well I'm not --”
Earl Warren: Was this allowed, you say the preemptory challenge?
Jack E. Goertzen: Yes, sir. It was not filed timely. In other words, Judge Ronnie had been sitting in this Court, a couple of months at least, minimum and it was known long beforehand. It was known since -- more than 10 days before --
Earl Warren: Yes, the question --
Jack E. Goertzen: -- the motion had --
Earl Warren: -- of timeliness.
Jack E. Goertzen: Right. So well, it would -- it would serve to prevent Mr. Carr, the prosecutor from doing what he did, having all his witnesses in Court ready to go --
Earl Warren: Yes.
Jack E. Goertzen: -- on September 30. This -- this point also goes to the matter of continuance for preparation and other grounds which I'll discuss. Now, one thing that my brother Marks left out is procedurally, and this is done all the time and it's -- it's before this Court by way of citation of the Kerfoot case in California in our briefs. The public defender, when he comes up with a conflict or an idea of lack of preparation or needs more time, he can go to the Court and get an advancing date, and the Court will put aside a few minutes and he'll come in as he did in Kerfoot, the case was set for trial in Kerfoot on September 14th and on September 1st, at the request of the public defender, the cause was advanced, then he came in and he said, Your Honor, I've had a problem with my clients here. I've talked to him just once. I think there's a conflict. I'm not prepared. We don't even have the transcript yet. We're going to need more time. And the Court made a ruling. So it's not uncommon for -- and in harmony, with due administration of justice to advance these causes and make known in advance the particular reasons you might want a conflict or a continuance for more preparation time. So that was not done here and, of course, I would like to turn briefly to the Atkins preparation apart from the conflict and in keeping with -- or in sort of a response to Mr. Justice White's last questions of my brother Marks, at page 80, when Meyes, who was the first one to -- this is so-called palaver about dismissal of counsel, this judge was not going to dismiss the counsel unless these men made an unqualified dismissal. That is they full well knew that when they dismiss them, they were on their own. Now, the conflict figures into this, but I'll cover that later, but he wanted an unqualified dismissal. He won't let counsel go unless these men fully understand that they're going to have to board out the jury, argue to the jury, cross-examine witnesses, they're going to be on their own. And at page 80, Meyes said, “I don't want you under any circumstances” to Atkins and that was the ultimate qualification. Then the judge turned, Judge Ron turned to Douglas and says, “What's your feeling?” And he says the same thing. It's right at page 80. Now, the basic California Penal Code Section on continuances and it's certainly a reasonable one and in harmony with Mr. Justice Black's expression of this type of procedure in Avery versus Alabama is Penal Code Section 1050. The welfare of the people of State of California requires that all proceedings and criminal cases shall be set for trial and heard and determined at the earliest possible time. No continuance of a criminal trial should be granted except on affirmative proof in open court upon reasonable notice. Therefore, in our case, since these motions were all made on the opening day of trial, that's certainly not reasonable notice. Therefore, we're going to have to have an awfully strong showing to get around an abuse of -- to get around in exercise of the discretion that Judge Ron did utilize in this case. So let's -- let's look at the facts of our case before this Court now forgetting the murder cases for the present moment, except insofar as they may apply -- implied by this point. Why did Atkins want a continuance? Page 29 says, “There are 13 counts. The defense is not ready because we have not been able to complete the investigation as to certain offenses which we're trying to develop as to these many dates”. However the facts show that the -- and this was the only purpose counsel before you offers to lodge the murder trial transcripts because in that, there are 11 of the 13 counts in our case before us were gone into thoroughly, the same witnesses, the same testimony was offered. It comprises approximately 287 pages of the 3819 page murder transcript of cross-examination and examination of these witnesses. These trials were had in May and February of the prior year or of the same year; May 1959 and February 1959, and remember -- recalling our trials in September 1959 on these cases. And the deputy public defender Breckenridge had handled this case and as Mr. Mitchelson says, he did a very competent adequate job. After all his men were charged with killing a police officer, second degree in acquittal is, I think, an excellent tribute to their endeavors. Now, Mr. Breckenridge is in the same office as Atkins and also ancillary to this, I'd like to point out that on August 3rd and 4th, a preliminary hearing was handled in this matter and deputy public defender's sought there, represented both to these men. Nothing was raised of the conflict at that time, almost 60 days prior to the date of trial. Nothing was raised about any conflict on August 18th when the deputy public defender was formerly appointed for purposes of this case. Nothing was raised on August 21st when they were back in Court for arraignment. No advance whatsoever in dates for raising any lack of preparation or conflict or anything. This is done -- all done September 30th, the opening morning of trial. Now getting back to the continuance, the --
Potter Stewart: They haven't done any earlier continuances.
Jack E. Goertzen: No there had not. There had not, but I still say to that. This was the opening day of trial, the witnesses were all there, and they had many occasions. These judges in Los Angeles, they're not hesitant about any continuances of criminal cases. If they get any kind of reasonable notice, they'll grant 10, 12, 14 of them, but on opening day of trial, it's a little bit different situation.
Earl Warren: I suppose these men also had been in jail ever since they had been charged with the murder.
Jack E. Goertzen: They had been incarcerated, that's true.
Earl Warren: How long had that been before this trial?
Jack E. Goertzen: I would assume they had been incarcerated from the time of their arrest in November of or latter part of 1958 when they're arrested for the police killing, which -- the sequence of events where the robberies all antedated the killing of the officer and these -- these robberies were offered for -- in a very important aspect of this case. Now recall -- in one of Atkins grounds that he want to continue, is he hadn't have time to investigate the alibis. Well, these crimes occurred in the middle of 1958, and they were offered to show motive as to why Douglas and Meyes would lie and wait in his back bedroom for this officer having heard him at the front door and knew he -- knowing he was coming back, lying in wait, and when the officer walked in shoot him. Now since that was such an important part of the -- of the prosecution's theory, we would submit that there -- the very ample reason why public defender Breckenridge and Mr. Mitchelson do all they could to produce whatever alibis for those dates they could to negate that element and in fact, Mr. Mitchelson did offer on behalf of Douglas a -- an alibi for the July 25th charge. I believe he can correct me if I'm wrong and his sister testified that he was home painting her bedroom or something on that day. And otherwise, as to all other dates, both categorically denied the Commission, but there is reason they would want to develop these alibis. And so, to that extent, Mr. Breckenridge, and I'm sure that he would share anything he had with Mr. Solar who would share it with Mr. Atkins. In our office, in the Attorney General's office, it's true. The Attorney General as, Your Honor knows, is the Attorney General but he's got deputies running all over the State. Now, we get a criminal case like on appeal, the Douglas-Meyes case comes to me but I don't just pick it up on the day before on the file of brief and that out of brief. I have the case in advance with all my other cases, and I have to organize my time to put -- put in time on the matters that I've been working in including Douglas and Meyes and then if I'm really pressed, I can go into court and in this case would be the appellate court, I can file an affidavit for an extension of time, but I doing it -- do it in advance. I don't let the Court calendar the case for oral argument, so it's not unreasonable. These logs are very harmonious with the fast and due administration of justice which would be thwarted if on the day of -- opening day of trial a man could come in and say I want a new counsel, I want this, I want that.
Earl Warren: How many counts of robbery were there in this information?
Jack E. Goertzen: There were 10 counts of robbery, two counts of assault and one count of assault with intent to commit murder.
Earl Warren: Does the record show how many -- how many witnesses were essentially tried that?
Jack E. Goertzen: I believe there were probably -- if I'm not mistaken, this record does. It has all of the witnesses that were called in the murder cases. I believe there are approximately 10 in number give or take one or two.
Arthur J. Goldberg: General [Inaudible]
Jack E. Goertzen: That -- the very same question was asked at the last argument, Justice Goldberg and what I think the judge was referring to, Judge Ron is that day. In other words, they came out and asked for the continuance. I believe he asked for continuance because Douglas' mother was ill. He also asked for a continuance so he could get a hold of an attorney named Leo Brandon, the record shows Leo Brandon and so -- I think he was referring strictly to that the same day, right. Now, just a few closing remarks on this preparation point, I'll get right to the conflict. I think the record also shows that -- well, let's -- let's put it this way. A trial judge is faced with the same type of problem as the jury is faced when they're appraising the truth or credibility of a witness on the stand, when an attorney stands before him and asks for a continuance. And remember that this was the day of the trial. The judge looks at the attorney. He has to use his judgely intuition if such a word exists and decide, is this man really in trouble, I mean, can he be prepared to go now or is he really in bad shape and his clients will suffer. Judge Ron made a decision. He listened to the very meager showing on the part of -- on the matters of continuance for preparation and alibis of judge -- of public defender Atkins. And he made a decision. Now the showing was -- he needed more time for the alibis and of course these crimes were long antedated. There have been two murder trials in which there had been ample need for these men to produce alibis if they had them. So he denied that part of it.
Potter Stewart: Alibis of murder trials would have been quite different. There maybe an entirely different witnesses perhaps, because the murder --
Jack E. Goertzen: No, no alibis for the robberies that were introduced in the murder trial which are the same robberies, Mr. Justice Stewart. In other words, they had every reason to produce alibis for these particular robberies because these robberies were introduced to show that the --
Potter Stewart: The lying in wait.
Jack E. Goertzen: Lying in wait theory.
Potter Stewart: Yes.
Jack E. Goertzen: And therefore, they should have had a -- if they had alibis, they would have a record of those alibis right in September 30th, 1959 when he walked in.
Potter Stewart: And as to what witnesses testified.
Jack E. Goertzen: Right. Now, what was the other grounds he said he wasn't prepared on. He said -- he said, “Well, I haven't cross index or he said I haven't prepared the prior transcripts as much as I'd like. Well, the judge recognized at page 44, the trial judge recognized that those robberies formed a very small part of the total transcript and this murder transcript was a big transcript and there were only 287 to 300 pages of that transcript that went to the robbery counts. So -- and also, the preliminary, he had the preliminary and everything and he just felt that on this point alone, there was no reason for that. He's vindicated later in this judgment by the record when -- well, he's vindicated throughout the record later and I submit -- well I quote these points out of context. I still -- I still say that they reflect a feeling on Atkins' part that he could go. At page 32, he makes the statement on my own part. I feel that I'm -- I am prepared. I'd like -- I believe he goes on. I'd like to work over the transcripts a little bit more and the other thing. On page 75, he makes the statement. I prepared this case so that I can defend it now. He again, goes back I believe and refers to the record. He'd like to go over these prior records again. Later on when Prosecutor Carr suggests that these two men -- that Atkins stay on and advised these men during their -- during their presentation, they're on defense. Public defenders, like any other lawyer, do not like this procedure and absolutely tried to avoid it and Mr. Atkins did here. He said, “I prepare this case so I can defend it now,” and he later on -- as to page 75 and page 80 -- no, at page 81 going to what I just said, if these defendants want an attorney to represent them, I'm here qualified and ready to try their case for them. He -- and then he told the judge, he'd like not to do it in an advisory capacity. Page 81 again, he says, “They have an opportunity to get an attorney who in my humble estimation is equal to the task”. This does not sound like an unprepared man to me and I think the judge was fully vindicated in his earlier denial of the continuance for preparation and alibis. Now, let's turn to the conflict. In view of the Mr. Fortas' kind compliment paid to the Chief yesterday for California's system on indigence, I think it would be of interest to this Court as an introduction to this point to point out some figures that we just got last night over the phone from the Superior Court -- Los Angeles Superior Court Commissioner's Office and we could later corroborate these figures by certified letter from that office. In 19 -- fiscal year 1960, 1961, Los Angeles County paid to a private appointed counsel where there was a conflict of interest, disqualification of the public defender's office, $102,352.41. The public defender's Los Angeles operation, Los Angeles County operation for that year, cost of attorneys and running the office was $748,973.68 or a total of $851,326.09. For fiscal year, 1961-1962, the Los Angeles county paid the private counsel appointed because of the same reason, disqualification of the public defender, $214,240.16 or more than double the year earlier and the public defender's operation costs $917,501.12, a total cost to Los Angeles County for indigents of $1,131,741.28. These figures are not offered to put a price on due process in this particular case. They're offered strictly for information and on the -- to show that a lawyer like -- a judge like Judge Ron, when he has a man standing in front of him, asking for private counsel because he's got a conflict with his brother in crime so to speak, he's got a -- he's got a heavy cost factor and I think that this cost factor is reasonable. In other words, this is the expense of almost a quarter of a million dollars for private attorneys where there's a conflict, it's reasonable for Judge Ron to look down and say, “Let's have a showing. What is your conflict?” I don't think that due process compels the conclusion that the lawyer, the public defender can merely say, “I've got a -- these men have got a conflict”. I think that a pro forma showing can be made. Now --
Potter Stewart: Wouldn't it be cheaper to give them separate trial than to appoint private counsel that kind of thing? That has nothing to do with the merits of this case but that is just --
Jack E. Goertzen: It's hard to say, I don't know. They're going to be calling the same witnesses at second trial trying to martial the evidence. The public defender's office, if they represent them in both cases. That would present a real problem. I think it could present a cost problem also. Now, I offer these -- as I say, these figures to show that Judge Ron was with -- I think entitled to a showing. Now, whether or not there was efficient showing existed in this case, that's why we're here, but that is the only reason I offer those figures and for whatever additional information the Court might glean from. Now, let's -- let's look at the conflict of interest. Now, Mr. Mitchelson spent a considerable time on the murder cases. I offered the -- I offer -- they're sitting on the --
Arthur J. Goldberg: [Inaudible]
Jack E. Goertzen: Right, right.
Arthur J. Goldberg: [Inaudible]
Jack E. Goertzen: Exactly.
Arthur J. Goldberg: [Inaudible]
Jack E. Goertzen: Right. Well, Mr. Mitchelson spent considerable time on these murder cases and I lodge them or I offer to lodge them with this Court merely to show that the witnesses, the same witnesses except one, Jenny Bucker, all the other witnesses testified in this murder case or at least murder trial number two and one, and their testimony is substantially the same except they were subjected in the murder case to a rigorous cross-examination.
Potter Stewart: These are the alibi witnesses for the robberies.
Jack E. Goertzen: No, no, these are the robbery victims.
Potter Stewart: The robbery victims.
Jack E. Goertzen: Right.
Potter Stewart: The prosecution witnesses.
Jack E. Goertzen: Right, and they were vigorously cross-examined but their testimony has offered to show that it's substantially the same as it appears in this record although, of course, in this record because of the dismissal of counsel, there's no cross. Now, what was the showing that Mr. Atkins made? First of all, remember, he -- is this conflict a burning issue in Mr. Atkins chest when he comes in? First thing he says; he files the 170.6 and no quarrel with that. Then he comes up with this continuance, he needed to develop more alibis. I think that this is somewhat of a reflection upon his own adjudication, if he really -- if he really felt this conflict was that serious, I sincerely offer that he'd be urging that right off the bat after he challenged the judge, it may have been refused but he offers this as motion number two and it's mixed in with the motion for continuance because of the sickness of Douglas' mother, things like this. What is the precise showing? He says, “Your Honor, this man went through a murder trial and one was convicted and one was acquitted. And I submit, and I attempted to go into this at length in my brief, this murder trial is not one of the counts. It is true that to a degree of -- a part of this is going to come in -- we have the benefit of the record to show what part that came in. Mr. Carr offered only Sergeant Bitterolf who testified to the arrest of these men and to the fact that his brother officer was shot and he learned he later passed away and that he arrested these two men. They did not call the ambulance drivers that were called in the murder trial as to possible admissions or the personnel in the police force that attempted to elicit admissions and confessions for this murder at the hospital. They did not go into approximately 3,600 pages of the murder case that -- or 3,700 pages of the murder case that went before. As far as the California cases and Mr. Marks came to the sharp conclusion that that mere suggestion of a conflict should be sufficient by a counsel before the Court, the California cases do not go that far. There are two cases that are almost in all force with Glasser where they do. That -- those are cases where the man had counsel at the trial through a mix up or the other counsel getting out of the case or dismissing and perhaps he did. They -- the judge says, “Well, listen. We got to get this case going. You, who have been representing in the -- these cases Lanigan or in Robinson are going to represent your codefendant as the judge did with Moyer Stewart in Glasser and Kretske situation.
Byron R. White: [Inaudible]
Jack E. Goertzen: In -- I'll even be more specific than your question, Justice White. In this case, what would have happened had Judge Ron felt there was an ample showing of conflict, he would have -- he would have said, well, there is a conflict here –-
Byron R. White: [Inaudible]
Jack E. Goertzen: You represent Meyes and then we will -- I will appoint an outside counsel at that time --
Byron R. White: The public defender has to ask the judge, does he, to get an outside counsel appointed?
Jack E. Goertzen: Yes. It's -- it's -- it's usually always done on request. I mean in other words, that the judge is under no duty to ascertain that a conflict might arise.
Byron R. White: But the public defender -- the public defender can't just say, “I am withdrawing from representation and --
Jack E. Goertzen: No, even -- even a private counsel --
Byron R. White: Yes, I know, but the judge automatically -- this does not automatically take his word for it?
Jack E. Goertzen: Well, no. He asked for the showing -- I mean he asked for a showing, that's all what he did here. And in here, he made an appraisal that the showing wasn't sufficient.
Arthur J. Goldberg: Mr. General, may I ask this question? [Inaudible]
Jack E. Goertzen: Well, I don't want to vouch for something I don't have personal knowledge of. I would assume that it might be in an orderly situation such as that and that in this case, since it was presented on the first day Judge Ron was attempting to go a little further because he knew that if he didn't call that there was a substantial conflict and the -- he probably would have had to grant a continuance to get an outside counsel and then give him time to prepare. So therefore, I think, that's a -- that's a fair assumption.
Arthur J. Goldberg: [Inaudible]
Jack E. Goertzen: Right.
Arthur J. Goldberg: [Inaudible]
Jack E. Goertzen: Right.
Arthur J. Goldberg: [Inaudible]
Jack E. Goertzen: That's a very correct assumption. I do go further, however, and say -- in looking at this record, in saying or analyzing this record that, in fact, the record bears out his exercise of this discretion.
Earl Warren: Now, Mr. Goertzen, that takes us back to Mr. Justice White's original question. Will you state specifically what the public defender represented to the trial court on the question of conflict of interest?
Jack E. Goertzen: I'll quote the words, Mr. Chief Justice.
Earl Warren: Where will -- will we find it in the record?
Jack E. Goertzen: Oh yes. Let's see.
Hugo L. Black: Page 32?
Jack E. Goertzen: I believe it's at page 32, right.
John M. Harlan II: Page what please?
Jack E. Goertzen: 31.
John M. Harlan II: Very well.
Jack E. Goertzen: Yes. He says, the judge at the bottom of 30 denies the motion for continuance on the preparation point and Mr. Atkins raises the -- I would renew my motion for continuance for the following reason and then this time, he says, Mr. Douglas feels he would like to have an attorney of his own to represent him. He feels that there maybe during this trial, conflict which will arise in which case he would want an attorney of his own to be arguing and representing him alone apart from Meyes. This seems to show that not being successful in the earlier motion for continuance Douglas himself practically suggested this, the way the record reads and then later on, Atkins does heat up, there are some more pages of showing by --
John M. Harlan II: It's also true in the middle. He says, for that -- he talks about Douglas thinking there might be a conflict but then he puts his weight behind it, perhaps not very heavily but he says for that reason amongst others, I think that perhaps --
Jack E. Goertzen: Right, I'm sorry. I should have continued.
John M. Harlan II: -- for the well founded reason.
Hugo L. Black: I guess his strongest statement is on page 32, isn't it, right at the end of that?
Jack E. Goertzen: Yes, then the judge asked for more comment on the -- on that and --
Hugo L. Black: With all those reasons, he thought it would be manifestly unfair --
Jack E. Goertzen: Yes, he is referring both to the possible conflict and the time to go over the transcripts and prepare alibis. He kind of mixes the motions together there and there's the -- there's another showing here. Then the judge asked again for a more showing on the conflict. This is what has happened since then. Well, something has happened since then Your Honor. Douglas was acquitted and Bennie Meyes was convicted. Now, I can defend both of them but I'm in a disadvantage of -- ought to talk out of one side of an office one and the other. And I do not think it is fair for Mr. Douglas. He should have an attorney to take advantage of the acquittal and etcetera. In other words, the showing is all as to Douglas and Douglas being the one injured. This is in response to an earlier statement by Mr. Justice White or a question regarding the --
John M. Harlan II: What page is that?
Jack E. Goertzen: -- who fired first and who's entitled for the benefit. That's at page 36, Mr. Justice Harlan. Now, I queried in my brief, my respondents -- my reply brief to the -- or supplemental reply brief. The man raises a murder case that at the most has a very small part in the instant case. It goes only to the arrest, the where and when and how the man was -- these two men were arrested. The actual crimes charged the robberies, the assaults, these witnesses, we submit, testified side by side, Douglas and Meyes coming in. In some case, Douglas was kind of the leader and in some case, Meyes was kind of the leader, but one or the other, the witnesses place them side by side in all of these establishments in the perpetuation of all of these counts. The only -- Mr. Carr, the prosecutor, did in fact point out to the judge in his own showing and I -- and it's somewhere between 32 and 36, he does make a statement and read the continuance, well, I don't understand what the conflict will be, and he's referring to the defenses, they both categorically denied the commission of these earlier crimes, that was his own comment. He was restricting himself to any possible defense conflict. That is one man attempting to blame the other for him. And I would like in a few brief seconds remaining to me because Mr. James wants to get at the appellant, I'd like to point out something that was not touched on in oral argument before and I think it reflects a showing somewhat of Atkins' preparation in the fact that Atkins himself had prepared a defense within the narrow limitations of what these men really had available as a defense and that is attempting to hit at the prosecution's case, and I refer to this. In the preliminary -- in the preliminary hearing, neither defendant, of course, takes the stand. That's just a hearing on the evidence very generally and all these witnesses were called and the municipal court judge, the committing magistrate binds them over if there's adequate evidence if not. However, it submitted that in this record of this preliminary of some 287 or 267 pages, Mr. Solar occupies -- he is the deputy public defender that handled it for both of them, 141 pages cross-examining these witnesses. And in that time, he took him over the -- virtually the identical calls of Mr. Mitchelson and Mr. Breckenridge in the earlier murder cases had -- as to perceptive ability to identify these witnesses, attempting to show that because of their fear, because of eyesight or lighting conditions, they couldn't really identify these men or they might have made some mistakes in identification of these men as perpetrators. Now, at the murder case, at least the second murder case, Mr. Mitchelson -- Mr. Mitchelson's cross-examination and Mr. Breckenridge's, the deputy public defender's cross-examination went further. Of course, they're in trial and that's another reason this record was offered to be lodged. That cross-examination shows and recalling that no alibi witnesses say one where it offered the murder case as to these robberies, but that cross-examination shows, attempts to commit a possible police pressure on these witnesses to identify these men sort of a police revenge theory type of thought. Again, he goes over to the perceptibility of the victims under the theory and lighting conditions to identify them and there's in fact an impeachment of the character of these witnesses being in bookmaking establishments possibly and being gamblers and that. Of course, Judge Ron said that even gamblers and bookmakers are entitled not to be robbed and I think he's right. But that was the attack used as to this robbery evidence and the prior murder case and then the preliminary. Now, let's go to the instant record and look at Atkins' tact that he used. Remember, he did get to actually start dowering the jury. He wasn't dismissed until page 80 and I think his voir dire is approximately 58 to page 70. He says to the jury, can you visualize yourself and I will address you all, can you visualize a situation, this is at page 64, involving a policeman at the police force, those involved in that homicide, he brings up the homicide, those police officers involved in that homicide can get themselves so worked up that they would choose to take the vengeance they think should be done to the perpetrators of the homicide under their own hands toward building other cases against those that they feel responsible for the homicide. There's a police revenge theory which the judge -- Judge Ron later says -- sustained an objection of the question on the grounds that this was brought down and he couldn't be advancing his theories of defense at this stage, but he was attempting to educate the jury. He says later on at page -- pages 69 says, “Do you believe that eyewitnesses to events can be wrong?” And later, he reversed the question, “Do you believe that it is possible that an eyewitness to an event can make a mistake as to the defendant?” In other words, whether it is possible that a person seeing something can then relate it and believe he is telling the truth and be mistaken, that's at page 69. The weaknesses in the prosecution's eyewitness identification case, that's the second theory of defense for these men and he is obviously going to pursue. I submit the record also shows that Mr. Atkins had definitely decided to put Mr. Meyes on the stand as well as Douglas because he does asked -- he asked the jury at page 65, if it came to your knowledge that one of these defendants had been convicted of a very serious felony in the past. First, I will ask that part. First, would you be able to keep that felony conviction separate and apart from the other defendant in this case? Again, I'm going to go down the line out of it. By that question, I mean, I am just asking you if you think you would be capable of not letting that conviction taint the other person in any way, in other words, the birds of a feather attitude. And then he goes on at page 65 to also ask the question, would you let Meyes' felony convictions so prejudice you that you wouldn't be able to appraise the prosecution evidence against him, himself.
Hugo L. Black: You say you're reading that from page 69?
Jack E. Goertzen: That was in page -- at page 65, I believe, voir dire questions of the jury by Mr. Atkins. Now, I submit those thoughts merely to show that there was an awfully narrow limitation within which any counsel, two counsels and four counsels, or one counsel could work with this case, and Mr. Atkins was in fact attempting to pursue that. The fact that he was attempting to pursue that showed that he certainly knew those prior records. He certainly knew the limitations under which he was offered to these men and for any of the reasons I've stated here and for the analysis provided in the brief -- briefs which I have not touched on here orally, I think there was no real conflict and that Judge Ron made a proper exercise on the day of trial and denied a continuance and appointment of separate counsel.
Earl Warren: Mr. Goertzen, may I ask you this question?
Jack E. Goertzen: Yes sir.
Earl Warren: Was there anything that developed in the murder trials themselves to indicate a conflict between these two defendants so far as their defense was concerned?
Jack E. Goertzen: I don't want to -- in other words, I definitely want the record straight on that. There is -- there was a conflict of the murder trial. Meyes is the one who did the shooting and Douglas was found crouched in the corner and got shot in the tail so to speak, and he had nothing to do -- what they were attempting to show is that they were both present at this murder. They both have the motive for resisting arrest and they were called principals really.
Earl Warren: Yes.
Jack E. Goertzen: But Douglas and Mr. Mitchelson did a marvelous job in that case. Douglas was -- did none of the gun work in the case.
Earl Warren: Yes.
Jack E. Goertzen: Meyes went out the window after shooting the officer and they found him a block away and we would submit that in that particular case on that -- those facts not related to the robberies, there was a conflict.
Earl Warren: I know but was there an actual conflict in the evidence so far as the defense was concerned and the defense -- for instance, did Douglas give the testimony that was recounted in that opinion of the Court of Appeals? Did he in that -- say that Meyes was the fellow who did the shooting and so forth in the trial court or --
Jack E. Goertzen: But there -- there in fact, I don't know -- I didn't mean to gloss over our record certainly. That is in this record that Sergeant Bitterolf, when he puts -- when he clamps -- I guess when he cuffed or attempted to arrest Douglas, Douglas said, “I was in a lot of robberies with Meyes and Meyes has got my gun. That's the one he used to shoot the officer with --
Byron R. White: [Inaudible]
Jack E. Goertzen: I beg your pardon.
Byron R. White: [Inaudible]
Jack E. Goertzen: They both testified at the murder trial.
Byron R. White: [Inaudible]
Jack E. Goertzen: Right. And they both categorically denied the instant robberies but --
Earl Warren: But how about the -- what I'm trying to get at is this, Mr. Goertzen, how about the incident, the time they were arrested and the time of the shooting took place. Did either of them in the trial tried to blame it on the other?
Jack E. Goertzen: Oh no. I may be subject to correction. Mr. Mitchelson would have that opportunity. I read the record and if I recall correctly, Mr. Meyes, they offered -- oh wait, what happened is Meyes attempted to defend on self-defense that the officer came in, if I'm correct, and it was a self-defense.
Earl Warren: Yes.
Jack E. Goertzen: And Douglas just denied having anything to do with it. He corroborated Meyes' self-defense. I mean --
Earl Warren: Well, that's what I mean.
Jack E. Goertzen: If I'm not mistaken, he attempted to make out the officer the aggressor type of thing and he tended to corroborate all of the -- many of the factual statements Meyes made about whether he knew that this was a police officer coming down the hall, things like that, but as far as putting the blame on each other, I don't think Douglas stood up and said, “I have nothing to do with it. That man killed him,” so to speak.
Earl Warren: Yes.
Jack E. Goertzen: They attempted to bridge their defense --
Earl Warren: Reconcile or reconcile the testimony.
Jack E. Goertzen: I think so. Well I'm subject to correction --
Byron R. White: [Inaudible]
Jack E. Goertzen: No absolutely not.
Earl Warren: Very well. Mr. James.
William E. James: Mr. Chief Justice, may it please the Court. In the time remaining to respond, I will attempt to cover the counsel on appeal point. The question which has been presented in essence is, “Was appointment of counsel in this case on appeal necessary in order to have a fair and meaningful review?” Implicit, we feel in this claim on behalf of the petitioners is, “Does the California appellate procedure discriminate against defendants who are poor.” We submit that it does not and perhaps in order to apprise the Court of just what happens in this case and what happens in all cases in California might be well to very briefly summarize what happens in a capital case in California following a judgment of conviction. Appeal is not automatic in California except in capital cases. Appeal is commenced by the filing of a written notice of appeal within 10 days with the clerk of the Court from which the appeal is to be taken, 10 days from the judgment order from which the appeal is to be taken. Now, this is commenced without the filing of any necessary fee. All that has to be done is a written notice of appeal. In this case, there were two handwritten documents which were denominated notice of appeal.
Potter Stewart: When you say its appeal is not automatic, you don't mean that there -- there is not an absolute right to appeal.
William E. James: There's a right to appeal.
Potter Stewart: There is --
William E. James: It's not automatic unless there is this handwritten notice of appeal or a written notice of appeal. Now, upon the filing of a notice of appeal, a record -- a normal record on appeal is commenced to be prepared. There's nothing further to be done in order to prepare a normal record, and this comprises the clerk's transcript containing the pleadings, the minutes of the Court, the judgment and order and the notice of appeal.
Potter Stewart: And is this paid for by the State?
William E. James: This is paid for by the State.
Potter Stewart: Regardless of whether the appellant is indigent?
William E. James: Regardless of whether he is indigent or rich --
Potter Stewart: Yes.
William E. James: It probably benefits more the defendant of limited means who isn't an indigent who would be hard pressed if he wanted to challenge his conviction to pay for a request.
Potter Stewart: But in every case, there's an absolute right to appeal upon -- filing of a notice of appeal --
William E. James: Of a notice of appeal.
Potter Stewart: -- in an automatic preparation of the record statement --
William E. James: -- of the Court's transcripts and a reporter's transcript which contains the oral proceedings at the trial as well as any oral proceedings on a motion for a new trial and this of course was done in this case. There is provision for the preparation of an augmented record which is also prepared at no cost to the defendant. In this case, the particular defendants requested an augmented record and got it. In addition to the normal record, a reporter's transcript which contained the voir dire of the jury, a reporter's transcript which contained the arguments of the District Attorney, and in the clerk's transcript, there was contained the instructions given to the jury and these are prepared without cost to the defendants. Now, upon the completion and preparation of this transcript, it is filed with the District Court of Appeal which has jurisdiction in all cases, but capital cases which go automatically to the State Supreme Court and this is filed without any cost. And there is placed before the reviewing court a transcript of the trial proceedings and this happened to this case and all indigents are entitled to that. Now, there is no cost to the defendants and obviously there's no fee for the filing or docketing of any such record. California recognizes that inappropriate cases, counsel may be appointed on appeal. Now, counsel is not necessary in order to have a review. A defendant whether he's indigent or wealthy can appear himself in proper person and argue or waive arguments, and he gets a review, and in this case, of course, there was a review by the appellate court and adjudication as to the merits of the appeal. And we submit that California's procedure in regard to appeals is not discriminating against indigent defendants and did not discriminate against these defendants.
Earl Warren: Mr. James, what happens -- what happens when a man does not have counsel on appeal and he's in the penitentiary? What are the proceedings in the Court of Appeals?
William E. James: Well, if in the Court of Appeals, if he requests counsel and in some instances, the --
Earl Warren: No, we take -- I'm taking the position where -- where he doesn't have counsel.
William E. James: Well, he doesn't have --
Earl Warren: Let us say he does request it and the Court says it isn't necessary in this case?
William E. James: Well, there may be a number of instances as we handle quite a volume of appeals in pro per. Frequently defendants do not request the appointment of the counsel and in prison prepare their own documents, their own briefs and I'm sure this Court is familiar with the prison prepared petitions and briefs.
Earl Warren: Yes.
William E. James: Now, if he does want counsel and if he does request the counsel, the rule in California which we submit is a fair ruling in accord with due process and gives to a defendant a fair and meaningful review of these proceedings is contained in People versus Hyde to which reference has been made in the briefs on file. There, the Supreme Court laid down the rule which has been followed in the District Courts of Appeals since 1955 as I recall it, that when an indigent defendant requests the appointment of counsel on appeal to represent him, the Court has two alternatives; it may, one, appoint counsel. It may also -- if it doesn't appoint counsel, it must then make an independent examination of the record itself, and then make a determination, one, would appointment of counsel be of advantage to the defendants or helpful to the courts. And if it arrived at the conclusion that it would be helpful to the Court or of the -- advantage or helpful to the defendant, appointment of counsel is made. Now, if it determines that the -- there is no apparent basis under this rule for appointment of counsel, counsel is not appointed, the defendant is advised that he may file his own briefs or -- and in this -- as in this case, there were briefs filed. Mr. Meyes filed a brief. The first opening brief was signed by him, post marked from post imprisonment where he was located. It purported to be on behalf of both Douglas and Meyes. A reply brief was filed. It was a well prepared brief. Somewhere along the line, appellant Douglas tried to disown Mr. Meyes' brief and claimed that he wanted to file his own brief. No brief of his was filed and on the petition for hearing in the State Supreme Court signed by the defendant petitioner Meyes and purported beyond behalf of Meyes as well as upon behalf of his codefendant, the petitioner Douglas. Now, there has been some contention raised that Douglas did not get a copy of the transcript. The original --
Earl Warren: Now, before we get -- before we get to that, I'd like to clear up this procedural matter. Meyes and Douglas were denied counsel in this case.
William E. James: That's correct.
Earl Warren: And were permitted to write their own briefs. Meyes did write his own brief. It went to the Court of Appeals. Now what procedure do you have in the Court of Appeals then?
William E. James: The opening brief was filed and as it was indicated on behalf of both Douglas and Meyes --
Earl Warren: Yes.
William E. James: -- a respondent's brief prepared by Mr. Goertzen, my associate here, was filed on behalf of the Attorney General and a reply brief was filed by Bennie Meyes.
Earl Warren: Yes.
William E. James: The Court then scheduled it for oral argument. The argument was waived although at oral argument by --
Earl Warren: Waived by who? Waived by who --
William E. James: Waived by the respondent, the Attorney General.
Earl Warren: The Attorney General, so how about Meyes?
William E. James: However, at that time as I recall, cite to the District Court of Appeal the very recent case of People versus --
Earl Warren: No, let me stick with the procedure a moment. Now, when the briefs were filed and it was set for hearing, the Attorney General waived argument.
William E. James: That's correct.
Earl Warren: Now, what about Meyes, was he permitted to be there?
William E. James: No.
Earl Warren: Or did he waive argument or they just proceeded --
William E. James: Just proceeded on --
Earl Warren: -- in his absence.
William E. James: -- on the briefs on file.
Earl Warren: Yes, but now, would that same procedure -- could that same procedure be followed if a man had a paid lawyer? Could they proceed without their lawyer, without the man's lawyer?
William E. James: Oral argument isn't a requirement in order to have a review of any conviction in California on appeal. It is provided for.
Earl Warren: But it's provided for, but now, let's suppose that the man had a paid attorney and the Court said, “Well, we're going to the -- the Attorney General has waived the argument so you cannot have a hearing for this so far as the defendant is concerned. We won't listen to any argument from you.” Is that -- is that in accordance with the California system?
William E. James: If the man had a paid attorney?
Earl Warren: Yes.
William E. James: The Court would undoubtedly in that case hear only the attorney and not --
Earl Warren: Yes.
William E. James: But they would hear the attorney if he could --
Earl Warren: But what I'm trying to find out is what distinction there is in the consideration the Court gives to a case where the defendant on appeal has no lawyer and in the case where he does have a lawyer. In one case, as I understand you now, the Court must hear the lawyer if he wants to be heard. In the other case, it makes no difference whether the man wants to be heard or not he isn't heard.
William E. James: Ordinarily not unless, of course, if you were incarcerated and in proper person unless there was an order of the Court bringing him down to orally argued or if you were at large on bail, he could argue in person.
Earl Warren: Yes, but if he is in jail, they just don't do that, do they?
William E. James: They'd ordinarily do not, no, Your Honor.
Earl Warren: That was my experience.
William E. James: However, as I point out, oral argument isn't the requirement in order to have a review and it is not regarded as highly as oral argument is in this Court. And frequently, on the calendars in the District Courts of Appeal, a high percentage of the criminal matters are submitted without oral argument and frequently without appearance on behalf of appellant's attorneys. So it's not a requirement in order to have a review. We submit that the requirements of due process are that there'd be a fair and meaningful hearing or review by an appellate court, and we submit that it was had in this case and that it's had in all cases in California whether the appellant, the indigent, or wealthy or a person of means.
Byron R. White: Your point -- your point is that there was a review on the merits and a full review on the merits and the fact that the defendants did not have a counsel on appeal is relevantly insignificant.
William E. James: It didn't prevent them from having a review by the appellate court of the trial (Voice Overlap) District Court.
Byron R. White: And this (Voice Overlap) says the appellate court went through was not just a process of deciding whether or not the points were frivolous or ordinary appeal. These points that were raised didn't merit the appeal.
William E. James: Well the Court --
Byron R. White: And --
William E. James: -- considered the points that were raised and it reviewed --
Byron R. White: You don't consider -- you don't make any point that these points were frivolous, do you?
William E. James: No, we don't make any point.
Byron R. White: But these were points of narrative review.
William E. James: In fact, the appellate court in this case as to appellant, Meyes -- petitioner Meyes, gave him the advantage of Section 669, as I recall, which prevented sentences running consecutively to a life sentence which modifies the judgment --
Byron R. White: Now the --
William E. James: -- if my recollection is correct.
Byron R. White: Yes. The appellate court really treated these appeals as on behalf of both of them.
William E. James: Yes, sir.
Byron R. White: And did the State Supreme Court do the same thing on the request for certiorari in that Court?
William E. James: On the petition for hearing, they had the briefs filed there before them. There was a very well prepared petition which was filed by defendant Meyes --
Byron R. White: Was that on behalf of both of them?
William E. James: He purported to be on behalf of himself and on behalf of Douglas. I have a copy of that which we would lodge with the Court.
Earl Warren: Mr. James, we're going to recess now but this afternoon, I'm going to ask the counsel for the petitioner although their time is up, if they will point out to us in the trial transcript of the murder, what testimony there was on behalf of the defendants to show a conflict in defenses as between them, do I make myself clear on that? Alright, we'll recess now. Mr. James, you may resume.
William E. James: Thank you, Mr. Chief Justice. I will continue just for a few minutes and if I may, Mr. Goertzen would like to make one remark touching on the question which Your Honor asked prior to the lunch hour.
Earl Warren: Very well.
William E. James: As I was stating California, we contend that the procedure adopted by statute and by court decision to handle appeals is not discriminating against indigents but accords to them a fair and meaningful review of their trial conviction. And even in cases where briefs are not filed by indigents who have previously requested of appointment of counsel, the appellate courts in California have gone ahead and reviewed the record and rendered a written opinion in regard to the matter. Now, there were some remarks made at the argument last time that judges aren't lawyers. Well we don't subscribe to that. We feel that this review had by the justices of the appellate court which is different than a review had by the trial judge as to the question of whether he should allow an appeal from his particular rulings and the like. This is the review made by judges who are experienced on the appellate courts and we feel that they can certainly make a determination whether appointment of counsel should be made and where it would aid the defendant or aid the Court to appoint counsel and were not to go ahead and review the record as they do in California. Certainly, there isn't an unlimited supply of qualified lawyers to appoint in every case and the courts certainly can make discrimination. I'm sure this Court has encountered the problem many times when there are petitions for certiorari by indigent defendants who have or appealing from convictions in federal courts. Certainly, this Court can make appointment to counsel in every case and we certainly feel that the state procedure here does not discriminate against indigents but it accords them the rights to which they're entitled. Pardon me.
Potter Stewart: Is it the practice of the District Court of Appeals to make a reference to the local bar association to evaluate?
William E. James: Yes. One or two of the divisions of the Second Appellate District has panel, I believe, of the L.A. Bar Association to which they make reference and obtain recommendations. However, they still have to make an independent investigation themselves of the transcript to determine whether appointment should be made under the rule of the Supreme Court in People versus Hyde, and they do that, however, they are aided by the panel of lawyers and volunteers to examine records.
Arthur J. Goldberg: Mr. James was that done, do you happen to know, in this case?
William E. James: I don't recall. There is a footnote to the main opinion where the presiding justice did refer to the procedure they used. He pointed out that there had been an independent investigation made by the Court. It's my recollection that there was a reference to the L.A. Bar Association also. But I know that the presiding judge and the Court reviewed the record initially in this case to make the determination whether it aids the defendants or the Court to appoint counsel. Now, at this time, I will reserve a minute for Mr. Goertzen. We have made an offer to lodge with this Court if the Court desires the briefs filed by these petitioners in the California Court as well as the brief filed by respondent and the petition for hearing if the Court desires.
Earl Warren: Thank you.
Jack E. Goertzen: Mr. Chief Justice, I'd merely make this quick statement to correct or not correct but make sure you understand our position on this prior murder case; (a) it's our position as the briefs and argument of events that there was no conflict in the receipt of evidence in this trial and/or possible defenses available by speculating through the voir dire I've done. Now, as to the murder trial, there -- it's my distinct remembrance subject to any correction these gentlemen will make that there is absolutely no conflict in the receipt of the same evidence at the murder trial on the motive element and that their defenses were consistent insofar as both categorically denied participating in these robberies with the -- and one alibi was offered by Douglas as to one date that he was at her sister's painting, but in no attempt to blame the other. As to the actual murder itself, we make no contention that there wasn't an ample or sufficient conflict in the receipt of evidence and that Meyes may have been and ultimately, was found by the jury to be more culpable or culpable for the crime and Douglas wasn't, and they attended advantages -- disadvantages of separate counsel in arguing this particular case but there was in fact no attempt by Meyes or Douglas to cast blame for the crime of the other to put himself up or hoist himself up by his own bootstraps.
Earl Warren: In other words, they both claim that it was whatever was done by either of them was done as self-defense because the officer shot first.
Jack E. Goertzen: I think -- Douglas -- Meyes claimed a self-defense.
Earl Warren: Yes.
Jack E. Goertzen: Because Meyes was stuck with the fact that he had the gun and the bullet came from his gun.
Earl Warren: Yes.
Jack E. Goertzen: And Douglas, insofar as he could corroborate or lend credence to anything Meyes' claimed did so but by and large, as I recall, he was -- he was in the corner and he had been shot himself and for most of the events, he'd been stuck that he didn't know what exactly happened, but no defense conflict so to speak.
Potter Stewart: There was a second trial for Meyes, am I right?
Jack E. Goertzen: No, they both went through two murder trials. The first one was a hung jury --
Potter Stewart: Hung jury as to both.
Jack E. Goertzen: -- was to both of them.
Potter Stewart: I see.
Jack E. Goertzen: And then the second trial was the second degree as to Meyes, acquittal for Douglas and then the robbery case.
Earl Warren: Now, wouldn't you have anything to add to what Mr. Goertzen has said.
William E. James: As far as you're talking about review the record?
Earl Warren: Yes, yes that's all.
William E. James: We've checked the 13 transcripts very hurriedly. Just briefly, I believe that Mr. Douglas testified as far as the facts of the murder were concerned when they heard the man coming down the room. He lay down on the floor and put his hands over his head and didn't see anything although he heard shots and this was corroborated by Mr. Meyes.
Earl Warren: Yes.
William E. James: As far as the robberies were concerned, both defendants made denials. I might mention that it was supposed to be Douglas' gun that Meyes had fired.
Earl Warren: Yes.
William E. James: And the conflict which probably does not show in the record as far as the murder trial was concerned was apparently, as Mr. Mitchelson might explain to you if you want, is the fact that these people were very bitter at one another during the trial especially with reference to this alleged charge by Douglas to Meyes that “you did it, don't hang it on me and."
Earl Warren: Well, was that in the record?
William E. James: This is at page --
Earl Warren: -- at the murder trial?
William E. James: At the murder trial, page 2170, Mr. Mitchelson is cross-examining Mr. Meyes and with regard to the murder -- the meeting at the hospital after the act and he says, “Now, do you recall -- actually startled when you saw Bill Douglas?” And he answers, “Yes, I was surprised.” Now, the reason he was surprised was because the police had informed him that Bill Douglas was dead, and he was going to take the rap. And he says, “Do you recall being somewhat hostile towards Bill of that meeting?” Answer, “Yes.” “What was the reason for that?” Then there was an objection by the prosecution attorney which is sustained by the Court as to his reason for being hostile so that it was never brought out, but as indicated in the appeal of the exact wording of what --
Earl Warren: Yes, which you read to us.
William E. James: Yes, that was read to you?
Earl Warren: How did that get -- how did that get into the appeal if it wasn't in the record?
William E. James: It was in the record. It was somewhere back in the record.
Earl Warren: Well, I suppose that was a statement that some police officer took from --
William E. James: Well, this is the state --
Earl Warren: Yes, is that right?
William E. James: This is the testimony of the police officer relating the conversation held between Meyes and Douglas at the hospital, and he said that Douglas told him that -- or Douglas said to Meyes, “Don't hang it on me, you're not going to -- you fired the trigger and I don't -- I'm not going to be this -- take the rap for you.” Then the police officer of course -- the two defendants as I recall denied that they had made any statement. Certainly, Meyes did in the record, denied that he -- that was said by Douglas.
Earl Warren: Have made any such statements?
William E. James: He did -- Meyes denied that that was said to him by Douglas.
Earl Warren: Did Douglas deny that he had made the statement?
William E. James: I don't remember that Douglas denied -- he made the statement.
Earl Warren: He did?
William E. James: Perhaps, I could perhaps speak myself for moment. Douglas, they never denied those statements were made. In the beginning, the police were trying to play one against the other so they brought them together and these all came out in every bit of this in the record. That's precisely the point I think you're asking. It is in the record. They brought them together and then they started fighting amongst themselves, because one had told Meyes that Douglas had died so when Meyes saw Douglas, he said, well, what are you trying to do to me? So they started accusing each other and every bit of that is in the record. And therefore, in answer to your question, there certainly was a conflict. You see, Douglas' theory of defense was simply that he was shot and he was in a corner and he doesn't know what happened. Now, Meyes finally admitted that he did do the shooting and he used the self-defense theory. You cannot say if they're not in conflict with one another just because they have entirely different theories. Douglas in no way supports Meyes' theory because Douglas says I was shot and I was practically dead and I'm in the corner. I don't know what happened. If you mean that he actually knocked into the trial, he did not do that, but there was that conflict --
Earl Warren: I think the question was answered for me anyway.
John M. Harlan II: Could I ask one more question?
Earl Warren: Yes, excuse me, Justice.
John M. Harlan II: Don't you have to distinguish between the conflict that existed which your adversary admits on the murder trial, and the conflict as you claim that existed on the case with which we're here concerned. What you have been talking about relates to the murder trial, and as I understand it, the conflict that is claimed to have existed in this case, relates to two things: (1) the fact that Douglas was acquitted on the murder trial, and (2), the fact that Meyes in contradistinction to Douglas had a long criminal record. Isn't that the only elements -- aren't those the only elements of conflict?
Jack E. Goertzen: There is one additional Mr. Justice Harlan. And that is the most important. My brothers keep saying in the opposite side that they both -- there's no conflict as to all these robberies. There's a categorical denial. Well, indeed, that is where the most conflict is because I catalog -- my final argument just to answer your question, the last -- the 111 pages, I devoted 38 pages of my argument to showing how these robberies never could have taken place as to Douglas, because there was such a lack of positive identification of Douglas and there was almost in all instances a positive identification of Meyes and I went through great lengths to contrast. Now, what could have an attorney do in this case at bar? He could stay up and stand up after he has cross-examined all these witnesses at the end of the trial, and say, “Ladies and gentlemen of the jury, they've identified Meyes but they were -- they never identified Douglas. Look how they were impeached as to Douglas, look how it impeached them in the past two trials.” That is where the conflict is aside -- in addition to the two points that you mentioned --
Earl Warren: I think the questions had been answered now. That's all.
William E. James: Thank you, Your Honor.
Earl Warren: Very well.
Jack E. Goertzen: Thank you.