Earl Warren: Number 99, Judson Griffin and James Crenshaw versus People of the State of Illinois. Mr. Horsky.
Charles A. Horsky: May it please the Court. This case is here on writ of certiorari to the Supreme Court of Illinois. It involves a substantial question as to the applicability of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the system of criminal appeals presently existing in Illinois. Specifically, it involves the question whether either or both of those clauses are violated by a system of criminal appeals which makes a full review in a criminal case dependent upon the filing in the -- in the Supreme Court of a transcript of the proceeding but which makes no provision by which an indigent defendant may secure a copy of that transcript. The facts on which the case comes here are relatively simple and can be quickly stated. The two petitioners were indicted in Illinois for armed robbery and after a trial they were convicted and sentenced respectively to 5 to 10 years and 10 to 15 years in the Illinois penitentiary. Following the denial of motions for a new trial and in arrest of judgment, the petitioners filed in the nisi prius court, the Criminal Court of Cook County, Illinois, a motion for transcript of proceedings and court record without cost. This motion alleged in substance that the petitioners needed the court records and the transcript of the proceedings in order to perfect an appeal to the Supreme Court of Illinois that they believe that there were appealable errors in the record and that they were without funds. They also alleged that the failure of the State of Illinois to supply a record on which they could perfect an appeal would deny them the equal protection of the laws and due process of law as guaranteed by the Fourteenth Amendment. This motion was denied by the trial court without hearing and without argument in February 1954. In April, the petitioners filed a petition under the Post-Conviction Hearing Act of Illinois. That Act provides a summary means by which prisoners confined in Illinois penitentiaries may seek a review of any claim that they are being held in violation of their constitutional rights. The petition in this case asserted that the failure -- it asserted essentially the same grounds as were asserted in the previous motion that the failure of the State of Illinois to accord them a record upon which they could perfect an appeal when they were unable to do so because of indigence and when they believed that there were appealable errors denied them rights protected by the Fourteenth Amendment. The state attorney in the Criminal Court of Cook County, Illinois moved to dismiss on the ground that that raised no substantial question of either state or federal constitutional law and the District Judge dismissed the petition. The petitioners then filed a timely petition for a writ of error to the Supreme Court of Illinois seeking a review of that order. The Supreme Court of Illinois, although allowing the petitioners to proceed in forma pauperis as they had requested, also dismissed the petition. Its memorandum order, which is quite short, appears in the record at page 13 and I think it's worth reading it so we'll be sure what the court below decided. After reciting some of the facts which I recited here, the opinion states, “Petitioners' soul contention is that they were deprived the due process of law and the equal protection of the laws, in that, they were financially unable to purchase a bill of exceptions and were therefore unable to -- to obtain a complete review by this Court. This charge presents no substantial constitutional question and the writs of error are therefore denied." Thereupon this Court granted a writ of certiorari. Now, basic to the issue which this case presents is an understanding of exactly what the criminal appeals system in Illinois amounts to today. It was recently reviewed by this Court in the Jennings case but I think it well to resummarize it so we'll have it in our mind. The procedure for review of the criminal conviction in Illinois is basically by a writ of error and Illinois has provided that writs of error in all criminal cases are writs of right and shall be issued as of course. The scope of the review on a writ of error, however, may vary widely. It is possible to have in Illinois -- I don't mean it's possible, there are in Illinois, frequently, appeals for writs of error on what is known as the clerk's mandatory record or what might be called the common law record. The clerk maintains this record in every case, the indictment, the plea, the arraignment of plea and the sentence. When review on writ of error to the Supreme Court of Illinois is on a record of that sort, the Supreme Court does and it must limit its review to the questions which are open on the face of those documents.
Felix Frankfurter: Documents of general entry is practically (Voice Overlap) --
Charles A. Horsky: Practically general. Well, they are general entries with one exception, Illinois has provided that the arraignment shall be transcribed and included in the common law record in each case in order to avoid the frequent difficulties about assignment of counsel.
Felix Frankfurter: What's the common law of record did they --
Charles A. Horsky: Well, the common law record in Illinois or --
Felix Frankfurter: Yes --
Charles A. Horsky: -- a common law?
Felix Frankfurter: -- the Government of Illinois, Government of Illinois, vary -- vary from state to state.
Charles A. Horsky: Well, as far as I think the common law record is described accurately and perhaps better it's for me to quote the Supreme Court of Illinois than to try to remember it. The record in the trial court -- I'm reading from page 13 of my brief which is a quotation from People against Loftus, a description of the appellate system in Illinois in response to a request by this Court that it be more clearly defined. The record in the trial court may consist only of the mandatory record of his indictment, arraignment, plea, trial and judgment. That is I suspect --
Felix Frankfurter: Yes.
Charles A. Horsky: -- what they would call --
Felix Frankfurter: Now --
Charles A. Horsky: -- a common law record.
Felix Frankfurter: -- what -- what question is -- if -- if the -- this appealed proceeding means a new (Inaudible) only go up on -- on that, on the mandatory record as you call it, what kind of legal question should be raised on that?
Charles A. Horsky: Well, I suppose whether the --
Felix Frankfurter: Whether you're operating?
Charles A. Horsky: -- whether the indictment states a crime, whether the statute of limitations had run on the offense, I can think of a variety of questions that might be apparent on the face of those documents. It does not reach trial error which is the next --
Felix Frankfurter: Is the common law -- it's merely reaching the common law record.
Charles A. Horsky: That's right.
Felix Frankfurter: Under your -- as to the common law record in the first (Inaudible)
Charles A. Horsky: That's right, essentially.
Felix Frankfurter: Now, this -- in this case, would he get copies of that?
Charles A. Horsky: He could have copies of that. We don't -- there's no problem about that currently.
Felix Frankfurter: Well, I was just wondering if you have copies of that.
Charles A. Horsky: That is available.
Felix Frankfurter: Well, is that by a statute or by what?
Charles A. Horsky: By custom, I believe. There isn't it very much to it except just the clerk entries, the docket entries. Although, the statue as I said, Your Honor, specifically provide now and this is a very recent statute of 1953 that the arraignment shall be transcribed and included in the clerk's record in every case without cost to anybody, that's automatic.
Felix Frankfurter: For each record to have a verbatim transcript of the indictment --
Charles A. Horsky: It has --
Felix Frankfurter: -- or it doesn't?
Charles A. Horsky: It has a copy of the indictment, yes.
Felix Frankfurter: All right. I mean in his book, I don't mean a document that is filed. A copy of the document could go up or is that partly what -- suddenly make a difference.
Charles A. Horsky: I don't know, Your Honor, but when the --
Stanley Reed: Is there --
Charles A. Horsky: Excuse me.
Stanley Reed: Are you finished?
Charles A. Horsky: Yes, sir.
Stanley Reed: Is there anything in -- in Illinois law that you know of that provides for a bill of exceptions?
Charles A. Horsky: Well, that's what I'm coming to, Your Honor. That's -- that's -- I was just saying you can go up on the common law record. Now, if you wish to review errors which occurred at the trial, trial errors of the normal sort, the procedure in Illinois is clearly spelled out. You do it by way of a bill of exceptions. The record -- the rules of the Supreme Court of Illinois --
Stanley Reed: That's statutory?
Charles A. Horsky: That's statutory and by rule of court both. But the rules of court are incorporated in the statute. You apply to the official court reporter, who makes a transcript of the proceedings in all cases, for a copy of the transcript and after having procured that copy of the transcript, you present it to the judge for a formal approval as your bill of exceptions to the Supreme Court of Illinois. You pay the official court reporter in Illinois for that transcript at a rate prescribed by statute as not to exceed 20 cents per hundred words. In all cases, say of one, if you are an indigent defendant sentenced to death, the fee to the official court reporter, 20 cents per hundred words, is paid by the county in which the conviction occurred. On that record, the Supreme Court of Illinois can review all trial errors of all sorts. The -- the full record is before the Illinois court. It is that kind of a review that is not available to petitioners in this case.
Stanley Reed: I -- I didn't make myself clear.
Charles A. Horsky: I'm sorry.
Stanley Reed: Is it provided by a statute or a decision of Illinois that the bill of exception may only go up in the way that you've described it?
Charles A. Horsky: Well, let me -- let me address myself to what I think is troubling you. There --
Stanley Reed: I'm thinking of a bystander (Voice Overlap) --
Charles A. Horsky: I -- I think -- thought you were. I was going to come to that. In Illinois, so far as this case is concerned and I think it is true irrespective of this case, there is no contention that the petitioners could have avoided their present play by using some substitute for the bill of exception, such as a bystanders' bill or a narrative statement of the record or a stipulated statement.
Stanley Reed: As I understand the common law under the law in some of the States.
Charles A. Horsky: One more sentence and I think I will answer. If the Supreme Court of Illinois has had that question before it in several cases and although bystanders' bills are recognized in Illinois and have been used in civil case, the Illinois Supreme Court has held two or three times that that is not a practicable remedy for an indigent prisoner to secure review of trial error in that State. The cases are cited at page 18 of the brief and there is a quotation from one of the footnote at page 50 of the brief. Now, let me also put to one side one other possibility which might seem to be relevant but which is not and that is the Illinois Post-Conviction Hearing Act procedure by which it is also possible under certain circumstances to obtain a free transcript. As I said, the Illinois Post-Conviction Hearing Act provides a method by which one confined in a -- an Illinois penitentiary may challenge the legality of this confinement for the -- may challenge the legality of this confinement on the ground that there were constitutional infirmatives in the proceeding by which he was convicted. That under -- the procedure under that statute is the procedure adopted here, a petition is filed in a nisi prius court and upon a proper showing, the nisi prius judge is authorized to require the official court reporter to type up such portions of the transcript or all of the transcript necessary to determine the constitutional claim. The cost of typing up the transcript in that situation for an indigent is born by the States. The Supreme Court of Illinois has also held, however, that the Post-Conviction Hearing Act procedures are not to be regarded as an alternative method by which to review trial errors which do not rise to constitutional magnitude. It is not a device by which the ordinary errors which might require a reversal of a conviction but which do not involve in and of themselves a denial of a constitutional right can be reviewed, such claims as the improper admission or exclusion of evidence, the inadequacy or the inaccuracy of the judges' charge, whether the evidence of courts diverted. Those questions can be reviewed in Illinois only on a bill of exceptions and I think I can fairly say that it is conceded here as indeed I believe it was conceded by the Attorney General in the Jennings case that for the indigent prisoner, such as the petitioner, there is no such thing as a review of trial error for them except he be sentenced today. For them, trial error does not exist.
Felix Frankfurter: Now --
Charles A. Horsky: Yes.
Felix Frankfurter: -- one more thing.
Charles A. Horsky: Yes, sir.
Felix Frankfurter: As I understand it, it's very largely of the dominance, the whole system of criminal appeal in England goes up on judges' notes, well-known that's the way (Inaudible) in the countries and convinced in that system, I believe, in which the Criminal Court of Appeals -- he has appealed and I think well not merely a trial error but he was sentenced --
Charles A. Horsky: That's right.
Felix Frankfurter: -- not anything like that in Illinois?
Charles A. Horsky: No, sir, there is not. I -- I don't wish to say that there isn't anything like that in Illinois. What I do say and what I think I can say categorically is that the Illinois courts themselves recognize that there is no way in which an indigent can secure a review of trial error. That seems to be accepted by the Supreme Court as a fact and they, as I point out in their memorandum opinion, do not regard that as an unconstitutional situation.
Harold Burton: We wouldn't have to have a transcript forbidding the whole thing where they could have a narrative form of some kind?
Charles A. Horsky: Well, narrative form -- I don't know that Illinois would object to a narrative form, but I think that the narrative form is probably under the circumstances of the modern systems of court reporting, Your Honor, A much more difficult system to accomplish than to have just an ordinary transcript. In Illinois, there is an official report --
Felix Frankfurter: (Voice Overlap) --
Charles A. Horsky: I beg your pardon?
Felix Frankfurter: This Court.
Charles A. Horsky: Well, somebody's got to narrate it, Your Honor.
Felix Frankfurter: What I'm suggesting -- I'm suggesting to you that in England, the trial judge takes full notice and the appeal goes up on his notes and that's precluded by Illinois?
Charles A. Horsky: That is not -- I can say only when I said before that Illinois does not --
Felix Frankfurter: (Voice Overlap) --
Charles A. Horsky: -- does not believe itself that that is a remedy. The Illinois Supreme Court itself said --
Felix Frankfurter: You mean they say that it isn't a remedy?
Charles A. Horsky: It isn't available -- it isn't available.
Felix Frankfurter: Well, that's a different thing.
Charles A. Horsky: That's what I meant to say.
Felix Frankfurter: They haven't said if that would be inadequate they wouldn't hear it on that, would they?
Charles A. Horsky: No, they haven't said that. They -- they say as a practical matter it is not available to an indigent prisoner, and I think that is correct, there is no record of any indigent prisoner having succeeded in doing that in Illinois in any way.
Felix Frankfurter: Well, maybe not practical because trial judges in Illinois don't do what the trial judge in England does or because they say we don't hear it on merely in this judge's note.
Charles A. Horsky: Well --
Felix Frankfurter: Which is it?
Charles A. Horsky: -- I don't -- I think --
Felix Frankfurter: Well, just -- well, from your point of view it doesn't make any difference.
Charles A. Horsky: It doesn't make any difference because as a practical matter it isn't available that I have the word of the Supreme Court of Illinois for them. I think that is a fair statement because I find no cases in Illinois but certainly none in recent times and I've gone over a number of criminal cases in which there has been any attempt to go up on anything other than the ordinary transcript bill of exceptions.
Felix Frankfurter: Well, I haven't -- I haven't stated the whole choice of England.
Charles A. Horsky: No, I -- I appreciate that.
Felix Frankfurter: They -- they go up on judge's notes because there is a trial in the Court of Criminal Appeals, the Court of Criminal Appeals may have so the transcript they made of the stenographic minutes --
Charles A. Horsky: And --
Felix Frankfurter: -- involved in the hearing is taken down but the normal thing is to go up under careful notes of the trial judge.
Charles A. Horsky: And let me add that if the indigent has not crossed -- doesn't have the money to pay for that transcript, it is supplied to him by the Court.
Felix Frankfurter: It is, that is certain.
Charles A. Horsky: That's right.
Stanley Reed: Is -- is counsel part of his -- the indigent when he wants to go up this way?
Charles A. Horsky: In --
Stanley Reed: In Illinois.
Charles A. Horsky: -- in Illinois? Well, I think counsel is furnished in Illinois --
Stanley Reed: Some cases and some not?
Charles A. Horsky: Some cases and some not I would suppose. I -- I don't know the practice of --
Stanley Reed: Does it go -- does the counsel that represents the petitioner or the petitioner here in the trial court, it's his duty to follow it through to the Court of -- Supreme Court of Illinois?
Charles A. Horsky: I don't know that, Your Honor. I don't think so. But in --
Stanley Reed: Well, what -- what I have in mind is this, Mr. Horsky. If somebody has to state why there was an error in the case in the trial and the facts would seem to be quite simple in the normal case and every case like that as to what the error was, and he states if he (Inaudible) of what the -- what the error of law is and the facts which lead to it. Now, he's at least has to state that question before the Supreme Court can pass on it. Can he take that before the judge? How is that certified as a transcript relating to that particular matter?
Charles A. Horsky: No, sir, I -- I take it not. I would -- I would defer to Mr. Wines on the intricacies of Illinois procedure --
Stanley Reed: Oh, no (Voice Overlap) --
Charles A. Horsky: -- because I am not --
Stanley Reed: -- with that but what -- what will lead you to think? What has Illinois said that would keep that from happening?
Charles A. Horsky: Illinois has said in these cases which --
Stanley Reed: (Voice Overlap) without bill of exceptions that goes many, many years --
Charles A. Horsky: Well --
Stanley Reed: -- longer than we had them.
Charles A. Horsky: -- I don't mean to say that you can't have a -- a short bill of exception that you must always type up the whole transcript, of course you can have a bill of exceptions which will relate to --
Stanley Reed: So that (Voice Overlap) --
Charles A. Horsky: -- the particular error. Well, you might even have errors of that sort but if you have a question, for example, is the evidence sufficient to support the conviction? You've got to have the whole transcript. And I don't think it is -- it is possible in Illinois to raise that question other than by having the whole transcript typed up. I don't believe you can do it by stipulation or by a substitute. And if Your Honors will look, I don't have the specific facts of these cases in mind but if the cases cited on page -- at the bottom of page 14 and the top of page 15, there are instances in those cases, the Johns case, McKinlay case, the O'Connell case and the others in which indigent defendants attempt to take a common law record and to support it by additional materials, informal materials, affidavits, lawyer certificates, of things of that sort, they were uniformly rejected by the Supreme Court (Inaudible) inadequately and improperly and not sufficient to raise any question beyond the face of the indictment where (Voice Overlap) --
Stanley Reed: Perhaps because they didn't have the certificate of the judge (Voice Overlap) --
Charles A. Horsky: Sometimes it was that.
Stanley Reed: Well, what I'm assuming is it's typical a judge would say these were the facts of the development in trial.
Charles A. Horsky: Well, let me -- let me be clear, Your Honor. I don't doubt that the Illinois can divide a system for making criminal review or review of criminal cases available to an indigent defendant other than by a bill of exception. My point is that it has not done so. There are States, a number of States, at least four in which bill of exceptions are not taken away that the review in criminal cases occurred. You can do it on a narrative statement. You can do it on the judge's note but that is not the situation in Illinois and what I insist on the basis of the Illinois decisions and the decisions of its own courts is that Illinois provides no remedy for an indigent defendant who wants to review trial errors. It admits it and it says it's all right for it to do that. And it seems to me that that is the question which is today before us.
Felix Frankfurter: I have taken -- I have taken some of your time and you stand to prove that but needlessly of course I should. Your position is we can stand on what Mr. Justice Schaefer said in that conduct in the law of Illinois, and we don't have to challenge it beyond his authority to speak.
Charles A. Horsky: And we could also note the memorandum opinion of the court below which said petitioners' sole contention is that they were deprived of due process et cetera and they were -- because they were financially unable to purchase a bill of exceptions and were therefore unable to obtain a complete review by this Court. This charge presents no substantial constitutional question. Now, I think that says we think it's all right with that situation exist.
Felix Frankfurter: Well, that alone wouldn't tend to all the difficulties I -- all the questions I had as to the mode of review short of stenographic minutes.
Charles A. Horsky: Well, I --
Felix Frankfurter: I think that what -- what appears from La Frana is unqualified ways --
Charles A. Horsky: Yes.
Felix Frankfurter: -- takes care of them.
Charles A. Horsky: Yes, I think so, Your Honor.
Felix Frankfurter: I think that's the Illinois law.
Charles A. Horsky: I think that's right.
Felix Frankfurter: So they -- they can get a review, that's all (Voice Overlap) --
Charles A. Horsky: It isn't that it couldn't be done otherwise --
Felix Frankfurter: (Inaudible)
Charles A. Horsky: -- if it -- that it was not done otherwise here. Now, I -- I need --
Hugo L. Black: I suppose it's conceded that everyone except an indigent defendant can get a review in the Supreme Court of trial error.
Charles A. Horsky: Yes, it is and an indigent defendant if he happens to be sentenced to death. Now, I -- I don't think I need to spend a great deal of time developing the substantial nature of the disadvantage to the petitioners that results from this inability to obtain a review, the substantiality of the inequality you might call it. But there are two things I should like to say, we have collected a smattering statistics on the percentage of reversities in criminal appeals in a variety of States and a variety of times. In Illinois for the past 50 years -- and Illinois happens to have adequate statistics, the Attorney General keeps them. In Illinois for the past 50 years, the percentage of reversal in criminal appeals has run between 20% and 40%. Other States are not substantially different, although they tend to be a little bit low. Now, in order to be sure that we were not distorting the disadvantage to the petitioner who could, I will assume, appeal on a common law record. We examined each of the decisions in the Illinois Supreme Court during the last two calendar years in 1953 and 1954 to determine the basis upon which the reversals were held. And in the 1935, I think it was, cases that were there involved, we found that with two exceptions, each reversal was on the basis of trial error. The details of that are set out in Appendix B to the brief if you are interested. The other thing I should like to say is that although that demonstrates only what the percentage of reversal is in cases which are appealed, I think --
Stanley Reed: (Voice Overlap) to which counsel have thought there was error below.
Charles A. Horsky: That's right and with -- I think it is at least fair to say that there is at least the similar likelihood of review of error had there been a review of cases which could not be appealed because the defendants were indigent. I say that for this reason, and I think it's important. In the ordinary case in the Illinois Criminal Court, the fact that there is going to be no appeal on trial error is apparent before the proceeding starts. When the defendant comes into court and says to the judge, "Your Honor, I have no money to employ a lawyer. I wish you would appoint one for me." Now, whether he does or not, he -- whether he gets a lawyer, he serves notice for all practical purposes that if convicted, he cannot review the proceedings which led to his conviction. Now, I have no doubt that there are in Illinois and there would be everywhere judges and prosecutors to whom a situation of that sort would be a challenge -- a challenge to be sure that there was not even the possibility of a prejudicial error in the trial of a person so situated. On the other hand, I have no doubt that there are in Illinois and elsewhere persons on whom that situation would react in a contrary way. That at least is the teaching, it seems to me, of the almost universal change from a system of final nisi prius decisions in criminal cases to a system of appeal in criminal cases. We did not regard it as satisfactory to leave the final decision to the District Judge even though -- even when we were telling him that we were going to do it that way. So I think it's fair to state that there is here a substantial tangible disadvantage, there's difference in the quality of justice which is accorded to an indigent defendant as opposed to a non-indigent defendant in Illinois. I think that inequality is patent as a fact and I think it no great step to go to the -- to the assertion that it is also a denial of the equal protection of the law. Let me anticipate a moment by saying that I shall also contend that it is a violation of due process of law, but I should like to reserve that point and deal first with the question of whether it violates the Equal Protection Clause. It seems to me that it ought almost to go without arguing.If there is one principle which we all ought to accept as a perfectly certain principle, it is that both rich people and poor people should stand alike at the bar of justice. Magna Carta itself declared to no one will we sell, to no one will we refuse right or justice. It seems to me that here we have an example of a patent country difference in the quality of justice between rich and poor. We are selling justice in the sense that the indigent cannot purchase the same quality as the rich man. Now, the State says well, we ought not to pay too much attention to that argument because after all Magna Carta is a goal only and it's still a long, long way off in reality. The poor man suffers in criminal administration, a variety of hardships. He can't conduct an investigation before his trial. He may not be able to employ expert witnesses. He may not be able to employ as good counsel. He may not be able to raise bail and substantial (Inaudible) He may have no alternative, real alternative when the sentence is fine or imprisonment and there probably are a variety of others. Now, that's -- the State says, therefore, why should we worry about this particular inequality? That seems to me to be a very curious argument and one which I certainly hope will not appeal to this Court. What it says in effect is that because we cannot change all of the inequalities which exist between the rich and the poor in the administration of criminal court, let's not concern ourselves with a particular inequality which we can do something about. That is not the way I understand the Constitution operates and I certainly hope it is not the way it will operate in this case. Here is a tangible concrete disadvantage which in most States, as I will come to in a moment, has been eliminated. It preexists in Illinois. It doesn't seem to me that this Court should sanction its continuation in Illinois simply because it cannot achieve the goal of Magna Carta in one decision. Now, I should also like to spend just a moment on the distinction which is made in Illinois between the indigent who was sentenced to death and the indigent who was not. We have contended in our brief as was contended in the petition for certiorari that that likewise denies due -- equal protection of the law to these petitioners. Now, true, this Court has recognized as recently his last term in the Williams case, Williams against Georgia, that death sentences or capital cases may be treated differently in the law for when the -- when the distinction between a death sentence and a life sentence becomes relevant. I submit that although that principle is true, it has no application here. That it ought not to be a relevant consideration in determining the quality of justice which an individual defendant is accorded. I see no reason why Illinois should be able to say constitutionally that a man who is sentenced to death may have a full review of the record upon which that sentence rests. But the man who is sentenced to 99 years for murder, as was the case in Carter v.Illinois which was reviewed here last two terms ago, is unable to secure that kind of a review. Now, the State says the answer to that particular branch of our argument is easy. It's furnished by the right to counsel cases which we rely on in the due process argument, they say it supports then in this aspect of the equal protection argument. The argument runs as they may get that in the decisions of this Court, there is a distinction made in the right to counsel rule under the Fourteenth Amendment between cases -- between capital cases, I don't think if death sentence is the capital case, and non-capital cases. And they point to the difference which the Court has announced from time to time in the line of cases which begin with Powell against Alabama. I think the difference does -- the argument doesn't aid them because I believe in all of those cases involving the right to counsel, this Court has made it clear that there is one principle which will govern and that is that the defendant will not be allowed to be prejudiced by his inability to employ counsel. Now, it will -- it will find prejudice more easily in the case of a capital crime. It will find prejudice more easily in other circumstances but that is one of the factors which it will look at. But in no case whether it be a capital case or a non-capital case, as I understand the decisions of this Court, will it permit a State to refuse counsel to a defendant, an indigent defendant, when he is actually prejudiced. Now, in this case, there can be no doubt that the man who cannot appeal is actually prejudiced. There's a difference in the quality of the justice which he gets in Illinois. I think the right to counsel cases do not aid the same. Now, let me turn to the question of whether or not this situation also violates the Due Process Clause. We think that the two clauses --
Stanley Reed: Before -- before you --
Charles A. Horsky: Yes, sir.
Stanley Reed: -- go on that, what -- what is -- what is the practical result of this that this Court would set aside all the convictions of a trial court in Illinois until they did furnish the record?
Charles A. Horsky: Well, I think probably not, Your Honor. Oh, I'm sorry. I think the State -- the brief for the State of Illinois suggests one possible answer, which I would -- I would not urge because I don't know enough about the Illinois procedure to be sure that it's feasible, but they suggest that in the event that this Court determines that it is a violation of the Fourteenth Amendment to deny an indigent defendant who wants to appeal a transcript to publish he can base it then the procedure of the Post-Conviction Hearing Act under which this comes up might be available by -- and supply the mechanics for testing those questions. Under the Post-Conviction Hearing Act, as I explained before, the petitioner comes in and asserts his claim of denial of a constitutional right, the judge upon a proper showing can order such portions of the transcript printed as are necessary to determine that right. Now, conceivably as I read the State's brief, conceivably that is a way in which that question could be raised by anyone imprisoned in Illinois now who did not appeal because he was unable to afford a transcript. I -- I think that is one possibility. Another possibility is that Illinois would promptly do something about it in terms something like they handle the right to counsel situation. They amended the statutes to make -- to make clear what happened at the time of arraignment and any case coming up to this Court from Illinois involving the right to counsel. Now, we'll have a transcript of the arraignment because of this Court's decision.
Stanley Reed: You mean that they mean there'd be a shifting of the claims by the trial court and only a record will be furnished when the trial court thought it desirable?
Charles A. Horsky: Well, I -- this case does not involve, Your Honor, the question as to whether a discretionary permission to appeal, a discretionary supplying of the transcript is constitutional.
Stanley Reed: It must be either (Voice Overlap) --
Charles A. Horsky: Here there isn't any --
Stanley Reed: It must be either discretionary or absolute when decided.
Charles A. Horsky: Well, I should think it certainly has to be one or the other in my view. Now, whether or not it can be discretionary is a question which I should think would depend upon the nature of the discretion. I would rather not argue it in -- in vacuo --
Stanley Reed: No, I'm --
Charles A. Horsky: -- but --
Stanley Reed: -- I'm not arguing down there, I'm just (Voice Overlap) --
Charles A. Horsky: I would not say that it's clearly -- I would certainly say it's not clearly there. It makes -- it maybe all right, that is the federal system as you know. A transcript is furnished in the federal courts unless the District Judge certify that the appeal is not taken in good faith. Now, I think that is designed and probably does largely eliminate frivolous appeals and then it involves no violation of substantial right. There are questions as to how it operates in practice but I would like to reserve those questions until that case comes before them.
Felix Frankfurter: Mr. Horsky, what cases would you rather -- on this question of what leaves (Inaudible) assuming one goes along sympathetically with your argument, what duties are to be drawn from the Fourteenth Amendment against the State? I should (Inaudible) the power of this Court upheld this case, they must give a transcript of the record as against what I take it to be a general proposition if opportunity for review is given, the man can't be drawn on whether a man has money in his pocket or not but he must be -- the opportunity, he must be on it for the effective review.
Charles A. Horsky: That's -- well, that's -- that's right.
Felix Frankfurter: So that they make -- that gives you -- put it that way rather than the transcript of record, opens up all sorts of his argument as I can see it and as an alternative in the State in dealing with these problems.
Charles A. Horsky: Well, I -- I certainly contend here only that a failure to supply any method by which these petitioners can --
Felix Frankfurter: All right.
Charles A. Horsky: -- secure a review is bad.
Felix Frankfurter: Very well.
Charles A. Horsky: I certainly would not say --
Felix Frankfurter: (Inaudible) from saying they must give him a transcript because the man who -- who can have it did not have been (Inaudible) to have it.
Charles A. Horsky: Well, the reason I say that, Your Honor, and I think it probably would be the solution that would be adopted in most cases is that most cases have adopted that solution. Let me turn to the -- briefly to the question of the Due Process Clause. I do not argue, and the question is not here, whether the due process requires an appeal in every criminal proceeding. That question was not raised by the petitioner and it is not before this Court. I suspect someday it will be a nice question but for present purposes we need not worry about it because Illinois does have a system of criminal appeal. It purports to say in its statute that writs of error in criminal cases shall be writs of right and shall issue of course. What we do say is that the State, once having decided to establish a system of criminal appeal, must make that system conform to the Due Process Clause and that a system which purports to give to a criminal defendant a right to appeal but which withholds it from him when he is without fund unless he'd be sentence to death does not consist with due process. Now, it is certainly true that what kind of process in criminal appellate procedures is due process is a very difficult question. There is no touch to it. However, I don't think the issue was completely at large. The decisions of this Court have suggested that the answer is to be found in concepts of fundamental justice or fundamental fairness as determined from time to time by this Court. And I think that that kind of an approach which we can make to this situation, to this question is exemplified by the decision of Mr. Justice Stone in District of Columbia against Clawans in the 300 United States which I've quoted at page 44 of my brief. He points out that due -- what -- what constitutes these standards of fairness and justice may vary from generation to generation. And he goes on to say that doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotion, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgements. Now, that I think does not rule out an examination of the history of the problem. We can certainly best understand where we are if we understand where we have been. And in -- particularly in this situation, I think we can best understand the laws and practices of the community to which I will come in a moment, if I take a few more minutes to explain a little of the history of the interrelated development, of protection of indigent criminal defenses and criminal appeals. There are two aspects of history of criminal procedures which I think have a somewhat parallel history. One of them concerns the right to counsel. One of them concerns the right to appeal. In the right to counsel cases, in the very early days of England, there was a complete equality between rich and poor, a negative equality, neither were allowed to have counsel except only in misdemeanor cases which were sometimes called trespasses and analogize to civil cases in which counsel were permitted from the very earliest time. That situation which seems literally incredible today preexisted in England until almost the middle of the 19th Century. In the United States, the colonies by 1789 were somewhat ahead of England and by that time almost all of them had provisions which permitted counsel to persons accused of felonies or treason. Those statutes did not, however, necessarily employ that an indigent defendant to have counsel assigned to them. And on that -- on that question, the States varied quite widely as this Court elaborately spelled out in Betts v.Brady. However, when the question finally came to this Court, the Court did not feel bound by the inequities of 1789. It applied the principle which I have just read from Chief Justice Stone and it has now been laid down by this Court that as so far as the right to counsel is concerned, indeed of the federal courts nor the state courts, will an indigent defendant be permitted to be prejudiced by his financial inability to procure counsel. The line of cases in the federal -- on the federal side beginning with Johnson against Zerbst and on the state side beginning with Powell against Alabama, I think I need not detail. This situation with respect to the right of appeal seems to me comparable, although it is admittedly a considerably later development. Again we begin in early English history with the same negative sort of inequality. There were no appeals by either the rich or the poor in criminal cases. And again we find that the criminal procedure lagged substantially behind the civil procedure in England, bills -- writs of error and bills of exceptions had been authorized in civil cases in England in 1295 in the Statute of Westminster Second. But it was the middle of the 19th Century before even writs of error became generally available in criminal cases and it was only in 1907 when the Criminal Appeal Act was passed that England really has accomplished an adequate system of criminal appeal.
Felix Frankfurter: Well, we've had none in the federal courts we should note until --
Charles A. Horsky: 1891.
Felix Frankfurter: It might, I say, within my life time.
Charles A. Horsky: That's right, although America did not lag as far behind as England. There were writs of error in state courts in -- in the States in criminal cases from fairly early days, Your Honor, although bills of exceptions which make that writ of error meaningful were sometimes substantially later than the initial grant of the right of a writ of error.
Felix Frankfurter: Well, as though prepared to say or actually had. If you remember in the federal court, the device of (Inaudible) in having the two judges disagree to a certificate and come to this Court and get a review.
Charles A. Horsky: That's right. There was a felt need for appellate review in the courts but it did not achieve a real substantially universal acceptance, I should say, within the last 50 or 75 years. I should add in all fairness that Illinois, in this respect, stands close to the front rank. There have been writs of error and bills of exceptions for those who could afford them in Illinois since 1827. Now, this growth of the appellate system -- of the system of criminal appeals obviously created the potentialities for discrimination between the rich people and the poor people who couldn't afford the appeals. And in fact because protections of the indigent always tend to lag behind the progress, a real inequality did develop and there were substantial voices raised that criminal appeal should be abolished because the inequity, the patent glaring inequity which they supplied between the rich and the poor just was impossible. The answer was found, however, not in the abolition of criminal appeal, those had become too well-established as part of what we regard as fair and just to be abolished. The answer was found rather in general enactment of provisions to protect the indigent in this new appellate procedure. Now, it is these statutes, these protections, which we believe supply the objective proof of our present day ethical and moral standards to which Mr. Justice Stone referred. They're set out in Appendix C to our brief and so far as we could do it, we have tried to make them complete. In the United States, there are 29 States where the indigent defendant, upon proof of nothing but his indigence, is supplied with the transcript for the purpose of his appeal. In some States, it is done by the State paying the official reporter. In some States, it's done by simply making that a part of the official reporters job. There are seven additional States in which the right of the indigent to a transcript is discretionary and you add to that group the Federal Government. There are four additional States in which alternative methods of full criminal appellate review are provided without the necessity for a transcript but in which the indigent defendant is not prejudiced by his indigence. There are six States, of which Illinois is one, which limit the right to cases of serious crimes but there are only two States which joined Illinois in limiting it to cases in which a death sentence has been imposed. There are two States about which we were unable to be certain and we did not classify under our two States which provide no relief for an indigent prisoner so far as we could determine. That pattern of general acceptance of the principle that an indigent should not be prejudiced in his right to appeal applies not only in the United States but throughout, so far as we know, the English speaking world. England and as most of the commonwealth countries, and the references are in the brief, supply a transcript or whatever is necessary to permit an indigent defendant to take a full appeal and to have a full review without cost. And it is interesting to note that in America, in military courts, that has been the practice since the very beginning. Now, I should like to correct one inadvertent error which perhaps I clause the Attorney General. In our Appendix C, we entitled it the following States provide free transcripts to all paupers convicted of felony. This case involves felony so we examined other States with regard to felony. The statutes, however, are not limited to felonies unless they are specifically limited by the text of Appendix C. Those statutes are equally applicable in any criminal appeal whether it be a felony or a misdemeanor. I'm sorry, the -- the title mislead Mr. Wines. Now, I should like also to advert just a moment before I close to one other aspect of modern criminal practice which seems to me also relevant and that is the development of official court reporters who are now, I think, provided in substantially every State. Before there were official court reporters, the problem of supplying a transcript to an indigent defendant who wanted to appeal was obviously very great. In the usual case, there was no transcript made unless the prosecution itself happened to want one for its own purposes and consequently it was impossible to supply transcript to the -- to the indigent. The only way to avoid that was to have or would have been to have a court reporter, a private court reporter attend every trial and transcribe it in order that it -- the notes would be available. I don't mean transcribe it. I mean take it down in order that the notes would be available in the event that the defendant later did desire to appeal. That lead to the fact, I think, that it is -- in the federal courts, the day upon which official court reporters were provided that the Federal Government provided free transcripts for indigent defendants. It required that step in the federal courts, a step long delayed before it was able to make feasibly this further step available to indigent defendants. It is also perhaps significant on this respect that in Illinois, the date of the statute, which grants a transcript free to a person convicted of death, convicted and sentenced to death, dates from the year in which official court reporters were authorized in the courts of that State. They do exist now if -- as I say in almost every State and they do in Illinois. Illinois has court reporters, official reporters who take down the proceedings, all the proceedings in all of the regular criminal courts. And there are, so far as I can determine, no courts in which an appeal lies on a bill of exceptions in which that is not the case. There are courts called Justice of the Peace Courts or police courts throughout the State in which proceedings, criminal proceedings may be had but appeal in those -- from those courts is on a de novo basis, that a record is not necessary. In Chicago, where those courts are combined, the police courts and the Justice of the Peace -- the Peace Courts are combined into one court called the Municipal Court of Chicago. There is provision for an official record. Now, it may be said that all of these developments are so recent that you cannot distill a constitutional protection out of that. True, they are recently but we don't necessarily, as -- as demonstrated by this Court in many cases, have to go back to 1789 to find out what due process means. I think we accept what Justice Stone said, we look at the laws and practices of the community and we look at the question, which is presented by this case, in the light of all of the factors which are presently existing, the universality of criminal appeals recognized in every State, the universality almost of protection for the indigent which was made necessary by the fact that those appeals were provided, the feasibility of the system through the universal acceptance of court reporters, although let me hasten to say I don't believe the issue should defend on whether it costs a lot or costs a little. But when we take all of those things together, it seems to me that we can say that this situation presented by these petitioners is not consistent with the Due Process Clause. If there were a statute before Your Honors which said in so many words appeals in criminal cases are permitted in Illinois only if the person convicted has an income of $10,000, I submit it would be so patently unconstitutional that it would be reversed without arguing. This statute which accomplishes exactly the same thing, $10,000 figure maybe wrong but which in effect -- in necessary effect denies to the poor person the right to appeal seems to me should have the same answer. I submit the decision should -- below should be reversed with instructions either to afford this -- these petitioner an appeal, a full appeal or to dismiss them from custody.
Stanley Reed: Mr. Horsky, what -- what is the effect of the post-conviction statute of Illinois, are you familiar with that?
Charles A. Horsky: Yes, sir. This case is up under the post-conviction statute. I don't quite understand what --
Stanley Reed: Well, I --
Charles A. Horsky: -- effect you mean.
Stanley Reed: -- was thinking -- as I the post-conviction statute, there are ways of determining whether the person who wants to take a post-conviction may or may not get a transcript.
Charles A. Horsky: That's right. But let me -- let me say this, a petition under the Post-Conviction Hearing Act is limited to raising questions involving a denial of constitutional rights. Now, let's assume that the man says he was imprisoned because there was a improper admission of a confession obtained by threats and extortion from him. He files a petition in the Illinois court and if the showing is adequate the District Judge is the trial judge, the nisi prius judge, he files the petition in the Court where she was convicted. That judge is authorized to instruct the official court reporter to type up such portions of the transcript as are necessary to determine that issue and that expense is paid by the State.
Stanley Reed: If this was under that statute, why -- why didn't they get it here?
Charles A. Horsky: Well, the Supreme Court of Illinois has said that you can't use that procedure in order to test all sorts of trial errors which don't rise to constitutional dignity, improper admission of testimony, improper charge to the juror, things of that sort. You can't get the Post-Conviction Hearing Act procedure into a position where all you're doing is in effect having an alternative root for --
Stanley Reed: (Voice Overlap) --
Charles A. Horsky: -- a bill of exceptions. That you raise by bill of exceptions.
Stanley Reed: And there's no constitutional question here?
Charles A. Horsky: Well, the constitutional question here is --
Stanley Reed: I don't think there's another constitutional --
Charles A. Horsky: -- is a different one. There's no constitution --
Stanley Reed: But what -- no constitutional question in the trial of the case.
Charles A. Horsky: That's right. Well, I should -- to be accurate I should say that there was one. It was determined by the court below to be without sentence and it is not here. That issue was -- is available to the petitioner and they do not raise any constitutional questions here because that has been determined adversely too. The constitutional issue here is solely the question as to whether they are entitled to have the non-constitutional errors reviewed.
Earl Warren: Thank you. Mr. Wines.
William C. Wines: May it please Your Honors. Mr. Horsky is clear and simple and complete in an entirely accurate statement of the facts in this case as to save me the task and spared Your Honors the labor of listening to any further statement of the facts on my part. Also I should like to begin by saying that Mr. Horsky's outline and description of Illinois appellate practice in criminal cases is extremely accurate and remarkably complete. It was quite clear to me but of course I am familiar with that practice and if it's not improper for me to say so, it does great credit to a lawyer who so far as I know has never had a criminal case in the State of Illinois. So I shan't have to duplicate that. I should like however and I should like to say before addressing the constitutional questions in this case so there won't be any misunderstanding or doubt about it, I'm quite sure that the Attorney General of Illinois joins me in feeling and saying that the view that every indigent prisoner should have -- a free transcript should have a plenary appellate review is an enlightened, humane, highly commendable and eminently desirable point of view. I should be the last one to try to stop any prisoner from getting a free transcript if it were otherwise available to him. There's no doubt about the desirability of it at all that I can possibly see. Sometimes it said that would impose an intolerable burden on reviewing courts. My answer to that would be that if the reviewing courts find the review of the cases of poor people, intolerable, the Thirteenth Amendment protects them against continuing that intolerable task. However, the question before this Court, one which I will argue with all the earnest seriousness that I can, is not whether it's desirable to give every indigent prisoner a transcript of record, a bill of exceptions raised. The important question is deep question but in one sense, one sense only, the narrow question whether due process or equal protection are of such constitutional exigency is to require that --
Earl Warren: I think this is the time to stop. We'll resume after the recess.