Earl Warren: Number 513, Willie Norvell, Petitioner, versus Illinois. Mr. Sullivan.
Thomas P. Sullivan: Mr. Chief Justice Warren, Honorable Members of the Supreme Court. This case is here on certiorari to the Supreme Court of Illinois and it comes here as an aftermath to the case of Griffin against Illinois in 351 United States. This case presents the question whether a convicted defendant whose poverty has precluded him from obtaining appellate review and therefore prevented the trial proceedings that were begun against him from being completed is entitled to a new trial. The facts in this case are these, the petitioner Willie Norvell was an 18-year-old colored boy in 1941. He and his brother James and his brother-in-law Edgar Shepherd were indicted for murder. The petitioner at that time and at all times between then and now was indigent and have no money, whatever. However, his family retained counsel to represent him at the trial. The defendants waive trial by jury and were trying before a judge in the criminal court of Cook County. The -- at the conclusion of the trial, all three defendants were found guilty. Petitioner, Willie Norvell, was sentenced to 199 years in the Illinois State Penitentiary. The other two defendants were each sentenced to 50 years imprisonment. At the conclusion of the trial, Mr. Norvell's family no longer had funds with which to retain counsel and counsel did not represent him at any time between 1941 at the end of the trial and 1961 when I was appointed to represent him by the Supreme Court of Illinois, nor did the family have any money with which to buy the trial transcript which as Your Honors know this is necessary in order to present a case to the Illinois Supreme Court, a criminal case in Illinois. Nevertheless, efforts were made by the petitioner to determine the cost of a transcript. An order was entered in the trial court extending the time within which the transcript could be filed and certified but -- and this, Your Honors, is undisputed in the records, solely because the petitioner had no funds. Solely because he was a pauper, he was unable to obtain the transcript in 1941. The time expired for the certification of the transcript. He went down to jail to begin the service, 199 years sentence.
Speaker: Up today -- up-to-date this is all pre-Griffin?
Thomas P. Sullivan: Yes, Your Honor. This is all 1941, and Mr. --
Earl Warren: How was -- how was that represented to the Court, his indigency at that particular time?
Thomas P. Sullivan: So far as this record shows, Mr. Chief Justice, there was no representation made to the Court in 1941 of his indigency. He was represented at the trial and the record we have doesn't show that they talked about pauperism or wealth or poverty. He was convicted. A judge who was entered against him, the sentence was imposed and that's the last thing we have other than an order extending the time for filing the transcript for 90 days. In other --
Earl Warren: But -- well, how would they -- assuming that Griffin does apply as of that date, how could it be expected that the Court would know that he was indigent and that he was in need of a free transcript, and that the Court should have given him one?
Thomas P. Sullivan: So far as this record is concerned, Your Honor, there is nothing that shows that the trial court in Cook County knew that Norvell was a pauper in 1941. There is nothing in this record. There is a provision and was at that time in Illinois law that the trial judge could order a transcript to be prepared at State's expense, but there's nothing on the record to show that the court was informed that Norvell was a pauper. Is that --
Earl Warren: Well, yes. I was just wondering what effect that would have on all prisoners who are in prison at the present time but who before Griffin made no representation to the Court as to indigency at all and no transcript was given to them. No request made for a transcript.
Thomas P. Sullivan: No request made then.
Earl Warren: How could the State be at fault in not providing a transcript under those circumstances?
Thomas P. Sullivan: Your Honor's decision in Griffin against Illinois of course was not speaking just as of 1956 when that case was decided but the Court held that Illinois always was under a constitutional obligation to do that. Now --
Earl Warren: Yes. That isn't the point I'm making. The point I'm making is this. Why would -- how would the State be charged by not giving a transcript to a person because he was indigent if there was no representation made to the court that he was an indigent and that he needed the transcript and wanted one, a free transcript because of his indigency?
Thomas P. Sullivan: Well, Your Honor, I would answer that in this two-fold fashion. In the first place, I think that the State of Illinois will concede today that if in 1941 the court was informed that the man was indigent and did ask for a transcript, that transcript would not have been granted. It would have been denied. Secondly, when in 1956, the Illinois Supreme Court on remand in the Griffin case wrote its rule to comply with Griffin. They stated that everyone, whenever convicted, should be given a free transcript and no distinction was drawn as to whether or not a request had been made by the defendant at the time of his trial or conviction. And it is our position that the classification that has been established by the State of Illinois. Now, the outcome of that classification is arbitrary, capricious and unconstitutional.
Earl Warren: But was -- was there anything in that order to say that he was entitled to it regardless of his indigency?
Thomas P. Sullivan: The --
Earl Warren: Regardless of his indigency?
Thomas P. Sullivan: The rule provides, Your Honor, that if the defendant who is -- who was tried before the Griffin decision, files a petition in the court in which he was convicted before a certain date and states that he was a pauper at the time of his conviction and is still a pauper, then he is to be given a free transcript.
Earl Warren: If he merely states that fact now, not whether he doesn't make -- it depends on whether he was at that time a pauper.
Thomas P. Sullivan: Well, of course the Court -- I assume the Court could hold a hearing to determine whether the statements in his petition are true.
Earl Warren: It'd be pretty hard after 20 years, wouldn't it --
Thomas P. Sullivan: Well, it might be, Your Honor.
Earl Warren: -- to point out whether the man was indigent --
Thomas P. Sullivan: It indicates --
Earl Warren: -- when he had a -- when he had a paid lawyer?
Thomas P. Sullivan: That -- that may be, Your Honor. It might be hard to determine it but in this case, the petitioner did file such a petition after the Griffin case was remanded and that rule was written.
Earl Warren: Yes.
Thomas P. Sullivan: There was an order entered by the criminal court of Cook County finding that he was indigent in 1941 and still indigent. And he himself testified in the proceedings held in 1961 and testified to that fact when there is no dispute about that in the record whatsoever.
Earl Warren: I see.
Arthur J. Goldberg: Are you referring to the finding of this trial, page 42 of the record?
Thomas P. Sullivan: I believe that's correct, Your Honor.
Arthur J. Goldberg: (Inaudible)
Thomas P. Sullivan: That is correct, Mr. Justice Goldberg. And I'm also referring to the testimony of the petitioner himself in 1961 appearing at page 42 of the record which said, “I did not have a penny at the time of my trial from the time I went down the Stateville in 1941 until today I have not had any money,” except for a few dollars that he got from being a guinea pig in some of these injection matters that they have. In 1956, going back now to the facts, if the Court please. In 1956, this Court decided the Griffin case and as I have stated, Illinois -- then, the Illinois Supreme Court promulgated its Rule 65-1, providing that those convicted before the Griffin case could obtain a free transcript if they filed a verified petition in the trial court containing certain allegations. Mr. Norvell, the petitioner here, filed such a petition in 1956. The -- an order was entered directing the court reporters to prepare the transcript. It was found that a full transcript was necessary in order to present to a reviewing court the errors that he stated were made at the trial. Nothing further was done in the case between 1956 and 1961 when I was appointed to represent Mr. Norvell by the Supreme Court of Illinois. At that time, upon checking into the matter, we discovered that two reporters were present at the time of his trial and one of them had died in 1949. Hearings were then held in the criminal court of Cook County, and as a result of those hearings, the following facts appear without any contradiction in this record. Half of the transcript of the 1941 trial is missing, including all of the State's proof and sheet. There are approximately 200 to 250 pages of actual transcript that are -- were contained in the deceased reporter's notebook. Further, no one can read the notes of this deceased reporter. Efforts have been made not only in this case but in a prior case, the Oscar Bragg case in which I represented Mr. Bragg and it was to the Supreme Court of Illinois twice to construct -- to read the notes of Mr. E.M. Allen. Efforts were made throughout the country to find a court reporter who could translate these notes and we were not successful. So that we have the facts in this record, half of the transcript is missing, there notes are eligible and we called witnesses back, all the witnesses we could from the 1941 trial to try to reconstruct the missing portions of the trial and none of these people could recall the testimony that had been given back in 1941 at that trial. So that we have half of the record, including none of the State's case and sheet, whereupon we moved for a new trial. The motion was denied, we appealed to the Supreme Court of Illinois. The court unanimously affirmed the order denying the motion for a new trial and the cases before this Court on certiorari raising issues under the Fourteenth Amendment to the federal constitution. It is our position, if the Court please, in this case that the legal proceedings which were begun against Mr. Norvell in 1941 have never been completed. In the Griffin case, this Court recognized that appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. And that to deny appellate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. The petitioner here has never had that appellate review. His conviction may be unjust. Not only has he never had the appellate review which is guaranteed to him by the constitution and the laws of Illinois, he never can have it insofar as his 1941 trial is concerned. The approximate cause of this situation is two-fold, I believe. It is first that in 1941, Illinois unconstitutionally failed to make available to paupers, convicted of crime, free transcripts of the trial or some other means by which they could obtain review. And then we have the continuance of that situation until the State's official reporter died in 1949 and it has been discovered that the State's official reporter took a system of shorthand notes that no one now can read. Therefore, there is no question about that, if Mr. Norvell had had funds in 1941, he would have been able to obtain review of his conviction. Because he had no funds, he could not do it and now he can never do that. We think not only that Illinois violated Mr. Norvell's rights in1941 when he was convicted but also that the classification that has been established by Illinois is arbitrary and capricious and violates the Fourteenth Amendment. Illinois -- the Illinois Supreme Court as I mentioned earlier in response to the Chief Justice's question has ruled, in there ruled and written in response to this Court's opinion in the Griffin case, that any person who was convicted before the Griffin case, is entitled to a free transcript if he files a petition setting up certain facts within a certain time and Mr. Norvell did that. What we have here as the thing has worked out is that Illinois says, “We will grant relief to you if your court reporter is still alive or if he is dead if he took a legible system of notes.” We submit that this classification of granting review to all persons except those who had -- court reporters who died in the interim and who took a system of shorthand notes that cannot be read is more arbitrary and capricious than granting -- than denying review to persons who are poverty stricken. And because as Mr. Justice Harlan pointed out in his dissenting opinion in the Griffin case, the State does not cause a person to become poor but -- and perhaps the defendant himself has -- by his wastefulness has brought about his poverty. But how can Mr. Norvell be charged with the help of the State's official court reporter or the way in which he took notes back in 1941. We say that if Illinois as it has applies the Griffin rule retrospectively, it must do so without regard to whether the court reporter who took notes if the trial is still alive and without regard to whether or not that court reporter used the system of shorthand which cannot be read.
Speaker: To put -- If I get your argument correctly, to put it crudely, you're saying that it's an unreasonable classification for the State to distinguish between the possible and the impossible?
Thomas P. Sullivan: That is one way of putting it, Mr. Justice Harlan.
Speaker: Well, isn't -- isn't that the substance of it?
Thomas P. Sullivan: I think that it should be put this way. They say, “We'll give you a transcript if we can.” That's about the size of it and I say that that's an unreasonable classification when you ask, “But why can't you give Mr. Norvell a transcript?” And the only reason you can't do it is because his reporter is dead and he didn't use a legible system of notes.
Speaker: Neither of which events was attributable to any fault on the part of the State?
Thomas P. Sullivan: Nor is it attributable, Your Honor, to any fall on the part of the defendant.
Speaker: Oh naturally -- naturally.
Thomas P. Sullivan: However, I suggest to the Court that if Illinois had granted Mr. Norvell his full constitutional rights in 1941 this problem would not have arisen. So that to the extent there is fault, the fault lies with the State and there is no fault lying with the defendant in the case, the petitioner here.
Earl Warren: Did I understand you correctly to say that even in 1941 the judge -- trial judge was empowered to grant a free transcript if he desired to?
Thomas P. Sullivan: Yes, Your Honor. And the --
Earl Warren: Yes --
Thomas P. Sullivan: -- the citation to the Illinois statute is --
Earl Warren: Yes.
Thomas P. Sullivan: -- in the statement of facts in our brief.
Earl Warren: Yes.
Thomas P. Sullivan: Granting a new trial to a person whose trial transcript has been become unavailable in a criminal case is the routine relief granted by courts throughout the United States. We have cited many cases in our brief from courts all over the United States in which new trials have been granted to convicted defendants where the trial transcript is unavailable and therefore appellate review is not possible. The reason of course is that the reason for the foreclosure of appellate review is not ascribable to the defendant. He will be deprived of an important right and integral part of the trial system. And in order that an injustice not be done in light of the fact that the proceedings cannot be completed, the proceeding is started all over again. The Illinois Supreme Court in Clyde Castle case cited in our brief recently granted a new trial to a convicted defendant who was unable to obtain a transcript for appeal. We say that if Mr. Castle is entitled to a new trial under these circumstances, the Equal Protection Clause requires that Mr. Norvell likewise be granted a new trial.
William J. Brennan, Jr.: (Inaudible)
Thomas P. Sullivan: They did not advert to the Norvell case. I should correct myself, Mr. Justice Brennan. The Castle case was decided before the Norvell case. The opinion in the Castle case was not published and it was not called to my attention until after I had submitted my briefs in the Illinois Supreme Court. So I did not confront them with the conflict. But it was shortly before they decided the Norvell case, so presumably they had it in mind when they wrote the opinion. Castle was convicted after the Griffin case, Norvell before him. Perhaps that's the ground of distinction --
William J. Brennan, Jr.: Which made no reference here to the case --
Thomas P. Sullivan: That is correct, Your Honor. There is no question, if the Court please, about the fact that review is needed in Illinois. We have cited in an appendix to our brief the many, many, many cases that have been reversed in Illinois solely as a result of this Court's opinion in the Griffin case. There are over 50 case since 1956 in which convictions has been thrown out entirely or gross error has been found at the trial and the Court has determined that appellate review was necessary.
Speaker: Is there anything to indicate or is it possible to say without the transcript what kind of trial errors the client would assert if he had an appeal -- if he didn't have an appeal?
Thomas P. Sullivan: There's only this, Your Honor. The defendant made a confession apparently and that confession is part of the record in this case and that confession starts at page 21 of the trans -- of the record. And that was introduced against them at the trial. A motion to suppress the confession was made by the defendant. We don't have the hearings on the motion to suppress but at page 20 of the transcript, the trial judge said this to the state's attorney at the conclusion of the State's case. I want to state the situation for the record, this is at page 20. If the confessions as to, as to two of these boys are stricken, there is no testimony whatsoever against them outside of the verbal statements if there are any in the record that incriminate these boys. And then the state's attorney says, well as to Willie Norvell, who's the petitioner here, he thinks that Officer Negrin (ph) testified through an oral confession and the judge said, “Well he didn't he remember it but we better -- we'll talk about it when we talk about the motion to suppress on Monday.” So the trial judge was concerned about the adequacy of the proof. I don't know what the ground of the motion to suppress was. I don't know what any of the evidence was, Your Honor. But I think that this is the kind of a case where appellate review might be necessary and if it -- if we have the whole record, we may find that the confession was unlawfully obtained from this 18-year-old moronic-Negro boy back in 1941 and that the entire conviction would form. I just don't know. The --
Arthur J. Goldberg: (Inaudible)
Thomas P. Sullivan: Yes.
Arthur J. Goldberg: (Inaudible)
Thomas P. Sullivan: Yes, Your Honor. It so happens that I have become very familiar with this problem. And Mr. Wines and I in 1958 argued against each other in the Court of Appeals in the Westbrook case which is much discussed in the brief. It happens that I was appointed to represent Charles Westbrook, Oscar Bragg, Willie Norvell here and I also represent a man named Claude Dickerson, who -- who however paid me a fee, my only criminal fee case. So far as I know, there are five such cases in Illinois. One is the case McKee pending here on petition for writ of certiorari undoubtedly pending the outcome of this case.
William J. Brennan, Jr.: What was the name of that?
Thomas P. Sullivan: McKee, it's cited in my brief. Another is the Leodis Smart case, pending before the Court of Appeals for the Seventh Circuit awaiting the out case -- outcome of this case. The third is the Claude Dickerson case, whom I represented Mr. Dickerson. He was paroled and withdrew his writ of error from the Supreme Court of Illinois. The fourth is the Oscar Bragg case cited in these briefs, Mr. Bragg died pending the appeal to the Illinois Supreme Court. That case presumably would have been argued here instead of this case if he had lived. The fifth is the Westbrook case which Mr. Wines and I argued against each other in 1958 in the Seventh Circuit and Mr. Westbrook has been granted a new trial and had been released. Those are the only cases that I know about. They talk about a mass exodus from the jails throughout the country. I don't think it's true.
Potter Stewart: There are only two live cases so to speak --
Thomas P. Sullivan: These one and two others --
Potter Stewart: This one and one other?
Thomas P. Sullivan: Well, this one and the McKee and the Smart case, three, one in the Court of Appeals for the Seventh Circuit, one waiting here and this one.
Earl Warren: We'll recess now. Mr. Sullivan, you may continue your argument.
Thomas P. Sullivan: Your Honors, I have concluded my opening argument.
Earl Warren: You may, you may preserve your time. Mr. Wines.
William C. Wines: Mr. Chief Justice, may it please the Court. Mr. Sullivan has stated the facts of the case fairly and accurately as he invariably does. However, I think that I can best present Illinois's argument by restating those facts in the focus of the questions from the bench and distinguishing those facts from those in the cases upon which the petitioner chiefly relies in this argument. Petitioner, whose race is not so far as I know shown by the record, was indicted for murder in 1941 with two other defendants, pleaded not guilty, waived trial by jury, was tried by the bench and was found guilty of murder. He was represented at that time by counsel employed and paid by his family. Its not disputed at least to this juncture of the case that the employment of counsel exhausted petitioner's funds. He then made informal inquiry, perhaps even request of the official court reporter of Cook County or one of them for a gratuitous transcript, what it was then called and still is called in an Illinois criminal case, a bill of exceptions without charge. So far as the record shows and so far as it's contended, the only effort that petitioner made in 1941 to obtain a free transcript which request the court before the Court. He made no application of any kind to any court for any kind of an order that would entitle him to that transcript. Some fifth -- in April of 1956, the 23rd I believe --
Earl Warren: Before we get to that Mr. Wines.
William C. Wines: Yes, sir.
Earl Warren: Was there any, any representation to the court in 1941 that he was an indigent? I understand he was represented by paid counsel.
William C. Wines: Yes. So far as I know, there was no representation to any judge of any court in 1941. The trial court, any justice of the Supreme Court of Illinois, a federal court or any other court, that he was a pauper, that he was indigent.
Earl Warren: It'd be -- and as I understood from Mr. Sullivan, the Illinois law at that time did give the trial judge the discretion to grant a free transcript if he --
William C. Wines: I think that is true.
Earl Warren: Yes.
William C. Wines: Now, he, as I say, made no effort in 1941. Eight years later, Mr. E.H. Allen, the court reporter, died. Mr. Sullivan is correct, Mr. E.H. Allen was a venerable court reporter in Cook County for many years, it is considered -- not only in this case but in many others, many others. Everybody tells a state's attorney and the Attorney General that nobody can read the notes of E.H. Allen in any of his cases. With his death, they became insoluble cryptograms, a dead script. Among such cases was the case of William Highlands which has been through the Supreme Court of Illinois. Another seven years and a few months went by, and in April of 1956, Your Honors decided Griffin against Illinois. Promptly, upon the announcement of the opinion in that case, the Supreme Court of Illinois promulgated its Rule 65-1. That rule gives free transcripts or authorizes at least the giving of free transcripts to prisoners who were indigent at that time of their conviction, if they make application before March 1st, 1957. Petitioner made such an application. He obtained an order from Judge Crowley, directing that he be given a free transcript of his proceedings. It then developed. Perhaps it had been previously suspected but it then developed with certainty that was not -- it was impossible to transcribe the notes of Mr. E.H. Allen. Thereupon, petitioner brought this proceeding to the Supreme Court of Illinois and elicited the opinion and judgment to which review, which Your Honors have granted to this Court certiorari. Now, I should like to contrast this case, the case upon which petitioner chiefly relies, Eskridge against Washington Prison Board 357 U.S. 214, decided in 1958. The opinion is per curiam. Because of certain passages in the reply brief, I should like to ask the Chief Justice's permission to read less than half page of this opinion so I won't -- I can't possibly misrepresent what is in it. Your Honors say at the bottom of pages -- page 214 and the top of page 215. In 1935 after petitioner, now that's petitioner Eskridge in Washington, was convicted of murder in a Washington State Court and sentenced to life imprisonment. He gave timely notice of appeal to the Supreme Court of the State, end of that quotation. It appeared that he was indigent and Washington, the Supreme Court of Washington held that Your Honors didn't intend the Griffin case to be retrospect just how the Washington Court could achieve that in conclusion, I don't know, but it did and it declined to give Mr. Eskridge a transcript. Now, the Court says at page 216, “The State,” that's the State of Washington, “The State concedes that the reporter's transcript from the 1935 trial is still available.” In other words, all that Your Honors did in this unanimous per curiam case in the Eskridge case was make the State of Washington what the Supreme Court of Illinois did promptly upon the announcement of the Griffin case in the issuance of the mandate, Rule 65-1 was then drawn.
Arthur J. Goldberg: (Inaudible)
William C. Wines: That's right, but as of the present time barring some such anomalous cases raises a different question. You must get your bill of exceptions certified within 100 days. It was 50 days in 1941 or any extension obtained within that hundred days and there's no limit on the length of the extension, except you must get each one before the last one expires.
Arthur J. Goldberg: May I ask you one more question? (Inaudible)
William C. Wines: Yes.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Yes.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Yes.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Yes.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Yes.
Arthur J. Goldberg: (Inaudible)
William C. Wines: I never know of one that was granted but I never know one that was applied for. I really don't know. I don't handle criminal cases in the trial court and I do know this and I'll concede it, that nobody would have -- it wasn't done. How often it was applied for and denied, I don't know. How often if ever it was applied for and granted, I just don't know, but I will tell the Court that it was certainly not a common practice. Now --
Byron R. White: Mr. Wines.
William C. Wines: Yes, Your Honor.
Byron R. White: It seems to me that -- that if in this case, the transcript to the reporter's notes had been available when they were requested in 1957, 1958, whenever it was. Why couldn't the court have refused that transcript even though the notes were available on the grounds that the defendant or the petitioner had not pursued his remedies at the time of his trial or right after his trial had not requested a free transcript then? I don't know why. I mean if your reason is -- if you're -- if the ground you're relying on is good for one thing or that would be good for another.
William C. Wines: Is Your Honor through with the question?
Byron R. White: You are apparently relying in this case upon the -- upon the failure of the petitioner to request from the judge a transcript back in the time of his trial, aren't you?
William C. Wines: Well, so far I'm narrating the facts, but to answer Your Honors first question as I understand it, the Supreme Court of Illinois promulgated Rule 65-1 which gave convicted persons transcripts even though they hadn't requested and the time to request them -- request them would otherwise have expired. The -- let me, let me --
Byron R. White: Constitutionally, you are saying that failure to request at an earlier time when the opportunity was available. Constitutionally, that's an adequate answer to his request.
William C. Wines: I say that that would be an adequate answer showing -- absent some showing that he was prevented from requesting it which wouldn't necessarily mean that coercion by guards might be mental infirmity or something of this sort.
Byron R. White: So that if Illinois wanted its part of its rules say that we will grant these transcripts, delayed -- this delayed request for transcripts in cases where the petitioner has asked for and was refused a transcript at an earlier dates, Illinois could constitutionally do that. That would be your contention.
William C. Wines: That would be my contention, yes.
William J. Brennan, Jr.: But I gather, Mr. Wines, under 65-1, transcript where there exist have been provided.
William C. Wines: Yes, and there --
William J. Brennan, Jr.: Even though no claims and no request had been made --
William C. Wines: Oh, Yes. Yes, indeed, Your Honor. In fact, I don't know of any case where a request was made within -- would otherwise have been the time. Again, I just don't know, but as far as I know there were no such cases. Now, if the Court please, Rule 65-1 does contain a provision which raises no question here but I'll inform the Court of it, that rule by the way is set forth at appendix page 7 of the petition for certiorari. It does provide that you must specify the alleged errors which the petitioner claims occurred at his trial and that he desires to apply for issuance of a writ of error to review the conviction but petitioner did that. He complied that -- with that and we don't say that he didn't. And he obtained an order for a transcript under Rule 65-1, but Rule 65-1 contains this provision which occurs at page 8, “In the event, the court finds it is impossible to furnish petitioners to know stenographic transcript for the proceedings of his trial because of the unavailability of the court reporter, who reported the proceedings and the inability of any other court reporter to transcribe the notes of the court reporter who served at the trial or for any other reason the court shall deny the petition.” Of course, all that does is recognize what, as Mr. Justice Harlan so principally said, is an impossibility. There's really nothing gained -- it makes no -- by granting a petition that mounts only where a rule on a man who is dead and buried to transcribe his notes. Now, eight -- now, 15 years after his conviction and more than seven years after the death of Mr. Allen, petitioner made application under Rule 65-1 and obtained this order for a free transcript. The notes could not be transcribed and the Supreme Court of Illinois, as I say, wrote the opinion, it's now here for review. Now, at this -- the second case upon which petitioner principally relies is the Westbrook case from the United States Court of Appeals for the Seventh Circuit arising in Illinois. In the Westbrook case, Westbrook was not a pauper. There may be an inadvertent statement in Illinois brief that he was. He wasn't a pauper. Within the hundred days, he requested a bill of exceptions and he offered to pay for it. And he got several extensions. The reason he didn't get it was that the reporter developed multiple sclerosis, left the State and refused to transcribe anything for anybody, no matter how much he was paid. There, timely application had been made, had been persisted here. The Court of Appeals for the Seventh Circuit says in this statement quotation is criticized in petition of reply brief here, that Westbrook “filed a timely notice of appeal.” Actually, that's inaccurate because notice of appeal isn't ordinarily used and until recently couldn't be used in Illinois. What you filed was a press for a writ of error. Well, the court -- petitioner's counsel takes the Court of Appeals for the Seventh Circuit to pass for this inaccurate statement. But what the Court of Appeals meant is correct that he evinced the record his desire for a transcript within the time provided for him. He didn't make a showing of poverty because he wasn't a pauper but he did come up with money. Now, in that case, the Court of Appeals for the Seventh Circuit did say that -- and they relied on the timeliness of the application that in that case sits, it wasn't possible to grant a timely application or a report of proceedings. The petitioner was entitled to a new trial and Illinois did seek certiorari. Now, in the instant case, the situation is that petitioner made no effort for 15 years to obtain a free transcript.
Tom C. Clark: I see in these defendants to petitioner's brief, a case called a Monroe case that a sentence was imposed in the year 1936 and the Griffin case was in what? 1956?
William C. Wines: 1956.
Tom C. Clark: And the Illinois Court reversed and remanded in 1958?
William C. Wines: Yes, Your Honor.
Tom C. Clark: How do you explain that case? Is that different from this one?
William C. Wines: Well, the court reporter didn't die, there was a transcript available.
Tom C. Clark: There was one case.
William C. Wines: In the Monroe case, there was a transcript. Many of our court reporter's transcripts can be read by any reporter. At least so the reporter tells us and everybody believes him.
Tom C. Clark: So your point is not what you just said that the 15 years delay is --
William C. Wines: 15 years delay plus intervening impossibility. That is our contention. The Supreme Court of Illinois, I think as I understood Mr. Justice White of course not to rule but to suggest that Illinois could have taken the position that absent of showing in a particular case of mental retardation, something in that sort if you didn't make timely application in 1941, you can't make it now. But I don't have to argue that because the Illinois didn't take that position.
Byron R. White: (Inaudible)
William C. Wines: What?
Byron R. White: If you do have this case (Inaudible)
William C. Wines: I say that as a matter of constitutional law under the Fourteenth Amendment to the Constitution of the United States. Forget Rule 65-1 for a moment as though it had never been promulgated, that in 1941, petitioner Willie Norvell could have done exactly what Griffin and his co-defendant Crenshaw did in 19 -- shortly before 1956. He could have gone before -- the judge before whom he was convicted or any other judge at the criminal court. He could have asked for a transcript. It might have been denied. He could have taken his case to the Supreme Court of Illinois. There's no presumption that the Supreme Court of Illinois wouldn't have respected the constitutional amendment. That this petitioner, in other words, could have done in 1941 exactly what Griffin did shortly before 1956, made his application, timely application, taken his case to the Supreme Court of Illinois and if he suffered defeat, sought this Court's writ of certiorari. If Griffin was the law in 1941, presumably this Court would have said so in 1941. If it wasn't the law in 1941, presumably this Court wouldn't have said so. Now --
Tom C. Clark: Of course, it wasn't the law when Griffin was convicted.
William C. Wines: I think it was. Your Honors just hadn't said so yet and presumably would have said so if -- if some previous convicted person such as Norvell had brought this case here. Now, I'm --
Byron R. White: Mr. Wines, would you say that the (Inaudible) to a defendant who were a -- commit the same crime (Inaudible) either one of them is requesting (Inaudible) Would you say, this person has a --
William C. Wines: Yes, Your Honor.
Byron R. White: (Inaudible)
William C. Wines: I say --
Byron R. White: All he have to say.
William C. Wines: A little more than that. A little more than that but just in amplification and this is what I say in amplification. That one, if we look at it realistically, one who seeks appellate review of a conviction of a crime is like anybody else who has to prove a fact, only this time instead of having to prove what actually happened at State, in Monroe, in Chicago, he has to prove in order to get a review, what a witness said happened there. The best evidence of that, not necessarily the only evidence but the best evidence of that is ordinarily an authenticated transcript of a record.
Byron R. White: There's no suggestion that indicates that anyone (Inaudible)
William C. Wines: That's right.
Byron R. White: (Inaudible)
William C. Wines: There -- the evidence on that is there's not only no evidence that they can be done but there's pretty conclusive evidence that it cannot be done. Now, so the fifth of my argument --
Byron R. White: This also proves the state could be (Inaudible)
William C. Wines: -- which also proves that the State can't be tried. The fifth of my argument is this, as a matter of Fourteenth Amendment Due Process, never mind some greater right that Illinois may choose to give, who has the burden of proof on getting up a record when a convicted man waits 15 years and then seeks it. I'm so anxious to make this point. While I'm arguing, it's conceivable that some court reporter, some place in the United States is dying right this minute. Now, talk about unreasonable classifications. Does a man suddenly get a right to a new trial as soon as his court reporter dies? Whether that is 15 years or 20 years afterwards, now it's different when he goes within -- with reason -- I'm talking due process now, not the appellate -- canons of appellate judicature of Illinois or any other particular state --
Byron R. White: (Inaudible)
William C. Wines: Yes.
Byron R. White: (Inaudible)
William C. Wines: My answer is that if he has waived an unreasonable length of time, he should, that a convicted person shouldn't be able to bet his own life expectancy against that of the court reporter in effect.
Byron R. White: (Inaudible)
William C. Wines: No, I wouldn't. I say that it's -- that when -- that when we get to Fourteenth Amendment Due Process, it's a matter of reasonableness. Reasonableness is the defining ingredient of due process in all cases and I say that it might very well be that in the hypothetical case that Mr. Justice White puts, that this man who has got the transcript would wish to heaven's sake that it was his court reporter who died because he might get an affirmance and the other fellow say, “Well, you can't presume that the record in my case was like his and he would get the new trial.” I say that for a reasonable time and that time should usually be the time fixed by the rules of the State. 100 days, 60 days, 3 months, 2 months, if the court reporter dies and there's no real way to reconstruct it, the defendant should get a new trial. But otherwise, if you can raise it anytime then every time a court reporter dies, it operates as a pardon for everybody whose trial is transcribed if his notes can't be read and if they can't -- and if they can't be transcribed. Now, as to this question as to how many cases are pending as to how many cases are filed in Illinois, I don't know. I haven't had anything like the information that Mr. Sullivan had for Mr. Justice Goldberg. As to how many prisoners there are, whose notes were transcribed by E.H. Allen, I have no information. As to how many prisoners there are in the other 49 states, convicted anywhere from 10 days to 40 years ago, whose reporters have died, I don't know. I don't think that the death of a court reporter ought to act not just as a pardon but as a general active amnesty to everybody whose notes -- whose case he transcribed.
William J. Brennan, Jr.: Mr. Wines --
Byron R. White: (Inaudible)
William J. Brennan, Jr.: Excuse me.
William C. Wines: It certainly would, it certainly would. I would not want to be a court reporter under --
Tom C. Clark: (Inaudible)
William C. Wines: I beg Your Honor's for --
Tom C. Clark: What happens in Chicago particularly in Chicago?
William C. Wines: Oh, I wouldn't want to comment on that for fear I might offend our group libel statute that Your Honors --
Hugo L. Black: Mr. Wines --
William C. Wines: -- upheld.
Hugo L. Black: Mr. Wines --
William C. Wines: Thank you.
Hugo L. Black: On arguing this wholly as a matter of due process which you say means reasonableness.
William C. Wines: And equal protection.
Hugo L. Black: Well, the equal protection. Is your argument made on the basis of equal protection?
William C. Wines: Yes, Your Honor.
Hugo L. Black: (Voice Overlap)
William C. Wines: I think it was made better by Mr. Justice Harlan's single question that was by my half hour. But when Mr. Justice Harlan asked counsel, “Does Illinois deny equal protection when it does discriminates between the possible?” That is the case where the court's reporter is alive or his notes can be otherwise transcribed and the impossible that is where he's dead or has multiple sclerosis. I think this that -- I really think that these petitioners who have waited a long time, what they need is a witness to what happened. If the court reporter is dead, the best evidence is gone. If nobody else is around and nobody can prove it, it's just a question who has the burden of proof, 20 years later that due process was denied in 1941. The man who --
Hugo L. Black: Are you speaking to one who thinks that if anything denied his equal protection of the law at least one?
William C. Wines: I beg, Your Honor.
Hugo L. Black: I said at least one of those whom you're addressing think if there's anything denied, it was equal protection of the laws are due process only so far as it forbids discrimination provided in the equal protection?
William C. Wines: Well, I understand that. I understand that the court has said that you don't have to allow appellate review of any kind. But that if you do, you can't deny it on a basis of race, property, things of that sort.
Arthur J. Goldberg: (Inaudible)
William C. Wines: I wish Your Honor would.
Arthur J. Goldberg: Let us assume a hypothetical (Inaudible), at that time there was no decision of this Court to furnish a transcript or a free transcript or whatsoever, the decision of this Court -- the decision the other way had been entitled to counsel on the appeal towards a capital case. Now, wouldn't your argument still say that these constitutional -- ought to be denied his right under the constitution for not pursuing the appeal all the way up (Inaudible)
William C. Wines: Yes, Your Honor. That case that you will put as a hypothetical is exactly the actual Griffin case. Griffin had no counsel any place until this Court granted certiorari and appointed counsel for him. He and Crenshaw, they were co-defendants. They took their case in forma pauperis proceed from the criminal court of -- I think it was Cook County to the Supreme Court of Illinois and sought certiorari here. Now, in the (Inaudible) case Your Honors, sustained the conviction where court-appointed counsel appealed and filed a notice of appeal within five days and that was the capital case. I say that their -- that the situation is if this wasn't the law in 1941 which I think it was then Norvell wasn't entitled to it. And if he was if he's properly claimed it, it's presumed that he would have gotten it. Because he has made no allegation that anything kept him from applying in that time.
Earl Warren: Mr. Sullivan.
Thomas P. Sullivan: Your Honor. As I understand the argument of the State of Illinois, it is in short that the petitioner here should not be given any relief solely because at the time he was tried, he did not ask that he be given a transcript of the trial without payment of cost. Now, it may be that this Court will hold that the Griffin case does not extend retrospectively to those who did not request transcripts, as Mr. Wines points out the Eskridge case involved the person who did ask for a free transcript, although he didn't raise a constitutional point in that regard. However, when this -- when the Griffin case went back to the Supreme Court of Illinois, the Supreme Court of Illinois itself resolved that issue for Illinois.
William J. Brennan, Jr.: (Inaudible)
Thomas P. Sullivan: Your Honor, I say as did Mr. Wines, that if the transcript cannot be prepared, there's no point in having an order directing that it'd be prepared. The rule doesn't say what shall happen if this case arises. If the transcript can't be prepared, the petition shall be denied. The question here is whether a new trial should thereupon be granted and this rule does not expressly state or even by implication that no other relief should be granted. The Illinois Supreme Court looked at this question of waiver, they looked at this question of whether we should hold it against the man that he didn't make an application back in 1941 or whenever he was tried and they said this, “We have considered the applicability of the doctrine of waiver, it could be held that a prisoner who did not request a free transcript within the time has waived his right but waiver assumes knowledge and we are unwilling to hold under the circumstances of this case that the constitutional rights of prisoners have been waived.” It is the same notion that this Court expressed several weeks ago in the Noia case. In order for there to be a waiver there must be an intelligent, knowing, giving up of a right. That's the very same thing. Now Illinois has said we will not hold it against you indigent defendants but at the time you were convicted you didn't apply for a free transcript or raised a constitutional question. Therefore, in the final analysis, the only difference between Mr. Monroe, whom Mr. Justice Douglas pointed out, was convicted some years before Norvell. The only difference between Monroe and Norvell is that Monroe's court reporter is still alive or that the reporter being dead he wrote an eligible system of shorthand. We say that to deny relief solely because of that circumstance is arbitrary and capricious. Norvell was just as prompt in seeking relief as Monroe. Norvell did nothing to cause this reporter to die or the transcript to be lost, yet he cannot obtain review under the present circumstances and Monroe did.
Speaker: In view of your state rule, post-Griffin rule, what difference does it make whether he knew, whether he waived, whatever happened back in 1950, in 1941? Under the rule he's entitled on a showing of indigency to get the transcript as I read the rule.
Thomas P. Sullivan: That is correct, Your Honor.
Speaker: And the only question then is whether or not the provision in the rule that says, the State will not do what I call the impossible is a constitutional provision. Is that permissible -- permissibly --
Thomas P. Sullivan: Well --
Speaker: --constitutional provision?
Thomas P. Sullivan: Mr. Justice Harlan, I don't think Rule 65-1 says if the -- if the transcript cannot be supplied, the prisoner shall be sent back to jail without further relief. The rule leaves open the question of what relief should be granted under the circumstances of this case.
Speaker: Now, but the rule is construed by your court is that he gets now relief which I'd assume, binds us, meaning that he doesn't have to get a new trial.
Thomas P. Sullivan: Well, Your Honor, they did not reach this result based on a construction of the rule but rather --
Speaker: Well, they reached it.
Thomas P. Sullivan: They reached it based upon decisions of this Court.
Speaker: Well, as the law we have to take is a state law.
Thomas P. Sullivan: Yes, and that is precisely the rule which I am appealing from and saying it creates an arbitrary and unreasonable classification.
Speaker: But the reason I am raising this question is to talk about waiver and not waiver whether he had a lawyer or whether he didn't have a lawyer, whether he made a representation to -- that he was or was not indigent. I don't see what bearing all that has on -- in view of the existence of this rule in your state.
Thomas P. Sullivan: I concur, Your Honor. I don't understand why Mr. Wines stands before you and argues waiver, argues that you should hold it against Norvell that he didn't ask for a transcript when the State of Illinois has already said that they won't do that as to any of these men and that that is not a ground for discrimination or distinction.
Speaker: I can understand what Mr. Wines argued because it's kind of appealing ad hominem point.
Thomas P. Sullivan: But it -- I suggest, Your Honor that it is not a proper argument in light of the opinion on the Griff -- the Illinois Supreme Court on remand in Griffin and of the text of the rule that we have before us.
Speaker: Or I should think from your point of view you would say that you can accept everything that Mr. Wines said and still stand on your present rule and then argue from that premise.
Thomas P. Sullivan: Just one last point in --
Byron R. White: (Inaudible)
Thomas P. Sullivan: That is the opinion on remand in the Griffin case in the Illinois Supreme Court, 9 Illinois 2d 164.
Arthur J. Goldberg: Mr. Sullivan, can I ask you about -- can I ask you a question about this?
Thomas P. Sullivan: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Thomas P. Sullivan: On the petition for writ of certiorari, yes.
Arthur J. Goldberg: (Inaudible)
Thomas P. Sullivan: It is, I agree with that Judge. I certainly do.
Arthur J. Goldberg: (Inaudible) these cases were under the Constitution and the decisions were overruled. Convictions were reversed (Inaudible) that resulted for the transcripts of the court, is that correct?
Thomas P. Sullivan: That is correct and I might add, Your Honor, that Appendix B of the petitioner's brief, I have included a much more complete list with many more cases as a result of further research.
Arthur J. Goldberg: This one that you have here?
Thomas P. Sullivan: Yes, Your Honor.
Earl Warren: Mr. Sullivan, before you sit down, I would like to express the appreciation of the Court to you for your representation of this indigent defendant at the request of your own Supreme Court and doubly so because you have apparently done it for a number of other indigent defendants. That's a splendid public service and our Court is very appreciative of it. And Mr. Wines, we're very appreciative of course of the fair and earnest way in which you always represent the State of Illinois in these cases.
Thomas P. Sullivan: Thank you, Your Honor. Thank you.