Application of Chessman, 14621.

• Decision Date: 11 January 1955
• Docket Number: No. 14621.,14621.
• Parties: In the Matter of the Application of Caryl CHESSMAN, for a Writ of Habeas Corpus.
• Court: U.S. Court of Appeals — Ninth Circuit

219 F.2d 162 (1955)

In the Matter of the Application of Caryl CHESSMAN, for a Writ of Habeas Corpus.

No. 14621.

United States Court of Appeals, Ninth Circuit.

January 11, 1955.

Caryl Chessman in pro. per., Jerome Duffy, Berwyn Rice, San Rafael, Cal., for petitioner.

Edmund G. Brown, Atty. Gen. of California, for respondent.

DENMAN, Chief Judge.

Chessman convicted of kidnapping and attempted raping of a young woman in violation of Section 209 of the Penal Code of California¹ and other crimes is sentenced to be executed by gas on Friday, January 14, 1955.² He seeks my certificate of probable cause, required by 28 U.S.C. § 2253, for an appeal, which he has attempted to have noticed below, from a decision of the United States District Court for the Northern District of California in a habeas corpus proceeding, 128 F.Supp. 600.³ That court, without issuing the writ or an order to show cause, dismissed on the ground that the application failed to state a cause of action, relying on our opinion in Chessman v. People, 9 Cir., 205 F.2d 128, later discussed.

Under 28 U.S.C. § 2253, to have a probable cause for appeal there must be found a justiciable question for the appellate court to decide. Obviously, if such a question exist, the certificate must be made even though, as presently advised, I might now decide it adversely to Chessman.

The application for the writ in the district court was in all essential respects the same as a petition for the writ in the Supreme Court of California, also so denied 274 P.2d 645. Certiorari was sought in the United States Supreme Court and there denied with the following language, "Without prejudice to an application for a writ of habeas corpus, in an appropriate United States District Court." 348 U.S. 864, 75 S.Ct. 85.

These words are highly significant, since from the petition and briefs in the certiorari proceeding the United States Supreme Court knew of the character of the petition to the California supreme court. The denying of the petition for certiorari would not have suggested the proceeding in the district court, if its allegations did not present what the Supreme Court considered a justiciable question. It is my opinion that what the United States Supreme Court had in mind concerning the allegations of the denied petition is what follows.

The jury brought in a verdict of guilty requiring the death penalty, on which the court rendered its sentence. The court reporter, who was ill when reporting the case, died before he had transcribed the testimony and instructions on which the verdict was rendered and attached his certificate as to its correctness, required by Rule 35 of the California Rules on Criminal Appeals.

How important the California law regards this transcription and certification by the reporter is apparent from the fact that in civil cases the death of the reporter before his transcription and certification, gives the trial court the discretionary power to set aside the judgment and order a new trial. California Code of Civil Procedure, § 953e. By some quirk in California legislation this does not apply to criminal cases. However, it is obvious that if the reporter's transcript is so important as to give the court such power in a civil case, a fortiori it must have such importance in a criminal case in which, on the evidence to be transcribed, the accused is sentenced to death. Likewise its importance is emphasized by the California law making the appeal automatic from death sentences. California Penal Code, § 1239 (b).

What the trial court did was to hold a hearing in which a record was made up by the attempted transcription of the deceased reporter's shorthand notes by a witness, another shorthand reporter, and the testimony of another witness, the attorney who had prosecuted Chessman, this testimony being required because a very considerable part of the shorthand notes were not intelligible to the reporter-witness.

Chessman's petition alleges that he, who had conducted his own defense, was refused permission to attend the hearing on which the transcript for his appeal was so litigated. Nor did any attorney become of record to represent him.

The transcript was typed in over two thousand pages and it is apparent that had Chessman participated in the contest so litigating the transcript, his memory as to what happened better would have been reawakened as page by page it was reconstructed. His subsequent contemplation while confined in the penitentiary of a record so prepared is no substitute for his participancy. Chessman contends that the record does not disclose certain of the statements to the jury made by the prosecuting attorney who so became a witness in its composition, sufficiently prejudicial to amount to a violation of due process, approval of the court of the prosecuting attorney's wrongful statements and the court's instruction to the jury requiring them to inflict the death penalty, though under § 209 of the California Penal Code they had their choice between that and life imprisonment without parole if they found first degree...