Chessman, Application of

• Decision Date: 07 October 1954
• Docket Number: Cr. 5632
• Citation: 43 Cal.2d 391,274 P.2d 645
• Parties: , 43 Cal.2d 408 In the Matter of the Application of Caryl CHESSMAN for Writ of Habeas Corpus.
• Court: California Supreme Court

Page 645

274 P.2d 645

43 Cal.2d 391, 43 Cal.2d 408

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

Cr. 5632.

Supreme Court of California.

Oct. 7, 1954.

Writ of Certiorari Denied Oct. 25, 1954.

See 75 S.Ct. 85.

Berwyn A. Rice, Jerome A. Duffy, San Rafel, J. W. Ehrlich, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Raymond M. Momboisse, Dep. Atty. Gen., for respondent.

SCHAUER, Justice.

The People move this court to vacate an order signed by Mr. Justice Carter on July 28, 1954, and filed on July 29, 1954, Cal.Sup., 273 P.2d 263, that execution of Caryl Chessman, fixed for July 30, 1954, be stayed 'pending disposition of his petition for Writ of Certiorari by the Supreme Court of the United States (to review this court's minute order of July 21, 1954, denying Chessman's petition for habeas corpus and for stay of execution).'

The grounds of the People's motion to vacate the stay are: (1) That the order was beyond the jurisdiction of Justice Carter. (2) That the order was made on an erroneous assumption of facts. (3) That the order was obtained by false representations to Justice Carter. (4) That the application for stay was made solely for the purpose of delay. (5) That the application for habeas corpus filed with the court July 16, 1954, and denied July 21, 1954, and the subsequent application for stay were and are without merit.

Although, for the reasons hereinafter stated, we have concluded we should deny the People's motion we are of the opinion that in ruling upon that motion the circumstances of the case make it imperative that we indicate the matters of record upon which the court acted in denying Chessman's petition for habeas corpus and for stay of execution, and, as well, the state of the record at the time the stay order was granted.

We therefore assume, for the purposes of disposition of this matter, without so deciding, that Justice Carter, by virtue of Title 28, U.S.C., § 2101, paragraph (f), was empowered to grant a stay of execution upon a proper showing of facts. Having made such assumption we detail the matters of record hereinafter set forth which indisputably establish that the claim upon which the application was based had already long since been presented and finally adjudicated.

The identity and character of the claim of Chessman (hereinafter sometimes called defendant) and the factual grounds relied upon by Justice Carter in making the stay order in response to it are established by the opinion filed by Justice Carter in this court on July 29, 1954, as follows:

'An application has been presented to me for a stay of execution pending the determination of a petition for a Writ of Certiorari to the Supreme Court of the United States to review the denial of an application to the Supreme Court of California for a Writ of Habeas Corpus on July 21st, 1954. Said application is based upon the claim that the transcript on appeal from Chessman's conviction in the Superior Court of Los Angeles County was inaccurate due to the inability to correctly transcribe the notes of the Official Court Reporter who died before approximately 1200 pages of his reporter's notes were transcribed, and that the inaccuracy of this transcription was known to the prosecuting officials at the time the transcript was approved by the trial court and presented to the Supreme Court of California.

'It appears from said application that (1) the alleged fraudulent procurement of said transcript was not known to petitioner until June of this year and (2) the facts in connection therewith were never presented to any court until the petition for a Writ of Habeas Corpus was filed in the Supreme Court of California on July 16th, 1954.

'In my opinion the application presents a serious constitutional question under the due process clauses of both the Constitutions of the United States and California * * *

'I have therefore granted Chessman a Stay of Execution pending the determination by the Supreme Court of the United States of the merits of his petition for a Writ of Certiorari.'

The facts, all matters of record, are as follows:

On November 1, 1948, Chessman filed with this court his petition for prohibition (Crim.4590) in which he alleged that Mr. Ernest R. Perry, the reporter who made a shorthand report of the trial, died before he had transcribed his notes; that on June 25, 1948, Chessman moved for a new trial on the ground of Perry's death, the motion was denied, and the judgments of conviction were pronounced; that Chessman is informed and believes that the trial judge, Judge Charles W. Fricke, requested other reporters to transcribe Perry's notes and 'that said reporters, whose identity is to this petitioner unknown, have found the fact to be, and have so advised * * * (the) Superior Court, that there are serious doubts that any reporter can transcribe said notes. * * * (That Judge Fricke) is now engaged in the process of attempting to prepare a record on appeal from the following sources: (a) the fragmentary portions of the notes of said Ernest R. Perry which are capable of being transcribed; (b) notes taken by said Hon. Charles W. Fricke * * *; and (c) notes taken by Deputy District Attorney J. Miller Leavy during the progress of the trial'; that 'the acts and threatened acts of said court * * * in connection with the attempt of said Superior Court to complete a record on appeal were, are and will be illegal and void for the reason that said Court is without jurisdiction to act in said matter.' On November 22, 1948, this court by minute order denied the petition for prohibition.

As stated in People v. Chessman (1950), 35 Cal.2d 455, 458, 218 P.2d 769, 19 A.L.R.2d 1084 prior to his death Mr. Perry had made dictaphone records of part of his notes; a portion of these records had been transcribed before his death; transcription of the remainder was completed by the transcriber who had been employed by Mr. Perry; pursuant to court order Mr. Stanley Fraser, another official court reporter, read and transcribed the balance of Perry's notes; he was aided by voluminous notes of the trial judge and by conferences with Mr. Leavy. A copy of the resulting transcript was sent to defendant (who at that time represented himself) in San Quentin.

Allegations materially similar to the allegations of the July 16, 1954, petition for habeas corpus as to the manner in which the reporter's transcript was prepared after the death of Mr. Perry and charges that the transcript was inaccurate and fraudulent, have been repeatedly presented to this court and to other courts, and as often rejected, as related hereinafter in some detail.

On May 12, 1949, Chessman filed with the Superior Court of Los Angeles County, in support of his motion to correct and augment the record, his affidavit charging that Mr. J. Miller Leavy, the deputy district attorney who tried the case against Chessman and who aided Mr. Stanley Fraser in the preparation of the reporter's transcript, 'deliberately conspired in the production of a record that is spurious and has further deliberately misrepresented this is a verbatim record when he knows it is not, and that his misrepresentations were calculated to hoodwink the Supreme Court.' The trial judge heard Chessman's objections to the transcript, allowed some and disallowed others; the judge rejected the quoted charges of conspiracy and misrepresentation.

On March 17, 1950, while motions of Chessman attacking the transcript were pending in this court, Judge Goodman of the United States District Court for the Northern District of California denied Chessman's application for habeas corpus containing similar charges; thereafter, he denied Chessman's petition for a certificate of probable cause; and the United States Court of Appeals, Ninth Circuit, denied his petition for leave to appeal.

On May 19, 1950, this court, in denying motions of Chessman attacking the transcript, discussed his charges at length in People v. Chessman, supra, 35 Cal.2d 455, 463-465, 218 P.2d 769, as follows:

'The asserted 'inaccuracies and omissions in the record' of which defendant complains are as follows: (a) The greater part of defendant's complaints consists of general claims that large portions of the transcript of testimony of witnesses are incomplete or inaccurate. Defendant does not claim that any different and more accurate transcription of the notes would show that the trial court erroneously admitted or excluded any evidence. Certainly no factual basis is shown, and none is even claimed, for concluding that any erroneously admitted or excluded evidence prejudicially affected the verdicts. Claimed inaccuracies concern conflicting testimony and the credibility of witnesses. Making available to this court the precise words of every witness would not enable it to upset the jury's determination that the People's witnesses, rather than defendant and his witnesses, spoke the truth. * * * (b) Defendant asserts that the record is mistaken in showing that he did not cross-examine certain witnesses The trial judge's determination to the contrary is supported not only by his own notes and the testimony of Mr. Fraser, the transcribing reporter, but also by the testimony of Mr. Al Matthews, deputy public defender, who acted as 'legal advisor' (not counsel) for defendant during the trial. (c) Defendant has specified some particular changes in the record which, he says, the trial judge should have allowed. The unimportance of these matters is apparent for, had the proposed changes been allowed, the effect of the record and the result of an appeal would have been in no way affected. (d) Defendant asserts that sarcastic statements of the prosecuting attorney during the trial have been omitted or 'smoothed over.' There is no claim that defendant objected to these statements or requested the court to admonish the prosecuting attorney and instruct the jury to...