Hardy v. United States

Decision Date06 January 1964
Docket NumberNo. 112,112
Citation11 L.Ed.2d 331,375 U.S. 277,84 S.Ct. 424
PartiesZebedee HARDY, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court

Mozart G. Ratner, Washington, D.C., for petitioner.

Louis F. Claiborne, Washington, D.C., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioner, a pauper, has been convicted and sentenced to prison. After conviction the court-appointed lawyer, who represented him at the trial, withdrew his appearance with the approval of the court. The present court-appointed attorney is a different person, appointed by the Court of Appeals after the indigent had prepared pro se a petition for leave to appeal in forma pauperis. The District Court denied leave to appeal in forma pauperis. The Court of Appeals, although empowered to allow the appeal (Coppedge v. United States, 369 U.S. 438, 455, 82 S.Ct. 917, 926, 8 L.Ed.2d 21), merely allowed petitioner to proceed in forma pauperis for purposes of the appeal 'to the extent of having the stenographic transcript of the testimony and evidence presented by the government prepared at the expense of the United States,' as those parts of the transcript were the only ones that relate 'to the conclusory allegations' formulated by the indigent defendant pro se. See Ingram v. United States, 114 U.S.App.D.C. 283, 315 F.2d 29, 30—31. After a petition for rehearing was denied, petitioner moved the Court of Appeals for a transcript of the balance of the proceedings in the District Court. This motion was denied by a divided Bench. The case is here on certiorari. 373 U.S. 902, 83 S.Ct. 1293, 10 L.Ed.2d 198.

We deal with the federal system where the appeal is a matter of right (Coppedge v. United States, supra, 369 U.S. at 441, 82 S.Ct. at 919, 8 L.Ed.2d 21; 28 U.S.C. §§ 1291, 1294), and where the appellant is entitled to 'the aid of counsel unless he insists on being his own.' Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593. Congress has buttressed that right of appeal in several ways. It has provided in 28 U.S.C. § 1915 that any federal court may authorize an 'appeal' in forma pau- peris, except that such an appeal may not be taken if the trial court certifies that 'it is not taken in good faith.' Further, a transcript is available for appeal purposes, Congress having provided in the Court Reporter Act, 28 U.S.C. § 753(b), that a transcript 'by shorthand or by mechanical means' of 'all proceedings in criminal cases had in open court' shall be made. The United States Attorney for the District of Columbia has adopted the practice of furnishing to indigents a full transcript on request if the cost to the United States is not more than $200.1 That policy draws a distinction not present in the statute nor in the Rules of the Court of Appeals which provide that, when the court allows an appeal in forma pauperis, it shall then determine 'whether, and to what extent, a transcript will be necessary for the proper determination of the appeal.' D.C.Cir.Rule 33(b)(2)(i).

We have here a case where an appeal in forma pauperis has not yet been allowed. But whether counsel seeks an entire transcript at that stage or later on, the problem seems to us to be the same.

A court-appointed counsel who represents the indigent on appeal gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned. Coppedge v. United States, supra, 369 U.S. at 446, 82 S.Ct. at 921—922, 8 L.Ed.2d 21; Ingram v. United States, supra.2 But when, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than th t. For Rule 52(b) of the Federal Rules of Criminal Procedure provides: 'Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.' The right to notice 'plain errors or defects' is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.3 The duty of counsel on appeal, as we noted in Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060, is not to serve as amicus to the Court of Appeals, but as advoca e for the appellant:

'Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required. If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.' (Italics added.)

We deal here only with the statutory scheme and do not reach a consideration of constitutional requirements. We see no escape from the conclusion that either where the requirements of a nonfrivolous appeal prescribed by Coppedge v. United States, supra, are met, or where such a showing is sought to be made, and where counsel on appeal was not counsel at the trial, the requirements placed on him by Ellis v. United States, supra, will often make it seem necessary to him to obtain an entire transcript.

We conclude that this counsel's duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and also the court's charge to the jury, as well as the testimony and evidence presented by the prosecution.

Reversed.

Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring.

I join the Court's opinion which is written narrowly within the framework of prior decisions. I concur separately, however, to state my conviction that in the interests of justice this Court should require, under our supervisory power, that full transcripts be provided, without limitation, in all federal criminal cases to defendants who cannot afford to purchase them, whenever they seek to prosecute an appeal.

The problem here arises out of the different procedures by which criminal appeals taken by indigent and nonindigent defendants are processed in the District of Columbia and other federal courts. The procedure for nonindigents, who are represented by retained counsel and who are generally free on bail pending appeal, is automatic, direct and prompt. Within 10 days after judgment, counsel files a simple notice of appeal with the clerk of the District Court; a transcript is purchased and filed with the Court of Appeals; and the case is then automatically placed on the calendar for briefing and argument on the merits.1 The procedure for indigents, who are generally incarcerated pending appeal because of their inability to make bail,2 is indirect, dilatory and discretionary. A key difference is that while a nonindigent may appeal, in effect, as a matter of right, an indigent must make a showing that his claims of error are not frivolous before he is given permission to appeal. A brief description of the process by which the federal courts seek to screen frivolous attempts to appeal in forma pauperis is necessary to an understanding of the problem raised by this case.

Following the conviction and sentencing of an indigent defendant, his cou t-appointed trial lawyer often withdraws from the case.3 If the right to appeal is to be pre- served, the defendant pro se must file a notice of appeal within 10 days after the entry of the judgment and must apply to the District Court for leave to appeal in forma pauperis. The application must include a statement of the alleged errors the defendant seeks to raise on appeal. Unless the District Court concludes that the appeal is not taken in 'good faith,' leave to appeal in forma pauperis must be granted. If the District Court denies leave to appeal in forma pauperis, the defendant, who, as previously noted, is often without the services of an attorney, may apply to the Court of Appeals for leave to appeal. If the Court of Appeals can determine from the application that a nonfrivolous claim of error exists, it must grant leave to appeal. If leave is granted, either by the District Court or the Court of Appeals, a lawyer is then appointed and supplied with the portions of the transcript relating to the nonfrivolous claims. If he then desires any additional portion of the transcript to help him prepare his appeal on the merits, he must ask the Court of Appeals to order its preparation.

If the District Court has denied leave to appeal in forma pauperis, and if 'the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing * * *' that the case presents a nonfrivolous issue. Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21. A 'record of sufficient completeness' has been interpreted by the Court of Appeals for the District of Columbia to mean 'the portion of the transcript of proceedings which relates to the conclusory allegations' made by the defendant in his pro se application. Ingram v. United States, 114 U.S.App.D.C. 283, 285, 315 F.2d 29, 31. After receiving the relevant portion of the transcript, the appointed lawyer has the duty of pre aring a memorandum showing, if he can, that the case presents a nonfrivolous issue and that leave to appeal should be granted. If the...

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