Holmes v. United States

• Decision Date: 18 January 1967
• Docket Number: No. 20042.,20042.
• Parties: Gary H. HOLMES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

127 US App. DC 332, 383 F.2d 925 (1967)

Gary H. HOLMES, Appellant, v. UNITED STATES of America, Appellee.

No. 20042.

United States Court of Appeals District of Columbia Circuit.

Argued September 16, 1966.

Decided January 18, 1967.

Supplemental Opinion May 11, 1967.

Mr. Gerald G. Schulsinger, Washington, D. C., with whom Mr. Robert N. Duggan, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and David N. Ellenhorn, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BURGER and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

Arrested in the early morning hours of September 14, 1965, appellant was charged with grand larceny and destruction of private property. Following a preliminary hearing, appellant was held for action of the grand jury. Although pre-trial bail was set, appellant remained in custody because he could not afford the premium on a bail bond. An indictment was returned and appellant stood trial on January 3, 1966. The jury acquitted him on the larceny charge, but found him guilty of destroying private property, a misdemeanor. 22 D.C.Code § 3112 (1961), now 22 D.C.Code § 403 (Supp. V, 1966). On February 11, 1966, the district judge imposed the maximum six month sentence, and subsequently denied a motion to credit pre-trial custody against the sentence. Leave to appeal in forma pauperis was granted on March 7, 1966 and the trial transcript was ordered prepared at Government expense.

In accordance with our usual practice, we appointed counsel to represent appellant and provided that the time for filing appellant's brief would not commence to run until the trial transcript had been docketed as a supplemental record. Thereafter, a frustrating series of delays was encountered,¹ and the transcript was not docketed until July 8th. On July 11th, appellant was released from jail having served his sentence.

We think it clear, and the Government does not argue otherwise, that appellant had a statutory right to a trial transcript, 28 U.S.C. § 1915, and that such right necessarily included reasonably prompt receipt of the transcript in order that prosecution of the appeal for which it is furnished would not be thwarted. The Supreme Court has recognized the essential nature of the transcript. Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), which Mr. Justice Goldberg called "the most basic and fundamental tool of the profession * * *." 375 U.S. at 288, 84 S.Ct. at 431 (concurring opinion). Delay in the preparation of transcripts is a problem we face with disturbing frequency.² We know from our discussions with district judges that there is a serious shortage of reporters and that they now labor under unusually heavy workloads. We are also advised that the District Court has recently added temporary reporters in an effort to ease the mounting backlog of transcripts which have been ordered but not prepared. The record does not show why this particular transcript was delayed, nor do we think it necessary to search for the cause. More than likely, delay in preparation of transcripts is an amalgam of many factors. But where we deal with a statutory right, even the most plausible of reasons cannot serve to excuse outright denial of that right. It is only because of a jurisdictional objection interposed by the Government, to which we now turn, that we find it unnecessary to decide today whether reversal is the proper remedy for unreasonably delayed transcripts,³ or whether some other form of relief is appropriate.⁴

Citing St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L. Ed. 1199 (1943), the Government contends that appellant's unconditional release renders the case moot. Although St. Pierre so holds, later cases have made it clear that a matter remains justiciable, even though the sentence has been served, if there is some collateral disadvantage which the party might reasonably be expected to incur by virtue of the conviction.⁵ We were unwilling to decide this issue on the scant data in the record and called for supplemental memoranda from the parties. The Government lists fourteen misdemeanor convictions which appellant has incurred in this jurisdiction since November, 1961, including a previous conviction for this identical offense. Appellant does not challenge the accuracy of the Government's representation in this regard. In these circumstances, we find no collateral disadvantage which appellant might incur by virtue of this, his fifteenth misdemeanor conviction. Accordingly, we consider St. Pierre controlling, and hold that this case is moot.

This is not a result we comfortably reach for the record indicates that this appeal became moot simply because appellant lacked the funds to post a nominal appeal bond⁶ or to purchase a trial transcript. But the Supreme Court cases, resting as they do on jurisdictional grounds, seem to us to preclude an exception under the circumstances of this case. What we said in another context is apt here. "We are getting better at supplying legal aid to the poor. We are, it is true, gradually eliminating the disparities between the ideals and the realities of our system of justice. But the situation is far from tolerable." Powell v. Zuckert, 125 U.S.App.D.C. 55, 58, 366 F.2d 634, 637 (1966).

Dismissed.

BURGER, Circuit Judge, concurs in the result.

SUPPLEMENTAL OPINIONS

PER CURIAM:

The opinion of this court rendered January 18, 1967, dismissed for lack of jurisdiction, but called attention to the injustice of a situation where an accused cannot get his appeal considered on the merits because he served his sentence before a transcript was prepared. We did not seek in that opinion to identify the causes of delay, but instead referred to them as an amalgam of many factors.

We had not supposed it would become the province of an opinion to deal in more detail with what is essentially an administrative problem. We have done so in this supplemental opinion in order to provide perspective for the apparently simple solution developed in the opinion which our concurring colleague prepared after January 18, 1967, and which isolates one of these factors for extended discussion.

It is apparently suggested that the problem of transcript delay could be substantially solved by changing our practice so that in general trial counsel will be appointed for appellate presentation.

We believe that it is entirely appropriate to propose for discussion by the Judicial Council and Judicial Conference, including the Committees thereof, whether and in what situation appellate counsel should be the same as trial counsel. However, it seems to us that this is a matter that should be decided in terms of fundamentals of the administration of justice, and that for this purpose the courts should be able to take for granted the capability of reporters to furnish transcripts with reasonable promptness.

I

The problem of transcript delay is essentially an administrative problem that has swollen as an incident of the rapid increase in the number of criminal appeals filed in our court. The 1966 report of the Presidential Commission generally referred to as the D. C. Crime Commission was concerned with the problem and recommended that the courts focus on the adequacy of the reporting staff. The data in the Commission's report show a dramatic surge in criminal appeals beginning in fiscal 1963.¹ For fiscal years 1952-62, criminal appeals ranged in number from 71 to 136, with a median of 97 and an average of 101. In the four fiscal years 1963-1966, criminal appeals numbered: 200; 251; 237; and 252. The Commission noted that this in part reflected an increase in the percentage of convicted defendants taking appeals, and stated: "The rapid increase in recent years is probably attributable in part to recent judicial decisions which have made appeals by indigent persons more widely possible." (REPORT at 301). Its Report cited, of course, the Supreme Court's decisions in Hardy, Coppedge and Ellis.²

It should be noted that the recent trend in our circuit approximately parallels the overall national trend for the eleven courts of appeals. The national data show that in the earlier period criminal appeals averaged about 600, ranging from 308 to 731, but that in the last four fiscal years criminal appeals have numbered: 985, 1188, 1305, and 1262.

As to the specific problem of transcript delay and the consequent delay in disposition of criminal appeals, the D. C. Crime Commission recommended that this court and the District Court establish a joint committee "to investigate and ensure the adequacy of the court reporting staff."³ The Judicial Council has discussed the problems several times with Chief Judge Curran of the District Court, accompanied on one occasion by another District Judge.

The administrative problem of transcript delay primarily requires consideration of the practices and compensation of the court reporters, matters now under consideration by the District Court. Reforms and improvements have been achieved; others are in prospect. Chief Judge Curran has designated himself as Liaison Judge with the Court Reporters, and has recently issued Rules for Court Reporters that establish a number of pertinent administrative requirements. A system for rotation of duty has been established — a matter that may well be of prime significance since analysis of data available to the Judicial Council shows that only four out of twenty reporters are responsible for significant transcript delay (over 1,000 pages) and that they account for more than 60% of the backlog of some 12,000 pages as of the end of March. Even prior to the institution of this reform backlog was cut by a not inconsiderable 7% in February, and by the end of March the new system contributed to a reduction in transcript backlog from...