United States v. Lane
| Decision Date | 26 July 1961 |
| Docket Number | Civ. No. 2904. |
| Parties | UNITED STATES of America ex rel. George Robert BROWN, Petitioner, v. Ward LANE, Warden, Indiana State Prison, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
This is a petition for a Writ of Habeas Corpus filed by petitioner on July 20, 1961. Petitioner is presently under sentence of death imposed by the Lake County, Indiana, Criminal Court upon a conviction for murder in the perpetration of robbery.
The issue in this petition is whether the State of Indiana denied petitioner "equal protection" as guaranteed by the 14th Amendment to the Constitution of the United States by its action in allowing the Public Defender sole discretion in determining whether or not he will represent this pauper-petitioner and furnish him with the required transcript in order that an appeal might be perfected from a denial of a Petition for Writ of Error Coram Nobis.
The facts relevant to a determination of this issue, briefly stated, are as follows:
On May 10, 1960, the petitioner filed in the Lake County, Indiana, Criminal Court a Verified Petition for Writ of Error Coram Nobis. A hearing was had on this petition on June 1, 1960, at which time the Trial Court denied the same. Thereafter the petitioner asked the Public Defender to represent him to perfect an appeal from this denial to the Indiana Supreme Court. The Public Defender declined to assist Petitioner and furnish him with a transcript.
The Petitioner then filed, in the Lake County Criminal Court, a Motion to appoint counsel and furnish transcript of record, but this Motion was denied.
Petitioner then filed a Verified Petition for a Writ of Mandate, asking the Indiana Supreme Court to direct the Lake County Criminal Court to appoint counsel and furnish a certified copy of the lower court's record and transcript of the Coram Nobis hearing in order that he could appeal to the Indiana Supreme Court from the order overruling and denying his Coram Nobis Petition.
The Supreme Court of Indiana, on February 2, 1961 denied this petition. Brown v. State, 1961, 171 N.E.2d 825.
On March 27, 1961, the petitioner filed a petition for Writ of Certiorari in the Supreme Court of the United States. This Writ was denied on June 12, 1961, 81 S.Ct. 1906.
Petitioner then filed the present Petition for Writ of Habeas Corpus in this Court.
The Indiana Public Defender Act, Burns' Indiana Statutes Annotated, § 13-1402, states that:
"(I)t shall be the duty of the public defender to represent any person in any penal institution of this state who is without sufficient property or funds to employ his own counsel, in any matter in which such person may assert he is unlawfully or illegally imprisoned, after his time for appeal shall have expired."
In State ex rel. Casey v. Murray, 1952, 231 Ind. 74, 106 N.E.2d 911, the Supreme Court of Indiana said that "since the state had created the office of Public Defender to represent pauper prisoners after the regular time for appeal had expired, the prisoner is not entitled to a transcript of the record or the services of other counsel at public expense, but his record, at public expense, must be obtained through the Public Defender as prescribed by statute."
In interpreting the Indiana Public Defender Act, the Supreme Court of Indiana pointed out in the case of Jackson v. State, 1960, 169 N.E.2d 128, that this statute gives a defendant who desires an attorney to represent him in a post-conviction remedy and who is without funds to procure such an attorney, the right to proceed to obtain the services of the Public Defender. However, in State ex rel. Casey v. Murray, supra, 106 N.E.2d at page 912, the Supreme Court of Indiana held that "the Public Defender is not required to represent any prisoner whose assertion that he is unlawfully imprisoned, after due investigation, appears in his sound judgment to have no merit."
The effect of these decisions denies some indigent defendants appellate review from an order dismissing a petition for a Writ of Error Coram Nobis. A defendant who can afford to pay for a transcript can perfect an appeal, either pro se or through counsel, but an indigent defendant, in order to perfect an appeal, must first seek the aid of the Public Defender who has discretion to determine whether the case has merit before he decides to represent the defendant. If the Public Defender determines that the case has merit he can obtain the transcript; however, if he decides that the case is without merit, the defendant is unable to obtain a transcript. Therefore, an indigent defendant who is unable to convince the Public Defender that his case has merit is denied appellate review because the Supreme Court Rule 2-40 requires that a "transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the Clerk of the Supreme Court * * *." Indiana Sup.Ct.1958 Edition Rule 2-40.
As applied to the facts of this case, the effect of the decisions produces a result that is in disharmony with the "equal protection" clause of the 14th Amendment. Petitioner attempted to secure the services of the Public Defender to represent him to perfect an appeal from the denial of his petition for Writ of Error Coram Nobis but the Public Defender declined to assist him. Petitioner thereupon asked the Lake County Criminal Court to appoint counsel and furnish a transcript of the record, but this was denied. The Supreme Court of Indiana also denied a Mandate to direct the Lake County Criminal Court to appoint counsel and furnish a transcript of the record. The petitioner is therefore foreclosed in the courts of Indiana to obtain effective appellate review because he is an indigent defendant who cannot obtain a transcript of the record at public expense and because he is an indigent defendant who cannot convince the Public Defender that his cause has merit.
Indiana has created the office of Public Defender and according to that statute (Burns' 13-1402) it is the duty of that officer to represent any person in a penal institution who is without funds to employ his own counsel and who is asserting that he is unlawfully or illegally imprisoned. However, since the Supreme Court of Indiana construes this statute to mean that the Public Defender need represent only those whom he, the Public Defender, believes have meritorious causes, indigent defendants, such as this petitioner, are not afforded the equal protection guaranteed by the 14th Amendment to the Constitution of the United States.
The decisions of the Indiana Supreme Court upon consideration of the Petition for Writ of Mandamus filed by this petitioner in Brown v. State, 1961, supra, and in the recent case of McCrary v. State, 1961, 173 N.E.2d 300, continue to support the decision in State ex rel. Casey v. Murray, supra, giving the Public Defender sole discretion in determining whether or not to perfect an appeal from an order dismissing a petition for Writ of Error Coram Nobis.
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