Hardy v. United States

375 U.S. 277, 84 S. Ct. 424, 11 L. Ed. 2d 331, 1964 U.S. LEXIS 2031

• Court: Supreme Court of the United States
• Decided: January 6, 1964
• Docket: 112
• Status: Published

Opinions

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), 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, 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.

We deal with the federal system where the appeal is a matter of right (Coppedge v. United States, supra, at 441; 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. 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” injorma 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, at 446; 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 that. 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, is not to serve as amicus to the Court of Appeals, but as advocate 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. 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 maybe 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.

1 During oral argument of this case, counsel for respondent stated that the United States Attorney for the District of Columbia initiated, since this case was before the lower courts, a practice of not filing an opposition to a motion for a full transcript where the cost of such a transcript will not exceed $200. This is usually the case when the trial does not exceed three days. This practice is followed because the United States Attorney feels that the time and effort necessary to oppose such a motion will, in terms of dollars, exceed $200. According to counsel, the Federal District Court, pursuant to a “tacit” understanding, usually grants unopposed motions for a complete transcript.

2 In Ingram the Court of Appeals said:

“. . . when a pro se petition is filed, upon direct appeal from judgment of conviction, and the claims of error stated therein (e. g., ‘insufficiency of evidence,’ ‘unlawful search and seizure,’) are so con-clusory in nature that ‘their substance cannot adequately be ascertained,’ counsel will be appointed and, simultaneously, the portion of the transcript of proceedings which relates to the conclusory allegations will be ordered so that appointed counsel may determine their merit. Of course, counsel will not be limited to the transcript initially allowed if he can in good conscience advance other claims of error requiring additional portions of the transcript.” Id., at 30-31.

3 Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783, 792-793 (1961), in speaking of the task of counsel who is appointed to represent the appellant and who did not serve as trial counsel, says:

“. . . the new counsel is operating under serious handicaps. Normally he has no prior acquaintance with the trial proceedings and no personal knowledge- of the case which would form a basis for sound judgment. Normally no transcript is in existence at this stage, so he cannot make his own independent analysis of the trial proceedings.

“In order to investigate whether the appeal involves one or more ‘not plainly frivolous’ issues, counsel may examine the formal documents on record in the trial court; he may interview his client; he may discuss the case with defendant’s trial counsel and with the prosecutor; he may try to work out with the prosecutor an ‘agreed statement’ of the case, despite the fact that he lacks the information necessary to assure himself that the agreed statement would be an accurate one; he may ask the official court reporter as a courtesy to read back certain limited portions of the reporter’s shorthand notes (or all of them, if the trial was a short one); and it has been suggested- — -though perhaps without too much regard for the practicalities of some situations — that he may even interview the trial judge and seek to inspect any notes which the trial judge kept of the trial proceedings. Such efforts are apt to be incredibly time-consuming and frustrating, and sometimes may arouse in counsel a feeling that he would be well advised to avoid future assignments of appellate in forma pauperis work. But worse than that, in many instances these efforts will be wholly unsatisfactory as a means of safeguarding the defendant’s rights.

“Recollections and notes of trial counsel and of others are apt to be faulty and incomplete. Frequently, issues simply cannot even be seen — let alone assessed — without reading an accurate transcript. Particularly is this true of questions relating to evidence or to the judge’s charge; and it may also apply to many other types of questions. Moreover, the actual record (if appellate counsel could have it to inspect) might disclose issues substantial enough to constitute probable or possible ‘plain error,’ even though trial counsel was not aware of their existence; and the indigent should have the same opportunity as the wealthy to urge that plain error should be noticed on appeal. In short, a conscientious counsel freshly entering the case at the appellate stage normally is likely to conclude that a full or partial transcript of the trial proceedings will be indispensable if the requisite ‘dependable record’ is to be obtained as a basis for evaluating the case.”