In a State Court, petitioner was convicted of a capital offense.
The official court reporter of the trial proceedings died before
his notes were transcribed, and they were transcribed by a
substitute reporter, who worked in close collaboration with the
prosecutor. Though a copy of the transcript was furnished to
petitioner and many, but not all, corrections which he requested
were made, he was not represented in person or by counsel when the
trial record was settled, and it was used over his objection on his
appeal, at which his conviction was affirmed. In a habeas corpus
proceeding, a Federal District Court found that there was no fraud
in the preparation of the record, and it dismissed the writ.
Held: in the circumstances of this case, the
ex
parte settlement of the record violated petitioner's right to
procedural due process under the Fourteenth Amendment. Pp.
354 U. S.
157-166.
(a) Petitioner was entitled to be represented either in person
or by counsel throughout the proceedings for the settlement of the
trial record. P. 162.
(b) Petitioner's refusal to be represented by counsel at the
trial did not constitute a waiver of his right to counsel at the
settlement proceedings. P.
354 U. S. 162.
(c) The hearings before a federal judge in the habeas corpus
proceedings, at which petitioner was personally present and
represented by counsel, did not cure the lack of procedural due
process in the state proceedings. P.
354 U. S.
163.
(d) Consistently with procedural due process, the State Supreme
Court's affirmance of petitioner's conviction upon a seriously
disputed record, whose accuracy petitioner had no voice in
determining, cannot be allowed to stand. Pp.
354 U. S.
164-165.
(e) A valid appeal to the Constitution, even by a guilty man,
does not come too late because courts were not earlier able to
enforce what the Constitution demands. P.
354 U. S.
165.
(f) The judgments of the Federal District Court and Court of
Appeals are vacated, and the case is remanded to the District
Court
Page 354 U. S. 157
for entry of such orders as may be appropriate allowing the
State a reasonable time within which to take further proceedings
not inconsistent with this Court's opinion, failing which
petitioner shall be discharged. P.
354 U. S.
166.
239 F.2d 205, judgment vacated and cause remanded.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Our writ of certiorari in this case was limited to the following
question:
"whether, in the circumstances of this case, the state court
proceedings to settle the trial transcript, upon which petitioner's
automatic appeal from his conviction was necessarily heard by the
Supreme Court of the State of California, in which trial court
proceedings petitioner allegedly was not represented in person or
by counsel designated by the state court in his behalf, resulted in
denying petitioner due process of law, within the meaning of the
Fourteenth Amendment to the Constitution of the United States."
353 U.S. 928.
We believe that a mere statement of the facts in this long
drawn-out criminal litigation material to the issue now before us
will suffice to show why we have reached the conclusion that the
judgment of the Court of Appeals, affirming by a divided court
[
Footnote 1] discharge of the
writ of
Page 354 U. S. 158
habeas corpus herein, must be vacated, and the case remanded for
further proceedings.
In May, 1948, petitioner, following a trial by jury in the
Superior Court of Los Angeles County, was convicted of a series of
felonies under a multi-count indictment, and was sentenced to death
upon two counts charging him with kidnaping for the purpose of
robbery, with infliction of bodily harm, in violation of § 209 of
the California Penal Code. In capital cases, California provides
that "an appeal is automatically taken by the defendant without any
action by him or his counsel," [
Footnote 2] and that, in such cases, "the entire record of
the action shall be prepared." [
Footnote 3] The Supreme Court of the State of California
affirmed petitioner's conviction by a divided court.
People v.
Chessman, 38 Cal. 2d
166, 238 P.2d 1001.
At the trial, petitioner insisted upon defending himself, and
repeatedly refused the trial court's offer of counsel, although he
did have at his disposal the services of a deputy public defender,
who acted as his "legal adviser" and was present at the counsel
table throughout the trial. About a month after the conclusion of
the trial, the official court reporter of the trial proceedings
suddenly died, having at that time completed the dictation into a
recording machine of what later turned out to be 646 out of 1,810
pages of the trial transcript. Following the denial of petitioner's
motion in the Superior Court for a new trial, [
Footnote 4] there ensued the preparation and
settlement of the trial transcript constituting the appellate
record upon
Page 354 U. S. 159
which the California Supreme Court subsequently heard
petitioner's appeal. It is the circumstances under which this
transcript was prepared and settled that give rise to the issue now
confronting us.
At the instance of the deputy district attorney in charge of the
case, and with the approval of the trial judge, one Stanley Fraser,
a court reporter and former colleague of the deceased reporter,
Perry, was employed in September, 1948, to transcribe the
uncompleted portion of Perry's shorthand notes, amounting to 1,164
pages as finally transcribed. In November, 1948, petitioner
unsuccessfully sought to have the California Supreme Court halt the
preparation of the transcript on the ground that Perry's notes
could not be transcribed with reasonable accuracy. [
Footnote 5] Fraser accordingly went forward
with the work, and was occupied with it over the next several
months. A "rough" draft of the transcript was submitted to the
trial judge in February, 1949, but was not made available to
petitioner, although he had requested that it be furnished him.
After this draft had been gone over by the deputy district
attorney, it was filed with the judge in final form on April 11,
1949, and a copy was then sent to the petitioner at San Quentin
Page 354 U. S. 160
Prison. Thereafter petitioner sent to the trial judge a list of
some 200 corrections to the transcript, and at the same time moved
that
"a hearing to ordered . . . to enable [petitioner] to determine
actually the ability of Mr. Fraser to read Mr. Perry's notes, and
to enable the [petitioner] to offer a showing this is not, and
challenge it as, a usable transcript, and to enable [petitioner] to
point out to the court the many inaccuracies and omissions in this
transcript, to prove these inaccuracies and omissions, and for the
court to determine these matters. . . ."
In these papers, petitioner further stated that he had
"not yet had the opportunity to confer with his legal advisor
during the trial, and consequently has been hesitant to offer error
in certain instances until he has verified this error with his
legal advisor."
Petitioner's motion was denied, and the matter continued to
proceed on an
ex parte basis to final conclusion. At
hearings held on June 1, 2, and 3, 1949, in which petitioner was
not represented in person or by an attorney, the trial judge, after
hearing Fraser's testimony as to the accuracy of his transcription
and allowing some 80 of the corrections listed by petitioner,
settled the record upon which petitioner's automatic appeal was to
be heard. Thereafter petitioner made a motion in the California
Supreme Court attacking the adequacy of these settlement
proceedings, complaining, among other things, that he had not been
permitted to appear at such proceedings. While that motion was
pending, on August 18, 1949, a further hearing was held before the
trial judge with reference to the settlement of the record at which
two witnesses were examined. Again, petitioner was not represented
at this hearing either in person or by counsel. The
Page 354 U. S. 161
sufficiency of the record, as thus settled, was upheld by the
California Supreme Court, first upon the motion just mentioned,
People v. Chessman, 35 Cal. 2d
455, 218 P.2d 769, and subsequently upon petitioner's appeal
from his conviction,
38 Cal. 2d
166, 238 P.2d 1001.
On October 17, 1955, this Court, reversing the Court of Appeals,
remanded to the District Court for a hearing petitioner's
application for a writ of habeas corpus, charging fraud in the
preparation of the state court record, which had been summarily
dismissed by the District Court.
350 U. S. 3.
[
Footnote 6] This resulted in
the judgment which is now before us. The District Court held that
no fraud had been shown. The record of proceedings held before
District Judge Goodman reveals the following additional facts as to
the preparation of the state court record, none of which appear to
be disputed by the State, which has been ably and conscientiously
represented here: Fraser, the substitute reporter, was an uncle by
marriage of the deputy district attorney in charge of this case, a
fact of which neither the state trial court nor the appellate court
was aware when it approved the transcript. In preparing the
transcript, Fraser worked in close collaboration with the
prosecutor, and also went over with two police officers, who
testified for the State at the trial, his transcription of their
testimony. The latter episodes were likewise unknown to the state
courts when they approved the transcript. The testimony of one of
these officers concerned petitioner's alleged confession, a subject
of dispute at the trial, and petitioner's list of alleged
inaccuracies, already mentioned, related to some of that testimony.
It also appeared at this hearing that Fraser had destroyed the
"rough" draft of his transcription
Page 354 U. S. 162
which petitioner had sought to obtain during the settlement
proceedings. [
Footnote 7]
Under the circumstances which have been summarized, we must hold
that the
ex parte settlement of this state court record
violated petitioner's constitutional right to procedural due
process. We think the petitioner was entitled to be represented
throughout those proceedings either in person or by counsel.
See Powell v. Alabama, 287 U. S. 45,
287 U. S. 68;
Snyder v. Massachusetts, 291 U. S. 97,
291 U. S. 105;
compare Dowdell v. United States, 221 U.
S. 325,
221 U. S. 331;
Schwab v. Berggren, 143 U. S. 442,
143 U. S. 449;
see also Cole v. Arkansas, 333 U.
S. 196,
333 U. S. 201.
If California chose to deny petitioner's request to appear in those
proceedings
in propria persona, it then became incumbent
on the State to appoint counsel for him.
Cf. Powell v. Alabama,
supra. We cannot agree that petitioner's refusal to be
represented by counsel at the trial constituted a waiver of his
right to counsel at the settlement proceedings. [
Footnote 8] Moreover, it is at least doubtful
whether, as a matter of due process, any such waiver would be
effective to relieve the trial judge of a duty to appoint counsel
for petitioner in connection with the settlement of this record,
which was a necessary [
Footnote
9] and integral part
Page 354 U. S. 163
of the compulsory appeal provided by California in capital
cases. [
Footnote 10] We need
not decide that question, however, for the record fails to show
that petitioner ever waived his right to counsel in connection with
the settlement of the appellate record.
Nor can we regard the hearings before Judge Goodman at which
petitioner was both represented by counsel and personally present,
as curing the lack of procedural due process in the state
proceedings. Judge Goodman considered that our order of October 17,
1955, restricted the inquiry before him to the issue of whether the
settlement of the state court record had been tainted by fraud, and
that the accuracy of the record, as such, was not an issue in this
proceeding. [
Footnote 11] We
accept fully Judge Goodman's
Page 354 U. S. 164
finding that there was no fraud. Even so, the fact remains that
the petitioner has never had his day in court upon the
controversial issues of fact and law involved in the settlement of
the record upon which his conviction was affirmed.
By no means are we to be understood as saying that the state
record has been shown to be inaccurate or incomplete. All we hold
is that, consistently with procedural due process, California's
affirmance of petitioner's conviction upon a seriously disputed
record, whose accuracy petitioner has had no voice in determining,
cannot be allowed to stand. [
Footnote 12] Without blinking the fact that the history
of this case presents a sorry chapter in the annals of delays in
the administration of criminal justice, [
Footnote 13] we cannot allow that circumstance to
deter us from withholding
Page 354 U. S. 165
relief so clearly called for. [
Footnote 14] On many occasions, this Court has found it
necessary to say that the requirements of the Due Process Clause of
the Fourteenth Amendment must be respected no matter how heinous
the crime in question and no matter how guilty an accused may
ultimately be found to be after guilt has been established in
accordance with the procedure demanded by the Constitution.
Evidently it also needs to be repeated that the overriding
responsibility of this Court is to the Constitution of the United
States, no matter how late it may be that a violation of the
Constitution is found to exist. This Court may not disregard the
Constitution because an appeal in this case, as in others, has been
made on the eve of execution. We must be deaf to all suggestions
that a valid appeal to the Constitution, even by a guilty man,
comes too late because courts, including this Court, were not
earlier able to enforce what the Constitution demands. The
proponent before the Court is not the petitioner, but the
Constitution of the United States.
We have given careful consideration to the nature of the relief
to be granted. Petitioner's discharge is not to be ordered without
affording California an opportunity to review his conviction upon a
record the sufficiency of which has been litigated in proceedings
satisfying the requirements of procedural due process. Nor do we
think it will do simply to remand the case to the District Court
for an inquiry into the accuracy of the record upon which the
California Supreme Court has already acted. The task of affording
petitioner a further review of his conviction upon a properly
settled record is necessarily one for the state courts. A federal
court
Page 354 U. S. 166
is in no such position as the state courts are to determine what
inaccuracies or other facts might be decisive under state law,
particularly in view of the unusual character of the issues here
involved. We conclude, therefore, that our proper course is to
vacate the judgments of the Court of Appeals and the District Court
and to remand the case to the District Court with instructions to
enter such orders as may be appropriate to allow California a
reasonable time within which to take further proceedings not
inconsistent with this opinion, failing which the petitioner shall
be discharged.
Cf. Dowd v. United States, 340 U.
S. 206,
340 U. S.
209-210.
It is so ordered.
MR. JUSTICE BURTON dissents because he believes that, upon
consideration of all the circumstances of this case, the California
has accorded to this petitioner due process of law within the
meaning of the Constitution of the United States.
The CHIEF JUSTICE took no part in the consideration or decision
of this case.
[
Footnote 1]
239 F.2d 205. Chief Judge Denman dissented.
[
Footnote 2]
West's Ann.Cal.Codes, Penal Code, § 1239(b).
[
Footnote 3]
California Rules on Appeal, Rule 33(c), 36 Cal. 2d 28.
[
Footnote 4]
Where the making of a transcript of a civil trial becomes
impossible by reason of the death or disability of the court
reporter, the California statutes empower the trial judge to set
aside the judgment and order a new trial. West's Ann.Cal.Codes,
Code Civ.Proc., § 953e. The California Penal Code, however,
contains no comparable provision.
[
Footnote 5]
On September 16, 1948, when the appointment of the substitute
stenographer was under consideration, the Chairman of the Executive
Committee of the Los Angeles Superior Court Reporters' Association
wrote the Board of Supervisors respecting the matter, as
follows:
"We believe the purported charge against the county is not only
an exorbitant one
per se, but will reflect further adverse
publicity upon our group because we have serious doubts that any
reporter will be able to furnish a usable transcript of said
shorthand notes. Other reporters of our number have examined and
studied Mr. Perry's notes, and have reached the conclusion that
many portions of the same will be found completely indecipherable
because, toward the latter part of each court session, Mr. Perry's
notes show his illness. We feel that this should be brought to your
attention."
[
Footnote 6]
On five previous occasions, this Court had denied petitions for
certiorari filed by this petitioner.
See note 13 infra.
[
Footnote 7]
Petitioner alleges that there were other relevant circumstances
that should have been explored in the state settlement proceedings,
but could not, he asserts, be proved in the hearings before Judge
Goodman because of inability to secure records and the attendance
of witnesses from outside the Northern District of California.
[
Footnote 8]
The following statement of the petitioner at the trial, quoted
in the State's present brief, hardly supports the claim of such a
continuing waiver:
"I wish to point out that it is my intention . . . at this time
[to represent myself] and to continue to do so until such time as
it is legally established that I am not qualified to do so, and
that I will not accept a court-appointed attorney."
See Johnson v. Zerbst, 304 U.
S. 458,
304 U. S.
464.
[
Footnote 9]
See note 3
supra. In granting a certificate of probable cause for
appeal to the Court of Appeals in the present proceeding, Chief
Judge Denman noted:
"How important the California law regards this transcription [of
the trial proceedings] and certification [as to its correctness] by
the reporter is apparent from the fact that, in civil cases, the
death of the reporter before his transcription and certification
gives the trial court the discretionary power to set aside the
judgment and order a new trial. California Code of Civil Procedure,
§ 953e. By some quirk in California legislation, this does not
apply to criminal cases. However, it is obvious that if the
reporter's transcript is so important as to give the court such
power in a civil case,
a fortiori it must have such
importance in a criminal case in which, on the evidence to be
transcribed, the accused is sentenced to death. Likewise, its
importance is emphasized by the California law making the appeal
automatic from death sentences. California Penal Code, §
1239(b)."
In re Chessman, 219 F.2d 162, 164.
[
Footnote 10]
See note 2
supra. Counsel for the petitioner, whose representations
in this regard were not challenged by the State, informed us on the
oral argument that the California Supreme Court customarily
appoints counsel for the defendant when he is not otherwise
represented by counsel on an automatic appeal.
[
Footnote 11]
Judge Goodman did state, however, that he found petitioner's
claims with respect to certain alleged prejudicial comments by the
trial judge and the prosecutor to be without foundation. In the
context of the limited issue with which the judge was here
concerned, we should be slow to regard these "findings" as
possessing the same conclusiveness as if they had been made in a
proceeding where the accuracy of the record, as such, was in
issue.
[
Footnote 12]
In view of our holding, we cannot regard ourselves as concluded
by the California Supreme Court's holdings that the record on which
it acted was adequate as a matter of state law, and that, in any
event, the inaccuracies then claimed by the petitioner would not
have changed the result of his appeal. Petitioner is entitled to
have his conviction reviewed upon a record which has been settled
in accordance with procedural due process. Moreover, in holding as
it did, the state court was not aware of the facts later developed
in hearings before Judge Goodman,
see p.
354 U. S. 161,
supra, and we cannot know that those facts, and others
that might be disclosed upon an adversary hearing focused squarely
on the adequacy of the transcript, would not lead it to a different
conclusion.
[
Footnote 13]
Certainly this Court's previous denials of certiorari,
Chessman v. California, 340 U.S. 840; 341 U.S. 929; 343
U.S. 915; 346 U.S. 916; 348 U.S. 864, do not foreclose us from now
granting appropriate relief.
Brown v. Allen, 344 U.
S. 443. And it may be noted that it was not until the
present proceedings in the District Court that the facts
surrounding the settlement of the state court record were fully
developed.
[
Footnote 14]
In
Mooney v. Holohan, 294 U. S. 103,
this Court did not hesitate to deal with a claimed denial of
constitutional rights some 18 years after the petitioner had been
convicted in a state court.
See also Price v. Johnston,
334 U. S. 266,
334 U. S.
291.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE CLARK concurs,
dissenting.
I agree with the general principle announced by the Court. But I
think it is misapplied here. Its application to the facts results,
I fear, in a needless detour in a case already long drawn-out by
many appeals. [
Footnote 2/1]
I agree that, in a case like this, it matters not whether the
petitioner is guilty or innocent, whether his complaint is timely
or tardy. We should respect a man's constitutional right whenever
or however it is presented to us. My difficulty here is not with
any principle the Court
Page 354 U. S. 167
announces. My dissent is based on the conviction that, in
substance, the requirements of due process have been fully
satisfied, that to require more is to exalt a technicality.
To say that the settlement in this case was
ex parte is
to be technically accurate. But it is not to state the whole story.
Chessman was not present in court when the record was settled. Nor
was he represented there by a lawyer, for he had over and again
refused to allow a state-appointed lawyer to represent him.
Chessman, however, played an active role in the process of the
settlement of the record. The early draft prepared by Fraser, the
new reporter, was sent to him for his suggestions. That Chessman
went over this draft with a fine-tooth comb is evident from a
reading of 200 odd corrections which he prepared. Of these
proposals, about 80 were adopted, and the rest refused. [
Footnote 2/2] Some of these proposals were
specific, calling the court's attention to the use of a wrong word
or phrase. Many were not specific. Some merely said that the
reported version of certain testimony was garbled or incomplete or
inaccurate. These generalized criticisms were never made specific.
When Chessman made a generalized criticism, not once did he
indicate such and such a fact had been omitted and prejudice shown,
how an episode had been distorted and prejudice shown, where a date
or name had been confused and prejudice shown, in what material
respect an account was garbled and prejudice shown. Errors might
have been made that were minor and inconsequential or major and
fatal. From all that Chessman said to the California courts, and
from all he now says to this Court, it is impossible to conclude
that there is any important, significant prejudicial error in the
record on which the appeal in this case was taken.
Page 354 U. S. 168
Certainly we are pointed to none. Only vague assertions are
made. Not once is a finger placed on a crucial issue of the case
and a showing made or attempted that on that issue the facts were
distorted to Chessman's prejudice. The conclusion is irresistible
that Chessman is playing a game with the courts, stalling for time
while the facts of the case grow cold.
Much time is given to the fact that Fraser, the substitute
reporter, was related to the prosecutor, and to the fact that
Fraser, in reconstructing the record, talked with several witnesses
for the State. Those circumstances conceivably could give rise to
prejudice. Yet not once does Chessman say in what way the words of
a witness on a critical issue are distorted so as to cause
prejudice to Chessman's appeal. We know that there was no
connivance between the prosecutor and the substitute reporter, for
such was the finding of the District Court.
Chessman v.
Teets, 138 F. Supp. 761. And those findings are not subject to
challenge, as we limited our grant of certiorari. What we are told
-- and all that we are told -- is that Chessman should have been
present in person or by an attorney at the hearing where the record
was settled. Error is presumed because he was not present nor
represented. But we should presume just the contrary, since
Chessman had the opportunity to submit his version and indicate any
errors in the reconstructed record, and yet came up with no single
omission, distortion, falsification, mistake, or error that could
reasonably be said to be prejudicial.
A good illustration concerns the main issue on the appeal -- the
so-called confession obtained from Chessman. The confession was
held admissible by the Supreme Court of California.
People v.
Chessman, 38 Cal. 2d
166, 178-182, 238 P.2d 1001, 1008-1011. That was the main point
in the petition for certiorari brought here
Page 354 U. S. 169
in the 1951 Term. It presented the problem of the effect of
prolonged detention by the police on the voluntary character of the
confession, the type of problem presented in
Haley v.
Ohio, 332 U. S. 596;
Watts v. Indiana, 338 U. S. 49;
Turner v. Pennsylvania, 338 U. S. 62; and
Harris v. South Carolina, 338 U. S.
68. The Court denied certiorari.
Chessman v.
California, 343 U.S. 915.
In that petition, Chessman claimed what he claims now -- that he
should have had a hearing on the settlement of the record. And he
asserted that, if the transcript had been wholly accurate, it would
be obvious that the confession was involuntary, while, on the
reconstructed record, the question was more debatable.
The reconstructed record shows that Chessman was held
incommunicado about 72 hours by the police before arraignment.
During this time, he was beaten to some extent. During this time,
he was interrogated off and on by the police. Only when he had made
an oral confession was he arraigned. Not once in the earlier
petition or in the present one or in any other motion paper did
Chessman rebut the accuracy of the facts stated in the
reconstructed record. He did not, for example, allege he was held
longer than 72 hours. He did not say he was beaten more often or
more severely than the reconstructed record shows. He did not
assert that he was interrogated for longer periods, or subjected to
a greater ordeal than the reconstructed record states. Yet
certainly he knows whether he was or whether he was not.
He advances no fact, no assertion, no evidence to show that, on
this critical issue in the case -- and, in my mind, the most
important one -- the reconstructed record is distorted. I would
presume accuracy, not error, in any record from any court. I would
insist that this defendant make some showing of inaccuracy in a
material way before I would send this record back for further
reconstruction.
Page 354 U. S. 170
Only once during the long history of this case has Chessman
pointed specifically to material inaccuracy or omission in the
transcript. His charge of fraud, now set to rest by the findings of
the District Court, was predicated upon a conspiracy to have
expunged from the record certain specific remarks and instructions
of the trial court. These omissions had not been mentioned in the
long list of inaccuracies which Chessman submitted to the
California courts. And, on these contentions, Chessman has now been
given a hearing by the District Court, which found:
"8. The instructions given by the trial judge to the jury on May
21, 1948, were correctly and accurately reported in the transcript
as prepared by Fraser. The trial judge did not instruct the jury at
that time as alleged and testified to by petitioner. Petitioner's
statements in this regard are false and perjurious."
"9. The allegation in the petition that the trial judge stated
to the jury on May 21, when instructing them, that 'this defendant
is one of the worse [
sic] criminals I have had in my
court' is false and perjurious. The trial judge made no such
statement. Hence, the transcript was correct in not including such
statement."
138 F. Supp. at 765-766.
To repeat, this is not a case of a helpless man who was given no
opportunity to participate in the settlement of the record. He did
participate in a real, vivid sense of the term. A lawyer who
entered the case by appointment at this late stage would be utterly
helpless, for he would have no idea what went on at the trial. When
it came to the settlement of the record, California did all that
reasonably could be required by sending the reconstructed record to
Chessman for criticism. His
Page 354 U. S. 171
specific criticisms were often accepted. [
Footnote 2/3] His general criticisms were not. [
Footnote 2/4] Since it was in his power to
make the general criticisms specific, he was given that opportunity
which due process of law requires. Yet he declined over and again
to make the general criticisms specific, asking only that he be
present at the hearing.
The habeas corpus jurisdiction of the federal courts has been
greatly under fire in recent years. I, for one, would hate to see
it abolished or greatly curtailed by Congress. It has done high
service in the administration of justice. Not uncommonly, a case
that is here on certiorari from a state court presents only darkly
or obliquely an important constitutional issue. Perhaps, as in
Massey v. Moore, 348 U. S. 105, the
issue could not be raised at the trial. Perhaps the trial lawyer
failed to present it clearly. Perhaps only after the trial were the
full facts known. Perhaps the issue was poorly focused in the trial
court's charge. On habeas corpus, the facts can be fully
Page 354 U. S. 172
developed; and perhaps only then can the basic constitutional
defect be laid bare. Such, for example, was the situation in
Moore v. Dempsey, 261 U. S. 86;
Wade v. Mayo, 334 U. S. 672; and
Leyra v. Denno, 347 U. S. 556,
where miscarriages of justice were prevented only through the writ
of habeas corpus.
And see Pollak, Proposals to Curtail
Federal Habeas Corpus for State Prisoners: Collateral Attack on the
Great Writ, 66 Yale L.J. 50.
But the fragile grounds upon which the present decision rests
jeopardize the ancient writ for use by federal courts in state
prosecutions. The present decision states in theory the ideal of
due process. But the facts of this case cry out against its
application here. Chessman has received due process over and again.
He has had repeated reviews of every point in his case. The
question of the adequacy of the reconstructed record has been here
seven times. The question of Chessman's right to participate in the
settlement proceedings has been here at least four times. [
Footnote 2/5] Not once before now did a
single Justice vote to grant certiorari on that issue. If the
failure to let Chessman, or a lawyer acting for him, participate in
the hearing on the settlement of the record went to jurisdiction
[
Footnote 2/6] (as it must for
habeas corpus to issue), then we should have granted certiorari
when the Supreme Court of California first held, in
People v.
Chessman, 35 Cal. 2d
455, 218 P.2d 769, that the reconstructed record was a proper
record for appeal. That decision of the California Supreme Court
was announced May 19, 1950. We denied certiorari on October 9,
1950.
Chessman v. California, 340 U.S. 840. Nearly seven
years later, we return to precisely the same issue, and not only
grant certiorari but order relief by way of habeas corpus.
Page 354 U. S. 173
On Chessman's first appeal, Justice Carter and Justice Edmonds
dissented from the decision of the California Supreme Court,
stating that, in their view, the necessity to use a reconstructed
record in a capital case required a new trial.
35 Cal. 2d
455, 468-473, 218 P.2d 769, 776-780. That view, to me, makes
sense as a matter of state law. But the Court today makes no such
ruling. To order, after this long delay, a new record seems to me a
futility. It must be remembered that Chessman was convicted on May
21, 1948 -- over nine years ago. It is difficult to see how, after
that long lapse of time, the memory of any participant (if he is
still alive) would be sharp enough to make any hearing meaningful.
We meddle mischievously with the law when we issue the writ today.
We do not act to remedy any injustice that has been demonstrated.
When the whole history of the case is considered, we seize upon a
technicality to undo what has been repeatedly sustained both by the
California Supreme Court and by this Court. I would guard the
ancient writ jealously, using it only to prevent a gross
miscarriage of justice.
[
Footnote 2/1]
See the
354
U.S. 156app|>Appendix to this opinion.
[
Footnote 2/2]
These include many that relate to the crime of burglary, of
which he was acquitted.
[
Footnote 2/3]
The trial judge resolved doubts in favor of the defendant. Thus,
he ruled
"The amendment . . . is ordered as suggested by the appellant
not because the Court has any recollection of that, but to give the
appellant the benefit of the doubt in the matter."
[
Footnote 2/4]
A typical ruling by the trial court on a general objection is as
follows:
"Going over then to page 1048, lines 4 to 10, defendant makes no
suggestion as to what ought to go in there. A check with the
shorthand notes indicates that the transcription is correct. The
objection is overruled."
Occasionally the trial judge ruled as follows on an objection
that was cast in general terms:
"Page 866, nothing being pointed out which would be any
assistance to the Court in amending the transcript, the amendment
is disallowed. However, this again happens to be one of those
instances in which the testimony and the manner in which it was
given impressed themselves strongly on my mind, and I am quite
satisfied that that is a verbatim transcription of that portion of
the testimony, and is not inaccurate as asserted."
[
Footnote 2/5]
See the
354
U.S. 156app|>Appendix to this opinion.
[
Footnote 2/6]
See Johnson v. Zerbst, 304 U.
S. 458.
|
354
U.S. 156app|
APPENDIX
Before his appeal was heard by the California Supreme Court,
Chessman moved in that court for orders augmenting and correcting
the record, and for a dismissal of his automatic appeal. On May 19,
1950, the California Supreme Court granted the motion for
augmentation of the record, insofar as it sought to have added to
the transcript the
voir dire examination of jurors and the
prosecutor's opening statement. Further relief was denied.
People v. Chessman, 35 Cal. 2d
455, 218 P.2d 769. On June 12, 1950, that court denied a
petition for a writ of habeas corpus without hearing or opinion.
Chessman's
Page 354 U. S. 174
petition for a writ of certiorari to review that decision was
filed in this Court on July 31, 1950. No. 98, Misc., 1950 Term. In
the petition, Chessman urged that he had been denied due process
because he was not present at the hearing in which the trial judge
considered objections to the transcript. Certiorari was denied on
October 9, 1950.
Chessman v. California, 340 U.S. 840.
Chessman then petitioned the United States District Court for
the Northern District of California for a writ of habeas corpus and
equitable relief. On December 4, 1950, the District Court
discharged its order to show cause and dismissed the petition. On
December 27, 1950, the District Court denied Chessman leave to
appeal
in forma pauperis, and, on January 9, 1951, denied
a certificate of probable cause. On February 27, 1951, the United
States Court of Appeals for the Ninth Circuit denied a petition for
a certificate of probable cause and for leave to appeal
in
forma pauperis. On April 2, 1951, Chessman petitioned for a
writ of certiorari to review that decision of the Court of Appeals,
and for leave to file a petition for habeas corpus. No. 442, Misc.,
1950 Term. In this Court, Chessman contended that the state court
should be enjoined from deciding his pending appeal until it
granted him a full hearing on the question of the adequacy of the
record. Certiorari and the motion for leave to file petition for
writ of habeas corpus were denied on May 14, 1951.
Chessman v.
California, 341 U.S. 929.
The California Supreme Court affirmed Chessman's conviction on
December 18, 1951.
People v. Chessman, 38 Cal. 2d
166, 238 P.2d 1001. Chessman filed a petition for a writ of
certiorari on February 20, 1952. No. 371, Misc., 1951 Term. In this
Court, he claimed that he had been denied due process because of
the manner in which the record was prepared and particularly
because he had been denied an opportunity to prove his factual
contentions as to the inaccuracy of the transcript. It was also
Page 354 U. S. 175
contended that he had been denied the opportunity to prepare for
trial, that the confession introduced against him was coerced, that
the prosecution had unfairly presented its case, that his defense
had been unreasonably hampered at the trial, and that the statute
under which he was sentenced to death was unconstitutional.
Certiorari was denied on March 31, 1952.
Chessman v.
California, 343 U.S. 915. Rehearing was denied on April 28,
1952.
343 U. S. 937.
On May 19, 1952, Chessman filed a petition for writ of habeas
corpus in the United States District Court for the Northern
District of California. The District Court denied the petition
without hearing on June 9, 1952. The United States Court of Appeals
for the Ninth Circuit affirmed that decision in May 28, 1953.
Chessman v. People, 205 F.2d 128. Petition for a writ of
certiorari was filed November 9, 1953. No. 239, Misc., 1953 Term.
Here, Chessman contended that he was entitled to a hearing on his
contentions in the courts below that he was forced to go to trial
unprepared, that coerced confessions had been introduced into
evidence against him, that the prosecution and judge were guilty of
misconduct. It was alleged that some of these matters could not
have been properly determined by the California Supreme Court
because of inadequacies in the record, which, it was alleged, had
been fraudulently prepared without giving him the opportunity to
prove the inaccuracy or fraud. Certiorari was denied on December
14, 1953.
Chessman v. California, 346 U.S. 916. Rehearing
was denied on February 1, 1954. 347 U.S. 908.
On July 16, 1954, Chessman filed a petition for a writ of habeas
corpus in the Supreme Court of California. That petition was denied
July 21, 1954, without written opinion. Collateral proceedings are:
In re Chessman, 43 Cal. 2d
296, 273 P.2d 263;
In re Chessman, 43 Cal. 2d
391, 274 P.2d 645;
In re Chessman, 43 Cal. 2d
408,
Page 354 U. S. 176
274 P.2d 645, 655. Chessman's petition for a writ of certiorari
was filed August 14, 1954. No. 285, 1954 Term. He contended that
the trial transcript had been fraudulently prepared by the
prosecutor, reporter and trial judge. On October 25, 1954,
certiorari was denied "without prejudice to an application for a
writ of habeas corpus in an appropriate United States District
Court."
Chessman v. California, 348 U.S. 864.
Chessman applied to the United States District Court for the
Northern Division of California for a writ of habeas corpus on
December 30, 1954. The District Court dismissed the petition
without a hearing on January 4, 1955.
In re
Chessman, 128 F.
Supp. 600. On January 11, 1955, Chief Judge Denman of the Court
of Appeals for the Ninth Circuit granted a certificate of probable
cause for appeal.
Application of Chessman, 219 F.2d 162.
The Court of Appeals for the Ninth Circuit, sitting en banc, on
April 7, 1955, affirmed the District Court decision.
Chessman
v. Teets, 221 F.2d 276. Petition for a writ of certiorari was
filed June 30, 1955. No. 196, 1955 Term. It was alleged that
prejudicial statements of the trial judge at the trial had been
deleted from the transcript as a result of a fraudulent conspiracy
between the prosecuting attorney and the court reporter. It was
also alleged that Chessman's right to be present at the "vital
stage of the proceedings" to settle the record had been "summarily
ignored." On October 17, 1955, certiorari was granted, the judgment
of the Court of Appeals was reversed, and the case remanded to the
District Court for a hearing on Chessman's allegations of fraud.
Chessman v. Teets, 350 U. S. 3.
Hearings were ordered in the District Court, commencing January
9, 1956. Hearings were commenced on January 16, after Chessman was
granted two continuances. The hearing lasted 7 days. Finding that
there had been no fraud, and that the trial judge's statements
Page 354 U. S. 177
and instructions to the jury had been accurately reported, the
District Court discharged the writ on January 31, 1956.
Chessman v. Teets, 138 F. Supp. 761. The Court of Appeals
affirmed on October 18, 1956.
Chessman v. Teets, 239 F.2d
205. Rehearing was denied on November 20, 1956. Chessman's seventh
petition for a writ of certiorari was filed on February 1, 1957.
No. 566, Misc., 1956 Term.
* We granted
certiorari, limiting it to the question whether Chessman's failure
to be represented in person or by counsel at the settlement
proceedings deprived him of due process of law, thus excluding
review on the issue of fraud.
See 353 U.S. 928.
* Other reported proceedings in connection with Chessman's case
are as follows:
People v. Superior Court and
In re
Chessman, 273 P.2d 936 (Cal.Dist.Ct. of App. 1954);
In re
Chessman and
People v. Superior Court, 44 Cal. 2d 1,
279 P.2d 24 (1955).
And see the opinion of Judge Hamley,
below. 239 F.2d 200-210, n. 2.