In an Indiana State Court, respondent was convicted of murder
and sentenced to death. After an unsuccessful appeal, he filed in
the Trial Court a petition for writ of error coram nobis.
After a hearing, at which respondent was represented by the Public
Defender, that Court denied relief. Respondent requested the Public
Defender to represent him in perfecting an appeal to the Indiana
Supreme Court, but the Public Defender refused because he believed
that an appeal would be unsuccessful. Respondent next applied to
the Trial Court for a transcript of the coram nobis
hearing and the appointment of counsel to perfect an appeal, but
this was denied. The Supreme Court of Indiana refused to order the
Trial Court to grant petitioner's request for a transcript and
appointment of counsel, on the ground that, under Indiana law, an
appeal from denial of a writ of error coram nobis
perfected only by filing in the State Supreme Court a transcript of
the hearing, and such transcript can be obtained for an indigent
only by the Public Defender. Respondent applied to a Federal
District Court for a writ of habeas corpus.
Indiana has deprived respondent of a right
secured by the Fourteenth Amendment by refusing him appellate
review of the denial of writ of error coram nobis
because of his poverty. Pp. 372 U. S.
302 F.2d 537, judgment vacated and cause remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The respondent, George Robert Brown, is in an Indiana prison
under sentence of death. He is an indigent.
Page 372 U. S. 478
In a federal habeas corpus proceeding, the District Court held
that Indiana has deprived Brown of a right secured by the
Fourteenth Amendment by refusing him appellate review of the denial
of a writ of error coram nobis
solely because of his
poverty. 196 F. Supp. 484. The Court of Appeals affirmed. 302 F.2d
537. We agree that the Indiana procedure at issue in this case
falls short of the requirements of the Fourteenth Amendment of the
United States Constitution.
In the administration of its criminal law, Indiana seems to have
long pursued a conspicuously enlightened policy in the quest for
equal justice to the destitute, and it is not without irony that
the constitutional problem in this case stems from legislation
evidently enacted to enlarge that State's existing system of aid to
the indigent. For more than a hundred years, the Indiana
Constitution has guaranteed the assistance of counsel to every
defendant in a criminal trial. [Footnote 1
] This right has been extended to include the
right of an indigent to consult with a lawyer prior to arraignment,
] as well as the
right to be represented by counsel on appeal from a criminal
conviction. [Footnote 3
] It has
also been established for more than a century in Indiana that a
poor person appealing a criminal conviction may secure a transcript
of the trial record without
Page 372 U. S. 479
cost. [Footnote 4
] In 1945,
the Indiana Legislature enacted the so-called Public Defender Act,
a law to deal with the problem of providing legal assistance to
indigent prisoners in postconviction proceedings. It is the
operation of the provisions of this law, as interpreted by the
Supreme Court of Indiana, which we find constitutionally deficient
in the present case.
The 1945 legislation created the office of Public Defender, to
be appointed by the State Supreme Court, [Footnote 5
] and, as later amended, authorized him to
employ "such deputies, stenographers or other clerical help as may
be required to discharge his duties. . . ." [Footnote 6
] The provisions of the law which are at
the root of the problem in the case before us are those which
define the Public Defender's
Page 372 U. S. 480
basic duties and which authorize him to order hearing
transcripts, or their equivalent at public expense:
"It 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.
"The public defender may order on behalf of any prisoner he
represents a transcript of any court proceeding, including evidence
presented, had against any prisoner, and depositions, if necessary
at the expense of the state, but the public defender shall have
authority to stipulate facts contained in the record of any court,
or the substance of testimony presented or evidence heard involving
any issue to be presented on behalf of any prisoner, without the
same being fully transcribed. [Footnote 8
The rules of the Indiana Supreme Court expressly permit an
appeal from the denial of a writ of error coram nobis,
also require that a transcript be filed in order to confer
jurisdiction upon the court to hear such an appeal. [Footnote 9
] The Indiana court has held that,
Page 372 U. S. 481
above-quoted provisions of the Public Defender Act, only the
Public Defender can procure a transcript of a coram nobis
hearing for an indigent; an indigent cannot procure a transcript
for himself and appeal pro se,
nor can he secure the
appointment of another lawyer to get the transcript and prosecute
the appeal. State ex rel. Casey v. Murray,
231 Ind. 74,
; Jackson v. Reeves,
238 Ind. 708, 153 N.E.2d
; Willoughby v. State,
177 N.E.2d 465. The upshot
is that a person with sufficient funds can appeal as of right to
the Supreme Court of Indiana from the denial of a writ of error
but an indigent can, at the will of the
Public Defender, be entirely cut off from any appeal at all.
The impact of this system is fully illustrated by the history of
the present case. Brown was convicted of murder in an Indiana trial
court and sentenced to death. The conviction was affirmed on
appeal, Brown v. State,
239 Ind. 184, 154 N.E.2d
, and this Court denied a petition for a writ of certiorari.
361 U.S. 936. Thereafter, Brown filed in the Federal District Court
an application for habeas corpus which was dismissed because of
failure to exhaust available state remedies. Brown then filed a
petition for a writ of error coram nobis
in the state
trial court. After a hearing at which Brown was represented by the
Public Defender, the court denied relief. Brown requested the
Public Defender to represent him in perfecting an appeal to the
Indiana Supreme Court. This request was refused because of the
Public Defender's stated belief that an
Page 372 U. S. 482
appeal would be unsuccessful. [Footnote 10
] Brown next applied to the state trial court
for a transcript of the coram nobis
hearing and the
appointment of counsel to perfect an appeal. This application was
denied. The Supreme Court of Indiana refused to order the trial
court to grant the petitioner's request for a transcript and
appointment of counsel, stating:
"Under the circumstances presented, the public defender was
under no duty to request a transcript of the proceedings in error
and, in the absence of a request from said
office, the trial court was under no duty to provide a certified
copy of said proceedings at public expense."
Brown v. Indiana,
241 Ind. 298, 302, 171 N.E.2d
, 827. Brown again sought a writ of certiorari in this
Court, and his petition was again denied, "without prejudice to an
application for a writ of habeas corpus in the appropriate United
States District Court. . . ." 366 U.S. 954.
Brown finally instituted in the Federal District Court the
habeas corpus proceedings we now review. His petition alleged, in
addition to four substantive grounds for relief, [Footnote 11
"That Relator has been denied equal protection of
Page 372 U. S. 483
the law in that he was effectively denied an appeal from the
Order of the Lake County, Indiana Criminal Court, denying his
petition for writ of error coram nobis
because of his
poverty and inability to secure a transcript, which right of appeal
is available to all defendants in Indiana who can afford the
expense of a transcript."
The court, directing its attention only to this last issue, held
"that the actions of the State of Indiana have denied petitioner
equal protection of the laws," and ordered that Brown "be given a
full, appellate review of his Coram Nobis
90 days or such additional time as the court might thereafter
determine. 196 F.
Supp. at 488
. Upon the failure of Indiana to provide such a
review, the District Court ordered Brown's discharge from custody,
but granted a stay pending appellate review. The Court of Appeals
affirmed the District Court's judgment, directing, however, that
Brown continue to be held in custody pending final disposition of
the case by this Court. 302 F.2d at 540.
Both the District Court and the Court of Appeals were of the
opinion that the issue in the present case is controlled by recent
decisions of this Court which have held constitutionally invalid
procedures of other States found substantially to deny indigent
defendants the benefits of an existing system of appellate review.
We are in complete agreement.
In Griffin v. Illinois, 351 U. S.
, the Court held that a State with an appellate system
which made available trial transcripts to those who could afford
them was constitutionally required to provide "means of affording
adequate and effective appellate review to indigent defendants."
at 351 U. S. 20
"Destitute defendants," the Court held, "must be afforded as
adequate appellate review as defendants who have money enough to
buy transcripts." Id.
at 351 U. S. 19
Burns v. Ohio, 360 U. S. 252
involving a $20 fee for filing a motion for leave to appeal a
Page 372 U. S. 484
conviction to the Supreme Court of Ohio, this Court reaffirmed
doctrine, saying that,
"once the State chooses to establish appellate review in
criminal cases, it may not foreclose indigents from access to any
phase of that procedure because of their poverty. . . . This
principle is no less applicable where the State has afforded an
indigent defendant access to the first phase of its appellate
procedure but has effectively foreclosed access to the second phase
of that procedure solely because of his indigency."
at 360 U. S. 257
In Smith v. Bennett, 365 U. S. 708
Court made clear that these principles were not to be limited to
direct appeals from criminal convictions, but extended alike to
state postconviction proceedings. "Respecting the State's grant of
a right to test their detention," the Court said, "the Fourteenth
Amendment weighs the interests of rich and poor criminals in equal
scale, and its hand extends as far to each." Id.
365 U. S. 714
In Eskridge v. Washington Prison Board, 357 U.
, the Court held invalid a provision of
Washington's criminal appellate system which conferred upon the
trial judge the power to withhold a trial transcript from an
indigent upon the finding that
"justice would not be promoted . . . in that defendant has been
accorded a fair and impartial trial, and in the Court's opinion no
grave or prejudicial errors occurred therein."
at 357 U. S. 215
There, it was said that
"[t]he conclusion of the trial judge that there was no
reversible error in the trial cannot be an adequate substitute for
the right to full appellate review available to all defendants in
Washington who can afford the expense of a transcript."
at 357 U. S.
The present case falls clearly within the area staked out by the
Court's decisions in Griffin, Burns, Smith,
To be sure, this case does not involve, as did
a direct appeal from a criminal conviction, but
makes clear that the Griffin
applies to state collateral proceedings, and Burns
Page 372 U. S. 485
that the principle applies even though the State has already
provided one review on the merits.
the Court held constitutionally invalid a
provision which permitted a trial judge to prevent an indigent from
taking an effective appeal. The provision before us confers upon a
state officer outside the judicial system power to take from an
indigent all hope of any appeal at all. Such a procedure, based on
indigency alone, does not meet constitutional standards. [Footnote 12
] We have no doubt that
Indiana, with its historic concern for equal justice under law,
will find no practical difficulty in correcting the constitutional
deficiency which this case exposes.
The judgments of the Court of Appeals and of the District Court
are vacated, and the case remanded to the latter, so that
appropriate orders may be entered ordering Brown's discharge from
custody, unless, within a reasonable time, the State of Indiana
provides him an appeal on the merits to the Supreme Court of
Indiana from the denial of the writ of error coram
It is so ordered.
Ind.Const. Art. 1, § 13 (1851). In 1854, the Supreme Court of
"It is not to be thought of, in a civilized community, for a
moment, that any citizen put in jeopardy of life or liberty should
be debarred of counsel because he was too poor to employ such aid.
No Court could be respected, or respect itself, to sit and hear
such a trial."
Webb v. Baird,
6 Ind. 13, 18. (Quoted in the dissenting
opinion in Betts v. Brady, 316 U.
at 316 U. S.
Batchelor v. State,
189 Ind. 69, 125 N.E. 773
State ex rel. White v. Hilgemann,
218 Ind. 572, 34
N.E.2d 129 (1941); State ex rel. Grecco v. Allen Circuit
238 Ind. 571, 575, 153 N.E.2d
, 916 (1958). But see State ex rel. Macon v. Orange
243 Ind. 429, 185 N.E.2d
Falkenburgh v. Jones,
5 Ind. 296 (1854); State ex
rel. Morris v. Wallace,
41 Ind. 445 (1872). Since 1893, the
right to a transcript has been conferred by statute. Burns'
Ind.Ann.Stat.1946, § 4-3511.
"There is hereby created the office of Public Defender. The
public defender shall be appointed by the Supreme Court of the
state of Indiana to serve at the pleasure of said court, for a term
of four (4) years. He shall be a resident of the state of Indiana,
and a practicing lawyer of this state for at least three (3) years.
The Supreme Court is authorized to give such tests as it may deem
proper to determine the fitness of any applicant for
Indiana Acts 1945, c. 38, § 1, Burns' Ind.Ann.Stat.1956, §
"The public defender shall be paid an annual salary to be fixed
by the supreme court of this state. He may, with the consent of
said court, appoint or employ such deputies, stenographers or other
clerical help as may be required to discharge his duties at
compensation to be fixed by the court. He shall be provided with an
office at a place to be located and designated by the Supreme
Court, and he shall be paid his actual necessary and reasonable
traveling expenses, including cost of food and lodging when away
from the municipality in which his office is located on business of
the office of the public defender, and he shall be provided with
office furniture, fixtures and equipment, books, stationery,
printing services, postage and supplies."
Indiana Acts 1945, c. 38, § 4, as amended, Burns'
Ind.Ann.Stat.1956, § 13-1404.
Indiana Acts 1945, c. 38, § 2, Burns' Ind.Ann.Stat.1956, §
Indiana Acts 1945, c. 38, § 5, Burns' Ind.Ann.Stat.1956, §
"Rule 2-40 of this court, 1958 Edition, provides, in relevant
" An appeal may be taken to the Supreme Court from a judgment
granting or denying a petition for a writ of error coram
The sufficiency of the pleadings and of the evidence to
entitle the petitioner to a vacation of the judgment will be
considered upon an assignment of error that the finding is contrary
to law. The 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 within ninety (90) days
after the date of the decision. The provisions of the rules of this
court applicable to appeals from final judgments shall govern as to
the form and time of filing briefs."
McCrary v. State,
241 Ind. 518, 533-534, 173 N.E.2d
"Rule 2-6 of this court, 1958 Edition, provides, in relevant
" There shall be attached to the front of the transcript,
immediately following the index, a specific assignment of the
errors relied upon by the appellant in which each specification of
error shall be complete and separately numbered."
241 Ind. at 533, 173 N.E.2d at 307.
"After a careful review of your hearing had on June 1 on your
petition for Writ of Error Coram Nobis in the Criminal Court of
Lake County, will advise that I am unable to find any error or
errors that would have any merit to assign upon an appeal;
therefore, I am hereby informing you that my office will not appeal
the judgment denying your Petition for Writ of Error Coram
"(1) Inadequate representation by court-appointed counsel at his
trial in Lake County, Indiana Criminal Court."
"(2) Procurement by State authorities of a confession from
petitioner through fear produced by threats and prolonged
questioning during an illegal detention."
"(3) Admission of confession before proof of the corpus
"(4) Admission into evidence of exhibits and testimony of
petitioner's prior commitment to a mental institution and crimes of
rape and attempted rape alleged to have been committed by the
We do not deal here with a preliminary screening procedure
applicable alike to all coram nobis
appeals. Nor need we
determine in this case what procedural measures Indiana might
constitutionally take to reduce the public expense of indigents'
appeals. See Griffin v. Illinois,
351 U.S. at 351 U. S.
Separate opinion of MR. JUSTICE HARLAN, in which MR. JUSTICE
I think it falls short of the requirements of due process for a
State to foreclose an indigent from appealing in a case such as
this at the unreviewable discretion of a Public Defender by whom,
or by whose office, the indigent has been represented at the trial.
It ignores the human equation not to recognize the possibility that
Page 372 U. S. 486
Defender, so circumstanced may decide not to appeal questions
which a lawyer who has had no previous connection with the case
might consider worthy of appellate review. (I do not of course
remotely intimate that such is the situation here.)
Were it clear that the decision of this Public Defender not to
appeal had been subject to judicial review at the instance of the
prisoner, I should have voted to sustain this conviction. However,
the State Attorney General has candidly informed us that the
Indiana law is unclear on this score.
Accordingly, while agreeing with the Court's action in remanding
this case, I would instruct the District Court to discharge the
prisoner only if the Indiana Supreme Court fails, within a
reasonable time, to accord him a review of the Public Defender's
decision not to appeal the denial of coram nobis.